Okiugbedi Edjekpo & 2 Ors V Iboyi Ithibri Osia & 3 Ors (2007)
LAWGLOBAL HUB Lead Judgment Report
I. KATSINA-ALU, J.S.C
This is an appeal against the judgment of the Court of Appeal, Benin Division, delivered on 4 April, 2001 in which the Court of Appeal ordered that the suit be remitted to the Delta State High Court for retrial.
This is a land matter. The appellants as plaintiffs in suit No. UHC/12175 brought this action for themselves and on behalf of Uri the Quarters Enwhe Town, for declaration of title to Eto Land, N600.00 damages for trespass and an order of perpetual injunction.
The respondents herein filed a cross action as plaintiffs against the appellants in suit No. UHC/19175 for declaration of title to Uri land of Uluthe Quarters of Enwe, N 1,200.00 damages for trespass and perpetual injunction. The two suits were consolidated by an order of the trial court made on 12 November, 1976. By the said order of consolidation, the appellants became the plaintiffs while the respondents became defendants.At the hearing the appellants called five witnesses while the respondents also called five witnesses in SUPPORT of their respective claims. At the close of hearing, the learned trial Judge found for the appellants. The respondents appealed to the Court of Appeal upon the following two issues:
“(a) Whether the decision of the trial court can be supported in the face of the unresolved conflicts between the findings and the final decision of the court
(b) Whether the absence of the testimonies of defence witnesses 1, 2, 3 and 4 following the reported loss of court records book in which they were recorded will not deprive the Court of Appeal the privilege and or opportunity of viewing the entire proceedings of the trial court as to be in a position to agree and or disagree with the findings and or subsequent decision of the trial Court.”
The Court of Appeal upheld the appeal of the respondents and ordered a re-trial of the suit. This appeal is from the decision of the Court of Appeal.
Both parties filed their respective briefs of argument. The appellants raised five issues for determination. They read as follows:
- Were the learned Justices right in law in dismissing the preliminary objection as to the validity and or competence of the second additional ground of appeal and the issue formulated therefrom
- Were the learned Justices right in holding that the learned trial Judge made an inconsistent finding when he found that defendant did not prove extent and boundary of the land claimed by them.
- Were the learned Justices right in holding that the principle that claimants to title to land are in duty bound to prove the extent and boundary of the land claimed by them for which three (3) cases were cited – was not an issue in the case
Were the learned Justices right in law in setting aside the judgment of the learned trial Judge and ordering a rehearing – put in another way, is a rehearing an appropriate order to make in this case
Were the learned Justices right in setting aside the judgment of the trial court on the ground that evidence
of DWI-4 were missing from the records when –
(a) Judgment was based on traditional evidence on record and on documentary evidence exhibit 0 I. Judgment was not based on evidence of’ DW 1-4.
There was no appeal against any finding made by the learned trial Judge.
The respondents have adopted the five issues submitted by the appellants. I think issue No. 5 is most crucial to the determination of this appeal. In my view, the failure or success of this appeal will depend on whether this issue succeeds or fails. Before considering issue No. 5, I would like to dispose of appellants’ issue No. 1. It has been pointed out by appellants’ senior counsel that in the Court of Appeal, he took objection to the second additional ground of appeal and the issue for determination formulated therefrom. It was contended that the objection was a material objection going to the root of the appeal. In considering the objection the court below erroneously based its decision on the first additional ground of appeal to which there was no objection. This is not in dispute.
The second ground of appeal was indeed directed against the reported loss of the evidence of the respondents’ witnesses DW1, DW2, DW3 and DW4 from the record of appeal compiled. It was said that as a result of the loss of the evidence of the defendants/ respondents’ witnesses, there was therefore no material for the court below to have recourse to in evaluating the decision of the trial court in relation to the evidence placed before it.
My short answer to this is that, in my view, the objection is inconsequential. I say so because the issue of the loss of the evidence of respondents’ witnesses Nos. DW1, DW2, DW3 and DW4 is an issue that the court below and indeed this court could have raised suo moto. I think this is glaringly obvious. It is only when one set of evidence is put side by side with the other set of evidence that the court would be in a position to determine which outweighs the other.
