REV. JOSEPH ERKWAGH UWUESE v. REV. G. P. AZUANA & ANOR
August 21, 2025ORNGU UNONGU V JONATHAN TYOBAN
August 21, 2025Legalpedia Citation: (2025-05) Legalpedia 96509 (CA)
In the Court of Appeal
Holden at Markudi
Wed May 28, 2025
Suit Number: CA/MK/105/2013
CORAM
Biobele Abraham Georgewill -Justice of the Court of Appeal
Bature Isah Gafai-Justice of the Court of Appeal
Nehizena Idemudia Afolabi-Justice of the Court of Appeal
PARTIES
IGYUSE YAHUZA AMOS
APPELLANTS
PASTOR CHARLES ONUH
RESPONDENTS
AREA(S) OF LAW
LAND LAW, PROPERTY LAW, CIVIL PROCEDURE, EVIDENCE LAW, TRESPASS, NUISANCE, BURDEN OF PROOF, APPEAL, PRACTICE AND PROCEDURE, NON-SUIT, CROSS-EXAMINATION
SUMMARY OF FACTS
The Appellant acquired title to Plot No. BNC 5087 on TPS118 through purchase from one Mr. Ageebee after the Ministry of Lands and Survey had surveyed and beaconed the land as a residential plot. He obtained all necessary title documents and an approved building plan, which he followed in construction. He was the first to develop his plot in the area, bringing electricity and building his fence before the Respondent arrived. The Appellant also built a water channel beside his fence, which served as demarcation of his plot with an access road.
Previously, the Appellant was sued by one Mrs. Rachael Atoo, but the case was decided in his favor in line with TPS 118, which declared the portion immediately adjoining the Appellant’s plot as an access road. However, immediately after this judgment, the Respondent went into the land and started building on the portion declared to be an access road despite complaints and warnings from the Appellant. The Respondent erected a fence, joined it to the Appellant’s fence, and blocked the water channel constructed by the Appellant, causing the Appellant’s fence to collapse due to water accumulation.
The Appellant commenced action seeking orders for the Respondent to vacate the access road and pull down structures thereon, or alternatively, payment of N23,700,000 as compensation for his house, plus specific damages of N213,633, general damages of N70,000,000, and litigation costs. The Respondent filed a Statement of Defense and Counter-Claim, but this was subsequently struck out by the trial court for being incompetent. After trial, during which the court visited the locus in quo, the trial court dismissed the Appellant’s claims for lacking merit, leading to this appeal.
HELD
1. The appeal was dismissed.
2. The Court of Appeal upheld the trial court’s dismissal of the Appellant’s claims for lacking merit.
3. The Court held that the Appellant failed to prove his claims against the Respondent with credible and cogent evidence.
4. The Court found that the trial court was correct in dismissing the claims rather than non-suiting the case when the Appellant’s counsel failed to address the court on why the case should not be non-suited.
5. The Court affirmed that even in the absence of a valid defense, a claimant must still prove his case with at least minimal proof meeting the required standard.
6. No order as to costs was made.
ISSUES
1. Whether or not the decision of the lower Court made on 22/01/2013 is against the weight of evidence?
2. Whether or not the Appellant is entitled to judgment in the absence of a valid defense?
3. Whether or not the lower Court was right to have dismissed the case of the Appellant when it suo motu asked the Appellant’s counsel to address him as to why the Court should not Non-Suit the case of the Appellant, failure to which it out-rightly dismissed the case in its entirety?
RATIONES DECIDENDI
BURDEN OF PROOF – REQUIREMENT FOR CREDIBLE EVIDENCE:
“My lords, it is true, and it is the law, that in civil cases, the burden of first proving existence or non-existence of a fact lies on the party against whom the judgment of the Court would be given if no evidence were produced on either side, regard being had to any presumption that may arise on the pleadings.” – Per BIOBELE ABRAHAM GEORGEWILL, J.C.A.
MINIMAL PROOF – STANDARD REQUIRED EVEN WITHOUT DEFENSE:
“It must be remembered that evidence required to establish a claim, even where there are no pleadings from a Defendant, must be such that is credible and cogent, meeting at least a minimal proof, which in law is still a standard of proof. Thus, in law, minimal proof does not mean no proof at all as it appears to be the erroneous belief of the Appellant.” – Per BIOBELE ABRAHAM GEORGEWILL, J.C.A.
LOCUS IN QUO – PURPOSE AND SIGNIFICANCE OF COURT VISIT:
“In law, the main purpose of a view or a visit to the locus in quo is to assist the Court to understand fully the questions in issue in a case, to appreciate and follow the evidence before it and properly to apply such evidence in arriving at its decision. Thus, the confirmation at the locus in quo by either the parties, their witnesses or even neutral person cannot be merely wished away.” – Per BIOBELE ABRAHAM GEORGEWILL, J.C.A.
