In The Court of Appeal of Nigeria

On Thursday, the 22nd day of June, 2017


Before Their Lordships

UZO IFEYINWA NDUKWE-ANYANWU Justice of The Court of Appeal of Nigeria
MOHAMMED AMBI-USI DANJUMA Justice of The Court of Appeal of Nigeria
OBANDE FESTUS OGBUINYAJustice of The Court of Appeal of Nigeria


(Suing for themselves and on behalf of the Akintimehin family of Odigbo/Ore) –Appellants




OBANDE FESTUS OGBUINYA, J.C.A. (Delivering the Leading Judgment) This appeal queries the correctness of the decision of the High Court of Ondo State, sitting at Ondo (hereinafter referred to as “the lower Court”), coram judice: O. O. Akeredolu, J., in Suit No. HOR/21/2005, delivered on 6th August, 2013. The appellants and the defendant were the respective plaintiffs and defendant in the lower Court.

The facts of the case, which metamorphosed into the appeal, are submissive to brevity and easy appreciation. The land in dispute is situate, lying and being on both sides of Ondo/Ore Road, Ore, in Odigbo Local Government Area of Ondo State. The appellants asserted that their paternal great grand-mother, Madam Ogunbi, in her life time, purchased a vast tract of land, which includes the land in dispute, lying on both sides of Ondo/Ore Road stretching to Ore/Shagamu and Ore/Benin Expressway, from the Orunsero family for valuable consideration. On purchase of it, Madam Ogunbi took possession by building houses and farming on it without any disturbance. On the demise of Madam Ogunbi, her children inherited it and continued their acts of possession and ownership of it without let or hindrance from anybody until it devolved on the appellants. The appellants’ family claimed making grants of parts of it to individuals and institutions. The appellants alleged that the defendant unlawfully entered the land in dispute and alienated same without their consent. Sequel to that, the appellants, on 4th July, 2005, beseeched the lower Court, via writ of summons, and tabled the following reliefs:
(1) Court declaration that the plaintiffs are the persons entitled to be granted the Certificate of Customary/Right of Occupancy over the parcel of land situate, lying and being on both sides of the Ondo/Ore road, Ore, Odigbo Local Government Area of Ondo State of Nigeria which land is described and delineated red in the dispute plan pled in this suit.
(2) Five Million Naira (N5,000,000.00) only being general damages for the trespass committed on the plaintiffs’ parcel of land aforesaid by the defendant.
(3) An order of perpetual injunction restraining the defendant, his servants, agents and/or privies from further entering and/or committing any further acts of trespass over the land in dispute.

As expected, the respondent joined issue with the appellants and denied liability by filing a defence. The respondent admitted the purchase, but that the land is not located within the area of the land in dispute. He ultimately claimed ownership of it.
Following the rival claims, the lower Court had a full-scale determination of the matter. In proof of their case, the appellants fielded eight (8) witnesses, PW1-PW8, and tendered a document: Exhibit A2. In disproof of the case, the respondent called five (5) witnesses DW1-DW5, and tendered eight (8) documents: Exhibits A1, A3-A9. At the closure of evidence, the parties qua counsel, addressed the lower Court. In a considered judgment, delivered on the 6th August, 2013, found at pages 307-340 of the cold record, the lower Court dismissed the appellants’ suit in its entirety.
The appellants were dissatisfied with the decision. Hence, on 4th September, 2013, they lodged an original two-ground notice of appeal, seen at pages 341-342 of the record. Subsequently, with the leave of Court, the appellants filed an amended notice of appeal on 6th February, 2015 and deemed properly filed on 4th November, 2015, which hosts three (3) grounds, and prayed this Court: “to allow the appeal, set aside the judgment/decision of the lower Court and order a re-trial of the Suit No. HOR/21/2005 before another judge of the High Court of Ondo State.” Thereafter, the parties filed and exchanged their briefs of argument in line with the rules governing the hearing of civil appeals in this Court. The appeal was heard on 22nd May, 2017.
During its hearing, learned counsel for the appellants, Omesola Odusola, Esq., adopted the appellants’ amended brief of argument, filed on 12th November, 2015, and the appellants’ reply brief, filed on 27th March, 2017, as representing his arguments for the appeal. He urged the Court to allow it. Similarly, learned counsel for the respondent, H. I. Akingbesote, Esq., adopted the respondent’s brief of argument, filed on 29th June, 2016 and deemed properly filed on 14th March, 2017, as representing his arguments against the appeal. He urged the Court to dismiss it.