In a situation, as in the present case, where there is total loss of the evidence called by a party, the court itself can raise the issue. I now turn to issue No. 5. As I have indicated earlier on in the course of this judgment, the respondents’ appeal to the Court of Appeal was upheld and a retrial ordered. It is not in dispute that the record of appeal does not contain the evidence of DW1, DW2, DW3, and DW4. These were witnesses called by the respondents. The substance of the appellants’ contention in the court below and in this court is that since the judgment of the learned trial Judge was predicated on traditional evidence and since DW 1, DW2, DW3 and
DW4 did not give evidence on traditional history, their evidence was not necessary and the court need not go into them. In this regard the Court of Appeal said:
Learned counsel pointed out that the record of appeal does not contain the evidence of DW 1, DW2, DW3 and DW4. Learned Senior Advocate submitted that since the learned trial Judge gave his judgment on traditional evidence and none of the witnesses gave evidence on traditional evidence, their evidence is not necessary and that this court need not go into them. Who is correct I must go into the summary of the learned trial Judge to find out the nature of their evidence in court in obedience to the submission of learned Senior Advocate.”
The learned trial Judge summarized the evidence of DW1 at page 139 of the record as follows:
“The defendants’ 1st witness was Eduweye Gboruwa Arubay, a licensed Surveyor. He tendered plan number A. R. /639 dated 12/9/75 as exhibit C and stated that in 1975, the defendants commissioned him to prepare a survey plan of the land in dispute for them. They showed
him all the features in exhibit C.”
In my humble view, this evidence of DW1 as summarized by the learned trial Judge is relevant to the findings of the learned trial Judge that the appellants did not prove the boundaries and extent of the land in dispute. I do not agree with learned Senior Advocate that only traditional evidence is relevant.
On the same page, the learned trial Judge summarized the evidence of DW2 as follows:
“The defendants 2nd witness was Obatarhe Umukoro a descendant of Ekrusi. He stated that Uri, Ekrusi, Uvwie, Ediagbon and Ukene Afia farm belong to Uluthe. He stated that he is a descendant of Ekrusi so also one Doctor Odje … still under cross-examination, he stated that Iyede people drove away Evwreni people from the camp and occupied it. He changed to say that he did not know whether Uri was a human being or not.”
The evidence of DW3 is summarized by the learned trial Judge at page 148 of the record:
“The defendants’ 3rd witness was Otomaga Isara, the spokesman of Uruabe quarters of Olomoro. The substance of his evidence was that the land in dispute belongs to Ovioto, the ancestor of the defendants and that it shares common /same boundary with Olomoro land. The boundary between Olomoro land and the land in dispute is Ogberada juju in a thick forest and that Emewawa stream which is in the middle of the defendants’ land does not form a boundary between Olomoro and Enwhe land. He also stated that Enwhe was founded before Olomoro and that Olomoro was founded before Otor-Iyede. Under cross-examination, he stated that Olomoro has boundary between Otor Iyede and that people from Egbo qauers of Olomoro knew the boundary of the land. He denied that Emewawa stream flows into Ovu stream.”
Learned trial Judge summarised the evidence of DW4 at page 140 as follows:
“The defendants’ 4th witness was Anthony Onomufe Efekodhe and he tendered exhibits D and D1 (E.R. Chadwick intelligence Report of 1931 with receipt issued to him).”
With the greatest respect to learned Senior Advocate, I do not agree that none of the witnesses gave traditional evidence, Some did. DW2 gave evidence as to the land in his capacity as a descendant of Ekrusi, and gave evidence of ownership of the land. DW3 gave traditional evidence when he said that the land in dispute belongs to Ovioto, the ancestor of the defendants. He also gave evidence of the boundary of the land; evidence which is necessary in the light of the decision of the learned trial Judge that the defendants could not prove the boundary and extent of the land in dispute. His evidence of boundary needs to be examined by the court.
DW4 tendered Intelligence Report. Intelligence Report, in most cases dig out traditional history and an appellate court ought to examine it against traditional history of witnesses for purpose of determining the authenticity and veracity of the report. I have examined the summary of the evidence of the witnesses of the learned trial Judge and I am of the opinion that the evidence are relevant for the purpose of determining ownership of the land in dispute. This is more so when the learned trial Judge made use of the evidence in his judgment and arrived at conclusions in favour of the respondents. Let me give one or two examples. At page 147 of the record, the learned trial Judge reacted to exhibit D1 tendered by DW4:
“What is more, exhibit D1 tendered by the defendants created a big hole in their traditional evidence. While they pleaded in paragraph 5 of their amended statement of claim in HCO/12X/82 that Ovioto, their ancestor, came from Benin and founded Uri land with his lieutenants but exhibit D1 tendered by them belied what they pleaded in paragraph 5 of their amended statement of claim reproduced above.”
