Mrs. Rita Okoye V. Mr. Frank Tobechukwu & Anor (2016)

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MISITURA OMODERE BOLAJI-YUSUFF, J.C.A.

 This appeal emanated from the judgment of the High Court of Anambra State delivered in Suit No. O/138/2005 by Honourable Justice Vin Agbata on 20th April, 2009. The 1st respondent instituted the suit against the 2nd respondent and claimed the following reliefs:
a. ?A declaration that the plaintiff is the person entitled to the said low density, Plot No. 24 Block 11 Site B, Site and Services Scheme Trans Nkisi Onitsha Anambra State.
b. N5,000,000.00 (Five Million Naira) damages for trespass.
c. A perpetual injunction restraining the defendant, the agents, privies, cohorts and workmen from trespassing or further trespassing on the said low density Plot 24 Block 11 Site B, Site and Services Scheme Trans Nkisi Onitsha or in any other manner disturbing or interfering with the plaintiffs possession of the said land.?

Judgment was entered in favour of the 1st respondent. The appellant herein was not a party to the suit at the Court below. In the suit at the lower Court the 2nd respondent claimed that the land in dispute was not allocated to

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him. He did not mention the name of the person to whom the land was allocated. He claimed that the 1st respondent knew the person to whom the land was allocated. The appellant herein is now claiming that the land was allocated to her. She sought and obtained the leave of this Court to appeal against the said judgment as an interested party on 10th October, 2014. She then filed a notice of appeal containing three grounds of appeal on 23rd October, 2014. The grounds of appeal without their particulars are reproduced below:
GROUND I: ERROR IN LAW
?The learned trial judge erred in law and came to a wrong decision which occassioned a gross miscarriage of justice when he held thus:
?In my most humble opinion the above cannot by any stretch of imagination, be considered a defence to the formidable case which was made out by the Plaintiff, since the Defendant has admitted, that the land in dispute does not belong to him, he has nothing to lose if the Court declares the Plaintiff the owner thereof.?
GROUND II: ERROR IN LAW
The learned trial judge erred in law and came to a wrong decision which occassioned a gross miscarriage

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of justice when he failed to consider and evaluate the facts pleaded and the evidence led by the Defendant/Respondent that the land in dispute was allocated to a third party by the Federal Ministry of Works and Housing long before the alleged site was proposed and executed, and that the third party had long erected a structure and put tenants therein.
GROUND III:
The judgment is against the weight of evidence.

The appellant?s brief of argument was filed on 19th December, 2013. The 1st respondent?s brief of argument was filed on 15th May, 2014 and deemed as properly filed and served on 24th September, 2014. The appellant?s reply brief was filed on 8th October, 2014. The 2nd respondent did not file brief of argument. The appeal was set down for hearing without the 2nd respondent?s brief pursuant to the appellant?s application to so do.
?
The appellant?s counsel formulated 2 issues for determination. The issues are:
1. ?Whether the learned trial judge was right in making declaration of title to the disputed land in favour of the 1st respondent based on the admission of the 2nd

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respondent that the land does not belong to him.
2. Whether facts pleaded and evidence led in the suit was properly evaluated by the lower Court.?

The 1st respondent formulated one issue for determination. The issue is:
?Whether the appellant has made out a case for the setting aside of the judgment of the Court below?

I have considered the entire grounds of appeal and the issues formulated by counsel to both parties, I am of the humble view that the sole issue which calls for determination in this appeal is whether the judgment of the lower Court is against the weight of the evidence adduced. The appellant?s counsel submitted that in a case for declaration of title such as the instant case, the plaintiff has the burden to adduce credible evidence to proof his claim and must succeed on the strength of his case and not on the weakness or admission of the defence as declaration of title is not granted based on the admission or consent of the defendant. He referred to OWHONDA V. EKPECHI (2003) 17 NWLR (PT. 849) PAGE 326, SHOSHAI GAMBO V. ZINDUL TURDAM (1993) 6 NWLR (PT. 300) PAGE 500 AT 509, OKONKWO VS. OKEKE (2002)11

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NWLR (PT.777) PAGE 1 AT 29-30 (G-B).

