CORAM
PARTIES
EFFANGA EFFIOM HENSHAW APPELLANTS
1. EFFANGA ESSIEN EFFANGA2. MFON MOSES AKPAN RESPONDENTS
AREA(S) OF LAW
SUMMARY OF FACTS
The case of the Appellant at the court below was that the Respondent, who was the 1st Defendant at the court below, broke and entered his land without his consent. The Appellant alleged that the land in his possession had been given to him by his grandmother under Efut Customary Law. The Respondent on the other hand alleged that the land in dispute was granted to him by Effanga Offiong Family of Henshaw Town, Calabar. The Respondent did not deny entry on the land in dispute and leasing same to the 2nd Defendant (now deceased) who built on it. He alleged that the land is within the Effanga Offiong Family land. The learned trial Chief Judge at the conclusion of the hearing without any evaluation and ascription of probative value to the evidence of the witnesses struck out the case, dissatisfied with this decision, the Appellant has appealed to this court.
HELD
Appeal allowed. Cross-appeal dismissed
ISSUES
Whether there was evidence before the Honourable Court showing that the brown verge in Exhibit “3” tendered by the plaintiff is outside Effanga Offiong landWhether the burden of proof that the land in dispute is part of Effanga Offiong’s land was not that of the defendant who so assertedWhether the learned trial Chief Judge adopted the right approach in his consideration of the case by merely summarising the addresses of counsel without consideration of the evidence adduced before him.?
RATIONES DECIDENDI
BURDEN OF PROOF IN CIVIL CASES-ON WHO LIES
“In Civil cases, the ultimate burden of establishing a case is as disclosed on the pleadings. The person who would lose the case if on completion of pleadings and no evidence is led has the general burden of proof.” PER JEAN OMOKRI JCA
BURDEN OF PROOF IN CIVIL PLACES-MEANING OF-DISTINCTION BETWEEN THE LEGAL AND EVIDENTIAL BURDEN OF PROOF
“The burden of proof in civil cases has two distinct meanings; viz:
(a) the first is the burden of proof as a matter of law and the pleadings usually referred to as legal burden or the burden of establishing a case;
(b) the second is the burden of proof in the sense of adducing evidence usually described as the evidential burden
While the legal burden of proof is always stable or static the burden of proof in the second sense, i.e. evidential burden of proof may oscillate constantly as one scale of evidence or the other preponderates.” PER JEAN OMOKRI JCA
ADMITTED FACTS -WHETHER NEEDS PROOF
“By virtue of section 75 of the Evidence Act, no fact need be proved in any civil proceedings which the parties thereto or their agents agree to admit at the hearing or which before the hearing, they agree to admit by writing under their hands, or which by any rule of pleading in force at the time they are deemed to have admitted by their pleadings.”PER JEAN OMOKRI JCA
EVALUATION OF EVIDENCE- PRIMARY FUNCTION OF THE TRIAL COURT
“Evaluation of evidence is the primary function of the trial.” PER JEAN OMOKRI JCA
EVALUATION AND APPRAISAL OF EVIDENCE-FAILURE OF THE TRIAL COURT TO EVALUATE AND APPRAISE EVIDENCE OF WITNESSES- EFFECT ON JUDGMENT
