Senior Apostle Samuel Osazuwa & Ors V. Johnson Isibor Anor (2003)

LawGlobal-Hub Lead Judgment Report

AMINA ADAMU AUGIE, J.C.A.

In the High Court Warri, Delta State, presided over by Kuejubola, J., the appellants as plaintiffs sued the respondents as defendants for the following:
1. Declaration that the plaintiffs being the beneficial owners thereof are the persons entitled to the grant of Certificate of Occupancy in respect of the piece or parcel of land, marked as Plot 4 in Block XXXIX (39) in former Bendel, but now Delta Development and Property Authority’s Igbudu Scheme, Warri, within jurisdiction of this Honorable Court, measuring approximately 1213.12 square metres.

2. Declaration that the sale/lease/assignment/transfer of the said piece or parcel of land by the 1st defendant to the 2nd defendant, without the knowledge, authority, consent and/or approval of the plaintiffs is null and void ab initio and of no effect whatsoever.

3. An order compelling the 1st defendant being an agent and/or trustee of the plaintiffs’ church to transfer and/or assign the ownership of the aforementioned piece or parcel of land to the plaintiffs, who are the beneficial owners thereof.

4. Perpetual injunction restraining the defendants by themselves, their servants, agents and/or assigns whosoever, from doing anything or continuing to do anything on the said piece or parcel of land and/or dealing with the piece or parcel of land in any manner without the knowledge, authority, consent and/or approval of the plaintiffs.

The appellants’ case from the pleadings and evidence is that the 1st respondent was the second in command of their church and he agreed to purchase a parcel of land for the church in his name with a promise to transfer it subsequently, to the church. However, upon acquiring the said parcel of land, instead of transferring it to the church, the 1st respondent sold the land to the 2nd respondent.

The 1st respondent however, denied the appellants’ claim, alleging that the land in dispute, Plot 4 Block 39 of Igbudu Scheme of Bendel Development and Property Authority (BDPA) is not the one allocated to the church, rather, that it is the 1st appellant who applied for and was granted Plot 12 Block 41 of BDPA Housing Estate, Igbudu, which is the property applied for by the church in the 1st appellants’ name. The 2nd respondent admitted that he bought the land in dispute from the 1st respondent but insisted that he paid for it after all the relevant documents revealed that the 1st respondent was the rightful owner.

In it’s Judgment dated the 27th of January, 1999, the lower court held, thus:
1. “From the plaintiffs claim and evidence in court, the pleadings and evidence are completely devoid of any of the five different ways or methods of proving or establishing ownership of land in dispute as in the following cases: Idundun v. Okumagba (1976) 9-10 SC 227; Atanda v. Ajani (1989) 3 NWLR (Pt.111) 511.

There is no scintilla of evidence before the court to show that the plaintiffs have even proved one of the root of title to sustain plaintiffs’ claim for declaration of title.” (Page 63-64 of the record).

2. “It is trite law that in a claim for declaration of title to land, the statement of claim, the survey plan and the oral evidence in court must speak the same language with respect to the area of land claimed. See the case Ijade v. Ogunyemi (1996) 9 NWLR (Pt. 470) 17. The plaintiffs by their pleadings and evidence in court have not established any scintilla of evidence in this regard.” (page 65)

3. “It is difficult to accept and believe the plaintiffs’ case in the absence of any written evidence where it was agreed by the 1st defendant that he would purchase the land in question in his own name and later transfer it to the plaintiff’s church.” (page 65 – 66)

4. “An unregistered receipt evidencing payment in respect of land, even though it may ex-facie qualify as an instrument within the con of the provisions of the Land Instrument Registration Law is not admissible in evidence to prove or establish title … All the receipts tendered by the plaintiffs even if it bears the name of the church (although it bears the name of the defendant) will not suffice. See Tewogbade v. Obadina (1994) 4 NWLR (Pt.338) 326”

5. “The 2nd defendant successfully established that he carried out thorough investigation as to the ownership of the land before he paid for the land he bought from the 1st defendant. He is indeed a bona fide purchaser for value without notice of any interest thereon.” (page 65)

The learned trial Judge then concluded as follows on page 68 of the record:
“The plaintiffs have failed to establish title. I hereby, dismiss the claim for declaration of title to the land in question as per relief (1). The plaintiffs have also failed on the preponderance of evidence, and balance of probabilities to prove their case with regards to the prayers sought in the 2nd, 3rd and 4th reliefs. The remedy of Injunction will not avail where as in this case, plaintiffs have not succeeded in the claim for declaration of title to the said land. Accordingly, therefore the entire action fails and is hereby dismissed.”