CROSS-EXAMINATION – TEST OF WITNESS CREDIBILITY:
“It has become imperative since the introduction of written statement of oath as evidence in chief in civil proceedings that cross-examination is now the real test of the veracity of witnesses. The reason being that most written statement of oath nowadays are mere replica of the pleadings of the parties. It is thus by the cross-examination evidence the true worth of the evidence of a witness is ascertained.” – Per BIOBELE ABRAHAM GEORGEWILL, J.C.A.
CROSS-EXAMINATION EVIDENCE – VALIDITY AND EFFECT:
“In law evidence elicited under cross-examination once they are on fact pleaded either by the cross-examining party or by the party whose witness is being cross-examined constitute good and valid evidence which, if credible, would either support the case of the cross-examining party or destroy and or demolish the case of the party whose witness is being cross-examined.” – Per BIOBELE ABRAHAM GEORGEWILL, J.C.A.
EXPERT EVIDENCE – NECESSITY IN LAND DISPUTES:
“It is rather incredible, in my view, that the Appellant who claims that the Respondent had built on the access road beyond the limit of the boundary of his land and thereby inflicted damages to the Appellant’s land by reason of the resultant flooding, did not call even as witness even one of the witness Officers of the responsible Agency of the Benue State Government saddled with the duty of delimiting lands in the Makurdi to give evidence and/or tender documents of such delimitation to ascertain the specific area of land that should serve as waterway or access road between the land of the Appellant and the land of the Respondent.” – Per BIOBELE ABRAHAM GEORGEWILL, J.C.A.
NON-SUIT – PRECONDITIONS FOR COURT ORDER:
“In law, a Court, particularly a trial Court, can only enter a non-suit in a case before it when it appears to it that: 1. The Claimant has not failed completely and/or entirely to prove his case. 2. Where the Defendant is not in any event entitled to the judgment of the Court, and 3. Where no wrong or injustice would result or be caused to the Defendant by the making of an order of non-suit.” – Per BIOBELE ABRAHAM GEORGEWILL, J.C.A.
NON-SUIT – COURT’S DISCRETIONARY POWER:
“Thus, a Court may, if it deems fit, where no satisfactory evidence has been led by either of the parties to be entitled to judgment, call upon the parties to address it on why it should rather not enter a non-suit and declare no victor and no vanquished as would enable the parties to return to Court at a future date to see if either of them could, under the law, prove his entitlement to the reliefs he has been unable to prove in the present Suit.” – Per BIOBELE ABRAHAM GEORGEWILL, J.C.A.
FACTS AS FOUNDATION OF LAW – REQUIREMENT FOR EVIDENCE:
“My lords, facts are the arrowhead of the law and therefore, were the much-needed facts are not available in evidence against a Defendant, such a claim is bound to fail and be dismissed by the Court. Thus, generally, once the requisite hard evidence is lacking in support of a claim before a Court of law, then neither mere averments or even bare depositions nor the most forensic and eloquence of brilliant submissions can be a substitute for evidence that was not given.” – Per BIOBELE ABRAHAM GEORGEWILL, J.C.A.
PRIMA FACIE CASE – REQUIREMENT FOR JUDGMENT:
“It follows therefore, in law that where a fact or facts are relied upon but no credible and cogent admissible evidence is led to prove them, then no onus is cast on the other party to disprove the fact or facts not established. Thus, it is the law that notwithstanding even the absence of the case of a Defendant or Respondent as the case may be, a Plaintiff or Applicant as the case may be, must lead credible evidence sufficient enough to establish his claims even if it be on a minimal proof.” – Per BIOBELE ABRAHAM GEORGEWILL, J.C.A.
DEFENDANT’S BURDEN – WHEN NO PRIMA FACIE CASE EXISTS:
“When therefore, a Plaintiff or Applicant fails to make out at least a prima facie case of his claims against a Defendant or Respondent, the mere absence of the case of defense would not result into a verdict in favor of the Plaintiff or Respondent. This is so because in law if no prima facie case is made out by a Plaintiff or Applicant against a Defendant or Respondent, then such a Defendant or Respondent need not even prove anything in his defense.” – Per BIOBELE ABRAHAM GEORGEWILL, J.C.A.
APPELLATE COURT INTERVENTION – STANDARD FOR INTERFERENCE:
“I make bold to state, that it is not really the business of an appellate Court to embark on a fresh appraisal of the evidence where the lower Court, has unquestionably evaluated and appraised same and arrived at correct findings and conclusions in their judgments.” – Per BIOBELE ABRAHAM GEORGEWILL, J.C.A.
APPELLATE REVIEW – CORRECTNESS VERSUS REASONING:
“An appellate Court is only concerned with whether the judgment appealed against is right or wrong not whether the reasons given are right or wrong. Where the judgment is right but the reasons given are wrong, the appellate Court does not interfere. It is only where the misdirection has caused the Court to come to a wrong conclusion that the appellate Court will interfere.” – Per BIOBELE ABRAHAM GEORGEWILL, J.C.A.
CASES CITED
STATUTES REFERRED TO
• Evidence Act 2011
• High Court Laws
