HYACINTH ANYANWU
v.
1. ROBERT ACHILIKE MBARA
2. JAMES OSUJI
1992-LD-SC-417
Supreme Court
15th June, 1992.
Justices:
Muhammadu Lawal Uwais, J.S.C.
Saidu Kawu, J.S.C.
Idris Legbo Kutigi, J.S.C.
Michael Ekundayo Ogundare, J.S.C.
Philip Nnaemeka-Agu, J.S.C. (Read The Leading Judgment)
Subject Matter(s):
1. Standard of Proof
2. Error of Law
Final Order:
Appeal Dismissed.
RATIO DECIDENDI
VISIT TO THE LOCUS IN QUO – General principle as to when it is appropriate for a judge to visit the locus in quo
“…the situation in a visit to the locus in quo in a land case. It is a course which a Judge can take only with due caution – with full advertence to the fact that, as he is not a party in the case, it is belief for one of the parties to apply for it. But where, from the quality and quantity of the evidence called by both sides he finds himself in a position in which, without supplementing what he has heard with what he can see, he can only accredit one version of the conflicting evidence and discredit the other mechanically, he should bring to the notice of the parties the need for a visit to the locus and get their consent or acquiescence to it.”
PLEADINGS – What a defendant who relies on the provisions of a statute as a defence should plead in his pleadings
“It must be noted that one inevitable result of the fact that pleadings need no longer be technical in terms is that it is, now, no longer necessary to plead statutes and sections thereof expressly. It is sufficient if the material facts which will lead to a certain legal result are pleaded. Once such material facts have been pleaded, the inference to be drawn from such pleaded facts and the particulars of the law to be relied upon for such an inference need not be pleaded.”
TRADITIONAL EVIDENCE/HISTORY – What is required of a person relying on evidence of traditional history in an action for declaration of title to land
“Pleading in paragraphs 5 and 6 of the statement of claim that the plaintiff and his predecessors-in-title had owned and possessed the land in dispute from time immemorial is not a sufficient pleading of tradition. In this regard the plaintiff was bound, if he relied on tradition, to have pleaded who founded the land, how he founded it and the particulars of the intervening owners through whom he claims: See on this Akinloye & Anor. v. Bello Eyiyola & Ors. (1968) NMLR 92; Adejumo v. Ayantegbe (1989) 3 NWLR (Pt.110) 417; Olujinile v. Adeagbo (1988) 2 NWLR (Pt.75) 238. There was, therefore, no proper pleading of tradition and, so evidence of deforestation, not having been pleaded, went to no issue.”
BOUNDARIES – Duty of a plaintiff to produce evidence to ascertain boundaries of land
“It is clear from the pleading, plan and oral evidence that what was in dispute between the parties, who own lands adjacent to each other, is the ascertainment of the boundary between them. That being the case, it behoved each party, particularly the plaintiffs, to prove the boundary that was being claimed – See: Omoregie v. Idugiemwanye (1985) 2 NWLR (Pt.5) 41, 60.”
ERROR OF LAW – Whether an established error in proceedings will be a ground for allowing an appeal
“It is the law, however, that the fact that a party has established an error in the proceedings does not necessarily mean that the appeal must be allowed. Such an error will be a ground for allowing the appeal if, and only if, it is substantial in the sense that if he had directed himself correctly he would have reached a different decision. See on this Onajobi v. Olanipekun (1985) 4 S.C. (Pt. 11) 156 at p. 163; Ikejianya v. Uchendu II WACA 45, P. 46.”
VISIT TO THE LOCUS IN QUO – The source of power of the trial judge to visit locus in quo
“I must note that the power of a Judge to visit the locus in a land case is derived from the provisions of Section 76(c) of the Evidence Act and the second proviso to that section. As I stated in Jonathan Enigwe & Ors v. Michael Akaigwe (1992) 2 NWLR (Pt.225) 505, p.532.”
DUTY OF JUDGE – The role of a judge in our adversarial system of justice
“It is implicit in the adversary system of administration of justice which we operate that all material evidence shall be called by the parties themselves. The position of the trial Judge is that of an impartial umpire and he lacks the power to call any witness or evidence without the consent of the parties: See Eric Ordor v. James Nwosu (1974) 1 All NLR (Pt. 11) 478, at p. 484. The court, per Ibekwe, J.S.C., added: “In exceptional circumstances, and mainly for the purpose of throwing light on the case, the Judge may, with the acquiescence of the parties, call or recall a witness.”
INTERFERENCE WITH FINDING(S) OF FACT(S) – Attitude of appellate courts to findings of fact made by a lower court
“I entirely agree with the Court of Appeal, per Olatawura, J.C.A. (as he then was) when he stated: “The ascription of probative value to evidence is primarily that of the lower court and the interference by an Appeal Court on findings of fact is limited to a very narrow dimension. There is no special circumstances or justification on the printed records to interfere with the finding of fact made in the court below. An Appeal Court must attach the greatest weight to the opinion of the trial Judge who has the duty to see and indeed has seen and heard the witnesses. The Appeal Court must not disturb the findings of fact made by the trial Judge except where such findings are unsound – Omoregie v. Idugiemwanye (1985) 2 NWLR (Pt.5) 41 at p.42.”
ACTS OF POSSESSION AND OWNERSHIP – Whether the making of an unregistered document of pledge between an owner of land and another person could qualify as an act of ownership
“…although the making of an unregistered document of pledge between an owner of land and another person could be said to be an act of possession or ownership, such a piece of evidence cannot, in my view, qualify as a positive act of ownership if all there is to it is that it ended up in the files of the pledgor and the pledgee.”
ACTS OF POSSESSION AND OWNERSHIP – What a party relying on acts of possession and ownership must prove in a claim for declaration of title to land
“It is noteworthy that in all the cases in which acts of possession and ownership are held to be conclusive proof of title to land, the courts have always insisted that such acts must not only extend over a sufficient length of time but also be numerous and also positive to warrant the inference of exclusive ownership. This means not only that from the overwhelming number of such acts, one should be able to say that the person doing such acts must have regarded the land as his own and also that from the nature of such acts – their openness and their being exercised without force or stealth – any person asserting a contrary title would have known of such an exercise and be expected to assert his contrary title. See on this: Ekpo v. Ita 11 NLR 68, p.69; Sunday Piaro v. Chief Wopnu Tenalo & Anor (1976) 12 S.C. 31, p. 41; Idundun v. Okumagba (1976) 9-10 S.C. 246. A few such acts which the adversary was not in a position to have known about will not suffice.”
PRESUMPTION OF OWNERSHIP – Presumption of ownership within the purview of Section 45 of the Evidence Act
“…the inference that what is true of ownership of these other lands is likely to be true of the land in dispute is clearly borne out by the evidence. See on this: Nathan Okechukwu & Ors v. Frederick Okafor & Ors (1961) 1 All NLR 685, at p.690; (1961) 2 SCNLR 369; D.O. ldundun & Ors v. Daniel Okumagba (1976) 9-10 S.C. 227, p.249. True, Section 45 of the Evidence Act raises only a probability and not a presumption of ownership: See Ededem Archibong v. Nto Nsim Ita (1954) 14 WACA 520; 11 NLR 68.”
STANDARD OF PROOF – Standard of proof in civil cases
“…proof in a civil case is on a balance of probability.”
SURVEY PLAN – When a survey plan will be necessary
“Where a party in a land case claims the existence of an important feature in or bordering the land, he is expected to show it on his plan if he files one. If he fails to do so, the trial Judge would be entitled to treat any oral evidence on the point as unsatisfactory.”