Being dissatisfied with the above decision of the trial court, the appellants have now appealed to this court on 4 main grounds of appeal. The grounds of appeal without their particulars are as follows:
1. The learned trial Judge erred in law, when she held that the plaintiffs having failed to prove the identity of the land in dispute were not entitled to a declaration of title.
2. The learned trial Judge erred in law, when she did not properly evaluate the evidence adduced before her when she held that the plaintiffs had failed to prove their case on the preponderance of evidence.
3. The learned trial Judge erred in law, when she held that there was neither oral nor documentary evidence before court to show that the 1st defendant was acting as agent for plaintiffs in the matter of purchase of the land in dispute.
4. The learned trial Judge misdirected herself, when she held that the plaintiffs failed to prove their title under any of the five ways enumerated in Idundun v. Okumagba (supra).

Parties filed and exchanged briefs of argument, and four issues for determination were formulated in the appellants’ brief, as follows:
(i) Whether the learned trial Judge was right in dismissing the claim of the plaintiffs/appellants on the ground that they failed to prove the identity of the land in dispute in the circumstances of the case.
(ii) Whether the learned trial Judge properly evaluated the evidence adduced in the case before dismissing the claim of the plaintiffs/appellants on the ground that they did not prove their case on the preponderance of evidence.
(iii) Whether the learned trial Judge was right, when she held that there was no evidence to show that the 1st defendant/respondent acted as agent of the plaintiffs/appellants in the matter of purchase of the land in dispute.
(iv) Whether the learned trial Judge was justified to hold that the plaintiffs/appellants failed to prove their title under any of the five ways of establishing title to land.

The respondents adopted the appellants issues No. ii), iii). & iv) and formulated one other issue sub-divided into No.1(a) as follows:
1. Does the fact that a land in dispute is ascertainable from the averments in the pleadings preclude a plaintiff in an action for declaration of title to land from proving its precise boundaries, area, extent, dimensions, exact location on the ground.
1(a) On the state of the pleadings before the lower court, could respondents be said to have admitted the precise boundaries, area, extent, dimensions, exact location of the land in dispute on the ground.

In the appellants’ reply brief, it was submitted for the appellants that the respondents’ issue No.1 & 1(a) cannot be sustained in law as they do not stem from the grounds of appeal, referring to the statement of Belgore, JSC, in Animashaun v. University College (1996) 10 NWLR (Pt.476) 65 at 70, that: the general rule is that issues for determination must be relevant to the grounds of appeal filed in court, if not those issues are incompetent.

Also cited is Ogunjumo v. Ademolu (1995) 4 NWLR (Pt.389) 254 at 257, where the Supreme Court held:
“An issue formulated for determination by the Appeal Court which is not covered by ground of appeal filed is incompetent. Similarly, a ground of appeal from which no issue for determination is formulated is deemed abandoned and in both cases the issue and the ground of appeal will be struck out.”

It was further submitted that issues for determination cannot be wider than the grounds of appeal, and the issue of whether the respondents admitted appellants’ claim was not contemplated by the grounds of appeal and it ought to be struck out, citing in support Amuzu Johnson v. Chief (Mrs.) Anna Ewutuya (1996) 1 NWLR (Pt. 427) 740 at 746 – 747 wherein it was held:
“It has infact been said, that since an issue for determination in an appeal must be consistent with and fall within the scope of a ground or grounds of appeal filed, it cannot be formulated wider than the grounds of appeal from which it derives its existence”.

Also cited are the cases of Fred Egbe v. Alhaji Abubakar Alhaji & 2 Ors.(1990) 1 NWLR (Pt.128) 546 & Amuzu Johnson v. Ewutuya (supra) in support of the submission that when an issue for determination is wider than the grounds of appeal, such issue together with the arguments based thereon must be struck out. Pointing out that there is no cross-appeal, it was submitted on the authority of Chia v. The Staff (1996) 6 NWLR (Pt. 455) 465 at 474, that it is trite law that a respondent who did not cross-appeal can only adopt the issues as formulated in the appellant’s brief based on the grounds of appeal filed by the appellant or at best recast them by giving them a slant favourable to the respondent’s point of view, without departing from the complaint raised by the grounds of appeal. It was further argued that the respondents’ are bound hands and feet by the grounds of appeal and issues submitted by the appellants and cannot forage into issues not raised by the appellants.

