In The Court of Appeal
(Enugu Judicial Division)
On Monday, the 31st day of January, 2000
Suit No: CA/E/197/88
Before Their Lordships
TOBI, J.C.A. (Delivering the Leading Judgment): This appeal is in respect of a piece of land near the Enugu airport. It is situate along Enugu – Abakaliki Road, Two suits were consolidated: Suits Nos. E/448/82 and E/84/83. Suit No. E/448/82 was field by the plaintiff on record. He is now the respondent. Suit No. E/84/83 was filed by the defendants on record. They are now the appellants. The learned trial Judge ordered the consolidation of the two suits on 31/10/84.
The case of the plaintiff as summarized by the learned trial Judge is that he was granted a lease of the land in dispute by the original owners that is, the Umuenwene Iji-Nike family. He took a surveyor to the land who surveyed it and produced plan No. FCO/P.1068/75 dated 1/2/76. He registered a conveyance at the Land Registry as No. 58 at page 58. Volume 834, which was admitted as Exhibit B. The plaintiff went into possession immediately after the execution of Exhibit B and exercised rights of ownership until December, 1982 when the defendants trespassed into the land.
The case of the 1st defendant is that in 1977 the land in dispute was granted to him by the 2nd to the 16th defendants who were the original owners. He thereafter took possession of the land. The defendants also relied on some judgments of native courts.
The learned trial Judge gave judgment to the plaintiff. Dissatisfied, the defendants appealed to this court. Briefs were filed and exchanged. The appellants formulated four issues for determination:
“1. Where a party to a land dispute has produced and tendered the survey plan (as in the instant case) showing the area he is claiming with certainty and ascertainable boundaries, and there is no survey plan filed by the opponent contradicting such a plan, will the trial court be right in refusing to attach credibility to such plan in the absence of evidence from the party that is contradictory to his survey plan?
2. Was the learned trial Judge right in accepting that the land in dispute belonged to the respondent’s lessors merely on the ipse dixit evidence of P.W.3?
3. Whether the learned trial Judge considered the validity and took the correct view as to the evidential value or the deed of lease Exhibit B which was the main plank on which the respondent’s case succeeded?
4. Whether the learned trial Judge adopted a correct approach to the evaluation of evidence led by the parties by coming to conclusion first on the evidence led by the appellants before considering those or the respondent?”
The respondent formulated two issues for determination:
“(1) Whether on the totality of the evidence led at the trial, the plaintiff/respondent proved his case and was entitled to judgment.
(2) Whether the learned trial Judge properly approached the issue of onus of proof and made a proper assessment of the evidence placed before him.”
Learned counsel for the appellants, Mr. K. Uko, claimed in his submission on Issue No. 1, that the evidence of D.W.1, a qualified licensed surveyor, as to the position or location or any or the features shown on the survey plan, especially the position of Ngene Oto in Exhibit H was challenged by the respondent. Relying on Elias v. Omo-Bare (1982) 5 SC 25 at 38, 39, 45 and 46, learned counsel submitted that the appellants tendered the reproduced survey plan which was marked Exhibit H.
Counsel submitted that once a plan or sketch is tendered in court it remains in the custody of the court and that can be either the actual exhibit or a certified copy of it. Accordingly, Exhibit H which contained the necessary features or the land in dispute was sufficient evidence, counsel contended. He argued that survey plan No, L/D/585A (Exhibit H) when compared with the description of the Achiaka land in Nike Native Court Suit No. 34/35 (Exhibit M) is a mirror of plan No. AB.57 used in Exhibit M, He relied on the evidence of D.W.1 and D.W.2.