It is re-assuring that the learned trial Judge held that the appellants gave traditional evidence. That is the correct position. The position taken by the learned Senior Advocate is not correct. The trial Judge dealt in extenso with exhibit D 1 at pages 147 to 149 of the record.
This court is entitled not only to see and read exhibit D1 but the evidence of the person who tendered it. It will be grave injustice to the appellants if an appellate court brushes aside evidence on intelligence report. At page 149 of the record, the learned trial Judge said in his evaluation and conclusions on the evidence before him: “It is therefore clear from above that the traditional evidence of the defendants that their ancestor, Ovioto and his lieutenants came from Benin and founded Uli land is in violent conflict with exhibit D1 which showed that Uruiche was a refugee from Jesse who ran away from his town during the war with Benu. There is nothing to show from exhibit “D1″ at page 7 paragraph 25(i) that at the time Ovioto went to Benin to obtain a mandate from the Oba of Benin as a (Priest King) Ulu the quarters had not been in existence and as such it could not be true for the defendants to say that their ancestor, Ovioto founded Ulu or any quarter in Enwhe let alone Uri land.”
At page 154 of the record, the learned trial Judge said:
‘DW2, called by the defendants from Evwreni did not give evidence as to the boundary between Evwreni land and the land in dispute even though the 1st defendant gave evidence that they share a common boundary with Evwreni land. DW3 gave evidence to the effect that the boundary between their land and the defendants’ land is Ogberada juju but it is not shown on exhibit C as the boundary mark between their land and the defendants’ land and to that extent, the boundary between the defendants and Olomoro land was not established by the defendants.’
The learned trial Judge may be right in his evaluation. He may be wrong. How else will this court know the strength of his evaluation and conclusions without reading the evidence of DW2 and DW3. It is difficult to support the position taken by learned Senior Advocate without doing injustice to the appellants.”
This decision cannot, in my view, be faulted. The portion of the judgment of the Court of Appeal quoted above has adequately dealt with every point in agitation. I do not intend to repeat here what the court below said. Suffice it to say that DW3 and DW4 gave traditional evidence bearing in mind the submission of learned senior counsel for
the appellants that the defendants/respondents’ witnesses did not give evidence of traditional history. This contention runs counter to the views of the learned trial Judge.
This is so because with regard to exhibit Dl tendered by DW4, the learned trial Judge said:
“What is more, exhibit D1 tendered by the defendants created a big hole in their traditional evidence. ”
It can be seen clearly that the learned trial Judge held that the defendants, respondents herein gave traditional evidence. Indeed, the summarized evidence of DW2 and DW3 by the learned trial Judge shows that these witnesses gave evidence of traditional history of the land in question. The question I am unable to answer is whether the summary made by the learned trial Judge is a Correct and true reflection of the testimonies of DW1, DW2, DW3 and DW4. I think it is risky and presumptuous to assume that the evidence of these defence witnesses is irrelevant to the proper and just determination of this case. To come to a decision one way or the other, it is vitally important for the court below and this court to see and read for ourselves the evidence of these witnesses.
In the circumstance where the entire evidence called by a party is missing in the compiled record of appeal, it will be difficult if not impossible to say with certainty that there has been no miscarriage of justice. In the absence of such evidence, I am unable to hold that the trial Judge clearly comprehended the entire case and came to a conclusion which is abundantly supported by the evidence. In the circumstances, I find myself unable to support the judgment of the trial court. It is my view that this is a proper case for an order for retrial. See Fadlallah v. Arewa iles Ltd. (1997) 8 NWLR (Pt. 518)546.
In the result, I hold that the court below was right when it remitted the case to the Delta State High Court for another trial.
This appeal therefore in my view has no merit. I accordingly dismiss it and affirm the judgment of the Court of Appeal delivered on 4 April 2001. The respondents are entitled to costs of N10,000.00 against the appellants.
SC.250/2001