Paul Nwadike & Ors V Cletus Cletus Ibekwe & Ors. (1987) LLJR-SC

Paul Nwadike & Ors V Cletus Cletus Ibekwe & Ors. (1987)

LawGlobal-Hub Lead Judgment Report

AGBAJE, J.S.C. 

The case before us now on appeal started in the High Court of Justice of the former East Central State of Nigeria in 1972. The Plaintiffs, Cletus Ibekwe and 2 Ors., for and on behalf of members of the Eluama family in Umudurumba Amaigbo, Nkwerre Division in the Okigwe Judicial Division sued the defendants, Nathaniel Anaele and 3 Ors, claiming against them jointly and severally a declaration of title to a piece or parcel of land known as and called “OHIA UKWU ELUAMA” situate at Umudurumba Amaigbo Nkwerre Division in the then Okigwe Judicial Division, 100.00pounds (N200.00) damages for trespass and an injunction restricting them, their servants and agents from further entering the land in dispute. In the Okigwe Judicial Division of the High Court holden at Okigwe pleadings were ordered by F.O. Nwokedi J. as he then was on 29th September, 1972. Pursuant to this order, pleadings were filed and delivered. The case eventually proceeded to trial before Johnson J, in the High Court of Imo State of Nigeria, Orlu Judicial Division holden at Nkwerre. The Plaintiffs led evidence in support of their averments in their Statement of Claim. So did the Defendants in respect of their averments in their Statement of Defence. The learned trial Judge having listened to the parties and their witnesses found for the plaintiffs in a reserved judgment he delivered on 16th June, 1980. He found for the plaintiffs as follows:

“I am satisfied that the plaintiffs are entitled to the declaration and I accordingly grant it. By virtue of Section 36(1) (2) of Land Use Decree No 6 of 1978 the plaintiffs being the holder of the land in dispute are entitled to a Customary Right of Occupancy over the land.

It is hereby ordered that the plaintiffs are entitled to all that piece or parcel of land called “OHIA UKWU ELUAMA” as shown on plaintiffs’ plan NO.EC/400n2 Exh. ‘A’ which was variously described by the defendants as “OHIA UKWU” or “OHIA UKWU EKE” or “ALA UKWU ORJI ELUOWERRE NO.2″ and shown on defendants’ plan NO.PO/E.147/72 Exh. ‘E’. I also grant the plaintiffs the injunction claimed and the defendants, their agents and or servants are with effect from the date hereof restrained from entering the said land.

On damages for trespass, I award N150.00 against the defendants.”

The Defendants were not satisfied with the judgment. They appealed against it to the Court of Appeal, Enugu Judicial Division. The Defendants’ appeal was dismissed by the Court of Appeal on 14th May, 1985. The lead judgment of the court was delivered by S.M.A. Belgore, J.C.A., as he then was, to which Aseme, Olatawura J.J.C.A. agreed. Again the defendants were not satisfied with the decision of the Court of Appeal and they have now lodged a further appeal to this court.

In this judgment the Defendants will hereinafter be referred to as the Appellants and the Plaintiffs as the Respondents.

The Appellants attacked the judgment of the Court of Appeal, the lower court, on 8 grounds of appeal in their Notice of Appeal. Briefs of arguments were filed and exchanged.

The Respondents by a notice of their intention to rely upon Preliminary Objections filed on 2nd October, 1987 pursuant to Order 2 Rule 9 Sub-Section 1 of the Supreme Court Rules 1977 contended as follows:-

“TAKE NOTICE that the Respondents herein named intend, at the hearing of this application, to rely upon the following preliminary objections viz:-

1. That each and everyone of the eight (8) grounds of appeal filed by the appellants in this appeal is on facts and is therefore contrary to the provisions of S. 213(3) of the Constitution of the Federal Republic of Nigeria and deserves to be struck out.
2. That it is the practice of the Supreme Court that in the absence of special and exceptional circumstances, the court will not permit the re-opening of matters of fact with which the Courts below were in a more advantageous position to deal and with which they had in fact dealt. Each of the eight (8) grounds of appeal deals with facts, although each of them purports to be based on law.”

When this appeal came on for hearing on 6th October, 1987 arguments were taken first on the preliminary objections raised by the Respondents. As I have just said, the preliminary objections were directed against the grounds of appeal filed by the Appellants. I do not think it is necessary for me to set down in this judgment all the grounds of appeal complained about for reasons hereinafter appearing.