In the appellants’ amended brief of argument, they distilled a single issue for determination to wit:
Whether in the light of the pleadings, evidence, decisions in Okhuarobo v. Aigbe (2002) 9 NWLR (Pt. 771) 29; Olateju v. Sanni (2011) ALL FWLR (Pt. 590) 1257; Adedeji v. Oloso (2007) ALL FWLR (Pt. 356) 610 and applicable legal principles, the Court was right in dismissing the appellants’ claim in its entirety and thereby came to a proper and just decision in the circumstances.
The respondent, in his brief of argument, crafted a lone issue for determination viz:
Whether or not the lower Court rightly dismissed the case of the appellants in its entirety in view of the evidence before the Court vis–vis the consideration of salient legal principles guiding declaration of title to land, damages, and injunction.
A careful look at the two sets of issues shows that they are identical in substance. Indeed, the respondent’s one issue can conveniently be subsumed under the appellants. For this reason of oneness, I will decide the appeal in the singular issue formulated by the appellants: the undisputed of the appeal.
Arguments on the issue:
Learned counsel for the appellants submitted that the principle in Okhuarobo v. Aigbe (supra): Olateju v. Sanni (supra) and Adedeji v. Oloso (supra) applied where sale under native law and custom was in issue. He explained that the sale was not under native law and custom. He noted that the respondent admitted the purchase but denied it was over the land in dispute. He reproduced the relevant portions of the pleadings. He stated that admitted fact needed no proof. He posited that pleading and giving evidence of names of witnesses of sale under customary law applied to oral sale of land. He added that by the admission, the burden was on the respondent to prove the land bought by Madam Ogunbi. He asserted that the lower Court misplaced the burden of proof which caused wrong presumptions, conclusions and miscarriage of justice. He relied onOnobruchere v. Esegine (1986) 2 SC 385; Adeyemo v. Arokopo (1988) 2 NWLR (Pt. 79) 703. He observed that if the lower Court had properly considered the facts, evidence and principle in those case, it would have favoured the appellants. He insisted that the evidence of PW1 – PW8 were uncontradicted and same supported by DW3. He reasoned that where a trial Court abdicated its judicial duty of evaluation of evidence and making specific findings, an appellate Court would be right to order a retrial of the case. He referred to Aunam (Nig.) Ltd v. Leventis Motors Ltd. (1990) 5 NWLR (Pt. 151) 470.
On behalf of the respondent, learned counsel argued, per contra, that the lower Court rightly dismissed the claim. He stated that in declaration of title, plaintiff would succeed on the strength of his case, not on the weakness of the defence even on admission. He cited Bello v. Eweka (1981) 1 SC 101; Ayanru v. Mandilas Ltd (2007) 4 SC (Pt. III) 58; Dumez Nig. Ltd. v. Nwakhoba (2009) ALL FWLR (Pt. 461) 842 for the 842 for the argument. He noted that the appellants’ root of title was by purchase. He stated that evidence of PW1 and PW8 were contradictory on the identity of the land that was purchased by Madam Ogunbi. He added that the appellants had the burden to prove the identity of land they claimed title to. He referred to Atanda v. Iliasu (2013) All FWLR (Pt. 681) 1469; Ajao v. Adigun (1993) 3 NWLR (Pt. 287) 389. He enumerated the five ways of proving title to land as noted in Idundun v. Okumagba (1976) NMLR 200; Anyakora v. Obiakor (2015) All FWLR (Pt. 268) 1662;Kachalla v. Banki (2006) All FWLR (Pt. 309) 1420; Agbonran II v. Ayodele (2012) FWLR (Pt. 86) 522: He noted that a plaintiff must prove any with credible evidence. He referred to Sections 137 and 138 (1) (a) and (b) of the Evidence Act, 2011. He listed what a plaintiff, like the appellants, who relied on traditional history, purchase under customary law in a claim for declaration of title, plead and prove as noted in Olateju v. Sanni (supra). He stated that appellants failed to state the purchase price and handling over in the presence of witnesses. He referred to Adedeji v. Oloso(supra). He postulated that the appellants did not prove their root of title and could not rely on possession. He relied on Oyadare v. Keji (2005) 1 SC (Pt. 1) 19. He insisted that the lower Court rightly dismissed the claims for trespass and injunction for lack of proof.
Learned counsel contended, in the alternative, that if the lower Court failed to make specific findings, the Court could under Section 15 of the Court of Appeal Act, and Order 4 Rules 3 and 4 of the Court of Appeal Rules, 2011. He explained that such findings could be by inferences where credibility of witnesses was not


