Whether documents tendered and admitted in evidence can be used for all purposes

John Ekweogu & Ors v. Eusebius Anyama & ORS
(2020) LPELR-49292 (CA)

In the Court of Appeal
In the Owerri Judicial Division
Holden at Owerri

On Tuesday, 21st January, 2020
Suit No: CA/OW/172/2014

Before Their Lordships:

RAPHAEL CHIKWE AGBO, JCA
ITA GEORGE MBABA JCA
IBRAHIM ALI ANDENYANGTSO, JCA

Between

1. JOHN EKWEOGU
2. ANTHONY NNOHAM
3. EVARISTUS ANYAOHA -Appellant(s)
4. WILFERED IBEBUIKE
(For themselves and on behalf of the people of Amanato Umuezeala Ogboko)

And

1. EUSEBIUS ANYAMA
2. WILFERED CHIOMA
3. ETHELBERT IBEKWE
4. CANICE NNOROM ANYAMA -Respondent(s)
5. CHIEF LINUS ASIKA
6. CHIEF JULIUS OKORIE
(For themselves and as representatives of Umudara Village, Mgbee)

LEAD JUDGMENT DELIVERED BY ITA GEORGE MBABA, J.C.A.
FACTS OF THE CASE
This appeal is against the judgment of Imo State High Court in Suit No. HOR/46/99 delivered September 24, 2013, by Hon. Justice L.C. Azuama.

At the High Court, appellants had sought the following reliefs: (a) a declaration… that the plaintiffs are entitled to the Customary Right of Occupancy of the part of Akputara land shown verged pink on the plaintiffs’ litigation plan. (b) an order of forfeiture against those of the defendants, whose houses are in the area verged red on the plaintiffs Akputara land. (c)general damages for trespass assessed at N1 million (d) an order of perpetual injunction restraining the defendants by themselves, agents, servants and/or privies from trespassing into the plaintiffs Akputara.

After hearing the case and considering the evidence led and the addresses of counsel, the High Court held that the plaintiffs had failed to prove their claim that the land verged red in exhibit A (survey plan) was land granted by them (plaintiffs) to the defendants. The court dismissed the suit with N10, 000 costs, against them (plaintiffs). Dissatisfied, the appellants appealed to the Court of Appeal.

Issues for Determination
The court was asked to determine the appeal on the following issues: (1) Whether the trial court misdirected itself or was wrong in law when it held that the evidence of the Appellants revealed two versions or variants of traditional history which are sharply irreconcilable, inherently contradictory and false? (2) Whether the trial court was right in law in not considering and making findings on the numerous positive acts of possession, which the appellants proved in evidence? (3) Whether the trial court’s evaluation of evidence and the dismissal of the appellants’ case can be sustained under the law?
Appellant’s Submission

On issue one, the appellants submitted that they relied on traditional history, production of documents of title, acts of long possession and proof of possession of connected or adjacent lands, in establishing their claim. The appellants submitted that exhibit K, with which the respondent admitted, in suit No. O/20/58, that Akputara land belonged to them (appellants), was tendered only to show that a relation of the respondents had, in earlier litigation, admitted or acknowledged that Akputara land belonged to the appellants, and not for general purpose. That the trial court in an effort to rely on its “own view of facts in this case”, went within the confines of its chambers, commenced an independent research and private investigation, outside exhibit K, and came out with its own purported result, which was the erroneous conclusion that appellants’ traditional history and exhibit K are in conflict. He concluded by saying that the trial court was wrong to enlarge the purpose for which exhibit K was tendered and to conduct private search and investigation into what was not tendered before it and utilizing such inadmissible evidence to reach its decision. He relied on Ngwa Vs Nnaji (1991) NWLR (Pt.189) 18 at 30 amongst others to buttress the need to stay with the purpose for which a document was admitted in evidence.

On issue two, whether the trial court was right in not considering and making findings on the numerous positive acts of possession, which appellants proved in evidence, appellant answered in the negative and submitted that a party is not bound to plead and prove more than one root of title to land, to succeed; that if he relies on more than one root of title, it is only to make assurance, doubly sure, doing so ex-abundant cautela. He relied on Akpan Vs Otong (1996) 10 NWLR (Pt.476) 108 at 137. That the appellants had relied on traditional history, production of title and acts of a long possession to prove their title to the land; that the fact that they are in possession of the disputed land verged pink in the exhibit A was not in doubt. That exhibit K being suit No. O/20/58 was where one Fred Agabanya (a relation of the respondents) testified and admitted the interest of the appellants in the Akputara land and that that piece of evidence clearly established possession in favour of the appellants. They relied on the case of Ibezim Vs Ndulue (1992) 1 NWLR (Pt.216) 153 on where evidence by adverse party supports the case of the opponent.They concluded that the trial court erred when it demolished the appellants’ case, because, according to it, the traditional history of the appellants was contradictory, without taking into consideration that appellants also relied on positive acts of ownership over a time sufficient to warrant the inference that they were the true owners of the land in dispute.