The grounds of the Respondents’ preliminary objections are self-evident and I have reproduced them above. It is common ground that neither the leave of the lower court i.e. the Court of Appeal nor that of this Court was sought or obtained before the Appellants filed their Notice of Appeal. The appellate jurisdiction of this court is provided for by Section 213 of the Constitution of the Federal Republic of Nigeria 1979. The relevant provisions for the purposes of this appeal are as follows:-

“213 – (1) The Supreme Court shall have jurisdiction to the exclusion of any other court of law in Nigeria to hear and determine appeals from the Court of Appeal.

(2) An appeal shall lie from decisions of the Court of Appeal to the Supreme Court as of right in the following cases –

(a) where the ground of appeal involves questions of law alone, decisions in any civil or criminal proceedings before the Court of Appeal;

(b) to (f) are not relevant.

(3) Subject to the provisions of subsection (2) of this section, an appeal shall lie from the decisions of the Court of Appeal to the Supreme Court with the leave of the Court of Appeal or the Supreme Court.

(4) to (6) are not relevant.”

It follows from the above constitutional provisions and from the fact that the Appellants did not obtain leave before filing their Notice of Appeal that unless all the grounds of appeal in the Appellants’ Notice of Appeal or some of them involve questions of law alone the Appellants’ appeal will be incompetent as contended for by the Respondents.

In the Appellants’ Notice of Appeal all the 8 grounds of appeal therein are labelled grounds of law, a suggestion that the appeal is as of right and therefore covered by the provisions of Section 213(2) Sub-section 2(a) of the 1979 Constitution which is quoted above. However, in respect of these grounds of appeal, Counsel for the Appellants himself was candid enough to concede it that grounds 2, 3 and 8 thereof do not raise questions of law alone and do raise questions of fact or of mixed law and fact. A decision on the point whether a ground of appeal raises question of law alone certainly does not depend on the label an Appellant gives to the ground in question. Such a decision involves an examination of the ground of appeal as framed together with the particulars thereof before resolving the point at issue.) This is what this court did in S. U. Ojemen & 3 Ors. v. His Highness William O. Momodu II & 2 Ors. 1983 3 S.C.173 before resolving such a point. And, infact this is what we did in the instant case as regards the points I am now considering.

I have said above that the complaint of the Respondent is against all the 8 grounds of appeal filed by the Appellant. Since Counsel for the appellants himself has conceded it that grounds 2, 3 and 8 of the grounds of appeal are not grounds of appeal raising questions of law alone I need not bother to reproduce them here. Suffice it to say that these grounds of appeal raise questions of fact or of mixed law and fact. I will now reproduce the other grounds of appeal i.e. grounds 1,4,5,6 & 7 and these are as follows:-

“(1) ERROR IN LAW

The Court below erred in law by failing to hold that the Plaintiffs’ claim ought to have been dismissed since the evidence led by Plaintiffs as to boundaries of the land could not be reconciled with the plan filed by the Plaintiffs in the case.

(4) ERROR IN LAW AND MISDIRECTION

The Court below erred in law by failing to hold that the trial Judge erred in law and misdirected himself when he…………stated as follows:-………………..the Amandugba road is the boundary…………” and “It is the Defendants land of Eluowerre that is surrounded by trenches and not the Plaintiffs’ land of Ohia Ukwu Eluama” and when the Court below stated as follows:-“There is a road from Amandugba traversing the South West to East-South cast of the land forming its southern boundary” and that the misdirections substantially affected the decision in the case.

PARTICULARS

(1) Defendants in their statement of defence and evidence contended that their land in dispute was surrounded by trenches which formed the boundary. This was not the plaintiffs’ case which showed other features as boundaries of the land in dispute.

(2) Some of the plaintiffs’ witnesses including the 2nd plaintiff admitted that “the land is surrounded by Nkukoro (Trench) … ” i.e. they supported Defendants’ case on this vital issue of boundaries which the Court of first instance found was hotly contested.

(3) Also, it was not the case of either the plaintiffs or the Defendants on their pleadings that “Amandugba Road” was the boundary between them, or that it formed a boundary of the land in dispute.

There was no such case by either party in their pleadings. Yet the trial Judge and the court below found that Amandugba Road was the boundary between the parties.