Counsel further submitted that the learned trial judge failed in its duty to consider and evaluate the evidence led by the parties before making a declaration in favour of the 1st respondent based on the admission of the 2nd respondent that the land does not belong to him. It is submitted that the conclusion reached by the Court below is against the weight of evidence and the Court failed to properly evaluate and weigh the evidence led on both sides in order to observe where the evidence preponderates. He referred to AYUYA V. YORIN (2011) ALL FWLR (PT. 583) 1842 AT 1861 (B ? E) to show the circumstances in which the Court of Appeal would interfere and intervene in the evaluation of evidence by the trial Court. According to counsel, if the learned trial judge had correctly and properly evaluated the evidence led, he would have observed that the 1st respondent failed to prove his case on the balance of probabilities.
?
In response, the 1st respondent?s counsel submitted that the appellant has no single evidence before the Court to be weighed against the evidence of the 1st respondent. Therefore she cannot be

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heard to complain that the judgment is against the weight of evidence. Counsel submitted that an appellate Court will not ordinarily interfere with the findings of facts made by the trial Court unless it is shown that the finding or the judgment is perverse or that it is not supported by evidence or that the trial Court had drawn erroneous conclusion(s) from the accepted evidence. It is submitted that the appellant has not shown how the judgment of the trial Court has failed any of the above criteria to warrant its being set aside. He urged the Court to dismiss the appeal for lacking in merit.

In his reply, the appellant?s counsel submitted that where the Court below has failed in its duty to properly evaluate evidence or make findings on issues canvassed before the Court, the appellate Court will perform that duty.

RESOLUTION:
The complaint of the appellant in respect of the evaluation of evidence led at the Court below is twofold. The first is that the learned trial judge failed to evaluate the evidence led but based his judgment on the 2nd respondent?s admission. The suit at the Court below was between the 1st and 2nd

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respondent. Once the 2nd respondent admitted that the land in respect of which he was sued does not belong to him that was the end of the story. There was nothing left for the Court below to consider because there was no dispute between the respondents. See BUNGE V. GOV., RIVERS STATE (2006) 12 NWLR (PT. 995) PAGE 573 AT 599(B-C) where the Supreme Court stated thus:
?It is of cardinal importance in civil litigations to bear in mind that when parties have in their pleadings agreed on some facts, there is no issue in dispute between them on such agreed matters. In Chief OKPARAEKE & ORS. V. OBIDIKE EGBUONU & ORS. (1941) 7 WACA 53 AT 55, the West African Court of Appeal made the point in these words;
?The identity was one of the agreed facts in the case; it was relied upon by both parties in their pleadings, and since one of the objects of pleadings is to shorten proceedings by ascertaining what facts are agreed so that evidence need not to be led to prove them, the Court should have accepted this agreed fact as established without proof.?
?
Though the 2nd respondent stated that the 1st respondent knew the owner of the land

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in dispute which he referred to as plot 448 but chose to sue him, he did not state the identity of the alleged owner of the land. In any case, the law is settled that a party in a land dispute cannot rely on the title of a third party unless he is claiming by or on the strength of such title which is not the case here. With the admission of the 2nd respondent that the land was not allocated to him, there was no dispute or issue (s) for the learned trial judge to settle. This is not a case of granting title to land based on admission of the defendant stricto senso, the situation here is that the case of the 1st respondent was unchallenged. The Court has the power to ignore the irrelevant issue raised by the 2nd respondent. The learned trial judge in my humble view rightly identified the crux of the matter before it and focused on same when he held that:
?At the end of the respective cases for the parties both counsel addressed the Court extensively, I have carefully considered the pleadings of the parties together with the evidence adduced with rapt attention the submission of the Counsel with respect thereof. The issue in controversy, in this suit,

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seems to me to be, as between the plaintiff and the defendant who is the rightful allottee of the disputed portion of land.?

The second part of the appellant?s complaint is that the learned trial judge failed to properly evaluate and weigh the evidence led on both sides to find out which side the evidence preponderates. In AYUYA & ORS. V. YORIN & ORS. (2011) 10 NWLR (PT. 1254) 135 AT 162 (A ? E), the Supreme Court stated how a trial Court should evaluate evidence in civil matter as follows:
?It is settled that it is the primary duty of the trial Court to evaluate the evidence produced by the contending parties in support of their contentions before arriving at its decision one way or the other. It does so by putting the totality of the acceptable testimony adduced by both parties on an imaginary scale with the evidence of the plaintiff on one side while that of the defendant is put on the other side. The Court then weighs them together to see which is heavier, not by the number of witnesses called by each party but by the quality or probative value of the testimony of those witnesses ? See SHAT JNR V. KWAM