Still on Exhibit H, learned counsel called the attention of the court to section 3(1)(b)(i) of the Survey Law, Cap. 124 Laws of Eastern Nigeria, 1963 and the case of Minister of Lands Western Nigeria v. Dr. Azikwe and Others (1969) 7 All NLR 49 at 59 and submitted that the authorities vindicate the procedure which resulted in Exhibit H. Counsel submitted that in the circumstances, the doubt cast on Exhibit H by the learned trial Judge with particular reference to the position of Ngene Oto was uncalled for and represents a misapprehension of the law and that led him to misapply section 149(d) of the Evidence Act, 1990.
Learned counsel also cited Odesanya v. Ewedemi (1962) 1 All NLR 320 at 321: Akpan v. Otong (1996) 12 SCNJ 213 at 229: (1996) 10 NWLR (Pt.476) 108 and urged the court to rely on Exhibit H and discountenance Exhibit A. He commended the evidence of D.W.1 and urged the court to reject the evidence of P.W.1 and P.W.3.
Learned counsel pointed out what he regarded as material differences or disparity between Exhibit A and the plan attached to Exhibit G and wondered why the respondent did not make any effort whatsoever to explain away the “overriding material differences in his plan and yet the learned trial Judge glossed over it as if it did not matter one bit.”
Counsel submitted that the learned trial Judge ought to have either ignored or rejected Exhbits A, B and G and dismiss case of the respondent in the circumstances. He cited Erinosho v. Owokoniran (1965) NMLR 479 at 484 and James v. Lalehin (1985) 16 NSCC (Part 2) 1071 at 1082; (1985) 2 NWLR (Pt.6) 262. On the question of proof, counsel submitted that the learned trial Judge did not follow the provisions of sections 136 and 146 of the Evidence Act, 1990 thus wrongly requiring the appellants to prove beyond reasonable doubt the survey plan by producing plan No. AB.57 which plan was accurately reproduced in Exhibit H. He cited Akintola v. Solano (1986) 4 SC 141 at 173 – 174; (1986) 2 NWLR (Pt. 24) 598, citing Dantunbu v. Adene (1987) 4 NWLR (Pt.65) 314 learned counsel submitted that the learned trial Judge misapplied section 148(d) of the Evidence Act, 1958. He urged the court to hold that the non-production of plan No. AB.57 was not fatal or prejudicial to the case of the defence. He contended that once the respondent failed to discharge the onus of proof which shifted on him should not have been entitled to judgment. He cited Njoku v. Eme (1973) 5 SC 293 at 301; Ejindu v. obi (1997) 1 SCNJ 234 at 244; (1997) 1 NWLR (Pt.483) 525 and Njoku v. Eme supra.
On issue No. 2, learned counsel contended that P.W.3 did not tell the truth as he did not know who walled round parcel B in Exhibit H. He claimed that parcels A, B, D, and E as well as other land surrounding parcel C in Exhibit H belong to the appellants, going by the presumption of law in section 46 of the Evidence Act, 1990. He observed that the respondent did not know the land in dispute, a situation which was enough to dismiss his claim. He cited Bankole v. Pelu (1991) 22 SCNJ 105; (1991) 8 NWLR (Pt. 211) 523. On the evidence of D.W.2 and D.W.3 vis-a-vis contractions, counsel cited Asariyu v. The State (1987) 12 SC 70; (1987) 4 NWLR (Pt. 67) 709 National Investment and Properties Co. Ltd. v. Thompson Organization Ltd. and Otehrs (1969) 7 NMLR 99 at 104.
Learned counsel dealt with what he called the printer’s devil in the Amended Statement of Defence, an issue which, in my humble view, cannot fit into Issue No.2 as formulate. I shall therefore not develop his argument beyond here.
On Issue No. 3, learned counsel submitted that based on the principle of law, “nemo dat quod non habet”, the learned trial Judge ought to have come to the conclusion that the surrendered land did not belong to Umuenwene Iji Nike, respondent’s lessors. Citing the case of Kodilinye v. Odu 2 WACA 336 and Elias v. Disu (1962) 1 All NLR 214 learned counsel submitted that it was the duty of the respondent to prove his case on the evidence he brought to court and not rely on the weakness of the appellants’ case except where their evidence tend to support him.