involved. He cited Oshe v. Okin Biscuit Ltd. (2010) 3-5 SC (Pt. II) 35. He described the evidence of PW7 as unreliable to show grant and no other witness testified on any grants as pleaded. He observed that no boundary neighbours testified. He took the view that the respondent, who had no burden of proof, gave credible evidence that his family, not the appellants, had been in long possession of the disputed land. He relied on Exhibits A5-A9 tendered by DW5.
On points of law, learned counsel for the appellants submitted that a Court could rely on the evidence of a defendant which supported a plaintiff’s case. He relied on Ikeni v. Efamo (1996) 5 NWLR (Pt. 446) 64. He posited that once the lower Court did not determine the live issue in the case, the appellate would be denied of the lawful privilege of its opinion on it to enable it make a decision. He referred to Tinubu v. Khalil & Dibbo Trans. Ltd(2000) 11 NWLR (Pt. 677) 171. He concluded that Section 15 of the Court of Appeal Act would be inapplicable to the appeal.
Resolution of the issue
In due obeisance to the law, I have consulted the record: the spinal cord of the appeal. The appellants’ pleadings, further amended statement of claim and further reply to amended statements of defence, are located between pages 99-102 and 103-106 of the record respectively. The respondent’s further amended statement of defence is wrapped between pages 144-150 of the cold record of appeal. The viva voce testimonies of the thirteen witnesses of the feuding parties, eight for the appellants and five for the respondent, are littered between pages 216-278 of the printed record. The 34-page judgment of the lower Court, sought to be impugned, is encased between pages 307-340 of the record. The parties tendered nine (9) documentary evidence, Exhibits A1-A9, and all transmitted to this Court.
In the said judgment, predicated on three issues, the lower Court dedicated pages 308-314 of the record to summary of the pleadings of the parties. It devoted pages 314-331 of the record to summary of the oral evidence of the witnesses. It allocated pages 331-339 of the record to the addresses of counsel for the contending parties. In the twilight of the judgment, precisely at page 340, lines 34-39, of the record, the lower Court concluded:
Thecase of the plaintiffs unfortunately is that they failed to plead and prove the essential ingredients that will make the Court to come to the conclusion that of a truth, their ancestor Ogunbi purchased the land before it devolved on them. In view of the foregoing, comparing the case of the plaintiffs and the defendant’s case to determine on the balance of probabilities which case is more credible or where the pendulum of justice tilts will amount to waste of judicial time. The case of the plaintiff is therefore dismissed in its entirety. (italics mine)
It can be gleaned from the italicized portion of the conclusion displayed above, that the lower Court, on its own showing, did not evaluate the tons of evidence, both parol and documentary, professed before it by litigating parties; a fortiori reaching findings on them. That, with all due respect to the lower Court was quite injudicious. In the eyes of the law, such a judicial act is fraught with dire consequences. In Ovunwo v. Woko (2011) 17 NWLR (Pt. 1277) 522 at 547, Supreme Court, per Chukwuma-Eneh, JSC, held:
Having carefully examined the complaints of the appellants in this matter, it is not in doubt that issue 3 (three) raised for determination before the appellate High Court amounts to an attack of the failure of the trial Court to evaluate all the evidence adduced by the parties and their witnesses at the trial and weighing the same in the imaginary scale to see which outweighs the other. By failing to consider the same at all naturally leads to miscarriage of justice apart from constituting a breach of the appellants’ right to fair hearing.
This Court, on the footing of stare decisis, is will-nilly bound by this ex cathedra pronouncement.
Incontestably, an appraisal of the oral evidence in the case involves credibility of witnesses. It is the lower Court that was in the vantage position to watch the demeanour of those witnesses, vis–vis their oral testimonies, that should assess their credibility. This Court does not share this prerogative right, in the adjectival law, with the lower Court, see NACENN (Nig.) Ltd v. B.A.P. Ltd. (2011) 11 NWLR (Pt. 1257) 193.


