Before Their Lordships
OLUKAYODE ARIWOOLA Justice of The Supreme Court of Nigeria
JOHN INYANG OKORO Justice of The Supreme Court of Nigeria
AMIRU SANUSI Justice of The Supreme Court of Nigeria
AMINAAUGIE Justice of The Supreme Court of Nigeria
EJEMBI EKO Justice of The Supreme Court of Nigeria
PAULADAMU GALINE Justice of The Supreme Court of Nigeria
SIDI DAUDA BAGE Justice of The Supreme Court of Nigeria
Between
1. MOSES BENJAMIN
2. MR. WILLIAM JOSHUA
3. MR. OCHEMIEBIA KUROMIEMA (FOR THEMSELVES AND ON BEHALF OF GOBO FAMILY OF ABULOMA TOWN, PORT-HARCOURT CITY LOCAL GOVERNMENT AREA, RIVERS STATE)
AND
1. ADOKIYE KALIO
2. MR. JUSTICE KALIO (FOR THEMSELVES AND AS REPRESENTING THE BENEFICIARIES OF THE ESTATE OF RE
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EKO JSC(Delivering the Lead Judgment) : The appellants herein were also the appellants at the Court of Appeal, sitting at Port-Harcourt (hereinafter called the “lower court”). The said lower court, after hearing the appeal of the appellants against the decision of the Rivers State High Court in the suit No. PHC. 169/ 95, dismissed the appeal on all the issues, except issue 5 on whether the general damages awarded were excessive. The lower court affirmed the decision of the trial court on all the other issues. The lower court, however, “reduced the quantum of general damages awarded to the respondents” by half. That is, it ordered that the sum of N750,000.00 (seven hundred and fifty thousand naira) instead of N1,500,000.00 (one million five hundred thousand naira) awarded by the trial court, was “sufficient for general damages to the respondents for the trespass, continued trespass and defame of their character committed by the appellants”.
The appellants have further appealed to this court. All the issues they have submitted for the determination of this appeal are erected on the concurrent findings of facts and the exercise by the lower court of its discretion. The two issues are: Whether the respondents proved their claim at the trial court to warrant the order of the Court of Appeal affirming the decision of the trial court; 2. Whether the lower court is justified in awarding the sum of N750,000.00 (seven hundred and fifty thousand naira) as general damages for trespass against the appel ants.
A sub-issue arose from issue 1. It is whether exhibit L, is a registrable land instrument allegedly not registered in accordance with the provisions of the Rivers State Land Instruments (Preparation and Registration) Law, Cap. 74, 1999, was admissible in evidence. The sub-issue is perhaps the only basis for the convocation of this full court to hear and determine this appeal.
Section 37 of the Law, Cap. 74 of Rivers State defines a land “instrument” to mean:
A document affecting land in Rivers State whereby one party (hereinafter called “the grantor”) confers, transfers, limits, charges or extinguishes in favour of another party (hereinafter called “the grantee”) or purporting to do so, any right or title to, or interest in land in Rivers State, and a certificate of purchase and a power of attorney under which any instrument may be executed, but not a will.
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Section 20 of the said law, Cap. 74 of the 1999, Laws of Rivers State, has therein the purported sanction for not registering an otherwise registrable land instrument. It provides: 20. No instrument shall be pleaded or given in evidence in any court as affecting any land unless the same shall have been registered.
The appellants, relying on sections 20 and 37 of the said Law, Cap. 74 of the Laws of Rivers State, 1999, submit on the authority of Shittu v. Fashawe (2005) All FWLR (Pt. 278) 1017 , (2005) 14 NWLR (Pt. 946) 671 at pages 690 – 691, paragraphs D, (2005) 10-11 SCM 330; Ogbimi v. Niger Construction A Limited (2006) Al FWLR (Pt. 317) 390 at page 400, paragraphs-and page 412, paragraphs- F, (2006) 9 NWLR (Pt. 986) 474; Akinduro v. Alaya (2007) All FWLR (Pt. 381) 1653, (2007) 15 NWLR (Pt. 1057) 312 at pages 330 – 331, paragraphs- B, (2007) 6 SC (Pt. II) 120, that exhibit L, a registrable land instrument, not registered, was wrongly admitted in evidence and therefore should be expunged from the evidence together with all the findings of the lower courts based on the said exhibit L. They reiterated that exhibit L, on its face, was not registered as required by the Law, Cap. 74; and that it ought not to have been pleaded, admitted in evidence or relied upon by the two lower courts.