Learned counsel also submitted that the learned trial Judge was infatuated with the fact of registration of Exhibit B but the Land Instruments Registration Law of Eastern Nigeria, 1963 is not equally enthused with such document. He cited section 23 of the Law. Citing Anabaronye v. Nwakaihe (1997) 1 SCNJ 161 at 168; (1987) 1 NWLR (Pt.482) 374 on the burden of proof in land matters and particularly in respect of particulars of the intervening owners through whom he claims. Learned counsel submitted that if the respondent had exercised the slightest caution and headed the principle of caveat emptor, he could have found from Exhibit G which he pleaded that his lessor’s title was bogus.
On Issue No. 4, learned counsel submitted that the learned trial Judge ought to have put the evidence called by either party on either side of an imaginary balance and weighed them together and not first reviewing the evidence of the appellants and arriving at conclusions. He cited Mogaji v. Odofin (1978) 4 SC. 91; Bello v. Eweka (1981) 1 SC 101; Aromire v. Awoyemi (1972) 1 All NLR (Pt.1) 10 and Owoade v. Omitola (1988) 2 NWLR (Pt. 77) 413 at 427. Counsel urged the court to allow the appeal.
Learned counsel for the respondent, Mrs. A.J. Offiah, relied on the case of Idundun v. Okumagba (1976) 9-10 SC 227, and submitted on Issue No. 1 that Exhibit C, the Certificate of Occupancy tendered by the respondent, is sufficient evidence to support the claim of the land in dispute. She further submitted that Exhibit C is a registrable instrument and it was duly registered in accordance with section 15 of the Lands Instruments Law of Eastern Nigeria, 1863. The effect of such registration is that the party registering acquires a good title until a superior title is produced, learned counsel submitted. She cited section 48 of the Registration of Title Law, 1963.
Learned counsel contended that D.W.5 who claimed title to the same land and was sued for his acts of trespass failed to produce superior document of title and did not cal any credible oral evidence in proof of any title superior to Exhibit C. Citing Oboro v. R.S.H. and P.D.A. (1997) 9 NWLR (Pt.521) 425 and 443, learned counsel submitted that the respondent had a superior title (Exhibit C) which the appellants did not challenge the correctness or authenticity.
On Issue No. 2 learned counsel submitted that the findings of the trial Judge were based on the evidence and documents before the court which were proved. She contended that the trial Judge found that the evidence produced at the trial by the appellants was at variance with their pleadings and ought to be disregarded. She cited Emegokwue v. Okadigbo (1973) 1 All NLR (Pt.1) 379. The resulting position, counsel argued, is that when the case of the parties is weighed on the imaginary scale as enjoined by the Supreme Court in Mogaji v. Odofin (1978) SC 91, the scale must tilt in favour of the respondent.
Counsel also submitted that since the trial Judge has properly evaluated the evidence and made findings of facts on such evidence, it is no longer necessary for this court to do a fresh appraisal of the same evidence or to disturb the finding of facts of the trial Judge, or to substitute its own views for those of the Judge. She cited Woluchem v. Gudi (1981) 5 SC 291 at 330 and Obodo v. Ogba (1987) 2 NWLR (Pt. 54).
Writing of judgment has now become and art and each Judge is entitled and free to follow his own style in achieving the end result, learned counsel contended. She submitted that the case in hand incorporated all essential components of a good judgment. Counsel recapitulated the procedure adopted by the learned trial Judge and the specific findings in the judgment and submitted that the Judge showed a clear understanding of the facts and issues in the case, the applicable law and rightly came to the correct conclusion while deciding al the issues in controversy. She cited Igwe v. Ikoku College of Education Owerri (1994) 8 NWLR (Pt.363) 459 at 480-481. Adeyemo v. Arokopo (1988) 2 NWLR (Pt. 79) 703; Akinfolarin v. Akinola (1994) 3 NWLR (Pt.335) 659.
