CORAM

---

---

PARTIES

---

MR. UYIEKPEN ALE

---

MR. SOLOMON UGIAGBE

---

AREA(S) OF LAW

---

Not Available

 

---

SUMMARY OF FACTS

The Respondents instituted this action by a Writ of Summons before the High Court of Edo State against the Appellants wherein they claimed for a declaration; an Order of perpetual injunction; and General damages. The claim of the Respondents was that the land in dispute was founded by Owe, their founder, who migrated from Iguihean village and their forefathers deforested the land for farming. That the land in dispute formed part of the area acquired for forest reserve in the 19th century and remained government property after independence in 1960. The Edo State Government published in the Nigerian Observer, “its intention to de-reserve some hectares for the Respondents for development. And on the 2/6/2006 the Edo State Governor approved for the Respondents including Effionayi community approximately 40. 315hectares of forest reserve( out of which only approximately 30.315 hectares is the subject matter in this case)and this was published in Edo state gazette NO.51 Vol.17 Edo State notice 61 dated 6/12/2007; hence the Respondents have a statutory right of occupancy by virtue of the Gazette. However, sometimes in 2009 the Respondents discovered illegal structures being constructed on the land by the Appellants. After the reservation the Ministry of Agriculture allocated an area of the forest reserve to farmers from the Respondents’ community, to farmers from different communities including the Appellants’ community to farm, which did not confer ownership of the land on the community farming there as communal land called Evboudia Taungya farm. After the colonial masters reserved the forest the Respondents moved out to settle outside the forest reserve. The Appellants’ shrines are not within the Forest reserve. The land having been de – reserved and released to the Respondents’ community by the Governor belongs to the Respondents. The Appellants in their defense the great-grandfather of DW2 was the first Urhobo man to set up a camp in Ulemon community and that DW2 and his father were born there. That though the land in dispute was declared forestry reserve by the Colonial masters but did not amount to an acquisition by Government as erroneously indicated in the Gazette. That the Respondents encroached on the land in dispute 2003 and over which their community protested through their legal adviser. That the Respondents had no house or farmland within the forest reserve and the entire area in dispute falls within the Appellant’s community land and they remained the sole owners. At the conclusion of trial, the lower Court gave judgment wherein the claims of the Respondents were granted. The Appellants, aggrieved with the said judgment, had appealed against it to this Court vide their second Notice of Appeal containing seven Grounds of Appeal; which replaced the first Notice of Appeal after same was withdrawn and struck out. The Respondents filed a Notice of Preliminary Objection along with their Brief on the ground that the Appeal was rendered incompetent by reason of the absence of any other valid Notice of Appeal on which this Appeal can be heard and determined on the merit.

---

HELD

---

Appeal Dismissed

---

ISSUES

---

Whether based on the claims, the evidence led and surrounding circumstances of this case the Court below was right in entering judgment for the Respondents on the basis of their Claims?

---

RATIONES DECIDENDI

---

COMPETENCE OF COURT- DUTY OF COURT WHEN AN ISSUE OF COMPETENCE IS RAISED

---

My lords, in considering the preliminary objection challenging the competence of this Appeal, I bear in mind first and foremost that in law the issue of competence is very fundamental to adjudication because it goes to the foundational competence of any cause or matter or action before the Court. It is indeed the epicenter of the entire litigation process and thus, without it there can be no validity in any proceedings or resultant judgment or ruling of the Court. Thus, once raised it should be determined first one way or the other before the issue of the merit of the matter, if need be, can be considered by the Court. See Madukolu V. Nkemdilim (1962) SCNLR 341. See also Elugbe V. Omokhafe (2004) 18 NWLR (Pt. 905) 319 @ p. 334; Tukur V. Gongola State Government (No. 2) (1989) 4 NWLR (Pt. 117) 517; Western Steel Works Ltd. V. Iron & Steel Workers Union (1987) 1NWLR (Pt. 49) 284; NDIC V. CBN (2002) 7 NWLR (Pt. 766) 272”.-

