CORAM

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B.F.M. NYAKO FHC

B.F.M. NYAKO FHC

B.F.M. NYAKO FHC

EPHRAIM OMOROSE IBUKUN AKPATA,JUSTICE, SUPREME COURT

AYO GABRIEL IRIKEFE JUSTICE, SUPREME COURT

EPHRAIM OMOROSE IBUKUN AKPATA,JUSTICE, SUPREME COURT

AYO GABRIEL IRIKEFE JUSTICE, SUPREME COURT

EPHRAIM OMOROSE IBUKUN AKPATA,JUSTICE, SUPREME COURT

AYO GABRIEL IRIKEFE JUSTICE, SUPREME COURT

B.F.M. NYAKO FHC

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PARTIES

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NNAEMEKA EZUE (for himself and on behalf of Omenife Family Nkitaku Village Agulu).

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1. NWEKE OGWO 2. SYLVERSTER ANYABA (For themselves and on behalf of Umunnaji Family Nkitaku Village Agulu).

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AREA(S) OF LAW

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SUMMARY OF FACTS

The Plaintiffs/Respondents and two others (Okoye Ochoma and Okoye Anadudu now deceased) instituted suit No AA/55/84 against the Appellant and two others (James Nwokike and Benedict Ndubuilo now deceased) as Defendants before High Court of Justice Anambra State, Awka Judicial Division. The Plaintiffs sought a declaration that the Plaintiff’s are entitled to the Statutory right of Occupancy to that piece or parcel of land verged Pink within the Plaintiffs’ larger land known as and called “Ana be Ugba” verged Blue in Plaintiffs’ Plan No. NLS/AN1510/84 situate at Nkitaku Village Agulu within jurisdiction. Its rental value is about #10.00 (Ten Naira); 5,000.00 (Five Thousand Naira) damages for trespass; an order of court for perpetual injunction restraining the Defendants, their agents, servants, privies or workmen from entering or interfering with the said land in any manner whatsoever and an Order of possession of the area presently being forcibly occupied by the Defendants. Upon being served with the Plaintiffs pleadings, the Defendants filed a Statement of Defence, which was subsequently amended, and they urged the lower court to dismiss the Plaintiffs claim for being frivolous, speculative and misconceived. Pleadings having been filed and exchanged, the matter went to trial. After reviewing, the oral and documentary evidence adduced during trial, the learned trial judge entered judgment in favour of the Plaintiffs. Irked by the trial court’s decision, the Appellant have lodged the instant appeal contending that the failure to react to the Respondents Further Amended Statement of Claim by amending the Appellant’s Amended Statement of Defence does not constitute an admission of Respondents’ case to entitle them to judgment.

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HELD

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Appeal Dismissed

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ISSUES

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Whether failure of Defendants to further amend their Amended Statement of Defence in response to the plaintiffs’ Further Amended Statement of Claim constitute an admission of the Plaintiffs’ case based on which judgment could be entered for them? Whether the Plaintiffs proved their case by reliance on traditional history? Whether the learned trial Judge entered judgment for the plaintiffs after carefully reviewing and evaluating the evidence adduced by the parties and placing same on an imaginary scale to determine which one outweighed the other as enunciated in Mogaji v. Odofin (1978) 4 S. C. 91? Whether the Respondents proved possession of connected and adjacent land in circumstances that section 35 of the Evidence Act would be activated

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RATIONES DECIDENDI

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PLEADING – EFFECT OF A PARTY’S FAILURE TO EFFECTIVELY CONTROVERT SPECIFIC FACTS IN A PARTY’S PLEADING

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“In Nigeria Deposit Insurance Corporation v. Dr. Vivienne Nneka Balonwu & Ors (2017) LPELR – 41963 (CA) this court per GARBA, JCA (now JSC) held thus:
“It is settled law, that by the established principles of pleadings any averment in pleadings of a party not effectively denied, challenged or controverted in the pleadings of another party who intends to dispute the facts averred and therefore owes the legal duty to do so would be presumed or deemed to have been admitted. The admission arises from the failure, omission or refusal to effectively deny, challenge or controvert the facts and is presumed by the principle of pleadings that the party does not intend to dispute and thereby join issues on the facts with the party who made the averments. In order to join issues in pleadings, there must be proper traverse to effectively controvert specific and positive facts contained in the party’s pleadings. It is only when issues are joined by the parties in their pleadings that such issues would call for proof by way of evidence, otherwise the issues would be deemed admitted by the party whose duty it is to do so. Oyebola v. Okubule (1986) 2 NWLR (pt.1) 251; Ajikawo v. Ansaldo Nig. Ltd. (1991) 2 NWLR (pt. 173) 359; Ozowala v. Ezeiheshie (1991) INWLR (pt. 170) 669; …”
It is my finding that the failure by the appellant to react to some salient issues of facts raised in the respondents’ Further Amended Statement of Claim invariably amounted to admission of those uncontroverted facts. It is akin to the situation where the processes involved in the amendments were duly served on the appellant who read, understood them and decide that there is nothing to travertse. The essence of pleadings is to enable the parties make a clear presentation of their grievances to enable the court determine the real questions in the controversy. Thus any fact not presented in the said pleadings cannot attract any evidence in proof thereof. See Faleke v. I. N. E. C. (2016) 18 NWLR (pt. 1543) 61 at 89”.