This court in Ogbimi v. Niger Construction Limited ( supra ) , had held that a registrable land instrument, not registered in accordance with the law requiring registration of a registrable instruments, like the Law, Cap. 74 of Rivers State, 1979, is rendered inadmissible in evidence, and if erroneously admitted in evidence shall be liable to be expunged therefrom. In 1986, Oputa JSC citing with approval the earlier decision of this court in Ojugbele v. Olasoji (1982) 4 SC 31, had poignantly stated in Akintola & Anor. v. Solano (1986) 2 NWLR (Pt. 24) 598, (1986) 4 SC 141, (1986) All NLR 395: It is trite law that by virtue of section 16 of the Land Instruments Registration Law of Oyo State, a registrable instrument which not registered cannot be pleaded. The action may precede registration but pleadings cannot precede registration of the instrument. His lordship stated further that the instrument having not been registered ought not to have been pleaded; and that it was incumbent on the learned trial judge to have struck out the offensive averment and the evidence on it expunged, as it would have gone to no issue.
Subsequently, in Edokpolo & Co. Ltd v. Ohenhen (1994) 7 NWLR (Pt. 358) 511, (1994) 7 SCNJ 500 andAnyabunsi v. A Ugwunze (1995) 6 NWLR (Pt. 401) 225, (1995) 7 SCNJ 58 , this court continued in the stare decisis and posited that “the law is well settled that an unregistered instrument is not admissible to prove title”. It however, maintained the fiction that such unregistered instrument “is certainly admissible to prove payment of money and coupled with possession may give right to an equitable interest enforceable by specific performance”.
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Let me pause a while to look at the position of evidence law viz-a-viz constitutional law development since the 1963 Constitution. Evidence was not on the Exclusive Legislative List under the 1963 Constitution. It was under this constitutional scenario that the federal legislature and the regional (State) legislatures re-enacted the 1945 Evidence Ordinance as Evidence Act and Evidence Law respectively. The situation however, changed in 1979.
Under the 1979 Constitution, evidence was brought into the Exclusive Legislature List as item 23. It has remained so since then. It is currently Item 23 of the Exclusive Legislative List in part 1 in the Second Schedule of the extant Constitution. Section 4(3) and (5) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), states in clear and unambiguous terms: 3. The power of the National Assembly to make laws for peace, order and good government of the federation with respect to any matter included in the exclusive legislative list shall, save as otherwise provided in this Constitution, be to the exclusion of the Houses of Assembly of States. 5. If any law enacted by the House of Assembly of a State is inconsistent with any law validly made by the National Assembly, the law made by National Assembly shall prevail, and that other law shall to the extent of the inconsistency be void. The undoubted intent of the current Constitution, as amended, from section 4(3) and (5) of the same Constitution, 1999 is that State House of Assembly are precluded and prohibited from enacting any laws on evidence law and/or admissibility of A evidence in the proceedings before the law courts in the Federal Republic. The Evidence Act is an Act of the National Assembly or an Act deemed to have been enacted by the National Assembly pursuant to its legislative powers under the Constitution since 1979 to date. It is obvious to me, upon painstaking and dispassionate perusal of section 20 of the Law, Cap. 74 of Rivers State that the Rivers State House of Assembly had purportedly enacted a piece of legislation on evidence. Their legislative intent or purport isclear and categorical that no land instrument, mandatorily registerable, which is not so registered “shall not be pleaded or given in evidence in any court as affecting any land”. This clearly is an act of legislative trespass into the exclusive legislative terrain of the National Assembly prescribed by the Constitutions, since 1979. Section 20 of the Law, Cap. 74 of Rivers State has therefore rendered inadmissible exhibit L, a piece of evidence that is relevant and admissible in evidence under the Evidence Act.