---

NOTICE OF APPEAL – EFFECT OF FAILURE TO FILE A NOTICE OF APPEAL AT THE REGISTRY OF THE COURT

---

So, in law is the Second Notice of Appeal competent? The First Notice of Appeal was filed on 1/8/2016 clearly within the statutory three months period as allowed by law but was jettisoned by the Appellant at page 4 of the Appellant’s brief and earlier in this judgment struck out, leaving only the Second Notice of Appeal dated 19/8/2016 but which was not filed on any date before the Registry of the Court below as required by law. Had the Second Notice of Appeal been also duly filed at the Registry of the Court below on or before 20/10/2016, which was not the case, the striking out of the First Notice of Appeal would have been of no adverse legal consequences on competence of this Appeal.
In the circumstances therefore, the only duly filed First Notice of Appeal having been struck out, the Second Notice of Appeal dated 19/8/2016 but regrettably not filed in the Registry of the Court below is in law not a Notice of Appeal as required by law to challenge the judgment of the Court below before this Court since in law it is the date of which a Notice of Appeal was filed that is relevant and significant and not the date on which the party dated it as to the date it was prepared. The date on which it was prepared is of no legal significance and unless and until such a Court process is duly filed at the appropriate Registry of the Court and the necessary fees paid or waived, it remains a worthless paper not worthy of any attention and consideration by a Court of law.
So, it is regrettably with the purported Second Notice of Appeal dated 19/8/2016 but not field at the Registry of the Court below as required by law. It therefore, remained a worthless piece of paper incapable of invoking the appellate jurisdiction of this Court to hear and determine a purported Appeal against the judgment of the Court below delivered on 20/7/2016 and emanating from such an incompetent, invalid and nonexistence Second Notice of Appeal.
Having arrived at the inescapable conclusion that the Appellants’ appeal against the judgment of the Court below delivered on 20/7/2016 by a purported Second Notice of Appeal dated 19/8/2016 but not filed at the Registry of the Court below as required by law had rendered the entire Appeal originated without a valid Notice of Appeal incompetent, and thus liable to be struck out in – limne, the issue of the perennial battle for supremacy between ‘substantial justice’ and ‘technical justice’ seems to have come to the fore once again to play on the conscience of this Court; should we jettison and discountenance technicality bordering on incompetence of the Appellants’ Appeal or should we give effect to the settled principle of law that nothing worth anything can ever come out from an incompetent Appeal and end the matter here and now?
In African Songs Limited & Anor V. King Sunday Adeniyi Adegeye (2019) 2 NWLR (Pt. 1656) 335 @ p. 365 – 366, I had cause to consider deeply the place of ‘substantial justice’ and ‘technical justice’ in the due administration of justice in this Country and had opined inter alia thus:
“My lords, while in today’s jurisprudence of ‘substantial justice’ the issue of ‘mere technicality’ no longer holds sway, yet it is truism that competence is the soul of adjudication. It is in this sense the issue of competence can no longer in law truly be regarded as ‘mere technicality’ but rather be seen as substantial issue of law. In other words while eschewing technicality for its sake, a Court can only exercise jurisdiction where all conditions precedent to the exercise of its powers have been fulfilled. See Andrew V. INEC (2018) 9 NWLR (Pt. 1625) 507 @ pp. 540 – 541; Madukolu V. Nkemdilim (1962) 1 All NLR 587.”
–

---

RE-EVALUATION OF EVIDENCE- CIRCUMSTANCES WHEN AN APPELLATE COURT WOULD INTERFER AND RE-EVALUATE THE EVIDENCE AS PUT FORWARD AT THE LOWER COURT

