Othniel Shekse V Victor Plankshak & Ors (2008)

LAWGLOBAL HUB Lead Judgment Report

O. OGEBE, J.S.C

The appellant sued the respondents at the High Court of Justice Pankshin, Plateau State on behalf of himself and Kerang Community seeking the following reliefs as per paragraph 19 his amended statement of claim:-

“Wherefore,, the plaintiff claim against the defendants jointly and severally

(a) A declaration that the Quarry Site within the Bwansuhum area is in the customary Possession and ownership of the plaintiff;

(b) An order that the 1st – 5th Defendant account for the sum of N22,000.00 received from P.W. (NIG) LTSD.

(c) A perpetual injunction against the Defendants, their servants, agents or privies to restrain them

from further acts of trespass.

(d) N25,000.00 (Twenty-Five thousand Naira) damages.”

Pleadings were exchanged between the parties and the trial court after hearing evidence from both parties and listening to the addressees of their counsel thoroughly evaluated the evidence and dismissed the Appellant’s claim. A grieved by that decision the Appellant appealed to the Court of Appeal, Jos Division. In the lead judgment read by Mukhtar, J.C.A. (as she then was) she thoroughly considered all the issues canvassed before the Court of Appeal and dismissed the appeal.

This is a further appeal to the Supreme Court mainly on issues of facts in which there had been concurrent findings of the two lower courts. The learned counsel for the Appellant in a lengthy brief of eighty pages formulated 6 issues for determination as follows:-

( Issue One):

“Whether the Court of Appeal and the lower court were right in dismissing the appellants claims and reliefs having regard to the provisions of sections 34,35,36 and 37 and the interpretation of exhibit ‘D’ the Plateau State Government (white paper) and gazette of 1981 on “Bwanzuhum area/village where the Quarry Site is Located within” is not in Kerang District of Mangu Local Government Council as per the claim and reliefs of the Appellant before the court (Ground One).

(Issue Two)

Whether or not having regards to the pleadings, the evidence called cum the exhibits tendered the learned justices of the Court of Appeal were right in dismissing the appellant’s declaratory claim that the Quarry site in Bwanzuhum” in not part of Kerang District. (Grounds Two. Five and Nine).

(Issue Three):

Whether or not the learned justices of the Court of Appeal rightly dismissed the issue of the trial court making a case on boundary dispute between Kerang District and Ampang District and farmlands for the parties which were not the issues before the trial ,court for determination on the pleadings claims and the reliefs thereto (Ground three).

(Issue Four)

Whether or not the lower court was right and did not occasion a miscarriage of justice in affirming the decision of the trial court which extensively used the unrecorded evidence at the loqus sin quo which materially and adversely affected the decision of the trial court occasioning a miscarriage of justice in the circumstance of this case (Grounds Four and Six).

(Issue Five):

Whether or not the oral evidence of P.Ws 1,2,4 and D.Ws 1,2,3,4 and 5 led in Hausa language without an interpreter to English language (viva vorce) as recorded by the trial judge in English language did not vitiate the trial proceedings and or occasioned a miscarriage of justice as held by the Court of Appeal in the circumstances of this case. (Ground Seven).

(Issue Six):

Whether the learned justices of the Court of Appeal were right in holding that the N22,000.00 paid by the P.w. (Nig) Ltd to the defendants/respondents

Whether for trespass to farmland or consideration for lease of Quarry was immaterial in the circumstance of this case. (Ground Eight).

The learned counsel for the respondents filed a brief on their behalf and adopted the issues formulated in the appellant’s brief.

On the first issue the learned counsel for the Appellant submitted that the trial court and the Court of Appeal were wrong in not giving effect to exhibit “D” a Government White paper which gave ownership of the Quarry Site within Bwanzuhum area to Kerang Community.

Issue 2 is essentially the same as issue 1 and the learned counsel for the Appellant submitted under the issue that the Court of Appeal was wrong in affirming the judgment of the trial court dismissing the Appellant’s declaratory claim that the quarry site is not part of Kerang District.