Because, in my firm view, Exhibit L is a piece of evidence pleadable and admissible in evidence by virtue of the Evidence Act read together with Item 23 of the Exclusive Legislative List and section 4(3) and (5) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) and the provisions in pari materia with section 4(3) and (5) of the 1979 Constitution, it cannot, accordingly, be rendered unpleadable and inadmissible in evidence in any proceedings before any court of law by any law enacted by the State House of Assembly, as the Rivers State House of Assembly had purportedly done by their enactment of section 20 of the law Cap 74.
In my firm view, the argument of the appellant, that section 20 of the Land Instruments (Preparation and Registration) Law, Cap. 74 of the Laws of Rivers State has rendered exhibit L, a land instrument, unpleadable and inadmissible in the proceedings atthe trial court goes to naught. It does not fly in view of the current and prevailing state of the constitutional law. Admissibility of exhibit L is governed by Evidence Act; not the Rivers State Land Instrument (Preparation and Registration) Law, Cap. 74. In my judgment, a piece of evidence pleadable and admissible in evidence by dint of the Evidence Act cannot be rendered unpleadable and inadmissible in evidence by a law enacted by a State House of Assembly under the prevailing Constitutional dispensation. The learned trial judge (Mary Peter-Odili, J – as she then was) was therefore right when she stated at page 141 of the records that exhibit L was “properly pleaded and cannot therefore be said to be inadmissible”. The duty on every law court, as this court stated in Shittu v. Fashawe (2005) All FWLR (Pt. 278) 1017, (2005) 14 NWLR (Pt. 946) 671, (2005) 10-11 SCM 330, in every proceeding is to admit and act only on evidence that is admissible in law under the Evidence Act or any other relevant law (validly enacted, I must say). Even if section 20 of the Rivers State Law, Cap. 74 was applicable in the circumstances of this case, I will still rule in favour of the position adopted by the respondents; that an unregistered “registrable land” instrument is admissible in evidence to prove, not only the payment and receipt of the purchase price, but also the equitable interest of the purchaser in the subject land. That has been the entrenched position in our jurisprudence until evidence was lifted into the Exclusive Legislative List in the Second Schedule to the Constitution as can be seen from the following cases, among othersSavage v. Sarrough (1937) 13 NLR 141; Ogunbambi v. Abowab (1951) 13 WACA 222; Fakoya v. St. Paul’s Church, Shagamu (1966) 1 All NLR 74; Oni v. Arimoro (1973) 3 SC 163; Bucknor Maclean v. Inlaks Nig. Ltd (1980) 8-11 S.C. 1; Okoye v. Dumez Nig. Ltd (1985) 1 NWLR (Pt. 4) 783; Obijuru v. Ozims (1985) 4 SC (Pt.1) 142; (1985) 2 NWLR (Pt.6) 167.
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The totality of all I had stated under this sub-issue is that the land instrument, exhibit L, was properly pleaded and admitted in evidence. The trial court was right in acting on it as a piece of legal evidence before it. The lower court had no difficulty A affirming the position of the trial court on this. The respondents, as the defendants at the trial, did not dispute the root of title to the disputed land as asserted by the appellants, as the plaintiffs. The respondents expressly, in paragraph 8 of the statement of defence, admitted the appellants’ averments in paragraphs 6 and 7 of the statement of claim that the land in dispute was part of the larger parcel of land originally owned by Chief Otopo, the founder of Otopo House of Abuloma town. The Gobo family had, since the days of Chief Otopo, been in the exclusive possession of the land verged “green” in the plaintiffs/appellants’ survey plan. The respondents admitted this root of title. They merely added in paragraphs 5 and 8 of the statement of defence that the title vested in them since 1979 when the disputed parcel of land was sold to them by the Gobo family, and that since then the Gobo family ceased to exercise ownership rights over that portion in dispute. The Deed of Conveyance evidencing the transaction is now exhibit L. The appellants made strenuous, but unsuccessful, efforts in the two courts below to impugn not only the admissibility, but also the integrity of exhibit L.