(4) Neither in their plans nor in their pleadings did plaintiffs or defendants state that the Southern boundary of the land in dispute was this Amandugba Road as found by the Court below.

(5) This extraneous finding by the trial judge and the Court below substantially affected their decisions.

ERROR IN LAW AND MISDIRECTION

(5) The Court below erred in law and misdirected itself when it said

“As for Grounds 1, 2 and 5 it would appear the appellants are making a big issue of the burden placed on the plaintiffs well beyond what is evidentially required. The evidence on the balance of probabilities is clearly in proof of plaintiffs’ case. The Defendants’ case is a pack of contradictions that even prima facie on record could not convince a reasonable tribunal. Previous cases on the land, some even pending, are not in dispute, Exhibit ‘E’, the appellants’ plan is clear on this and it is amazing how this would be made an issue now on appeal.

PARTICULARS

(1) Grounds 1, 3 and 5 of the grounds of appeal before the court below dealt with weight of evidence, failure of plaintiffs to prove the acts of possession relied upon in their statement of claim and wrongly found by the trial Judge and wrongful admission and appraisal of the probative value of Exhibit ‘D’.

(2) The Lower Court failed to consider the arguments raised in these grounds, e.g. whether or not the acts of possession pleaded were proved as pleaded or as found by the trial Judge. The onus to prove the said acts of possession relied upon rests on the plaintiffs who must rely on the strength of their own case by proving the averments as contained in their statement of claim irrespective of the weakness of the defence.

(3) The grounds on whieh the admission of exhibit ‘D’ was challenged on appeal to the Court below which were clear on the face of the records were not properly considered by the Court below.

(4) The Court below did not consider the weight of evidence in the light of the issues raised in Grounds 3 and 5 of the grounds of appeal before the Court below.

(5) The court below appeared to confuse the question of the onus which lies on the plaintiffs to satisfy the Court that he is entitled on the evidence brought by him to a declaration of title for which he must rely on the strength of his own case and not on the weakness of the Defendants’ case, with the question of standard of proof which follows the onus of proof but which does not come into consideration where evidence adduced by plaintiff did not support or is inconsistent with the case put forward by the plaintiffs in the statement of claim.

6. ERROR IN LAW

The Court below erred in law when it held that Exhibit ‘D’ was not wrongly admitted in evidence and in its appraisal of the probative value of Exhibit ‘D’.

PARTICULARS

(1) Exhibit ‘D’ was a letter said to have been written without prejudice to some named persons.

(2) It was not tendered or identified as the particular one written to or received by any of the alleged addressees, nor was there any evidence that the addressees waived their privilege.

(3) The statement by the trial Judge in his judgment that the said Exhibit “D” was admitted in evidence without objection was unsupported by the Courts’ records.

7. ERROR IN LAW AND MISDIRECTION:

The Court below erred in law when it failed to hold that the Court of first instance erred in law and misdirected itself when it said “where as in this case there is a total absence of defence to the

plaintiffs’ claim the only alternative is a finding for the plaintiffs.”

PARTICULARS

(1) In this case, there was no “total absence of defence …. ” and it was misdirection for the trial Court to hold as it did.

(2) The Court below like the trial Court by implication failed to consider the defence in this case, having held that it was totally absent.”

A careful examination by me of ground 1 of the Appellants’ grounds of appeal shows that the Appellants are therein complaining about the appraisal of the evidence the Respondents led as to their boundaries vis a vis the plan filed by them.

The conclusion I reach after a similar examination of ground 4 of the Appellants’ ground of appeal is that they are complaining about the following findings of fact of the trial court, namely, Amandugba Road is the boundary of the Appellants’ land and the Respondents’ land and that it is the Appellants’ land of Eluowerre that is surrounded by trenches and not the Respondents’ land of Ohia Ukwu Eluama. The particulars in support of ground 4 tend to suggest that these findings are not covered by the pleadings in this case, and thereby contending that there is no basis at all for the findings, a situation which arguably can be said to raise points of law alone. But particulars (1) to ground 4 itself puts it forward that the appellants contended in their statement of defence that the land in dispute is surrounded by trenches. The land in dispute is the land claimed by the Respondents known as Ohia Ukwu Eluama. It is this issue which the trial Judge resolved by his finding that it is the Defendants’ (Appellants’) land of Eluowerre that is surrounded by trenches not the plaintiffs’ (Respondents’) land of Ohia Ukwu Eluama which, as I have just said, is the land in dispute. The Respondents’ case all along in their statement of claim was that they have a common boundary with the appellants. So that issue was evidently before the trial Court. So a finding by the trial court as to the common boundary and what demarcates the land of the respondents from that of the appellants at that common boundary cannot properly be said not to have arisen on the pleadings in this case. Errors of fact might however have been made in such findings which is a different matter from an error of law simpliciter in the way I have conceived it above.