Another submission is that the division of the first issue into 1 & 1(a) by the respondents rendered the said issue imprecise and the respondents cannot expect this court to make two findings in respect of one issue, therefore, the respondents’ issue(s) 1 & 1(a) are incompetent and ought to be struck out. In arguing the appeal, Dafe Akpedeye for the appellants, urged the court to discountenance the said issue 1 & 1(a) arguing that the respondents had adopted the appellants’ 4 issues, but sub-divided the appellants’ issue No.1 into 1 & 1(a) which do not flow from the grounds of appeal filed.

On his own part, Mr. E.I. Oritsejafor for the respondents, submitted in his reply that the respondents’ issue 1 & 1(a) flow directly from ground 1 of the grounds of appeal, and that they are not bound to follow the issues as formulated by the appellants. He explained that the respondents adopted the appellants issue ii), iii), & iv) but did not adopt the appellants issue 1). Now, the law is clear that a respondent is not allowed or entitled to frame issues outside the grounds of appeal filed by the appellant.

See Ubudu v. Abdul-Razak (2001) 7 NWLR (Pt.713) 669; Akpan v. Ekpo (2001) 5 NWLR (Pt.707) 502; NEPA v. Savage (2001) 9 NWLR (Pt.717) 230; Odeleye v. Adepegba (2001) 5 NWLR (Pt.706) 330, & Kokoro-Owo v. Lagos State Govt. (2001) 11 NWLR (Pt.723) 237. See also Mkpedem v. Udo (2000) 9 NWLR (Pt.673) 631 wherein this court, per Edozie, JCA. (as he then was), stated as follows:
“The courts have stated a number of times that a respondent’s primary duty is to support the judgment appealed against by showing that the contention of the appellant as to the parts of error are without merit. Also, as they have not cross-appealed, they cannot formulate issues as it were in nubibus – hanging in the skies. They can only either adopt the issues as formulated by the appellant based on the grounds of appeal before the court or at best recast them by giving them a slant favourable to the respondent’s point of view, but without departing from the complaint by the grounds of appeal.”

See also, Geidam v. N.E.PA (2001) 2 NWLR (Pt. 696) 45; Chia v. The State (supra). In other words, a respondent is free or at liberty to adopt the issue or issues formulated by the appellant. However, where a respondent has adopted in his brief the issues as formulated by the appellant, he cannot go further to formulate additional issues in the absence of a cross-appeal or a respondent’s notice by him.

He is bound by the issues as adopted. See Obaditan v. Kwara State Polytechnic (1995) 9 NWLR (Pt.418) 228; & Majekodumni v. Cooperative Bank Ltd. (1997) 10 NWLR (Pt.524) 198 wherein this court stated as follows:
“Where as in the instant case, the respondent have adopted in their brief the issues formulated by or in the appellant’s brief, it is no longer open for them to go further and formulate additional issues… in the absence of a cross-appeal or a respondent’s notice by the said respondents. They are bound by the appellant’s issues which they have adopted.

I agree with learned Counsel for the appellants. The respondents have not filed a cross-appeal or respondent’s notice in this appeal. Having adopted 3 of the appellants’ 4 issues, they can not formulate an additional issue, and it is clearly wrong of the respondents to go further and sub-divide the said issue into 1 & 1(a). It is just too cumbersome for a just determination of the appeal. See Iloabuchi v. Ebigbo (2000) 8 NWLR (Pt. 668) 197.

I will therefore, adopt the 4 issues formulated in the appellant’s brief in dealing with this appeal.
Issues 1 & 1(a) formulated for the respondents and the arguments thereon will be discountenanced.
On the appellants issue No 1, it was submitted in the appellants’ brief prepared by Chief A.O. Akpedeye, that the identity of the land in dispute was not an issue in the case; that the 1st appellant tendered exhibit A to J being the originals of the receipts of payment for the land in dispute, all showing the identity of the land without any dispute and/or objection; and that the respondent tendered the sublease of the land showing the exact location, boundaries and/or areas of the land. Citing Okedare v. Adebara (1994) 6 NWLR (Pt. 349) 157, it was further submitted that the law is clear that where from the evidence and circumstances of the case, the parties have no doubt as to the identity of the land in dispute, the burden of proving the same does not exist.

Furthermore, that the law is trite that the survey plan of the land in dispute is not necessary when the identity of the land is not in controversy, pointing out that the 2nd respondent testified that the land he bought from the 1st respondent is the same as the one in dispute in the case, and citing Osakwe Iwuno v. Guedo Dieli (1990) 5 NWLR (Pt. 149) at 126, where the Enugu Division of this court held:
“Where the parties from the evidence are clear as to the identity of the land in dispute the fact that different names are given to it or the area it is located cannot affect the case.”