On the 3rd issue the learned counsel for the appellant submitted that the Court of Appeal was wrong in dismissing the issue of the trial court making a case on boundary dispute between Kerang District and Ampang District and farmland which was not the issue before the trial court on the pleadings and reliefs sought. He relied on the case of Osolu v. Osolu. 2003 11 NWLR Pt. 832, 608 at page 631, Musdapher J.S.C. held as follows:-

“It is trite law that in the determination of disputes between the parties in a court, the decision must be confined to the issues properly raised by the parties. It is not competent for a court sou motu to make a case for either or both of the parties and then proceed to give judgment on the case so formulated contrary to the case of the parties before it. See for example, Adeniji v. Adenji (1972) 1 All NLR (Pl1) 298; Adegoke v. Adibi (1992 5 NWLR (Pt. 242) 420.”

On the 4th issue the learned counsel complained that the Court of Appeal should not have affirmed the judgment of the lower court which extensively used unrecorded evidence at locus in-quo which materially and adversely affected the decision of the trial court and occasioned a miscarriage of justice.

On the 5th issue the learned counsel submitted that the failure of the trial court to use an interpreter to translate the oral evidence of PW1, PW2, PW4, DW1, DW2, DW3, DW4 and DW5 given in Hausa into English vitiated the trial proceedings, and the Court of Appeal was wrong in upholding the decision of the trial court. On the 6th issue, the learned counsel for the Appellant submitted that the Court of Appeal was wrong in holding that the sum of N22,000.00 paid by P.W. Nig. Ltd. to the Respondents whether for trespass to farmland or consideration for lease of quarry was immaterial. He said that the sum of N22,000.00 was paid for the escarvation of the stones of quarry Site and no more.

The learned counsel for the Respondents submitted that virtually all the issues raised by the Appellant are purely evidential problems, evaluation of evidence, ascription of probationary value, weight, acceptance and findings of facts made on them. These according to him are purely maters within the power of trial court which had opportunity of seeing the witnesses. He submitted that the trial court and the lower court painstakingly evaluated the evidence and reached the correct decisions which he urged this court to uphold. On the issue of interpretation of the testimonies of witnesses from Hausa to English, he submitted that both parties were represented by counsel before the lower court and did not raise any complaint in that regard.

On the issue of boundary dispute the learned counsel for the Respondent submitted that it was raised in the pleadings and the trial court did not raise it suo motu.

The facts of the case are relatively simple. The Appellant in his Statement of Claim and evidence asserted that the quarry site within Bwanzuhum area is in the customary possession of Kerang District which owned the area from time immemorial. In paragraph 6 of their Statement of Claim the Appellant averred as follows:-

“The Plaintiff avers that for several years now, the situation has changed. The customary tenants including the 1st – 5th Defendants have been challenging the plaintiff’s title to the entire Bwanzuhum area by:-

(a) refusing to pay poll or community tax to the Kerang District Head;

(b) purporting to lease or alienate the farmlands without the consent and approval of the customary owners.

(c) openly denying and challenging the plaintiff’s title to the said area – The plaintiff pleads suit No. PLD-P8-90 between Victor Plangshat & 5 others v. Mangu Local Government Council and shall rely on it.”

This is a clear admission from his own showing that the respondents were lawfully in possession of the disputed property. He could not rightly therefore bring an action in trespass against them. Also in paragraph of the Statement of Claim the appellant raised the issue of boundary dispute as

follows:-

“The misconduct of the customary tenants gradually developed into a boundary dispute. The customary tenants were claiming the entire Bwanzuhum area formed part and parcel of Ampang West District.”

By this averment the Appellant himself raised the issue of boundary dispute and cannot complain that the trial court raised it on its own.

The learned counsel for the Appellant made heavy weather of the

failure of the two lower courts to interpret exhibit ‘D’, the Plateau State

Gazette in the appellant’s favour.

The Court of Appeal at pages 211 – 212 had this to say on that Gazette:-

“There seems to be ambiguity in the above paragraph for the use of alphabets ‘i.e.’ makes the purport of the comment uncertain. When the term i.e. is used it connotes that whatever follows represents what the clause or sentence before it qualifies. In the present case, none of the sentences that follows the term i.e. has anything to do with the said paragraph 36(ii), which is to do with disputed area of Bwanzuhum i.e. they do not tally. They is therefore no clarity of purpose in the acceptance of 36 (ii) , as is meant to convey under the said paragraph 37. The White Paper exhibit ‘D’ is therefore not clear on this or its acceptance of the resolution of the conflicting claims by Kerang Ampang districts over Bwanzuhum. In fact what it seems government accepts in paragraph 37, (if it is to do with the position of Bwanzuhum) is the recommendation that the Mangu Local Government should be urged to implement its decision on the disputed area of Bwanzuhum), and not that Bwanzuhum is in Kerang District, as is the case of the plaintiff/appellant.