In view of the above conclusions of mine, I have no doubt in my mind that grounds 1 and 4 of the appellants’ grounds of appeal although labeled grounds of law do infact raise questions of fact.

Before I go into consideration of the other grounds of appeal it will be necessary for me to refer to the grounds of appeal filed by the appellants in the court below i.e. in the Court of Appeal, Enugu Division. In their Notice of Appeal from the trial Court the appellants filed seven grounds of appeal. As regards the points now under consideration, I need only refer to ground 1 of those grounds of appeal which reads thus:-

“1. The decision of the lower Court is altogether unwarranted, unreasonable and cannot be supported having regard to the weight of evidence.”

The Appellants sought and obtained leave of the lower Court to argue before it six additional grounds of appeal. In their Brief of Arguments in the lower court the Appellants abandoned all the grounds of appeal in their Notice of Appeal except ground 1 which I have copied above. The additional grounds of appeal which they sought and obtained leave to argue were numbered grounds 2 to 7 consecutive to ground 1 of their original ground of appeal. Relevant to the point now under consideration are grounds 3 and 5 thereof in addition to ground 1 which I have already copied. Grounds 3 and 5 read as follows:-

“3. The Lower Court erred in Law in failing to dismiss plaintiffs’ claim when plaintiffs failed to adduce sufficient legal evidence to prove the acts of possession relied upon in their statement of claim.

5. The Lower Court erred in law by wrongly evaluating evidence of acts of ownership and possession adduced by the parties in the case to the detriment of the defendants.”

I can now go back to the consideration of the rest of the grounds of appeal to which objection is raised in this court i.e. grounds 5, 6 and 7. Having examined these grounds it is clear to me that the complaint in ground 5 of the appellants’ ground of appeal in this court is made on the basis of grounds 1, 3 and 5 of the appellants’ grounds of appeal in the lower court which I have copied above. This is to say that the appellants are now complaining in this court that the court below failed to consider the arguments raised on these grounds of appeal before it.

On trials conducted on the basis of pleadings filed, the trial Court has a duty to resolve issues raised and joined on the pleadings. See Dipcharima & anor v. Ali & anor. 1974 (1) All N.L.R. Part 2 Page 420 at 422.

Failure of a trial court to perform this duty has been held by this court in some cases to be fatal to the decision reached by that court. See for instance Dumuye v. Idiazo 1978 2 S.C. 1 at 7 – 8.

So a complaint in a ground of appeal that a trial court failed to consider the issues raised on the pleadings before it is certainly a complaint involving questions of law alone. By the same token, a complaint in a ground of appeal in this court of a failure of the Court of Appeal, the lower court, to discharge its judicial duty of considering and pronouncing on the issues raised before it involves, in my view, a question of law alone.

Ground 5 of the appellant” grounds of appeal, besides the complaint of failure of the lower court to consider the arguments raised in the grounds of appeal before it complained about the wrongful admission in evidence of a particular exhibit i.e. Exh. D in the trial court. A complaint about wrongful admission of evidence is evidently a ground of law alone.

I can at this stage conveniently refer to ground 6 of the grounds of appeal which specifically raises the issue of the wrongful admission in evidence of the document Exh. D. to which I have just referred. For the reasons I have just given, I have no doubt in my mind that grounds 5 and 6 raise questions of law alone.

It remains for me now to deal with ground 7 of the appellants’ grounds of appeal. That ground attacked that part of the judgment of the trial court which says:-

“Where, as in this case there is a total absence of defence to the plaintiff’s claim the only alternative is a finding for the plaintiff.”