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PROOF OF TITLE TO LAND – WHETHER A PARTY IS OBLIGATED TO ESTABLISH THE FIVE WAYS OF PROVING TITLE TO LAND TO BE ENTITLED TO JUDGMENT

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“The law is trite that proof of one of the five ways of proving title to land entitles one to judgment and the lower court was perfectly right in finding for the respondents based on the uncontroverted pleaded facts in the Further Amended Statement of Claim and the evidences adduced thereto by the respondents against the appellant. In Francis Adesina Ayanwale v. Olumuyiwa Olumide Odusami (2011) LPELR 8143 (SC) the apex court per RHODES VIVOUR, JSC held thus:
“Now, title to land or ownership of land may be proved in any of the following five ways:
1. By traditional evidence;
2. By production of documents of title which are duly authenticated;
3. By acts of Selling, Leasing, Renting out all or part of the land or farming on it or on a portion of it;
4. By acts of long possession and enjoyment of the land and;
5. By proof of possession of connected or and adjacent land in circumstances rendering it probable that the owner of such connected or adjacent land would in addition, be the owner of the land in dispute. See: Idundun v. Okumagba (1976) 9/10 SC 227”.

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PLEADING – OBJECT OF PLEADING

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“In S. S. GMBH v. T. D. Industries Ltd (2010) II NWLR (PT. 1206) 589 at 597 the apex Court held thus:
“The object of pleading is to settle the issues upon which the case between the parties is to be contested. In the instant case, the averments in paragraphs 3 and 4 of the statement of Claim, not having been traversed by the defence, were presumed admitted. Otherwise it would amount to defeating the object of pleadings.”
The burden of proof resting on the plaintiff in a litigation is affected by the state of pleadings. Admitted or untraversed facts specifically aid the case of the plaintiff and makes it unnecessary for him to call further evidence on those admitted facts. In Mr. Moses Bunge & Anor v. The Governor Of Rivers State & Ors (2006) LPELR – 816 (SC) the apex court held as follows:
“It is often the case that parties assume that when a suit is filed in Court and parties have exchanged pleadings, further progress on the matter must at all events be determined by evidence to be called. The correct position is that whether or not it is necessary to call evidence must be dependent on the state of pleadings. Where a plaintiff has pleaded facts upon which his right in dispute in the suit hinges and the defendant admits those facts, it is not in such a case necessary for any evidence to be called and the court would be entitled to give judgment on the pleadings. When a fact is pleaded by the plaintiff admitted facts is irrelevant and unnecessary. There is no dispute on a fact, which admitted.” Per OGUNTADE, JSC.
Therefore, it is my finding that the inability of the Appellant to consequentially amend his pleadings to counter the new facts pleaded by the Respondents in their Further Amended Statement of Claim amounted to an admission of those facts. The lower court was on terra firma to find in favour of the respondents on this issue and I so hold”.

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PROOF OF TITLE TO LAND – WAYS OF PROVING TITLE TO LAND

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In answering issue 2 I will have to refer to the locus classicus by the apex Court on the five ways of proving title to land. In D. O. Idundun & Ors v. Daniel Okumagba (1976) LPELR – 1431 (SC) the apex court held, inter alia, as follows:
“As for the law involved, we will like to point out that it is now settled that there are five ways in which it is now settled that there are five ways in which ownership of land may be proved… Firstly ownership of land may be proved by traditional evidence as has been done in the case in hand… Secondly, ownership of land may be proven by production of documents of title which must of course be duly authenticated in the sense that their due execution must be proved, unless they are produced from proper custody in circumstances giving rise to the presumption in favour of due execution in the case of documents twenty years old or more at the date of the contract…. Thirdly acts of the person (or persons) claiming the land such as selling, farming on it or on a portion of it, are evidence of ownership provided the acts extend over a sufficient length of time and are numerous and positive enough as to warrant the inference that the person is the true owner… Fourthly, acts of long possession or enjoyment of the land may also be prima facie evidence of ownership of the particular piece or quantity of land with reference to which such acts are done… Finally, proof of possession of connected or adjacent land, in circumstances rendering it probable that the owner of such connected or adjacent land would, in addition, be the owner of the land in dispute, may also rank as a means of proving ownership of the land in dispute…” Per FATAI-WILLIAMS, JSC.
It is to be noted that each of the five ways stated above suffices to establish title to a land in dispute. See Nkado v. Obiano (1997) 5 NWLR (pt. 503) 31 at 61”.