“Ordinarily, where the trial court fails woefully to evaluate and appraise the evidence of witnesses adduced before it, or to make any findings, the judgment of that court should be set aside and a retrial ordered”. PER JEAN OMOKRI JCA
BURDEN OF PROOF-ON WHOM LIES-SECTION 135 OF THE EVIDENCE ACT 1999
“The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all was given on either side. While the first burden is on the party who alleges the affirmative in the pleadings, the second burden, that is, the evidential burden, lies on the adverse party to prove the negative”. PER JEAN OMOKRI JCA
TITLE TO LAND-PARTY CLAIMING-DUTY THEREON TO PLEAD AND PROVE THE ORIGIN OR ROOT OF GRANTOR
“The law expects the respondent, where the title of his grantor is disputed to plead and prove the origin or root of the grantor. Failure to do so is fatal to his claim to ownership of the land”. PER JEAN OMOKRI JCA
DOCUMENTARY EVIDENCE-EVALUATION OF-POWERS OF AN APPELLATE COURT THERETO
“An appellate court is in as good a position as a trial court in the evaluation of documentary evidence”. PER JEAN OMOKRI JCA
CROSS APPEAL-PURPOSE OF
“A cross-appeal is not intended to be used for duplication or repetition of the arguments in the main appeal. The purpose of a cross-appeal is to correct an error standing in the way of a respondent in the main appeal. A cross-appeal arises when a respondent disagrees with the decision of the court below. “PER JEAN OMOKRI JCA
DECLARATION OF TITLE-CLAIM FOR-DUTY OF A PARTY THERETO
“In a claim for declaration of title the claimant must not only prove his root of title, he must establish the identity of the land in dispute.” PER JEAN OMOKRI JCA
ERROR AS TO ONUS OF PROOF-EFFECT OF
“Any error as to onus of proof could affect the judgment view of the evidence. It is a serious matter which can affect the credibility of witnesses and it can also lead to a grave miscarriage of justice.” PER JEAN OMOKRI JCA
EVALUATION AND APPRAISAL OF EVIDENCE-WHEN A COURT OF APPEAL CAN INTERFERE
“If a trial court fails to appraise or evaluate the evidence before it the Court of Appeal is obliged to appraise, evaluate or re-appraise or re-evaluate same to reach a decision that is fair and just to the parties in the case “PER JEAN OMOKRI JCA
EVALUATION OF EVIDENCE AND ASCRIPTION OF PROBATIVE VALUE-DUTY OF A TRIAL COURT
“It is settled law that the evaluation of evidence and ascription of probative value to such evidence are the preserve of a trial court which had the opportunity of hearing and assessing the evidence and demeanor of the witnesses.” PER JEAN OMOKRI JCA
DECLARATORY RELIEFS-GRANT OF-DUTY OF A PARTY THERETO-WHETHER AN ADMISSION BY THE DEFENDANT WILL RELIEVE THE PLAINTIFF FROM THE ONUS OF PROOF
“Before a court can grant a declaratory relief sought by a plaintiff (now appellant), he must plead and lead evidence to entitle him to the declaration sought. An admission by the defendant will no way relieve the plaintiff from the onus placed on him of proving his claim.”PER JEAN OMOKRI JCA
UNCHALLENGED EVIDENCE-HOW TREATED
“In law the evidence of a witness which is unchallenged, uncontroverted and uncontradicted must be accepted by the trial court”. PER JEAN OMOKRI JCA
ROOT OF TITLE-LEGAL AND EVIDENTIAL BURDEN-HOW ESTABLISHED