Also cited is Fatuade v. Onwoamanam (1990) 2 NWLR (Pt.132) 322 at 329, where the Supreme Court per Kawu, JSC stated as follows:
“I must say that the identity of the land in dispute is not in question as both sides agreed that the land in dispute is situate at 52A Bale Street, Aiyetoro, Ajegunle.”

The Supreme Court also held therein, Fatuade’s case, that:
“In an action for declaration of title to land, the burden is on the plaintiff to prove the identity of the land, which he claims relates. However, such burden will not exist where as in this case the identity of the land, the subject matter in dispute was not a question in issue.”

The Supreme Court further held in the same case, that:
“In an action for declaration of title to land, the question of the identity of the land in dispute will only be an issue if and only if the defendant in his statement of defence made it one.”

As learned Counsel for the appellants rightly submitted, where the identity of the land in dispute is not in issue between the parties, no onus lies on a claimant for declaration of title to such land to prove the said identity as that fact is not an issue for determination between the parties in the suit.
See Alabi v. Oloya (2001) 6 NWLR (Pt.708) 37; Osanyinbi v. Sokenu (2001) 3 NWLR (Pt.699) 170. See also Kyari v. Alkali (2001) 11 NWLR (Pt.724) 412. It is also the law that the identity of the land in dispute can be or will be an issue only where the defendant raises it in his statement of defence in a trial, where pleadings are necessary and they are filed or in cross-examination of the plaintiff or his witnesses or in the defendant’s own testimony. See Alabi v. Oloya (supra); & Osanyinbi v. Sokenu (supra).

In this case, pleadings where necessary in the trial at the lower court. Appellants filed a statement of claim wherein they claimed as follows in paragraph 15 (1),
“Declaration that the plaintiffs being the beneficial owners thereof are the persons entitled to the grant of certificate of occupancy in respect of the piece or parcel of land marked as Plot 4 in Block XXXIX 39 of the former Bendel, but now Delta Development and Property Authority’s Igbudu Scheme. Warri, … measuring approximately 1213.12 square metres.” (Italics mine)

The respondents did not make the identity of the land in dispute an issue in their amended statement of defence. More importantly, the 1st respondent in his evidence stated at page 35 of that record-
“The Plot 4 Block 39 is my land. which is the land in dispute”.

The 2nd respondent also stated as follows on page 27 of the record:
“The 1st defendant is the person from whom I bought my piece of land from at Igbudu Scheme, Plot 4. It is the same as the land in dispute. I bought the land sometime in 1990.” (Italics mine).

During cross-examination, he replied as follows on page 34 of the record:
“I know this land in dispute. It is directly behind Numa maternity. I never said I did not know the land in dispute.”(Italics mine)

There is also the documentary evidence tendered by the witnesses during trial at the lower court. Exhibit B, is the allocation paper dated 2nd May, 1986, it is addressed to the 1st respondent from the BDPA, and it reads:
“I refer to your application, dated 19th February, 1986 and wish to inform you that subject to contract you have offered Plot 4 in Block XXXIX measuring 1213.12 square metres in the Authority’s Igbudu Scheme.Warri.” (Italics mine)

Exhibit P1, dated 19th February, 1986, is addressed to the GM, BDPA from the 1st respondent and it reads:
“I humbly wish to apply for allocation of a piece of land in Block 39 adjacent Plot Number in the Authoritys Igbudu Scheme II”.

Exhibit O, dated 11th December, 1990, is a temporary receipt of N3,000.00 to the 1st respondent from the 2nd respondent, and it reads:
“This is to certify that I, Mr. Johnson Aifuwa Isibor of No. 12 Egabor Street, Ikpoba Hill Benin City. The allotee of Plot 4 Block XXXIX Igbudu Scheme II, received from Mr. Felix E. Tuoyo of … the sum of N3,000.00 only being part payment, in consideration for the transfer of the whole of my interest on the said Plot 4, Block XXXIX…”

From the foregoing, can there be any doubt as to the identity of the land in dispute? Can the respondents seriously claim that they are not aware of, or do not know the identity of the land in dispute?