Learned counsel dealt with the evidence of witnesses particularly P.W.4, D.W.1 and D.W.3 vis-a-vis the findings of the learned trial Judge and submitted that the Judge evaluated the case meticulously, made specific findings and gave his reasons for accepting or rejecting certain evidence by the parties and finally made pronouncements on the main issues in the contention between the parties. She urged the court to allow the appeal.
Learned counsel raised a preliminary point on pages 2 and 3 of respondent’s brief. She contended that the issues for determination raised in Appellants Amended Brief of Argument touch only on grounds 1, 2 and 4 of both the original and fresh and additional grounds of appeal. The rest of his grounds of appeal field are abandoned and the appellants did not apply for and was not given leave of this court to file amended grounds of appeal, learned counsel contended. She contended that grounds 2 has no particulars and it offends order 3 Rule 2(2) of Court of Appeal Rules. Ground 4 has only one particular and that particular contains legal arguments, narrative and conclusive and therefore incompetent. Counsel, further resubmitted that Grounds 1, 2, 5, 7 and 10 are not related inter se and cannot possibly give rise to one common issue for determination. She cited Amojame and others v. Eguegu (1996) 1 NWLR (Pt. 424) 341; Atuyeye v. Ashamu (1987) 1 NWLR (Pt.49) 267; Jamin Systems Consultants Ltd. v. Braithwaite (1996) 5 NWLR (Pt. 449) 459; Aniekwe v. Okereke (1996) 6 NWLR (Pt. 453) 60 and order 3 Rules 2(2)(3) and 4 of Court of Appeal Rules.
Learned counsel for the appellants in his Reply Brief submitted that the first issue form grounds 3, 6 and 11; the second issue arises from grounds 1, 2, 5, 7 and 10. He also submitted that in so far as the respondent did not plead or lead evidence as to the root of his vendors who granted him Exhibit B upon which Exhibit C was based. Exhibit C is a mere piece of paper not worth anything. He cited Adeboye v. Olowolagba (1996) 12 SCNJ 95 and Uche v. Eke (1998) 7 SCNJ 1; (1998) 9 NWLR (Pt.564) 24. He contended that the appellants challenged correctness or authenticity of Exhibit C. On the basis of the above two decision learned counsel argued that the respondent cannot successfully rely on Exhibit C alone without resorting to historical evidence unless the land was acquired by movement and then granted to him subsequently by government.
Counsel argued that the evidence of P.W.4 could have been evidence against interest if he testified a defence witness. Since the appellants field Exhibit H the decision of the Supreme Court in Adepoju v. Oke (1999) 3 SCNJ 46 at 57; (199) 3 NWLR (Pt. 594) 154 applies in favour of the appellants and that there was no significant contradiction on the evidence of the appellants to have warranted the trial Judge rejecting their testimony learned counsel argued.
I realize that the Amended Grounds of Appeal contain eleven grounds. The method adopted by learned counsel in respect of some of the grounds and the particulars of claim is unique. For instance, learned counsel enumerated grounds 1, 2 and 3 of the grounds of appeal in succession, followed by four particulars of error. Similarly, he enumerated grounds 10 and 11 in succession, followed by two particulars of error. The arrangement has given rise to the problem of identifying the grounds of appeal with specific particulars of error. The usual method adopted and therefore the procedure accepted is for counsel to indicate a ground of appeal, followed immoderately by the particulars of error. A situation where grounds of appeal are enumerated together, followed by particulars of error which are not identifiable to specific ground of appeal gives rise to speculations, and that is bad as our law forbids speculations on the part of the Judge in the judicial process.
Learned counsel for the respondent was able to relate the issues formatted in the appellants brief to only grounds 1, 2 and 4. By her contention, the remaining 8 grounds are abandoned. She is correct. I therefore entirely agree with her.