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(2000) 8 NWLR (PT. 670) 685. Where, however the trial Court abdicates this sacred duty or when it demonstrates that it had not taken proper advantage of having heard and seen the witnesses testify, the matter i.e. evaluation of evidence, becomes at large for the appellate Court to carry out, See ROMAINE V. ROMAINE (1992) 4 NWLR (PT. 238) 650; AKINOLA V. OLUWO (1962) 1 SCNLR 253; ABBA V. OGODO (1984) 1 SCNLR 372. Where however the evidence which the trial judge failed or neglected to evaluate is a document tendered as Exhibit which does not involve the demeanour of the witnesses then it is settled law that an appellate Court is in as good a position to evaluate the evidence and come to its own decision.?
?
In the instant appeal, the 1st respondent called three witnesses who testified and tendered several documents. The appellant is relying entirely on the evidence led by the 1st and 2nd respondents. Therefore, the question of putting the appellant?s evidence and the 1st respondent?s evidence on the imaginary scale of justice does not arise. The law is settled that where there is no evidence to put on one side of the imaginary scale in a

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civil case, the burden of proof is discharged on a minimal proof. See OGUNJUMO V. ADEMOLU (1995) 4 NWLR (PT. 389) 254. The contention of the appellant that the learned trial judge did not evaluate the evidence led by both sides to know where the evidence preponderates is totally misconceived in the circumstances of the instant case.

Even if it is correct that the learned trial judge should have considered the evidence led by both parties at the Court below notwithstanding the admission of the 1st respondent that the land was not allocated to him, failure of a trial Court to evaluate the evidence adduced does not automatically lead to a reversal or setting aside of the judgment. This is because the law is settled that where a trial Court failed or neglected to evaluate evidence led which consists mainly of documents and which does not involve the demeanour or credibility of witnesses, an appellate Court is in as good a position as the lower Court to evaluate the evidence and come to its own decision. See AYUYA VS. YORIN (SUPRA), NTEOGWUILE V. OTUO (2001) 16 NWLR (PT. 738) 58, ODUTOLA & ORS. V. MABOGUNJE & ORS. (2013) LPELR ? 19909 (SC), MOMOH

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& ORS. V. UMOARU & ORS. (2011) LPELR ? 8130 (SC). The appellant confirmed that the evidence led in this case is totally documentary evidence. Therefore this Court is in as good position as the learned trial judge to evaluate the evidence adduced, make findings and reach its own decision.

?The 1st respondent tendered twelve exhibits. Exhibit P3 is the letter by which Plot 24, Block 11 Trans Nkisi Site B (Low Density) was allocated to Frank Tobechukwu by the Federal Ministry of Works and Housing. Exhibit P4 is the receipt issued to him in acknowledgement of the payment of the requisite fee. Exhibits P5B and P6A are the building plan and the letter of approval by the Ministry of Works in respect of the building that the 1st respondent intends to construct on the land. Exhibit P9 is the survey plan of the land. Exhibit P11 is the layout plan of Akpaka Forest Reserve, Onitsha which shows plot 24 Block 11 within site ?B? and it is verged red. There is no counter plan or another layout plan showing that the land in dispute is plot 448. The 1st respondent called PW3 who was the Zonal Town Planning Officer of the Federal Ministry of Works,

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Housing and Urban Development, Field Headquarters, Awka, Anambra State to testify on the allocation of the land. He stated that he was in Court in response to the subpoena issued and served on the Controller of the Ministry which was passed to him. He tendered the subpoena as Exhibit P10. He confirmed in his statement on pages 126 ? 129 of the record of appeal that the land in dispute is Plot 24 Block 11 , Site B, Low Density of Trans Nkisi Layout, Onitsha. He narrated in detail how site B in the scheme came into existence. He confirmed that plot 24 Block 11 was allocated to the 1st respondent. He also confirmed that plot 448 Block XVIII is among the forged allocation letters carried out by syndicates for which the Ministry made the publication of 1st October, 1999 in the Daily Champions Newspaper, cancelling such false allocation letters. The publication was tendered as Exhibit P6. Under cross-examination, he said there was allocation of plots in Site A in 1992. Plots 447 and 448 were allocated in 1992 in site A. He could not remember the names of the allotees. He said the publication of 1st October, 1999 shows that plots 447 and 448 were allocated in

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Block XVIIIA site A.