Obviously, the answer to both questions is in the negative. It is clearly ascertainable from the averments in the pleadings, and the evidence before the trial court, oral and documentary, that the land in dispute is “Plot 4 in Block XXXIX 39 of the former Bendel, but now Delta Development and Property Authority’s Igbudu Scheme, Warri,-measuring approximately 1213.12 square metres.” Parties were well aware of the identity of the land in dispute.

Succinctly put, the identity of the land in dispute was never a question, and there was therefore no requirement to prove same. The learned trial Judge was clearly in error when she held that proof of the identity of the land had not been established. See Alabi v. Oloya (supra); Osanyinbi v. Sokenu (supra). This issue is resolved in favour of the appellants.

As to whether the learned trial Judge properly evaluated the evidence before dismissing the claim of the appellants, it was submitted for the appellants that following the decision in Mogaji v. Odofin (1978) 11 LRN 217, (1978) 4 SC 91 at 93, a trial court should consider the totality of the evidence adduced before it in order to determine which set of facts has greater weight than the other, but that the learned trial Judge dismissed the claim of the appellants on the ground that they failed to prove their case on preponderance of evidence and balance of probabilities apparently on the basis as stated by the trial court on page 64 of the record:
“It is also of interest to note that apart from the 1st plaintiff who testified before the court, the 2nd & 3rd plaintiffs did not testify at all, to either support or add credence to the plaintiffs’ case, as put up by 1st plaintiff.”

Learned Counsel for the appellants submitted that the strength of a party’s case is not determined by the number of witnesses called by the party, but by the quality of the testimony of the witnesses called, which was the basis of the decision of this court in Oji v. Ndu (1993) 1 NWLR (Pt. 268) 235 at 237; and Ogbodu v. State (1987) 2 NWLR (Pt.54) 20 at 22 wherein Supreme court held as follows:
“Unless expressly so provided, no particular number of witnesses is required to prove a fact, as what is necessary is the quality of evidence not quantity.”

He also relied on the decision of the Supreme Court in Musa v. Yerima (1997) 7 NWLR (Pt.511) 27 at 31, that a party is not bound to call a particular witness if he can prove his case otherwise. Therein Ogundare, JSC stated:
“The only duty of a court is to determine whether on the totality of the evidence before it, the plaintiff has proved his case. In arriving at the conclusion, the court should not be carried away by the number of witnesses called by any of the parties or any other consideration, but should be guided only by the quality and probative value of the evidence given by the witnesses”.

Learned Counsel for the appellants is right. A plaintiff does not need to call a host of witnesses to prove his case. One solitary witness is enough if his/her evidence proves the essential issue in dispute, and if he/she is believed. See Ezedigwe v. Ndichie (200 1) 12 NWLR (Pt. 726) 37; Musa v. Yerima (supra); & Adelumola v. State (1988) 1 NWLR (Pt.73) 683. The fact that the 2nd & 3rd appellants did not testify in the case should not have elicited any comments from the trial court. This was clearly an error on her part.There is no rule of law or evidence, which lays down that all persons who know about a particular fact must be made witnesses to testify on the issue before it could be proved. See Musa v. Yerima (supra).

Learned Counsel for the appellants also argued that the trial court seemed confused about the case presented by the respective parties. He referred the court to page 36 of the record where the appellants’ counsel raised an objection to the question asked the 1st defendant as it was not pleaded in his statement of defence. The trial court ruled as follows on page 37:
“Evidence not pleaded goes to no issue. Learned Counsel for the defendants contends that the said evidence led by the 1st defendant is in rebuttal to that fact in paragraph 9 of the statement of claim.

The court’s record is before me, and I have examined the contents of paragraph 9 of the statement of claim. I hold that the evidence being led by 1st defendant as to how the receipt he alleged to be his property came into the possession of the plaintiffs is no where pleaded, neither can it he taken as rebuttal to paragraph 9 of the statement of claim. Objection upheld. That piece of evidence adduced given (sic) goes to no issue.”

However, in her judgment on page 65 of the record, the learned trial Judge stated as follows:
“The 1st plaintiff testified that the 1st defendant went ahead to acquire the land which was meant for the church, on the pre that the receipts issued to him which was tendered by plaintiff were missing. E.I. Oritsejafor is of the contention that this piece of evidence should be rejected as it was not pleaded. Upon a very careful perusal of the plaintiff’s pleadings, it is no where pleaded and I agree with defendants’ counsel in this regard.”

It is the submission of learned Counsel for the appellants that the said observations of the trial court is not supported by any shred of evidence and is therefore perverse. Learned Counsel for the respondents, on the other hand, submitted that the evaluation of the evidence, findings and conclusion reached by the lower court can not be faulted. He argued that it is not enough to point to an isolated mistake made by the trial Judge, that to be material such an isolated mistake must have led the Judge to a wrong conclusion and occasioned a miscarriage of justice.