The respondents, from the evidence acceptable to the two courts in their concurrent findings, bought two portions of land from the Gobo family. The exhibit L covers the first portion of land. The defence evidence acceptable to the trial court, which finding of fact, the lower court affirmed subsequently, was that upon the respondents buying the second portion of land from the Gobo family they caused to be prepared a plan wherein the two portions of land were incorporated. The DW2, a member of the Gobo family confirmed the two transactions. His evidence was not discredited by cross-examination. His evidence was clearly an admission against the interest of his family, the Gobo family.
He was a very knowledgeable and prominent member of the Gobo family. He had been an elected secretary of the family from 1988up till 1992. From 1992 to the date of his testimony in court he was the Chairman of the family.
Both courts in their concurrent findings attached great prominence to the evidence of DW2 in support of the respondents’ case. The appellants, instead of showing how perverse or unreasonable the two courts were in relying on the evidence of the DW2 chose rather to attack (albeit feebly and unsuccessfully) the trifling of the court below not being correct in holding that the respondents had properly negotiated with the Gobo family, paid them the purchase price and thereafter performed the customary rite of giving them a goat and the “bush entry” fee.
The appellants submit that the respondents never produced any receipt to show evidence of payment for the sums they allegedly paid the appellants’ family. Exhibit L had a receipt clause. This, at least, was conceded in the appellants’ brief of argument. It is not an immutable rule that proof of transactions shall only be by production of receipts as evidence of payment of the purchase price. The evidence of DW1, DW2 and DW3, believed by the trial court and which findings were affirmed by the court below, sufficiently establish the fact that the Gobo family had sold the disputed parcels of land and transferred their interests thereon to the respondents. The rule in Fasoro v. Beyioku (1988) 2 NWLR (Pt. 76) 263 at page 273, paragraphs- F, which the appellants had been fastidious about is to the effect that where a party pleads his root of title based on sale or conveyance, he must prove either the sale or conveyance; failing which he would fail. Fasoro v. Beyioku ( supra ) is not an authority for the preposition that production of the receipt for the purchase price is the only means by which the transaction of sale or conveyance is established.
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The onus is, of course, on the defendant, like the respondents, who asserts that he got his title from the plaintiffs’ family, to establish their plea that there had been an absolute grant to them by the plaintiffs’ family. Ochonma v. Unosi (1965) 1 NMLR 321 at page 323. The defence, through the DW1, DW2 and DW3, was consistent, compact and undiscredited on the fact that the Gobo family sold the disputed parcels of land in two transactions to the respondents. Their evidence is also to the effect that the appellants A and the respondents subjected themselves to customary arbitration by the Abuloma Council of Chiefs, and it was decided by the said Council of Chiefs that the Gobo family had, in fact, sold the disputed parcels of land to the respondents. The Council also pleaded with the respondents to allow the 2nd plaintiff/appellant to remain at or on the portion he had encroached into the respondents’ portion and built a house thereon. This fact was admitted by the PW1, under cross-examination, at pages 66 – 67 of the Record, where he stated inter alia: “In respect of this matter the Abuloma Council of Chiefs had cause to decide the issues. That decision was accepted to us”. Both the trial court and the lower court, in their concurrent findings that the respondents had discharged the onus of proof that the appellants, family had indeed sold and conveyed their interest over the disputed parcels of land to the respondents, had also alluded to the customary arbitration undertaken by the Abuloma Council of Chiefs which amicably resolved the dispute in favour of the respondents; and the fact that the parties herein accepted the verdict of the said Council of Chiefs.