Although it is not the law that all grounds of appeal must inevitably be accompanied by particulars of error that is the general requirement of the law. There may be exceptional circumstances where a ground of appeal by its peculiar phraseology may not need particular of error. I do not see such circumstances in respect of the grounds learned counsel for the responder has attacked in her brief.
The only particular of error in respect of ground 4 reads in part:
On the authority of Dr. Odenigwe v. Richard Okoye (1973) 3 ECSLR (Pt.2) 850 at 855 a grant of lease made by a landlord whose title is bogus is void ab intiio as the landlord canot convey what he has not got ‘nemo dat quod non habet’.
I entirely agree with learned counsel for the respondent that the above is legal argument and therefore cannot be part of the particulars of error. In law each court process serves a particular purpose and counsel cannot deviate from this important principle merely to satisfy the peculiar needs of his client. Particulars of error cannot be used as forum for the argument of the appellant’s case. That is the exclusive function of the brief and so there cannot be begemonial struggle for power between particulars of error in the grounds of appeal and the brief. While the law enjoins the brief to argue the case of the appellant, particulars of error do not. See generally order 3 Rule 2(3) of the Court of Appeal Rules. See also Duruji and Another v. Azie (1992) 7 NWLR (Pt. 256) 688.
It is the law that issues formulated should cover all the grounds of appeal. A ground of appeal or grounds of appeal not covered by the issues formulated on the brief and therefore not argued will be regarded as abandoned. See Nkado and Others v. Obiano and Another (1997) 5 NWLR (Pt.503) 31; 7 Up Bottling Co. Ltd. v. Trio Comm. Co. Ltd. (1996) 6 NWLR (Pt.455) 441; Animashaun v. University College Hospital (1996) 10 NWLR (Pt. 476) 65. A court of appeal will regard an abandoned ground of appeal as either moribund or really dead and cannot therefore be resuscitated or reviewed. The ground or grounds of appeal will be struck out. See Sharfal v. The State (1992) 7 NWLR (Pt.255) 510; Ikpuku v. Ikpuku (1991) 5 NWLR (Pt.193) 571; J.E. Elukpo and Sons Ltd. v. F.H.A. (1991) 3 NWLR (Pt.179) 322. Accordingly, I strike out grounds 3, 5, to 11.
I now ask what has 11 grounds of appeal to do in this appeal. Although learned counsel had the gluttony for more grounds of appeal by his motion dated 16th April, 1999 which earned him 11 grounds, he could not manage all of them and most of them left him at the stage of the brief without his knowledge but to the knowledge of learned counsel for the respondent. It has been said several times by the Supreme Court and this court that it is not every slip of a trial Judge that gives rise to ground of appeal. In order to give rise to a ground of appeal, the slip should be such that can determine the appeal in favour to the appellant or shake the fortunes of the decision given in favour of the respondent to the extent that there is substantial possibility of the appellants having judgment on appeal. I do not agree that appeals are won by the large number of grounds but rather on the quality of the grounds of appeal in the sense of being meritorious. While a single meritorious ground of appeal can attract the reward of the court by way of judgment, numerous grounds of appeal which border on mediocrity, frivolity or flippancy are on a frolic of flirtation and therefore not of any use to the appellant in terms of obtaining judgment.
That takes me to the merits of the appeal. The appellants rely heavily on Exhibit H. it is survey plan No. L/D/585A. D.W.1, a licensed surveyor, in his evidence in-chief said:
“I therefore surveyed and produced a plan of the land in dispute. This is a copy of the plan. Tendered, admitted and marked Exhibits ‘H’. In the course of my survey of the land in dispute the defendants made me to understand that the land in dispute is only a part of a larger piece of land belonging to 2nd – 16th defendants. The defendants also showed me a plan of all their land in that area of which the land in dispute is only a part. I then decided to show the whole land i.e. the entire property to the 2nd – 16th defendants in that area and also the land in dispute in Exhibit ‘H’. In this exercise i.e. producing Exhibit “H” I had to reproduce the previous plan of the entire land of the 2nd – 16th defendants in that area. See the portion verged green in Exhibit ‘H’. The previous plan is No. AB.57 of 1/5/46.”