---

“However, it is the law that it is only where the Court below had not properly carried out its sacred duty of dispassionately evaluating the totality of the evidence led, and had thus failed in this primary duty, that an appellate Court would have the legal justification to intervene and re – evaluate the evidence on the printed record in order to make appropriate findings of facts in line with the dictates of justice to the parties. So, until an appellate Court arrives at such a conclusion the need for re – evaluation of evidence does not arise since an appellate Court has no business re – evaluating the evidence and interfering with correct findings of a trial court. See Williams V. Tinubu (2014) All FWLR (Pt. 755) 200. See also Amuneke V. The State (1992) NWLR (Pt. 217)347; Sule Asariyu V. The State (1987) 4 NWLR (Pt. 67) 709;Nkebisi V. State (2010) 5 NWLR (Pt. 1188) 471; Woluchem V. Gudi (1981) 5 SC. 291; Enang V. Adu (1981) 11-12 SC. 25; Abisi& Ors. V. Ekwalor & Anor (1993) 6 NWLR (Pt. 302) 643; Igapo V. The State (1999) 12 SCNJ 140 @ p. 160; Amala V. State (2004) 12 NWLR (Pt. 888)520.
Thus, even where the appellate Court comes to the conclusion that there is need to re – evaluate the evidence, it must be borne in mind that evaluation and ascription of probative value to the evidence led is ordinarily the turf of the trial Court, and therefore, once a trial Court discharges that duty on the strength of the evidence placed before it, unless it arrives at perverse conclusions or findings not supported by the established evidence before it, an appellate Court should not interfere once the conclusions reached is correct, even if the reason turns out to be wrong. This is so because in law an appellate Court is not so much concerned with the correctness or wrongness of the reasons adduced by a trial court for its decisions or conclusions but rather more concerned with whether the decision reached or conclusion arrived at was correct or wrong; that is the law. See Alhaji Ndayoko & Ors. V. Alhaji Dantoro & Ors. (2004) 13 NWLR (Pt. 889) 187 @ p. 198. See also Abaye V. Ofili (1986) 1 NWLR (Pt. 15) 134; Ukejianya V. Uchendu 18 WACA 46. –

---

EVALUATION OF EVIDENCE – DUTY OF A TRIAL COURT IN THE EVALUATION OF EVIDENCE

---

“The duty of a trial Court to consider, appraise, review and evaluate all relevant and admitted evidence, whether oral or depositions and or documentary, placed before it before arriving at its findings and decision is a paramount as well as a sacrosanct one which cannot under any guise be abandoned or jettison by a trial Court. Thus, where a trial Court fails in this duty then it fails it its entire duty of impartial adjudication between the contending parties before it and the appellate Court if so moved is under a bourdon duty to intervene to evaluate the evidence as in the record and make relevant findings and reach appropriate decisions as borne out by the evidence in the interest of justice to the parties. See Olufosoye V. Olufemi (1989) 1 SC (Pt. 1) 29, where Oputa, JSC.,(God bless his soul) had opined inter alia thus:
“There is a duty on a trial Court to receive all available evidence on an issue. This is perception of evidence. After that there is another duty to weigh that evidence in the context of the surrounding circumstances of the case. This is evaluation of evidence”
See also Tangale Traditional Council V. Fawu (2001) 17 NWLR (Pt. 742) 330 @ pp. 335 – 336.

---

EVALUATION OF EVIDENCE – WHAT DOES EVALUATION OF EVIDENCE ENTAILS?

---

“In law, evaluation of evidence would entail and demand that the evidence proffered by the parties are assessed, appraised and weighed impartially on the imaginary scale of justice by the Court so as to give probative value or quality to it and there must be on the record, and very importantly too, how the Court arrived at its choice of preference of one piece of evidence to the other. See Alake V. State (1992) 9 NWLR (Pt. 265) 260. See also Dantiye & Anor V. Kanya & Ors (2008) LPELR – 40094 (CA); Afemai Microfinance Bank Ltd V. Seacos Nig. Ltd (2014) LPELR – 22583 (CA). –

---

FACTS – STATUS OF FACTS MADE BY A PARTY IN HIS PLEADINGS

---

“In law, any allegation of fact made by a party in his pleading is deemed to be admitted by the opposite party unless it is traversed or denied by that party in his pleadings to give rise to a joinder of issues between the parties. However, where the other party fails to effectively traverse or deny the averments or where he does so evasively, he would be deem to have admitted those averments. I therefore, deem paragraph 6, 7 and 12 of the Respondents’ Statement of Claim admitted by the Appellant vide their evasive traverse in paragraph 5 of their Statement of Defense. There was therefore, in my view, no further duty on the Respondents to prove the facts as averred to by them in these paragraphs, those facts having been deemed admitted by the Appellants. See UBN Plc. V. Chimaeze (2014) 9 NWLR (Pt. 1411)166 @ p. 175. See also Tukur V. IPES. Ltd(2014) 17 NWLR (Pt. 1437) 575 @ p. 580; Ajibulu V. Ajayi (2014) 2 NWLR (Pt.1392) 483 @ p. 489”. –