On these facts of the customary arbitration by the Abuloma Council of Chiefs befor e whom the parties herein lead consensually submitted themselves to for the resolution of their dispute and the verdict of which arbitration was acceptable to all of them, it would no longer be open to either of the parties to subsequently back out or resile from the decision or verdict reached and pronounced upon the arbitration. See Oparaji v. Ohanu (1999) 9 NWLR (Pt. 618) 290, (2001) FWLR (Pt. 43 ) 385 . The appellants are now estopped from resiling out of the customary arbitration of the Abuloma Council of Chiefs, which they voluntarily submitted their dispute with the respondents to, and agreed to accept the verdict of. Apart from this specie ofestoppel operating as estoppel per rem judicatam; it also operates as estoppel by conduct by virtue of section 150 of the Evidence Act, 1990 (now section 169 of the Evidence Act, 2011). It is, therefore, unconscionable for the appel ants, having by their words or conduct made the respondents to believe that they would be bound by the verdict of the Abuloma Council of Chiefs, to resile out of it and set up the suit, the subject of this appeal. See Joe Iga & Ors. v. Ezekiel Amakiri & Ors. (1976) 11 SC 1 at pages 12 – 13.
The appellants had made so much fuss about the identity of the disputed parcel of land. They insist that exhibit L refers to Abuloma land, which al egedly is different and distinct from Awoka land that they claim is their family land. The distinction is just a mere hair splitting gimmick to enable the appellants get away with a skilfully crafted mischief. From the pleadings, it is very clear that the parties themselves know the disputed parcels of land. In paragraph 3 of the statement of claim, the appellants detailly and vividly describe the disputed land. The averment was expressly admitted by the respondents in paragraphs 5 and 6 of their statement of defence wherein they pleaded the survey map No. RV/ONE/ 95LD 012. It is also clear from paragraphs 9, 13, 14, 15 and 16 of the statement of claim and paragraphs 28 – 36 of the statement of defence that the cause of action was that parcel of land the appellants purportedly gave to the 2nd appellant, which land was the subject of the arbitration of the Abuloma Council of Chiefs and their decision that was acceptable to all the parties to the arbitration.
The disputed land is what the parties respectively call Awoka land (or Awoka farmland) and Abuloma land. The land is in Abuloma. The respondents, on buying the land from the Gobo family, out of their Awoka farmland, renamed it Abuloma land. The fact that the parties call it variously Awoka land or Abuloma land does not change the geographical location of the land and its survey co-ordinates. My lords, the appellants have not shown that the concurrent findings of fact made by the trial court and the lower court are perverse or unreasonable. Neither have they shown that any miscarriage of justice had been occasioned by the concurrent A findings. The attitude of this court to concurrent findings of facts by the two lower courts is well settled. This court will only interfere with such concurrent findings when the appellants show special circumstances by establishing either that there was a miscarriage of justice, or a serious violation of some principles of substantive law or procedure, or that the findings are perverse, or that the findings do not flow from the evidence adduced by the parties. See Enang v. Adu (1981) 11 – 12 SC 25 at page 42, (1981) 5 SC 291;Lokoyi v. Olojo (1983) 8 SC 61 at page 73; Ojomu v. Ajao
(1983) 9 SC 22 at page 53; Ibodo v. Enarofia (1980) 5 – 7 SC 42 at page 45; Akayepe v. Akayepe (2009) 11 NWLR (Pt. 1152) 217. The principle has been repeated and repeated times without numbers. Unfortunately, legal practitioners, obviously for their economic gains, keep encouraging litigants to approach this court with appeals repeating the same complaints over findings of facts by courts of first instance which had been duly affirmed by the intermediate court. I think there should be serious sanction for these vexatious frivolities. I find no exceptional circumstances that would warrant this court to interfere with the findings of fact made by the trial court and which were duly affirmed by the lower court. The counsel for the appellants, as an officer of this court, has not properly advised the appellants before embarking on this appeal. It is unfortunate, and a regrettable one for that matter. At pages 242 – 243 of the record, the lower court had exercised its discretion to reduce the general damages awarded to the respondents by the trial court. It, instead, assessed and awarded N750,000.00 (seven hundred and fifty thousand naira ) as general damages as against the N1,500,000.00 (one million five hundred thousand naira) awarded by the trial court. In the opinion of the lower court, the sum of N750,000.00 (seven hundred and fifty thousand naira) was “sufficient for general damages to the respondents for trespass, continued trespass and defamation of their character committed by the appellants.” This is the basis of the appellants’ complaint expressed in ground 7 of the grounds of appeal. The appellants’ issue 2 has been formulated out of the said ground 7 of the grounds of appeal. In urging this court to intervene and set a side the N750,000.00 (seven hundred and fifty thousand naira), the lower court awarded as general damages to the respondents, the appellants submit that “the amount awarded as general damages against (them) is extremely high and is an entirely erroneous estimate of the damages – the respondents is entitled.” It is also contended, and quite correctly too, that the respondents in the counterclaim never claimed or proved general damages for defamation.
