Tyogbide Akulaku & Ors V. Ikyume Yongo (2002)

LAWGLOBAL HUB Lead Judgment Report

O. EJIWUNMI, J.S.C. 

The appellants were the defendants in this action, which was commenced against them jointly and severally by one Usue Aga as plaintiff in the Upper Area Court of Benue State in the Gboko Judicial Division holding at Gboko, for trespass and for a declaration of title to the said land situate and lying at Mbaadeda of Yandev. The appellants also filed a counter claim against the said Usue Aga wherein they counter claimed against the said Usue Aga, for

(1) a declaration of title

(2) an order of forfeiture and

(3) perpetual injunction in respect of a piece of land situate at Mbaakumba, Yandev.

At the Upper Area Court, Usue Aga testified in support of his case and called one witness. The appellants, who were the respondents in the court below, called three witnesses. The Judge of the Upper Area Court after hearing the evidence of the parties visited the locus in quo. At the locus in quo, further evidence was taken, and the court made some observations in respect of the evidence given during the course of the visit to the locus in quo. Thereafter, the Upper Area Court Judge gave a well considered judgment. By that judgment, the claim of the respondent was upheld and the counter claim filed by the appellants was dismissed and the court took the view that the appellants had failed to prove their counter claim. The Judge of the Upper Area Court accordingly entered judgment for the respondent and declared him to be the owner of the disputed land. He however made an order restraining the appellants, their servants, agents and their privies from entering on the said land from the date of the judgment.

The appellants were dissatisfied with the judgment and orders of the Upper Area Court. They appealed to the High Court of Justice, Benue State, Benue Judicial Division, holding at Gboko. The appeal was heard by that court sitting in its appellate jurisdiction (Coram A. Idoko C.J. and A.O. Onum, J). Whilst this matter was pending before the High Court, it was reported that the respondent Usue Aga who instituted the action against the appellants originally was dead. The present respondent, Ikyume Yongo was substituted for the deceased Usue Aga. In that court, after argument of counsel appearing for the parties, the court delivered a considered judgment which resulted in the success of the appellants before that court. As the respondent was dissatisfied with the judgment of the High Court aforesaid, an appeal was lodged to the court below. In the court below, the respondent was successful as that court reversed the decision of the Gboko High Court sitting in its appellate jurisdiction. The appellants were aggrieved with the decision of the court below. They have now appealed to this court.

Pursuant thereto, the appellants filed five grounds of appeal, which without their particulars read thus:

“(1) The decision of the lower court is against the weight of evidence.

(2) The Court of Appeal erred in law in affirming the decision of the trial Upper Area Court, Gboko, when the respondent as plaintiff had woefully failed to identify the piece of land claimed with definite certainty and clarity as required by law and this led to a grave miscarriage of justice to the appellants.

(3) The Court of Appeal erred in law in affirming the judgment of the trial Upper Area Court, Gboko, when respondent (as plaintiff) woefully failed to prove his root of title to the said land as required by law and this led to a grave miscarriage of justice to the appellants.

(4) The Court of Appeal erred in law in setting aside the judgment of the Gboko High Court in its appellate jurisdiction on the ground that the said Gboko High Court “had clearly usurped the functions of the trial by ascribing credibility to the evidence of the witnesses who it had not seen and whose evidence the trial court had implicitly rejected”, even the findings of the trial Upper Area Court were obviously perverse.

(5) The Court of Appeal erred in law in setting aside instead of affirming the judgment of the Gboko High Court (sitting on appeal) in favour of the defendant/appellant in respect of their counter claim when there was sufficient and unchallenged evidence in support of the counter claim; and this led to the miscarriage of justice to the appellant.”

Later, the parties filed and exchanged their respective brief of argument in accordance with the rules of this court. The learned counsel who appeared for the parties adopted and placed reliance on their respective briefs namely, the appellants brief, the respondent’s brief and the appellants reply brief. In the appellants brief, the following are the issues identified for the determination of the appeal.