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CONTRADICTORY EVIDENCE – DUTY OF COURT WHERE THERE ARE MATERIAL CONTRADICTIONS IN THE EVIDENCE ADDUCED BY A PARTY

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“It is my findings therefore, that the traditional history of the Appellant is contradictory and cannot be relied upon as it is incredible and thus unreliable. In Goyang Kayilim v. Esly Yilbuk & Ors (2015) LPELR – 24 323 (SC) the Supreme Court held thus:
“The law is well positioned that where there are material contradictions in the evidence adduced by a party, court is enjoined to reject the entire evidence as it cannot pick and choose which of the conflicting versions to follow. The entire evidence must be rejected. See Mogaji v. Cadbury Nigeria Ltd. (1985) 2 NWLR (pt. 2) 393.” Per OGUNBIYI, JSC.-

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EVALUATION OF EVIDENCE AND ASCRIBING PROBATIVE VALUE – INGREDIENTS TO BE CONSIDERED IN DETERMINING WHETHER THE TRIAL COURT PROPERLY EVALUATED AND ASCRIBE PROBATIVE VALUE TO THE EVIDENCE BEFORE IT

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“It is the trite position of the law that the evaluation of evidence and ascribing probative value to them is the exclusive preserve of the trial court for the singular reason that it had the privilege of watching the witnesses and their conduct and demeanour in the witness box. The trial court having heard and watched the witnesses is expected to ascribe probative value to their testimonies and in the final analysis determine between both sides, which testimony weighed heavier. In Mr. Moses Bunge & Anor v. The Government Of Rivers State & Ors (2006) LPELR – 816 (SC) the Supreme Court held thus:
“Generally speaking, an appellate Court does not interfere with the findings of fact made by the trial Court. In Lawal v. Dawodu (1972) 8-9 SC at 114 – 115, this court per COKER JSC observed: In the evaluation of evidence, we think it is firmly established in our jurisprudence that a Court of Appeal ought not, except in exceptional circumstances, to interfere with what must be considered the outcome of a dispassionate consideration of the evidence by a judge who saw and heard the witnesses given evidence. The ascription of probative values to evidence comes at a later stage of the whole process and it is also established that this is a matter for the Judge who saw and heard those witnesses give evidence..”
The next question to consider is what are the ingredients the trial Court should consider in deciding which among the testimonies of the parties weighed heavier between the two sides? The apex Court provided the answer in the celebrated case of Mogaji v. Odofin (1978) 4 S. C. 1 at 91 when it pronounced thus:
“Therefore in determining which is heavier, the Judge will naturally have regard to the following:
a. Whether the evidence is admissible;
b. Whether the evidence is relevant;
c. Whether the evidence is relevant;
d. Whether it is credible;
e Whether it is more probable than that given by the other party.”
These ingredients are the hallmark in determining whether the judgment by the trial Court is well considered, evaluated and in accord with common sense”.

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ISSUE FOR DETERMINATION – WHETHER A RESPONDENT WHO DID NOT FILE A CROSS APPEAL OR A RESPONDENTS NOTICE OF CONTENTION, CAN FORMULATE AN ISSUE FROM THE GROUND OF APPEAL ABANDONED BY THE APPELLANT?

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“However, since the respondents formulated an issue out of ground 4 of the notice of appeal at page 341 of the Records the question that arise in my mind is whether the respondents who did not file a cross appeal or a Respondents Notice of contention pursuant to order 9 of the Court of Appeal Rules 2016, can formulate an issue from the ground of appeal abandoned by the Appellant? The answer is obviously in the affirmative. In Musaconi Ltd. v. Mr. H. Aspinall (2013 LPELR – 20745 (SC) the apex Court, Per ARIWOOLA JSC held thus:
“Similarly, since the respondent in an appeal is entitle to formulate issues for determination of an appeal and couch same in its own words as long as the said issue so formulated and differently couched from the issue distilled by the Appellant are traceable to and formulated from the Grounds of Appeal filed by the Appellant, the appellate Court can rely on the Respondent’s issues to determine the appeal if they are more succinct and precise than that of the Appellant”-

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CREDIBILITY OF EVIDENCE – WHETHER CREDIBILITY CAN BE ATTACHED TO THE EVIDENCE GIVEN BY A BOUNDARY NEIGHBOR

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“It is my holding that when a boundary neighbor speaks, particular attention and credibility should be attached to his evidence since he is well placed to give such testimony. See Muda Anwoyi & Ors V. John Bankole Shodeke & Ors (2006) LPELR – 502 (SC)”.

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ACTS OF POSSESSION AND ENJOYMENT OF LAND – WHETHER PROOF OF ACTS OF POSSESSION AND ENJOYMENT OF A DISPUTED LAND AMOUNTS TO PROOF OF ADJACENT LAND

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“Section 35 of the Evidence Act provides thus:
“Acts of possession and enjoyment of land may be evidence of ownership of a right of occupancy not only of the particular piece or quantity of land with reference to which such acts are done, but also of other land so situated or connected with it by locality or similarity that what is true as to the one piece of land is likely to be true of the other piece of land.”-

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CASES CITED

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Not Available

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STATUTES REFERRED TO

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Court of Appeal Rules 2016

Evidence Act

 

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