“The legal burden of establishing his root of title is on the appellant who must do so on the strength of his case without relying on the weakness of the defence, but the evidential burden of proving a particular fact tilts between the parties according to their averments in the pleading”. PER JEAN OMOKRI JCA
FINDING OF FACT BY A TRIAL COURT-WHETHER CAN BE DONE WHEN THE COURT HAS NOT EVALUATED THE EVIDENCE BEFORE IT
“There cannot be a finding of fact by a trial court when the court has not evaluated the evidence before it.” PER JEAN OMOKRI JCA
EVALUATION OF EVIDENCE-FAILURE TO EVALUATE EVIDENCE ADDUCED BY WITNESSES- EFFECT OF
“When a trial court fails to evaluate the evidence adduced by witnesses before it, it would arrive at a wrong or erroneous conclusion”. PER JEAN OMOKRI JCA
CASES CITED
Adebayo vs. Shogo (2005) 7 NWLR (Pt. 925) 467 at 481Adebo vs. Saki Estates (1999) 5 SCNJ 156Adeleke vs. Iyanda (2001) 13NWLR (Pt. 729) 1 Amadi vs. Acho (2005) 12 NWLR (Pt. 939) 386 at 402Anyakora vs. Obiakor (2005) 5 NWLR (Pt. 919) 507Anyabunsi vs. Ugwunze(1995) 7 SCNJ 551Anzaku vs. Gov.Nasarawa State (2005) 5 NWLR (Pt.919) 507; Atana vs. Amu (1974) 10 SC 237Atoyebi vs. Gov. of Oyo State (1994) 17 LRCN 73Ajani vs. Ladepo (1986) 3 NWLR (Pt. 28)Akibu vs. Opaleye (1974) 11 SC 189; Akinola vs. Oluwo(1962) 1 All NLR 224 Akintola v s. Balogun (2000) 1NWLR (Pt. 642) 532;Akintola vs. Ladipo (1991) 3 NWLR (Pt. 180) 508Bello vs. Eweka (1981) 1 SC 101Bunye vs. Akingboye (1999) 7 NWLR (Pt. 609) 31Ebba vs. Ogodo (1984) 1 SCNLR 372; Egunike vs. ACB Ltd. (1995) 12 NWLR(Pt. 375) 34; Elemo & Ors. vs. Omolade (1968) NMLR 359Eliochin (Nig.) Ltd. vs. Mbadiwe (1986) 1 NWLR (Pt. 14) 47Fashanu vs. Adekoya (1974) 6SC;Haruna vs. Uniagric, Makurdi (2005) 3 NWLR (Pt. 912) 233Imana vs. Robinson (1979) 1 All NLR 1;Ishola vs. U. B. N. Ltd. (2005) 6 NWLR (Pt.922) 422 at 443,Karibo vs. Grend (1992) 9 LRCN 766 Kodilinye vs. Odu (1935) 2 WACA 336Kpanugo vs. Kodadja 2 WACA 24; Narter vs. Narter 14 WACA 295N. B. N. Ltd. vs. U. C. Holdings Ltd. (2004)13 NWLR (Pt. 891) 436.Nkwocha & Ors. vs. Ofurum & Ors. (2002) 5 NWLR (Pt. 761) 506 at 511Nneji vs. Chukwu (1996) 10 NWLR (Pt. 478) 263;Nwarata vs. Egbuka (2005) 10 NWLR (Pt. 933) 241;Nwosu vs. Uche (2005) 17 NWLR (Pt. 955) 574Odinaka vs.Moghalu (1992) 4 NWLR (Pt. 233) 1Odofin vs. Ayoola (1984) 11SC 72; Ogunfaolu vs. Adegbite (1986) 5 NWLR (Pt. 43) 509;Okoebor vs. Police Comm. (2003) 12 NWLR (Pt.834) 444Oko vs. Ntukioku (1993) 2 NWLR (Pt. 274) 124 Olatunji vs. Adisa (1995) 2 SCNJ 91Olugbode vs. Sangodeyi (1996) 4 NWLR (Pt. 444) 500; Olujinle vs. Adeagbo (1988) 2 NWLR (Pt. 75) 238Omokhafe vs. Mil.-Admin.Edo State (2001) 14 NWLR (Pt. 733) 290 at 310 – 311Onobruchere & AnoL vs. Esegine &Anor. (1986) 1 NSCC 343 Onwugbufor & Ors. vs. Okoye & Ors. (1996) 1MAG page 1 at 14Osafile vs. Odi (1999) 5 SCNJ 79Oseni vs. Dawodu (1994) 4 SCNJ (Pt. 2) 197Otuendon vs.Olughor (1997) 9 NWLR (Pt. 521) 355;Owosho vs.Dada (1984) 7 SC 149 Sanusi vs. Amoyegun (1992) 4SCNJ 177 at 180 – 187;Trade Bank vs. Chami (2004) All FWLR (Pt. 235) 118 at 145 – 146Uche vs. Eke (1998) 7 SCNJ 1Udoh vs. Okitipupa Oil Palm Plc. (2005) 9 NWLR(Pt. 929) 58.Umana vs. Attah (2004) 7 NWLR (Pt. 871) 63 at 105Woluchem vs. Gudi (1981)5 SC 291 at 294;
STATUTES REFERRED TO
Court of Appeal Act 2004Evidence Act 1990Land Instruments Registration Law, Cross River State