It is , however, equaly semantic on the part of the appellants to argue, equivocally, that the respondents did not claim or prove “general damages for trespass”, but only general damages for continuous and continuing trespass. In pleading and proving general damages for continuous and continuing trespass, the respondents, as the counter-claimant, was actually pressing for aggravated damages. It also does not lie in the mouth of the appellants to submit, as they did erroneously, that the respondents never proved any acts of continuous and continuing trespass committed by the appellants. The appellants, in this submission, do not seem to appreciate and/or are quite oblivious of the totality of the defence evidence rendered by DW1, DW2 and DW3. The continuing and the continuous trespass of the 2nd appellant, through the instrumentality of all the appellants, was the occasion for the arbitration of the Abuloma Council of Chiefs. They, the appellants , by their conduct seemed to have repudiated and resiled from the decision of the arbitration they had voluntarily submitted themselves to. This conduct should have been regarded, for purposes of assessing the awardable damages, as not only arbitrary and unconscionable but also most reprehensible. Public policy, favouring end to litigation, seriously disapproves and condemns the conduct exhibited by the appellants. Ordinarily, the conduct of the appellants should attract exemplary and aggravated damages. The respondents in the instant A case had limited themselves to N1,500,000.00 (one million, five hundred thousand naira) as general damages. The lower court in reducing, by half, the N1,500,000.00 (one million five hundred thousand naira) awarded to the respondents as general damages by the trial court had expressed the opinion that the trial court did not properly assess (evaluate) “the quantum of the general damages claim in the counterclaim of the respondents”. I do not, myself, see how or where the lower court did any proper evaluation of the available evidence before reducing the N1,500,000.00 (onemillion, five hundred thousand naira) general damages awarded by the trial court to N750,000.00 (seven hundred and fifty thousand naira).
It is not enough to say, as the lower court did, that the N750,000.00 (seven hundred and fifty thousand naira)” is sufficient for general damages” without more. Since award of general damages is a judicial function, the discharge of that judicial function must be judicial and judicious. The award, as well as its reduction, must be based on empirical evidence.
That function is not discharged in a manner very capricious and whimsical. All things said, the respondents have no cross- appeal on this point to warrant any intervention.
I am not satisfied that the appellants have made any case for my intervention in the N750,000.00 (seven hundred and fifty thousand naira) the lower court awarded against them as general damages. I am inclined to dismissing their appeal on this issue, and I so do. This issue is hereby resolved against the appellants. The appellants are enjoined to establish that the general damagesthey appeal against, as wrongly awarded against them, is either manifestly too high or extremely too low or that the award was made on entirely wrong principle of law as to make it, in the opinion of the appellate court, an entirely erroneous estimate of damages the plaintiff was entitled to. See Neka B. B. B. Manufacturing Co. Ltd v. A.C.B Ltd (2004) All FWLR (Pt. 198) 1175, (2004) 2 NWLR (Pt. 858) 521, (2004) 1 SC (Pt. 1) 32, (2004) 1 SCNJ 193. The appellants did not satisfactorily establish any or all these factors. On the whole, the appeal, on the two issues canvassed, lacks substance and it is dismissed in its entirety. The decision of the Court of Appeal, Port-Harcourt, contained in the judgment delivered on 30 May 2006, in the appeal No. CA/PH/98/2001 is hereby affirmed. The respondents are entitled to be awarded costs of this appeal. Costs assessed at N400,000.00 shall be paid to the respondents by the appellants jointly and or severally. ARIWOOLA JSC I had the privilege of reading in draft, the lead judgment of my learned brother, Ejembi Eko JSC just delivered. I agree entirely with the reasoning and conclusion that the appeal is lacking in merit and should be dismissed. I too will dismiss the appeal and affirm the decision of the court below.