He said under cross-examination:
“It was from the previous plan No. AB.57 that I lifted the area verged green in Exhibit ‘H’. It was the 2nd – 16th defendants who gave me plan No. AB.57. Plan No. AB.57 is a private plan made in respect of previous land cases.”
D.W.2, in his evidence in-chief said:
“I was amongst my people when we took D.W.1 to the land and showed him the land now in dispute. All these lands we showed D.W.1 are already shown in plan No. AB.57. We gave D.W.1 a copy of that plan.”
D.W.3, in his evidence in-chief, also said:
“There is a plan No. AB.57 which we gave to our surveyor D.W.1. The said plan was then in Suit No. 34/35 which has not yet been tendered”
Paragraph 13 of the Amended Statement of Defence pleaded survey plan No. AB.57 thus:
“This boundary is also clearly delineated in survey plan NO. AB57 of the 1st day of May, 1946 which survey plan is hereby pleaded in this case.”
At the end of the proceedings, survey plan No. AB.57 was not tendered. What was tendered was survey plan No. L/D/585A as Exhibit 11. It was in the circumstances the learned trial judge said at pages 191 and 192 of the Record:
“It is my view that the only document that can resolve the definite and indisputable identity of the land the subject matter of Exhibit N and also Exhibit M is the survey plan No. AB57. The question then is why should the defendants who specifically referred to these documents and stated that they were relying on it fail to produce the same in support of their defence as pleaded in paragraph 13 of their amended pleadings. It is my view that the defendants are caught by S.148(d) of the Evidence Act.”
Learned counsel for the appellants descended heavily on the above conclusion of the learned trial Judge. He did all he could to convince this court that the non-production of plan No. AB.57 was not fatal or prejudicial to the defence and that the learned trial Judge erred in imposing a higher standard of proof than prescribed by law on the defendants. Counsel also contended that the learned trial Judge, by asking the defendants to produce plan No. AB.57, required them to prove their case beyond reasonable doubt.
With the greatest respect to learned counsel. I do not agree with his submission. There is nowhere in the judgment where the learned trial judge required proof beyond reasonable doubt. That is merely the idea of learned counsel and he should own it. I do not think the submission is fair to the learned trial Judge.
Now I come to the meat of the matter. There is plethora of evidence that plan No. AB.57 exists. As a matter of evidence, D.W.2 and D.W.3 said that the plan was given to D.W.1, D.W.1 himself said in evidence that it was from the plan that he made Exhibit H, D.W.3 was more specific when he said that the “plan …. has not yet been tendered.” The learned trial judge invoked section 148(d) of the Evidence Act, 1958 because the plan which was averred to in paragraph 13 of the Amended Statement of Defence was not tendered in court.
It is elementary law that parties are bound by their pleadings. This means that they must follow their pleadings blindly in the same way the blind follows his leader or lead man. A party who has averred to a document but thinks that it will not be possible to tender same, has the option of amending his pleadings. Where he does not do so, he stands or falls with the averment and a court of law is entitled to invoke section 149(d) of the Evidence Act, 1990. In my opinion, the learned trial Judge correctly invoked section 148(d) of the Evidence Act, 1958. I hereby invoke section 149(d) of the Act because, like the learned trial Judge. I presume “that plan No. AB.57 which could be produced but was not produced would if produced have been unfavourable tot eh appellants. See generally Bello v. Kassim (1969) NMLR 148; Onah v. The State (1985) 3 NWLR (Pt. 12) 236; Adisa v. Adili (1985) HCNLR 447; Omoregie v. Ogbeide (1991) 3 NWLR (Pt.178) 147.”