He submitted that in this case, the mistake made by the trial court occasioned no miscarriage of justice, as it did not affect adversely the conclusion reached by the Judge.

Now, what is at stake here? I have gone through the record of proceedings and what is evident therein is that the appellants averred in paragraph 11 of their statement of claim that the 1st respondent ‘had cleverly collected the deed of lease in respect of the plot of land from the legal department of the BDPA with falsified documents’. In his evidence in chief at page 21 of the record, the 1st appellant stated as follows- We were told that the 1st defendant had corrected the deed of lease with a falsified document.

It was during cross-examination at page 24 that the 1st appellant replied, thus-
“The receipt for the land was with us, when the 1st defendant went ahead to claim the land, on the pretence that the receipt was missing”.

The address of Mr. Oritsejafor before the lower court is at page 40 – 46 of the records, and there is no where therein where he contended that any piece of evidence should be rejected, as it was not pleaded. It is therefore, surprising that the trial Judge would agree with defendants’ counsel on an objection he never raised. The records show that the only time an objection was raised that evidence was not pleaded was after the 1st respondent in his evidence in chief said – All the receipts by which I made instalmental payments were tendered by the plaintiffs. At the time I paid, the receipts were given to me. It is not true that I told the G/M BDPA to issue all receipts in my name. The G/M is not my in-law.

The receipts were issued to me. Thereafter, at this point, counsel for the plaintiffs and not the defendants’ counsel raised the objection, which led to the trial Judge ruling as follows:
“I hold that the evidence being led by 1st defendant as to how the receipt he alleged to be his property came into the possession of the plaintiff is no where pleaded, neither can it be taken as rebuttal to paragraph 9 of the statement of claim. Objection upheld”.

This is certainly more than a mistake. I do not agree with learned Counsel for the respondents that this mix-up of issues and parties is a mere mistake on the part of the trial Judge. A trial Judge has the primary duty to evaluate the evidence placed before the court. Evaluation or appraisal of evidence simply means the assessment or estimation of evidence so as to give credit or value to it, see Ogunleye v. Oyewole (2000) 14 NWLR (Pt. 687) 290. In this instance, the trial Judge was not even sure of the evidence of the parties, not to mention ascribing probative value to it. I therefore, agree with the appellants’ counsel that the trial court seemed confused about the case presented by the respective parties, and whether this has occasioned a miscarriage of justice will be considered later in this judgment.

Learned Counsel for the appellants further argued that the trial court despite the use of the phrases putting the two sets of facts on an imaginary scale, preponderance of evidence, balance of probabilities, in her judgment, did not properly evaluate the quality of evidence produced by the appellants. For instance, he argued that it was the respondents who alleged that the 1st appellant applied for and acquired another piece of land for the church, which he later sold to one Cadmus, all of which were the assertions of the respondents who have the burden in law to prove the said assertions.

He further submitted that the respondents did not produce any shred of evidence to prove the said assertions, and it is certainly not the duty of the appellants to prove it, therefore it was totally wrong of the learned trial Judge to express surprise that the appellants did not prove these assertions, all of which influenced her to reach the wrong conclusion in the case. In effect, his argument is that the parcel of land acquired by the 1st appellant for his own use was never in issue, that it is the land the 1st respondent was mandated to buy/acquire for the church that was the bone of contention.

Learned Counsel for the respondents however, submitted that the procedure adopted by the lower court in evaluating the evidence can not be faulted, and its findings can not therefore be described as perverse, that the lower court after properly evaluating the evidence adduced by the parties, placed it on the imaginary scale before deciding the suit on the preponderance of evidence as laid down by the Supreme Court in Mogaji v. Odofin (supra); and re-stated in Woluchem v. Gudi (1981) 5 SC 291, (1981) NSCC 214 at 215.

He further submitted that the lower court considered the material facts in the pleadings, thereafter it considered the totality of the evidence led by the appellants, then the totality of the respondents’ evidence, and after a brief summary of the case of appellants and respondents proceeded to consider the evidence led in relation to the reliefs sought and the principles of law involved, therefore the conclusions of the learned trial Judge were right.