The absence of defence by a Defendant to a Plaintiff’s claim is one thing. The presence of a defence or defences by a Defendant to a Plaintiff’s claim and the failure of that defence or those defences is another matter. If there was a defence filed in a case and a trial court erroneously treated the case on the footing of absence of defence to the plaintiffs claim, a ground of appeal challenging such an error by the trial court in my view raises a question of law alone, for the ground of appeal is saying that the trial court has failed in its Judicial duty to consider the defence of the Defendant before it. This, in my view, is the complaint of the Appellants in ground 7 of their grounds of appeal. Whether the complaint will be made out is another matter. I am therefore satisfied that the ground 7 of appeal raises question of law alone.

In the end, after taking arguments on the preliminary objection raised by the respondent I struck out grounds 1, 2, 3, 4 and 8 of the appellants’ grounds of appeal for the reason that they raise questions of fact or of mixed law and fact and that leave of this court or that of the lower court was not obtained before the appellants filed their Notice of Appeal. I allowed the Appellants’ appeal to proceed on grounds 5, 6 and 7 of their grounds of appeal for the reason that they raise grounds of law alone. I have now in this judgment given detailed reasons for my conclusions. I will now proceed to consider the arguments on both sides on the grounds of appeal on which the appellants were heard.

I will take grounds 5 and 6 together as Counsel for the Appellants himself has done. I need to remind myself that the main complaint in ground 5 is that the lower court did not consider the issues raised by grounds 1, 3 and 5 of the appellants’ grounds of appeal in that court. I have reproduced the grounds of appeal above. Ground I of those grounds of appeal complained about the decision of the trial court being against the weight of evidence.

Belgore J.C.A., as he then was, opened his lead judgment as follows:-

“The appellants in this case were the defendants to an action by Plaintiffs/Respondents in the trial High Court. The whole case was decided on facts, two sets of facts and the trial Judge had to resolve the conflicting facts in favour of respondents.”

This to my mind is a clear indication that he was considering the issues of fact raised in the case which has to do with ground 1 of the Grounds of Appeal that the decision is against the weight of evidence.

The learned Justice of the Court of Appeal then proceeded to recapitulate the various contentions of the parties before it and the evidence led in the trial court in support of these contentions. Having done this, he specifically took notice of grounds 1,3 and 5 of the Appellants’ Grounds of Appeal before the lower court in the following passage from his judgment:-

“The first original ground is ground 1.The other original grounds i.e. grounds 2 -7 were abandoned and struck out. The additional grounds I – 6 were argued as grounds 2 – 7. ”

Having done this, he expressed the following views on the points he was considering:-

“The respondents’ Statement of Claim, their plan Exh. A and their evidence point conclusively to the boundaries of the land in dispute. If there was any confusion, it was in the plan, Exhibit E, tendered by the appellants which showed a wider area with various names creating conflicts not helped but aggravated by their evidence as explained earlier. This ground has no merit and it therefore fails. The Plaintiffs/respondents proved the boundaries conclusively and there was no suggestion throughout the trial that identity of the land in dispute was not known. The evidence, the pleading and the plan of the plaintiffs are clear and consistent and there is no relevance to the cases cited i.e. Alado v Dina XVII NLR 32; Rapen v Rudd II WACA 95, Udofia v Afia VI WACA 216.

As for grounds 1, 3 and 5, it would appear the appellants are making a big issue out of the burden placed on the plaintiffs well beyond what is evidently required. The evidence on balance of probability is clearly in proof of plaintiffs case. The defendants’ case is a pack of contradictions that even prima facie on record could not convince a reasonable tribunal.”

What I have just said about the judgment of learned Justice of the Court of Appeal and the passages I have referred to in the judgment leave me in no doubt that the complaint of Counsel for the Appellants before us that the court below did not consider the issues raised in grounds 1, 3 and 5 of the Appellants’ Grounds of Appeal in that court are without foundation. It is clear beyond a peradventure that the court below considered the issues raised on the grounds of appeal in all their ramifications.

It is evident too that the court below did not misconceive the onus of proof or the standard of proof in the case before it.

Ground 3 of the Appellants’ Grounds of Appeal in the court below complained that the Respondents failed to lead sufficient legal evidence of acts of ownership to warrant a decision of the trial court in their favour. But I have shown above that in his lead judgment the learned Justice of Appeal recapitulated the acts of ownership proved by the Respondents in the trial court and concluded that on a balance of probabilities the Respondents are entitled to the judgment in their favour. The learned Justice placed the onus of proof on the Respondents and clearly appreciated it that the standard of proof was on a balance of probabilities. To my mind, he has done the correct thing. It has even been noted that in a claim for a declaration of title to land the standard of proof by a Plaintiff is on a balance of probabilities – See the case of Aderemi v Adedire 1960 N.M.L.R. 400 at 402.