In this respect the finding of the lower court that I have reproduced hereunder is in order:-

“It is not therefore in the province of this court to determine the boundary dispute between Kerang and Ampang-West based on the evidence adduced before me. I cannot therefore grant

absolute ownership of Bwanzuhum area to either the Plaintiff or the Defendants because the boundary dispute is yet to be determined ..”

I fail to see that the learned trialjudge erred in making the finding.”

There is nothing in Exhibit ‘D’ to show conclusively how the conflicting claims by Kerang and Ampang Districts over Bwanzuhum area were resolved by Mangu Local Government Council in favour of Kerang District.Both lower courts were therefore right in not placing reliance on Exhibit ‘D’.

As I mentioned earlier, most of the issues raised by the Appellant are issues of facts upon which the lower courts have made findings of facts. it is not the business of this Court to disturb such findings of facts which are not shown to be perverse. See: the cases of Ike v. Ugboaja (1993) NWLR ‘cpt.301, 359), Enang V. Adu (1981) 11 -’12 SC 25 and Ige V. Olunloye (1984) 1 SCNLR 158.

The Appellant has not been able to show that the non-recording of the proceedings at the locus in quo adversely affected his case. See Enigwe v. Akigwe (1992) 2 NWLR (Pt. 225, 505). at page 525 – 526 where the Supreme Court stated the principles in respect of visit to locus in quo as follows:

“In dealing with the foregoing submissions, I think it is necessary to state the general principles of visit to or inspection of a locus in quo. These are –

1. There is no rule of law which determines at what stage in a trial a visit of inspection must be made See Ejidike & Ors. v. Obiora, (1951)13 W.A.CA 270 at 273. 2. A court should undertake a visit to the locus in-quo where such a visit will clear a doubt as to the accuracy of a piece of evidence when such evidence is in conflict with another evidence – See: Seismograph Services (Nig.) Ltd. v. Ogbeni, (supra)
2. Where there are two conflicting evidence adduced by parties to a case, it is necessary to visit the locus in quo if such a visit can resolve the conflict in the evidence – See -Seismograph Service (Nig.) Ltd. V. Akporovo, (1974)6 S.C. 119 at 128.
3. Where a trial judge makes a visit to locus in quo it is not proper for him to treat his perception

at the scene as a finding of fact without evidence of such perception being given by a witness either at the locus or later in court after the inspection – See Seismograph Service Ltd. v. Onokpasa (supra) …

5. On a visit to a locus in quo it is necessary for the trial judge to make a record in the course of the proceedings of what transpires at the scene.

However, if the trial judge failed to make the record but made statement in his judgment about the visit, such statement would be taken as accurate account of what happened and therefore final, unless of course the contrary can be established by the party that impugns the record – See Nwizuk’s case (supra) and Maji v. Shafi, (1965) N.M.L.R. 33 at 35 and Bello v. Kassim, (1969) 1 N.M.L.R. 148

6. Where a visit is made to a locus in quo evidence of witnesses can be received at the scene or in Court later. But the parties, in that case, must be given the opportunity of hearing the evidence of the witnesses and where necessary be offered the opportunity of cross-examining the witnesses and commenting on the evidence – See Seismograph Service Ltd. v. Onokpasa, (supra) at pp. 134-135.”

The complaint of the learned counsel for the Appellant regarding the interpretation of the witnesses who gave evidence in Hausa to English is of no consequence because both sides were represented by counsel who did not make an issue of it before the trial court. It was the duty of the counsel to bring to the attention of the trial court any wrong procedure which might affect his client’s interest. Infact, since the issue of interpretation was never, raised in the trial court it should not have been raised in the Court of Appeal without the leave of the court as a fresh issue. The same applied to this Court also.

In the final analysis, I see no substance in all the issues canvassed by the Appellant before this Court. The appeal lacks merit and I hereby dismiss it with the costs of N50,000.00 in favour of the Respondents.

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SC.199/2002