Pleadings not admitted are as good as dead unless proved in court or where the court can take judicial notice, in which case proof is not necessary. Since pleadings have neither brain nor mouth to think and talk. It is the duty of the party to lead evidence on his pleadings. Where no evidence is led, the court will assume that the pleadings are abandoned. In the particular situation of paragraph 13 of the Amended Statement of Defence. I come to the conclusion that the appellants abandoned paragraph 13 and to their detriment. I cannot disturb the conclusion reached by the learned trial Judge on the issue.
The respondent’s claim to ownership is based or predicated on Exhibit B and C. While Exhibits B is the registered deed, Exhibit C is the Certificate of Occupancy. The learned trial Judge accepted the evidence of the respondent’s witnesses who tendered Exhibits B and C. he said at page 196 of the Record:
“I am satisfied, therefore, that the plaintiff has established his title to the land in dispute and is therefore entitled to the declaration sought in paragraph 22(a) in his amended pleadings.”
They are (1) By traditional evidence. (2) By production of documents of title duly authenticated and executed. (3) By acts of ownership extending over a sufficient length of time numerous and positive enough as to warrant the inference of true ownership. (4) By acts of long possession and enjoyment. (5) By 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 dispute. See also Mogaji and Others v. Cadbury (Nigeria) Ltd. (1985) 2 NWLR (Pt.7) 393; Omoregie and Others v. Idugiemwanye and Others (1985) 2 NWLR (Pt.5) 41; Ezeoke and Others v. Nwagbo and Another (1988) 1 NWLR (Pt. 72) 616; Fasoro and Another v. Beyioku and Others (1988) 2 NWLR (Pt. 76) 263; Okpuruwu and Others v. Chief Okpokam and Another (1988) 4 NWLR (Pt. 90) 554.
In order to succeed in a land matter, the plaintiff need not satisfy all the five ways enumerated in Idundun v. Okumagba. A court of law will give judgment to a plaintiff who satisfies any of the five ways. In the instant appeal, the respondent comes within the second way of proving title or ownership and it is the production of documents that is Exhibits B and C.
I am in difficulty to appreciate the point made by learned counsel for the appellants in respect of Exhibits G and H. I cannot see the mystery counsel said surrounds Exhibit G. It looks to me like a storm in a tea cup.
In respect of the root of the vendors who granted the respondent Exhibit B, I should refer to paragraphs 5, 6 and 7 or tile Statement of Claim and the evidence of P.W.3. In his evidence in-chief, P.W.3 said:
“I know the land in dispute in this case. The land now in dispute was formerly the property of my people of Umuenwene Iji Nike … My people thereafter gave a lease of part of the surrendered portion of land to the plaintiff.”
Witness said under cross-examination:
“Our ancestor had landed property in Nike and along the Airport road. Our ancestor had two sons namely Enwene and Chigbo. My people of Umuenwene Iji Nike are descendants-oF Enwene while the 2nd – 16th defendants i.e. Umuenwene Iji Nike are descendants of Chigbo. It is not true that our ancestor shared his landed properties between his 2 sons during his life time. Our ancestor was called Iji Nike. It was after the death of Iji Nike that his 2 sons i.e. Enwene and Chigbo shared their father’s lands.”
The respondent, as P.W.2, said in his evidence in-chief:
“I know the land in dispute in this case. It belongs to me. About June, 1976 I got a lease of the land in dispute from the original owners i.e. Umuenwene Iji Nike Community. The land was granted and a deed executed. The deed was registered by me in the Lands Registry. Enugu as No. 58 at page 58 in Volume 834. This is the deed duly registered.”
(Tendered, admitted and marked Exhibit B.)
The foregoing evidence drowns the submission of learned counsel for the appellants and I so hold.
The claim of ownership of the land in dispute by the appellants is further punctured by the evidence of P.W.4 who, like the appellants, is a native of Umuchigbo lji Nike. He said in his evidence in-chief:
“I know the 1st defendant. I know the land in dispute. It was originally the property of Ulmuenwene Iji Nike people … I do not know how the 1st defendant came to be on the land in dispute … The said land in dispute was never given to him by my people.”