No doubt, the evaluation of evidence by a trial court is of utmost importance in the adjudication process. For starters, there cannot be a finding of fact by a Judge when that Judge has not evaluated the evidence before him. In Nkpa v. Nkume (2001) 6 NWLR (Pt.710) 543, this court per Ikongbeh, JCA spelled out the process involved in the assessment or evaluation of evidence, thus:
“First, a piece of evidence is taken and considered as to whether in the natural order of things it is credible. If it is not intrinsically incredible then it is against the pleadings of the party who is relying on it. This is to ensure its relevance to the matter at hand as parties are bound by their pleadings and evidence given on any point not pleaded goes to no issue. After that you check in the pleadings and the testimony on behalf of the opposing party to see if the fact stated in the evidence has been admitted, either expressly or impliedly. If it has, then the fact on which it was given has been proved.
If there is no admission, then you check for what other contrary evidence there is from the opposing side. Then you place the two pieces of opposing evidence on the imaginary scale of justice. The piece that tilts the scale constitutes the finding of the court.”

In this case, the appellants prayed the lower court for a declaration that they are the ones entitled to the grant of certificate of occupancy in respect of the land in dispute. The appellants case is that the 1st respondent agreed to purchase the said parcel of land for the church in his name, which he was to later transfer to the church, but instead of doing that, the 1st respondent sold the land to the 2nd respondent.

The respondents denied the appellants claim. They further averred in paragraph 3 ii), & iii) of their amended statement of defence that the church was granted another plot entirely, Plot 12 Block 41, in the name of the 1st appellant, and that the 1st appellant later sold part of the said land to one Mr. Cadmus. In their reply to the statement of defence, the appellants averred as follows in paragraph 2 thereof:
“Plaintiffs in reply to paragraph 3 of the statement of defence state the plot of land in respect of which they applied and paid for is Plot No.4 in Block XXXIX 39 of the BDPA as pleaded in paragraph 15(1) of the statement of claim. Plaintiffs state further that when the church was in search of possible land upon which to build, 1st plaintiff offered to give the church his personal plot which the church found to be unsuitable, because it was located in a swamp area and the church did not have the resources with which it could claim it. This was before the 1st defendant volunteered to help the church acquire the land in dispute. Plaintiffs did not give the plaintiff’s money with which he applied for and got for his personal use. The plaintiffs will contend at the trial that the attempt now being made by the defendants to mix up the two distinct and separate transactions appears deliberate in order to confuse the issue before the court.” (Italics mine)

It is well settled that a plaintiff claiming a declaration of title bears the burden of establishing his claim to the land. He cannot rely on the weakness of his opponent’s case. See Elema v. Akenzua (2000) 13 NWLR (Pt. 683) 92; Itauma v. Akpe-Ime (2000) 12 NWLR (Pt. 680) 156. The question now is when in any given case, can it be said that the plaintiff has discharged that onus on him?
As the Supreme Court pointed out in Onobruchere v. Esegine (1986) 1 NWLR (Pt.19) 799, an onus of proof does not exist in vacuo. The onus or burden of proof is merely an onus to prove or establish an issue. There cannot be any burden of proof where there are no issues in dispute between the parties. For example, if the plaintiff’s claim is admitted, that will be the end of the story.

Similarly, if a particular averment of the plaintiff is admitted, there will be no longer an onus to prove what has been admitted by the opposite party. Therefore, to discover where the onus lies in any given case, the court has to look critically at the pleadings. The Supreme Court also held as follows in Onobruchere v. Esegine (supra):
“Where for instance, the plaintiff pleads possession of the land in dispute as his root of title and the defendant admits that possession, but adds that the land was given to the plaintiff on pledge, then the onus shifts onto the defendant to prove that the plaintiff is not the owner of the land his possession of which has been admitted. Once the defendants admits the plaintiffs possession of the land in dispute in his statement of defence, there and then, the plaintiff has on the pleadings discharged the onus of proof cast on him and section 145 of the Evidence Act, Cap. 62 of 1958, will impose a burden on the defendant to prove the negative – namely that the plaintiff is not the owner. See Lawrence Onyeakaonwu & Ors. v. Ekwubiri (1966) 1 All NLR 32 & p. 35”.