The conclusion I reach therefore is that I cannot agree to the submissions of learned counsel for the Appellants on grounds 5 and 6 of their grounds of Appeal before us that the lower court did not consider the issues raised on some of the grounds of appeal before it or that it misconceived the onus of proof or standard of proof in the matter before it. This, to my mind, is the end of the complaint of Counsel for the Appellants on the failure of the lower court to discharge its judicial duty to consider the issues before it, a point of law upon which the appellants were heard.

The issues which the appellants said the lower court did not consider were as I have shown above issues of fact but the allegation by the appellant of a failure to consider these issues is as I have shown, a matter of law. This point of law has in my judgment failed. That is the end of that matter here now.

I will now go on with that aspect of grounds 5 and 6 of the grounds of appeal of the appellants before us dealing with the admissibility of a document tendered as Exh. D in the trial court, a letter written without prejudice by the Respondents to third parties i.e. to a body not a party to the case now before us on appeal.

Exhibit D was admitted in evidence in the course of the testimony of the first Respondent i.e. the first Plaintiff, Cletus Ibekwe, in the trial court. This was his evidence about Exh. D:-

“Previously I had a dispute over this land with the Mission when they entered the land. When the Mission refused to surrender the land, I sued them to native Court and won. Mr. Anomnachi objects to para. 11 of the pleading. Mr. Egole says he can abandon it. In 1971, the Mission people entered the land and when I asked them to leave, they agreed and left the land. It was my lawyer who wrote the Mission before they left. This is the letter dated 15/3/71 written to the Mission. Tendered, admitted and marked Exh.D.”

It is the admissibility of this document, which as I have just said, was questioned in the court below and now on appeal before us. It is not necessary for me to reproduce Exh.D. It is sufficient for the purpose of this judgment to say that it is a letter written without prejudice by some persons acting for the Respondents to a body called “Mission Representatives” not parties to this case, as I have said above, alleging trespass by them on the Respondents’ land, most presumably the land now in dispute, and warning them off the land on pain of a court action if they failed to heed the warning.

The issue of admissibility of Exh.D was raised in the lower court and in this regard the lead judgment of Belgore J.C.A. as he then was, said as follows:-

“Another matter raised is Exhibit D., a warning letter to a Mission to desist from trespassing onto the land in dispute. The learned counsel in the brief of appellants’ argument submitted it was not properly admitted. I find no substance in this argument. The case was not fought on this point in the Court below; the nearest to an objection to Exhibit D was never as to its admissibility but merely that it was a self serving document in the submission by the learned counsel for the appellants as defendants in Court below. The whole issues on which dusts are being raised by the learned counsel for the appellants were well treated in the Court below.”

Exhibit D is certainly res inter alios. But it is clear that the respondents were relying on it and the circumstances surrounding it as acts of possession by them of the land in dispute. It is being submitted for consideration as an act of ownership which will be normally expected of an owner in possession of his land. On questions of title such acts of ownership with respect to the same property but sometimes even with respect to other places connected with the locus in quo by such a common character of locality as to give rise to the inference that the owner of one is likely to be the owner of the other are receivable in evidence as one of the exceptions to the maxim res inter alios acta alteri nocere non debet. The respondents were saying that at one time as shown by Exhibit D they had warded off a trespass or threatened trespass to the land in dispute. So, in my judgment Exhibit D and the evidence supporting it are admissible as evidence of acts of possession of the land in dispute but the weight to be attached to it is another matter. It is the same principle which allows judgment which cannot act as res judicata since they are not between the parties to the case in dispute to be admissible to show acts of possession. See Kobina Ababio II v. Priest in – Charge Catholic Mission 2 WACA 380 at 381.

Having resolved the issue of admissibility of Exhibit D and the evidence in support thereof as I have just done, as act of possession, I will now deal with the point raised as regards Exh.D to the effect that since Exh.D was written without prejudice it cannot be used in evidence in this case. The answer to this point will appear in my view to be found in the following passages from Phipson on Evidence 12th Edition dealing with admissibility and non admissibility of offers made without prejudice and of letters and other communications written without prejudice.

