Legalpedia Citation: (2010) Legalpedia (CA) 11120

In the Court of Appeal

HOLDEN AT OWERRI

Thu Nov 11, 2010

Suit Number: CA/OW/75/2008

CORAM

PARTIES

EJIKE JOE AJALA APPELLANTS

OGBONNA OKOGBUE

RESPONDENTS 

AREA(S) OF LAW

SUMMARY OF FACTS

The Plaintiff/ Appellant instituted an action against the Defendants/ Respondents for a declaration, damages for trespass and injunction. Issues were joined and the case was tried by the High Court. At the end of the trial, the learned trial Judge dismissed the Appellant’s claim. Consequently, the Plaintiff / Appellant appealed to this court.

HELD

Appeal dismissed

ISSUES

1. Whether the trial court properly evaluated the evidence adduced before it and came to a right conclusion in view of the fact that both parties relied on traditional history as their root of title?

2. Whether the trial court was right in referring to or relying on a Customary Court judgment contained in Exh. D in deciding the appellant’s claim?

 

RATIONES DECIDENDI

TRADITIONAL HISTORY-CONFLICT IN EVIDENCE-EXISTENCE OF

“The issue of conflict in evidence of traditional history exists where there is admissible, reliable and credible evidence from both sides that conflict with each other only. CHIEF OKOKO v. MARK DAKOLO (2006) 7 SCNJ 284.Thus, for the rule in KOJO II v. BONSIE to be applicable, there must be conflict in traditional history of both parties, and the evidence of both sides must not suffer from any material defect.” PER OGUNWUMIJU JCA

PROOF OF TITLE TO LAND-METHODS OF PROVE- CIRCUMSTANCES WHERE A PLAINTIFF MUST FAIL

“The methods are in fact independent and not disjunctive. Where a Plaintiff relies on traditional history as well as acts of ownership and long possession based or predicated on the same traditional history, he must fail where the evidence of traditional history is unproven.” PER OGUNWUMIJI JCA

EVALUATION OF EVIDENCE-FUNCTION OF THE TRIAL COURT-WHEN AN APPELLATE COURT CAN INTERFERE

“It is trite that evaluation of evidence and ascription of probative value are primary functions of the trial court. An appellate court can only interfere when the trial court has failed in its duty to evaluate evidence or the conclusion upon evaluation is manifestly perverse. ln any event, the appellate court can only re-evaluate evidence given at the trial court where no issue of credibility of witnesses arises.

DECLARATION OF TITLE TO LAND- DUTY OF CLAIMANT THERETO

“In an action for declaration of title to land there is need for the claimant to plead and proof his root of title before he can base his claim of title on acts of ownership or long possession.” PER OGUNWUMIJU JCA

DECLARATION OF TITLE TO LAND-WHERE RELIANCE IS ON TRADITIONAL HISTORY-DUTY OF CLAIMANT THERETO

“In an action for declaration of title to land, where the claimant relies on traditional history, he has the duty to plead and prove who founded the land, how the land was founded, the intervening owners through whom he derived his title and their particulars. Where this has not been done, the claim is not proved.” PER OGUNWUMIJU JCA

DECLARATION OF TITLE TO LAND-EXISTENCE OF CONFLICT IN EVIDENCE-DUTY OF THE COURT THERETO

“It is trite that evaluation of evidence and ascription of probative value are primary functions of the trial court. An appellate court can only interfere when the trial court has failed in its duty to evaluate evidence or the conclusion upon evaluation is manifestly perverse. ln any event, the appellate court can only re-evaluate evidence given at the trial court where no issue of credibility of witnesses arises.

LIMITATION OF ACTION-WHERE AN ACTION IS STATUTE BARRED-WHEN CAN BE RAISED

“The issue of an action being statute barred is a substantial question of law, which the Respondents can only raise for the first time on appeal with leave of this court.” PER OGUNWUMIJU JCA

TRADITIONAL HISTORY- RULE IN KOJO II .V. BONSIE-APPLICABILITY OF

“The rule in KOJO II v. BONSIE applies when there is conflict in traditional evidence of the parties to resolve the conflict by testing recent history concerning acts of ownership and possession in deciding whose traditional evidence is more plausible. IWURIE IHEANACHO & ORS v. MATHIAS CHIGERE & ORS. (2004) 7 SCNJ 272.Thus, KOJO II v. BONSIE is applicable when the evidence of both parties are in conflict or inconclusive.

EVALUATION OF EVIDENCE- DUTY OF COURT THERETO

” It is clear that this court cannot interfere when the findings of facts are in accord with the evidence led. In evaluating evidence, the trial court and indeed the appellate court is to be concerned not with the number of witnesses but with the quality or probative value of the testimonies of the witnesses.” PER OGUNWUMIJU JCA

CASES CITED

DODO DABO v. ALH. IKIRA ABDULLAHI (2005) 2 SCNJ 76,LEBILE v. C & S CHURCH (2003) 1 SCNJ 463; OLOWOSAGO v. ADEBAN.JO (1988) 4 NWLR Pt.88 Pg. 275 at 283OBA YEKINI ELEGUCHI & ORS. v. SARATA OSENI & ORS, (2005) 7 SCNJ 416JOHN OWHONDA v. ALPHONSO CHUKWUEMEKA EKPECHI (2003) 9 SCNJ 1IWURIE IHEANACHO & ORS. v. MATHIAS CHIGERE & ORS. (2004) 7 SCNJ 272CHIEF OKOKO v. MARK DAKOLO (2006) 7 SCNJ 284.OKPALA EZEOKWONKO & ORS. v. NWAFOR OKEKE & ORS. (2002) 5 SCNJ I.COSMUS EZUKWU v. PETER UKACHUKWU & ANOR (2004) 7 SCNJ 189LASISI MORENIKEJI & ORS. v. LALEKE ADEGBOSIN & ORS. (2003) 4 SCNJ 105GAJI v. PAVE (2003) 5 SCNJ 20THOMPSON v. AROWOLO (2003) 4 SCNJ 30 OSOLU v. ENG. UZODINMA OSOLU (2003) 6 SCNJ 162AROWOLO v. CHIEF TITUS IFABIYI (2002) 2 SCNJ 96VICTOR NDOMA-EGBA v. A.C.B. (2005) 7 SCNJ 461ALI PINDER KWAJAFFA & ORS v. BANK OF THE NORTH (2004) 5 SCNJ 121

STATUTES REFERRED TO

None

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