Appeal dismissed.
I abide by the consequential orders in the lead judgment including the order on costs.
OKORO JSC This appeal is against the judgment of the Court of Appeal, Port Harcourt which was delivered on 30 May 2006, wherein it affirmed the judgment of the trial High Court of Rivers State, which had earlier entered judgment for the respondents herein in respect of land situate in Abuloma town, Port-Harcourt.
As can be seen, it is an appeal on the concurrent findings of the two lower courts. May I quickly state that where there are concurrent findings of fact by the trial court and the Court of Appeal, this court does not, in practice, disturb such concurrent findings unless they have been shown to be perverse. See Ukaegbu v. Ugoji (1991) 6 NWLR (Pt. 196) 127, (1991) 7 SCNJ (Pt. II ) 244, (1991) 7 SC (Pt. 11) 80, (1991) LPELR – 3338 (SC) ; Onifade v. Olayiwola (1990) 7 NWLR (Pt. 161) 130, (1990) 11 12 SC 1, (1990) 11 SCNJ 10, (1990) LPELR – 2680 (SC); A Aigbobahi & Ors. v. Aifuwa & Ors. (2006) All FWLR (Pt. 303) 202, (2006) 6 NWLR (Pt. 976) 270, (2006) 2 SC (Pt. 1) 87, (2006) 136 LRCN 1021.
Having regard to the evidence contained in the record of appeal, I am satisfied that the concurrent findings on both facts and law in this case are justified. For concurrent findings of fact to stand the test and enjoy respect, they must be such that can justifiably be defended primarily from the available evidence. See Mojekwu v. Iwuchukwu (2004 ) All FWLR (Pt. 211) 1406, (2004) 4 SCNJ 180, (2005) 11 WRN 1, (2004) 11 NWLR (Pt. 883) 196.
In the instant case, the lower court stated clearly the reason for accepting the findings of the trial court on page 236 of the record as follows: “In fact, the DW2 demolished appel ants’ assertion at the lower court. He testified and said thus:
“The plaintiffs brought this action to court just to cheat the defendant as they all enjoyed the money and goat the defendant paid to the family. They are dissident group now in the family to create problem in the family … As an officer of our family, myself and others did not approve the plaintiffs bringing this action.” To my utter surprise, there was no cross-examination by the appellants to discredit the assertion that the respondents had in fact bought the 2nd piece of the land in dispute from the appellants’ Gobo family.It is also unchallenged on the DW2’s assertion that appellants are cheats, money enjoyers and family dissidents. They could not challenge nor deny the facts.”
Apart from the evidence of DW2 who is an official of the appellants’family, the respondents have meticulously led evidence to show how they bought the land which DW2 described as “bad bush”. In fact, it was a sacrificial (juju) portion of land which the appellants’ family had thought the respondents would not be able to enter into it. Respondents’ title was never challenged until the family head, Sunday Gobo and his contemporaries were no longer alive. The appellants have not shown why the concurrent findings of the two courts below should be disturbed.
Based on the above and more elaborate reasons adumbrated in the lead judgment of my learned brother, Ejembi Eko JSC I hold that there is no merit in this appeal. It is hereby dismissed by me. I abide by the consequential orders made in the lead judgment, that relating to costs, inclusive.