---

PROOF OF TITLE TO LAND – EFFECT OF FAILURE OF A PARTY TO PROVE ITS ROOT OF TITLE THROUGH IT CHOSEN METHOD

---

“In law, a Claimant to title to land is not required to prove more than one of the five ways of proof of title to land, but where he fails to satisfy the Court on any one or more of the five ways he relies on as his root of title then his claim to title to land must fail. See Idundun V. Okumagba (1976) 9 – 10 SC 27. See also Chief Elemoro & Anor Vs. Chief Abiodun (2014) LPELR 23195; Piaro V. Tenabo (1976) 12 SC 31 @ p. 37; Dabo Vs. Abdullahi (2005) LPELR – 905 (SC). –

---

LAW – CONSEQUENCE OF WHEN A STATE LAW IS INCONSISTENT WITH A FEDERAL LAW

---

“I have taken time to review the submissions of learned Senor Advocates for the respective parties in this Appeal and have considered the findings of the Court below, and it does appear to me that going by the succinct provisions of Sections 1 and 2 of the Land Use Act 1978, the power to deal with land in Edo State is vested in the Governor of Edo State and not on the Edo State Executive Council as purported to have been provided by Section 21 of the Forestry Law of Edo State. It follows therefore, the provisions of Section 21 of the Forestry Law of Edo State, a State law, being inconsistent with the provisions of Sections 1 and 2 of the Land Use Act, a Federal Law, is to the extent of the inconsistency null and void and the Governor of Edo State is, in my view, empowered by law to modify it to bring it into conformity and in line with the Land Use At 1978 to give purpose, clarity and effectiveness to the intention of the legislature for effective management and control of all land in the Urban Areas of Edo State by the Governor of the State. See AG. Abia V. AG. Federation (2003) 4 NWLR (Pt. 809) 124 @ p. 179”. –

---

ADMINISTRATIVE LAW EXERCISE OF POWER OF A GOVERNOR – WHERE A POWER IS VESTED DIRECTLY AND SOLELY ON THE GOVERNOR, IT IS ONLY THE GOVERNOR THAT CAN EXERCISE SUCH POWERS TO THE EXCEPTION OF ALL OTHERS

---

“Thus, in law the Governor of Edo State acting qua Governor is not the same as the Governor acting as the Head of the Edo State Executive Council. It follows therefore, and I so hold firmly that where a power is vested directly and solely on the Governor of Edo State acting qua Governor, it is only the Governor of Edo State that can exercise such powers and not the Edo State Executive Council as being erroneously canvassed in this appeal by the Appellants contrary to the sound and correct findings of the Court below. See Emuze V. VC, University of Benin (2003) 10 NWLR (Pt. 828) 378. See also Anya V. Iyayi (1993) 7 NWLR (Pt. 305) 290; Garba V. University of Maiduguri (1986) 1 NWLR (Pt. 18) 550. –

---

COURT – DUTY OF A PARTY TO BE CONSISTENT IN BOTH THE FACTS HE PLEADS AND THE EVIDENCE HE LEADS IN PROOF OF THOSE FACTS

---

“My lords, the law is now well settled that notwithstanding the difficulty of discerning absolute truth by the mechanism of litigation and judicial discernment hinged upon evidence before the Court and irrespective of the imperfections of men, the litigation process is aimed at finding out the truth according to law and therefore, a party worthy of favourable consideration of the Court must endeavour to be consistent in both the facts he pleads and the evidence he leads in proof of those facts, as well as counsel also being consistent in the case they present for the litigants both before the trial Court and this Court.
Thus, whilst a party will not be allowed to present at the trial evidence which are inconsistent with the case he has pleaded, so also should a counsel not indulge himself in putting forward or holding unto obviously inconsistent positions or presentations in his submissions on behalf of the litigants. Indeed, consistency is the very first hall mark of truth in a case and also of excellence of a legal practitioner. See Ajide V. Kelani (1985) 3 NWLR (Pt. 12) 248; Ezemba V. Ibeneme (2009) 14 NWLR (Pt. 789) 623. –

---

PROOF OF TITLE TO LAND – WHETHER A PARTY WHO RELIES ON MORE THAN ONE OF THE METHODS OF PROOF OF TITLE TO LAND IS OBLIGATED TO PROVE ALL THE METHODS RELIED UPON