Interestingly, the law compels an appellate Court, such as this Court, to order rehearing in circumstances that entails non-evaluation of evidence involving credibility of witnesses, see Orianwo v. Okene (2002) 14 NWLR (Pt. 786) 156; Lagga v. Sarhuna (2008) 16 NWLR (Pt. 1114) 427; Ovunwo v. Woko (supra); NACENN (Nig.) Ltd v. B.A.P. Ltd (supra); Ukaegbu v. Nwololo (2009) 3 NWLR (Pt. 1127) 194; Wassah v. Kara (2015) 4 NWLR (Pt. 1449) 374. Moreover, once an appellate Court intends to order or orders for a rehearing, the law forbids it from attending to any of the issues/points that may arise at the rehearing proceedings, see Ovunwo v. Woko (supra). I will pay total fidelity to this injunction of the law in order not to prejudice the issues that may germinate during the rehearing sessions.
In the light of this brief legal anatomy, there is merit in the appeal. Consequently, I allow the appeal. The judgment of the lower Court, delivered on 6th August, 2013, wherein it dismissed the appellants’ suit is set aside. The action, which gave birth to the appeal, Suit No. HOR/21/2005: Prince Ojo Adebayo & Anor v. Chief Imam Olurimisi, is remitted to the Chief Judge of Ondo State for re-assignment to another Judge for hearing de novo.

I make no order as to costs.
UZO IFEYINWA NDUKWE-ANYANWU, J.C.A.: I had the privilege of reading in draft form, the Judgment just delivered by my learned brother Obande Festus Ogbuinya, JCA. I agree with his reasoning and final conclusion. The trial Judge failed in its primary duties of evaluation of relevant and material evidence.
It has been held in a plethora of cases that the evaluation of relevant and material evidence before Court and the ascription of probative value to such evidence are the primary functions of the trial Court, which saw, heard and assessed the witnesses while they testified. AGBI v. OGBEH (2006) 11 NWLR (Pt. 990) PG. 65, BASHAYA v. STATE(1998) 5 NWLR (Pt. 550) PG. 351, ADEBAYO v. ADUSEI (2004) 4 NWLR (Pt. 862) PG. 44, FAGBENRO v. AROBADI(2006) 7 NWLR (Pt. 978) PG. 174.
With this and the more comprehensive reasoning in the lead judgment, I also align myself with the consequential orders contained therein.
MOHAMMED AMBI-USI DANJUMA, J.C.A.: There was no fair hearing of the case at the trial. Evidence was led by both parties, but the Court abdicated in evaluating the evidence of the parties with a view to coming to a decision.
In the circumstance, I hold that there was no trial at all; or at best a mistrial existed. This constitutes a constitutionality violation of the right of the parties to be heard before a decision is taken in respect of the suit properly instituted. For the unconstitutionally leading to abdication by the Court, the decision rendered is set aside.
In its place, I also endorse the order for a re-trial before another Judge as decreed by my Lord Obande Festus Ogbuinya, JCA in the lead.
Appeal allowed.


Omosola Odusola, Esq. –For Appellant


H. I. Akingbesote, Esq. –For Respondent

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