SANUSI JSC I was obliged with a copy of the lead judgment prepared by my learned brother, Ejembi Eko JSC before now. All the live issues calling for determination in the appeal have been ably and adequately addressed in the leading judgment of by his lordship Ejembi Eko JSC I have nothing useful to add except I agree with him that this appeal is unmeritorious. I accordingly dismiss it and affirm the decision of the lower court. AUGIE JSC I had a preview of the lead judgment just delivered by my learned brother, Eko JSC and I agree with him that appellants did not show this court that the concurrent findings of the two lower courts are perverse or unreasonable and occasioned miscarriage of justice. Miscarriage of justice connotes decision or outcome of legal proceeding that is prejudicial or inconsistent with the substantial rights of the party – see Gbadamosi v. Dairo (2007) All FWLR (Pt. 357) 812, (2007) 3 NWLR (Pt. 1021) 282, (2008) LPELR – 1315 (SC), wherein this court perTobi JSC further explained as follows: “Miscarriage of justice means a reasonable probability of more favourable outcome of the case for the party A alleging it. Miscarriage of justice is injustice done to the party alleging it. The burden of proof is on the party alleging that the justice has been miscarried.” In this case, the appellants had the burden of proving that justice, which ought to have prevailed in their favour, had been miscarried. However, it is clear from the reasoning of my learned brother in the lead judgment, which I adopt as mine, that the appellants failed to establish, even the slightest inkling of, any injustice done to them. It is for this and the other reasons in the lead judgment that I also dismiss this appeal. I also abide by the order made as to costs.
GALINJE JSC I have had the privilege of reading in draft, the judgment just delivered by my learned brother, Eko JCAd I entirely agree with the reasoning contained therein and the conclusion arrived thereat. My learned brother has admirablystated the position of the law with respect to exhibit L, an exhibit which learned counsel for the appellants forcefully argued that it is inadmissible. It is plain that the Rivers State House of Assembly is not competent to make laws with respect to evidence which is within the exclusive preserve of the National Assembly. To that extent, section 20 of the Rivers State Law, Cap. 74, is void to the extent of its inconsistency with the Second Schedule, Part 1, Item 23 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), which places evidence in the Exclusive Legislative List.
DW2, Mr. Nelson Tomoliabiei Benjamin is a member of Gobo family, the plaintiffs/appel ants before this court. In 1980, he was elected Secretary of Gobo family and he became chairman of the family in 1992 and remained in that position up to the time he testified in this case in 1998. This is what he said:
“I know the parcel of land known as Awoka land in Abuloma. The land is originally owned by the Gobo family. Defendant has interest in that land. The defendant bought the land from Gobo family. He bought the first part of the land in 1980. The second part of the Awola land he bought in 1989 when defendant came to the family on intention to buy the land. We took him to the bush and asked him to clear the bush and come back to the family to negotiate for the price. The defendant went into the land and cleared it and came back to the family to talk to us. There is agreement to the transaction. I signed the document as interpreter. The plaintiffs brought this action to court just to cheat the defendant as they all enjoyed the money and goat the defendant paid to the family. They are a dissident group now in the family to create problem in the family.”
This testimony coming from a principal member of Gobo family has clearly knocked off the foundation of the appellants’ case. The appel ants as claimants at the trial court had the burden to prove their case that they are entitled to the declaration of title to the land they claimed. This, they were required to do on the strength of their own case and not on the weakness of the respondents’ case. See Adesanya v. Aderonmu (2000) FWLR (Pt. 15) 2492, (2000) 9 NWLR (Pt. 672) 370; Akinola v. Oluwo (1962) 1 All NLR 224, (1962) 1 SCNLR 352, (1962) WNLR 133. At page 8 of the amended appel ants’ brief of argument, it is submitted that the respondents failed to prove that the land called Abuloma land which was conveyed to them by exhibit L is the same as Awoka farmland which was claimed by the appellants.
This argument is inconsistent with the principle of proving title to land as enunciated by this court, in a number of decisions, some of which are Adesanya v. Aderonmu ( supra ); Akinola v. Oluwo (supra ). The appellants who were the claimants at the trial court had the onerous duty to prove that the Abuloma land that was conveyed A to the respondents is the same or part of the Awoka land. Their failure to do so is fatal to their case, as the respondents were entitled to rename the land as they wished. With these few words and the more detailed reasoning in the lead judgment of my learned brother, this appeal shall be and it is hereby dismissed. I abide by the consequential orders made in the lead judgment including order as to costs.
Appeal dismissed