It does not matter whether the evidence of P.W.4 is against interest or not. What is important is that he gave the evidence which is dearly against the appellants, notwithstanding the fact that the witness is from the same Umuchigbo Iji Nike as the appellants.
The above apart, the learned trial Judge correctly pointed out material conflict in the evidence of D.W.2 and D.W.3 on the one hand and the pleadings of the defendants, now appellants on the other. While paragraphs 14 and 15 of the Amended Statement of Defence averred that the name of their ancestor is Iji Nike. D.W.2 and D.W.3 said in evidence in court that the name in Eneta Oyide, reacting to the evidence, the learned trial Judge said:
“It is trite law that a party will only be permitted to call evidence to support his pleadings and evidence which is in fact adduced and which is contrary to his pleadings must he expunged when considering the case. Refer to the National Investment and Properties Co. Ltd. v. the Thompson Organization Limited and Ors. (1969) NMLR 94. It is trite law that evidence in respect of matters not pleaded goes to no issue at the trial and that the court should not have allowed such evidence to be given.”
I entirely agree with the exposition of the law by the learned trial Judge. I cannot state it better.
Learned counsel complained seriously of the way the learned trial Judge evaluated the evidence of the witnesses. His major complaint is that the learned trial Judge considered the evidence of the appellant’s firsts, and arrived at conclusion before that of the respondent.
Although there are procedural rules in respect of the evaluation of evidence, the Judge who is the master of his court can hardly be faulted if the procedure he adopts in his evaluation is consistent with his role as the independent umpire, holding the balance evenly between the parties. I do no want to believe that there is an arithmetical set out procedure where a trial Judge evaluates the evidence of’ the parties by taking witnesses of the plaintiff and the defendant (or vice versa) in succeeding sentences in the evaluation exercise. I do not believe that it is the rule that the first sentence should evaluate the evidence of either the plaintiff or the defendant and the second sentence should evaluate the witness whose evidence was not evaluated in the first sentence. It is not so and it cannot be so.
It is the function of the appellate Judge to consider the totality of the evaluation of the trial Judge. Once he comes to the conclusion that the trial Judge did not show any bias in the evaluation exercise to the extent that he gave judgment to one party contrary to the evidence available, he should not throw away the evaluation. It is not my understanding of the law that an appellate Judge should pick holes here and there in the evaluation exercise of a trial Judge however infinitesimal or minor and come to the conclusion that the trial Judge was unfair to one of the parties in the course of his evaluation.That will be rather a smart one and equity does not encourage such smartness. I shall not disturb the evaluation of the trial Judge.
On the whole, this appeal fails and it is dismissed. I award N3,000:00 costs in favour of the respondent.
FABIYI, J.C.A.: I have held a preview of the lead judgment of my learned brother. Tobi, J.C.A. I am in complete agreement with the reasons advanced to reach the conclusion that the appeal is devoid of any merit and should be dismissed.
As carefully depicted in the lead judgment, the findings of fact of the trial Judge are unassailable. I shall not disturb the balanced judgment in any respect. I accordingly dismiss the appeal as well and endorse the order relating to costs in the lead judgment.
MUHAMMAD, J.C.A.: I had a preview of the lead judgment of my learned brother Tobi J.C.A with whom I agree that this appeal lacks merit and should be dismissed. The learned trial Judge had creditably evaluated the evidence before him and the conclusions arrived at, thereafter are unassailable. The decision so reached cannot be interfered with m this stage. Appellant’s quarrel with the decision was largely as to its form rather than to its substance. The parties had been placed on an equal keel and their cases dispassionately placed and weighed by the lower court using the imaginary scale. I leave intact, unable as urged by the appellant, to interfere.
I make same order as to cost.