I have examined Exhibit 6, it shows that plots 447 and 448 in Block XVIIIA were allocated to Chinwe E. Okeke and Godwin Ogwueleka respectively. That according to Exhibit P6 was the authentic list of allotees. No other letter of allocation was tendered to challenge Exhibits P3 and P4. The evidence clearly shows that any allocation of plot 448 to any other person apart from the persons listed in Exhibit P6 was not genuine and is among those cancelled. Thus all the relevant documents relating to the allocation of the land in dispute to the 1st respondent remained unchallenged and uncontroverted. Though it is not mandatory to call a grantor or his representative or privy as a witness, where there are two rival claimants who are claiming a grant by the same grantor, the evidence of the grantor becomes necessary particularly where the grantor is available and can be called as a witness. The imaginary scale of justice tilts in favour of the party that calls the grantor and whose grant is confirmed by the grantor and supported by credible documentary evidence where available. In this case, the grantor confirmed the grant to the 1st

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respondent and denied the alleged grant to any other person and backed it with documentary evidence. The question of his evidence out weighing the evidence of the appellant does not even arise since the appellant placed nothing before the Court. There is absolutely no evidence to put on the other side of imaginary scale. The bundle of documents tendered as Exhibit D3 has nothing to do with the land in dispute which the 2nd respondent referred to as Plot 448 but confirmed by PW3 to be Plot 24, Block 11, Site B on the layout. The entire story of the alleged allocation to the appellant is contained in the address of the appellant?s counsel. It is settled law that argument(s) contained in a written address of counsel no matter how brilliant does not constitute evidence upon which the Court can act. The fact of the alleged allocation to the appellant was not proved or tested by cross-examination in Court. It is not substantiated in any way. The mere assertion or bare allegation that the land belong to a third party fell far short of the required proof.

?Before I conclude this judgment, there are two important issues which need clearance. The first is the

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competence of this appeal and the right of the appellant to file same. I deliberately ignored the arguments of the 1st respondent?s counsel on that issue because the appellant sought for and obtained the leave of this Court to appeal against the judgment as an interested party affected by the judgment. All the arguments of the 1st respondent?s counsel were supposed to be canvassed against the application for leave. The only option opened to the 1st respondent was to appeal against the grant of leave and not to re-open the issue in respect of which this Court has become functions officio. Secondly, there is no preliminary objection to this appeal on that ground. Yet the 1st respondent?s counsel dissipated so much energy on the issue. An appellate Court must confine itself to relevant issues properly raised before it.
?
The second point is the alleged wrongful admission of Exhibit P12. On page 383 of the record of appeal, it is shown that when the document was tendered, the 2nd respondent?s counsel raised objection and the objection was overruled. There is no appeal against that ruling. The law is settled that a finding, holding or

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ruling of a Court against which there is no appeal remains binding and conclusive. See HASKE V. MAGAJI (2008) LPELR ? 8330 (CA). Since there is no appeal against the admission of Exhibit P12, the argument and the request to expunge the document from the record are not cognizable. Even if the contention of the appellant is upheld and exhibit P12 is expunged from the record, there is still abundance of evidence on record in support of the 1st respondent?s claim. The appellant?s counsel emphasized the failure of the 1st respondent to tender a master list of allotees of land at site B and submitted that the failure amount to withholding evidence under Section 167 (d) of the Evidence Act, 2011 because if the list had been tendered it would have shown that the 1st respondent?s name is not in the list. It is not the law that a party must produce and tender every document pleaded by him. The only duty a party has is to produce enough material and relevant evidence, either oral or documentary that satisfies the Court that he is entitled to his claim or to defeat the claim against him. The provision of Section 167 (d) of the Evidence Act that

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evidence which could be and is not produced would, if produced be unfavourable to the person who withholds it would apply to only relevant and material evidence which would have effect or influence on the decision of the Court. The provision would not apply where the evidence is not shown to be in possession of a party or that it would have affected or influenced the decision of the Court.

In the instant case, it has not been shown that the master list is in possession of the 1st respondent and PW3 confirmed in his evidence in chief that he had the complete list of the allotees with him in Court for citing by the Court and counsel if necessary. If the appellant or 2nd respondent knew it is material to their case, they had the golden opportunity to demand and tender it through PW3 but they did not so do.
?
I have considered the entire evidence on record, even without the admission of the 2nd respondent, there is abundance of cogent and credible evidence on record in support of the 1st respondent?s claim. The bare assertion of the 2nd respondent that the land was allocated to a third party and the appellant?s assertion in her brief of

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argument that the land was allocated to her are of no assistance to the appellant. This appeal totally lacks merit and it is hereby dismissed. The judgment of the High Court of Anambra State delivered in suit No. O/138/2005 by Hon. Justice Vin. Agbata on 20th April, 2009 is hereby affirmed. There shall be N100,000.00 (One hundred thousand naira) costs in favour of the 1st respondent only and against the appellant.

Other Citations: (2016)LCN/8767(CA)