In this case, the appellants had to satisfy the court that they were entitled on the evidence brought by them to the declaration that they sought, however, the learned trial Judge stated as follows in her judgment at page 66:
“1st defendant is alleging that it was the 1st plaintiff being the head of the church who sought to buy land for the church and applied in the name of the church. He referred to exhibit A as such application. The plot of land, which the 1st plaintiff bought, he said is styled as Plot 12 Block 41, which plaintiff allocated to himself instead of handing it over to the church. He denied ever purchasing the land for the church and tendered documents in proof of his own land, which is Plot 4 Block 39 in question. The 1st plaintiff admitted buying land for himself and not for the church, which he said, is still intact and not sold to Mr. Cadmus as alleged by 1st defendant. Surprisingly, the 1st plaintiff did not tender any documentary proof of the said land he admitted he even offered to the church but was rejected so he personally acquired it.” (Italics mine)

Learned Counsel for the appellants submitted, I agree with him, that the surprise expressed by the learned trial Judge on the failure to tender the documents has no legal basis. Clearly, the land acquired by the 1st appellant for his own use was never in issue. It was the land that the 1st respondent was allegedly mandated to purchase for the church in his name that was the bone of contention in the case.

It was the respondents that brought up the issue of another plot belonging to the church in the name of the 1st appellant, and on the above authority, it was for them to prove their allegations. It was not for the appellants to disprove them. The learned trial Judge obviously allowed herself to be confused, and placed the burden of proof wrongly on the appellants.

The law is clear also that to place the burden of proof wrongly on a party will usually lead to a miscarriage of justice. This is because the Judge’s opinion will normally be weighed unjustly on relevant issues against such a party. See P.H.M.B. v. Ejitagha (2000) 11 NWLR (Pt. 677) 154. See also Onobruchere v. Esegine (supra) where the Supreme Court relied on the observation of the Master of Rolls in RE Moulton: Graham v. Moulton 22 TLR 380, as follows:-
“We are aware of the great weight properly attributable to the opinion of the Judge who has seen and heard the witnesses; but an Appeal Court is a rehearing, and we cannot avoid the responsibility of forming a judgment on the matter for ourselves. If it should appear that there was a misapprehension on the part of the Judge as to what the antecedent presumptions were, and where the onus of proof lay, it might seriously affect the weight of his opinion as to credibility of witnesses. Their story may be probable or improbable, according to the view taken as to what they must be presumed to have thought about the matter. Now, with the greatest respect to the learned trial Judge who tried the case, we cannot help thinking that this disturbing factor is present in this case”. (Italics theirs)

Misdirection as to the onus of proof is thus, a very serious matter, which can affect the credibility of witnesses, and it can also lead to a miscarriage of justice. See Joe Sandy v. P.C Johannes B. Hotogua & Anor. (1952) 14 WACA 18, where the court held that proceeding on the wrong assumption that the onus was on the plaintiff affected the learned trial Judge’s view of the evidence and therefore that evidence would have to be reconsidered.

In this case, I find myself in agreement with learned Counsel for the appellants that there has been an apparent miscarriage of justice in this case. Learned Counsel for the appellant urged this court to re-appraise the evidence offered by the parties in order to do substantial justice in the case, citing Mogaji v. Odofin (supra); & Musa v. Yerima (supra). However, the Supreme Court ordered a retrial in Onobruchere v. Esegine (supra), since the fundamental compliant was a misdirection on the onus of proof. See also Okonkwo v. Udoh (1997) 9 NWLR (Pt. 519) 16, Mohammed, JSC in ordering a retrial had this to say:
“This court had in Awote v. Owoduni (No.2) (1987) 2 NWLR (Pt.57) 367, that where a court of trial fails to advert its mind to and treat all issues in controversy fully, and there is insufficient material before the Appeal Court for the resolution of the matter, the proper order to make is one of retrial. If an Appeal Court says that a trial Judge has committed both misfeasance and nonfeasance during trial which he presided over, it would mean that the decision of that court amounted to a miscarriage of justice. What will constitute a miscarriage of justice may vary, not only in relation to that particular facts, but also with regards to the jurisdiction which has been invoked by the proceedings in question; and to reach the conclusion that a miscarriage of justice has taken place does not require a finding that a different result necessarily would have been reached in the proceedings said to be affected by the miscarriage. It is enough if what is done is not justice according to law.” (Italics mine)

In this case, it is my view that bearing in mind, the catalogue of errors by the trial Judge, some of which have been enumerated in this judgment, the appropriate order that would meet the justice of this case is one for retrial. That being the case, I do not see that any useful purpose will be served in considering the other issues raised in this appeal. In the final result, this appeal is allowed. The judgment of P.O. Onajite Kuejubola, J., dated 27th January, 1999, is set aside. It is hereby, ordered this case be sent back to the Warri High Court for retrial by another Judge. The appellants are awarded cost assessed at N3,000.00

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Other Citations: (2003)LCN/1400(CA)