---

“It needs to be pointed out at once that in law a party claiming title to land has open to him one or more of five methods of proving title to land and any of which if sufficiently made out would suffice and none of which five method is higher than the other. The party may also rely on a combination of one or more of the five methods in proof of his title to land.
However, where a party relies on more than one of the five methods of proof of title to land, he is not under any obligation to prove all the methods relied upon before he could succeed once he is able to prove sufficiently even one of the more than one methods relied upon by him that would suffice to ground his claim for title to land.,
Let me explain! Where for instance, a party claiming declaration of title to land relies on production of title documents and evidence of traditional history as his roots of title to the land in dispute but at the trial was only able to prove his title by production of valid title documents, his case would still succeed notwithstanding the fact that he had not been able to prove the other method of evidence of traditional history also relied upon by him as his root of title”. –

---

TRADITIONAL HISTORY – DUTY OF A PARTY RELYING ON TRADITIONAL HISTORY AS PROOF OF TITLE TO LAND

---

“It is the law that a party relying on evidence of traditional history of title to land in dispute must plead and prove the following, namely; a. the name of founder of the land, b. in what manner the land was founded and the circumstances leading to it, c. the names or particulars of successive owners through whom the land devolved from the founder to the present party claiming ownership of the land. See Alade V. Awo (1975) 1 SC 215. See also Ani V. Ewo (2004) I SC 115; Lawani Alli & Ors. V. Chief Gbadamosi & Ors. (2000) 6 NWLR p. 233; Oyadare V. Keji (2005) 7NWLR (P1. 925) 571.
In other words, a party seeking a declaration of title to land, who relies on traditional history as proof of his root of title, must plead same sufficiently. That is to say, he must demonstrate in his pleading the original founder of the land, how he founded the land, the particulars of the intervening owners through whom he claims. Thus, where a party has not given such sufficient information in his pleadings as regards the origin or ownership of the land and the line of succession to himself, he has just laid foundation for the failure of his claim. See Hyancith Anyanwu V. Robert Achilike Mbara (1992) 5 SCNJ. 90; Idundun V. Okumagba (1976) 9-10 SC 224; Atanda V. Ajani (1989) 3 NWLR (Pt. 111) 511. –

---

FINDINGS OF A TRIAL COURT – CIRCUMSTANCES WHEN THE APPELLATE COURT WITH NOT INTERFERE WITH THE FINDINGS OF THE LOWER COURT

---

“In such circumstances, where the findings and the resultant decision thereon is correct, an Appellate Court would not interfere with or disturb neither such correct findings nor decision. In law, where a trial Court, such as the Court below, had carried out its duty of proper evaluation of the evidence led by the parties in the light of the averments in their pleadings and had come to the correct finding of facts and reached the right decisions, an appellate Court, such as this Court would lack the vires to interfere with or disturb such correct findings of the Court below.
I find the decision by the Court below granting the title to the land in dispute to the Respondents as against the Appellants as correct and have no reason whatsoever, since none has been made out by the Appellants, to interfere with and disturb this correct finding of the Court below, a power which an appellate Court does not in fact and in law have interfering with and disturbing a correct finding by a trial Court. That is certainly neither the duty nor business of an appellate Court. See Alhaji Ndayoko & Ors. V. Alhaji Dantoro & Ors. (2004) 13 NWLR (Pt. 889) 187 @ p. 198, where Edozie, JSC had pronounced with finality on this vexed issue, thus:
“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…..”
See also Abaye V. Ofili (1986) 1 NWLR (Pt. 15)134; Ukejianya V. Uchendu 18 WACA 46; Oni V. Johnson (2015) LPELR – 24545 (CA); Balogun V. Agboola (1974) 1 All NLR (Pt. 2) 66 –

---

CASES CITED

---

Not Available

---

STATUTES REFERRED TO

---

Constitution of the Federal Republic of Nigeria, 1999 (as amended)|Court of Appeal Act 1976|Court of Appeal Rules 2011|Forestry Law, Laws of Bendel State of Nigeria, Cap 59 1976 (applicable to Edo State)|Land Use Act 1978|

---

CLICK HERE TO READ FULL JUDGMENT