The passages I have in mind will be found at pages 295 and 296 articles 279 and 280 of this book.

“Offers “without prejudice,” Offers of compromise made expressly or impliedly “without prejudice” cannot be given in evidence against a party as admissions;……………Letters and other communications, however, are only protected when there was a dispute or negotiations pending between the parties, and the letters were bona fide written with a view to its compromise……………… And the protection applies only in the same action, and between the same parties, and not between them and third persons, but letters and negotiations between solicitors are inadmissible against themselves as well as against their clients.”

(Italics mine)

It is clear from the above that the appellants being third parties to Exhibit D cannot claim any protection under it by reason of the fact that it was written without prejudice.

From what I have been saying above, I am satisfied that Exhibit D was rightly admitted in evidence in this case. It follows therefore in my judgment that grounds 5 and 6 of the appellants grounds of appeal fail.

I will now go on to consider ground 7. As I have said earlier on in this judgment, the complaint in ground 7 is about the passage from the judgment of the learned trial judge which says as follows:-

“Where as in this case there is a total absence of defence to the Plaintiffs claim the only alternative is a finding for the Plaintiff.”

In order to resolve properly the issue raised in this ground of appeal it will be necessary to copy the whole of the con in which this passage occurs.

The passage is as follows:-

“I do not think a plaintiff is bound to prove the five methods enunciated by the Supreme Court in their decision in Sunday Piaro vs. Chief Wopnu Tenale & Ors. (1976) 12 S. C. 31 at 37, in order to succeed. It is enough as in this case if the plaintiffs succeed in proving three of the five methods. In view of the overwhelming contradictions and the variance in their evidence, the defendants have failed to make out a defence to this action. Where, as in this case, there is a total absence of defence to the plaintiffs claim the only alternative is a finding for the plaintiff.

The defendants have neither ownership nor possession of the land in dispute. Their claim therefore fails. The plaintiffs’ evidence on traditional history and acts of ownership and possession contained sufficient materials to entitle them to a decree.”

A statement of law to the effect that where there is an absence of defence to a plaintiffs case the only alternative is to give judgment for that plaintiff cannot be faulted. After all, this is the whole purpose of all the civil procedure rules in the trial court providing for judgment in default of defence. That such a remedy is also available in a case for a declaration of title as it is here is evident from the judgment of the Federal Supreme Court in Ogunleye v. Arewa 1960 W.N.L.R.9.

It appears to me that the quarrel of Counsel for the appellants is with the phrase “as it is here” in the passage from the judgment of the trial court in question, the implication being that the trial court took the view that there was an absence of defence in the case on appeal now before us, a view which Counsel for the appellants rightly submitted was wrong.

I have reproduced above the con in which the phrase complained of occurred. I am satisfied that Counsel for the appellants did not read the passage complained of with due regard to the con in which it occurred. It is evident from the con in which the passage complained of is found that the trial Judge appreciated it that the respondents had to prove their case to succeed.

And it is also clear from the passage that the trial Judge took cognizance of the evidence led by the appellants in support of their Statement of Defence and specifically held that the appellants have failed to make out a defence to the Respondents’ claim. If Counsel for the appellant had read the passage complained of in the light of the con in which it occurred he should have discovered that what the learned trial Judge meant was not that the appellants did not file a defence to the respondents’ claim but that the defence which the appellants filed was not made out and consequently it has failed and that in such a situation the respondents must inevitably succeed.

This therefore is not a situation where a trial court has shut its eyes to the evidence of the appellant and treated the case as one in which no defence at all existed. The trial Judge by using the phrase “absence of defence to the plaintiffs case” in relation to the appellants’ case, has only committed an error of a wrong use of words.

In my view no appellate court would hold a trial court to such a patently wrong use of words. As for me I will not do so. So, I am satisfied that in this case, the trial Judge did not treat the case now on appeal as one in which there was no defence filed by the appellants.

The trial Judge considered the appellants’ defence and concluded that it failed. In the circumstances, I hold that ground 7 of the appellants grounds of appeal also fails. In the result, the whole of the appellants’ appeal in my judgment fails. It is therefore dismissed by me with costs assessed at N300.00 to the respondents.

Other Citation: (1987) LCN/2299(SC)