On issue three, the appellants urged the court to interfere with the findings arrived at by the trial court, as the findings of the trial court occasioned a miscarriage of justice on the appellants; relying on the case of Anyakoro Vs Obiakor (2005) 5 NWLR (Pt.919) 509 at 528 – 529.

Respondent’s Counsel Submission
On issue one, the respondents submitted that the trial court had justified its application of exhibit K to the appellants’ traditional history via paragraph 15 of appellants’ pleadings, which permitted the court to do so; that the court’s findings on appellants’ traditional history, via a vis Exhibit K, was sound and devoid of errors. He relied on the case of Sajere Vs Iretor (1991) 3 NWLR (Pt.179) 340 to say that a document pleaded and tendered for a specific purpose can become available for full consideration by the court. He also relied on Omega Bank Vs OBC Ltd (2005) NWLR (Pt.249) 1944. That the trial court compared the traditional evidence of the appellants in exhibit K and was therefore right when it concluded that the traditional evidence of the appellants in exhibit K conflicted with the traditional evidence led by appellants in the case and the two were irreconcilable. Also, that the heavy weather made by the appellants of the treatment of exhibit K by the trial court, saying that it conducted independent and private research in its chambers, outside the exhibit K, was a misconception, and not correct, as it is the business of the trial court to make finding of fact and appraise the evidence led in a case.

On issue two, the respondents submitted that the trial court properly considered and made findings on the alleged acts of possession by the appellants, before reaching its conclusion. They referred to the holding of the Supreme Court in Alade Vs Awo (1975) 4 SC 215 at 228, on the need to recourse to evidence of numerous and positive acts of ownership and possession within recent or living memory, sufficient to establish ownership, where the evidence of traditional history fails or is inconclusive. That, of course, is resort to the Rules in Kojo II Vs Bonsie (Supra). But in this case, they submitted that there was no need for such resort, because the traditional history/evidence of the appellants was not found to be inconclusive, but contradictory, irreconcilable and a deliberate lie and in the circumstances, the trial court was right not to consider acts of possession by the appellants.

On issue three, the respondents submitted that said issue three was founded on the ground eight of the appeal, which appellants had abandoned and that appellants were wrong to found the issue three on an abandoned ground of appeal. They relied on the case of Chief T.G. Berejin & 5 Ors Vs Prayer Brown Gbobo (1989) 1 NWLR (Pt.97) 372, to the effect that a competent ground of appeal cannot be argued together with an incompetent one.

Resolution of Issues
In resolving the issues, the court began by stating that the five known and acceptable ways of proving title to land are: (1) By traditional history/evidence; (2) By production of title documents to the land; (3) By acts of ownership numerous and positive extending over sufficient length of time to warrant the inference that the person is the true owner; (4) By acts of long enjoyment of possession; and (5) By proof of possession of adjacent lands in circumstances which make it probable that the owner of such adjacent land would, in addition, be the owner of the disputed land. – Ezerioha & Ors Vs Mgbeajulu & Ors (2018) LPELR – 43811 CA and Idundun & Ors Vs Okumagba (1976) LPELR – 1431 (SC)
That in this case, the appellants asserted multiple methods of proof of title to the land in dispute, including traditional history, production of title documents, numerous and positive acts of ownership and possession over a long period to warrant the inference that they are the owners of the land in dispute. They also asserted possession of the adjacent lands. The court observed that while one may prove his title to land by use of one or more methods of proving title to land, there are situations that resort to more than one method of proving title amounts to desperation and or speculation, and becomes counterproductive, as one method asserted may rather operate to cancel the other.

According to the court, the law in Ezerioha & Ors vs Mgbeajulu & Ors (supra), is that, a plaintiff who relies on a particular mode of or source of proof of title, but fails to prove that mode or source cannot rely on long possession or acts of ownership to prove/establish title: where a part’s root of title is pleaded, as for example a grant, a sale, or conquest etc, that root of title has to be established first, any consequential acts, following thereon can then properly qualify as acts of ownership. Where the title pleaded has not been proved, then it will be unnecessary to consider acts of possession for the acts then become no longer acts of possession but acts of trespass.

The court went on to state that the rule in Kojo II v. Bonsie will not be necessary for considering acts of ownership and possession in proof of title by traditional evidence, where the case is not one of inconclusive traditional history/evidence or competing traditional histories of the two parties but of contradictory and irreconcilable evidence.

As regards the use of Exhibit K by the trial court, the Court of Appeal stated that the appellants is wrong to seek to bar the trial court from looking at a document (exhibit) before it and from applying the same to settle issues raised in the case of parties, as pleaded by the parties, beyond the very narrow compass for which a party tendered the document. The Court relied on Omega Bank Plc Vs OBC Ltd (2005) NWLR (Pt.928) 547 (SC) where the supreme court held that where a document is pleaded to establish a particular fact, it can only be used to establish that fact and cannot be used to prove another fact which is not an issue in the pleadings.

According to the court, its understanding of the above ratio is that the document can still be used to prove any other fact, which is an issue in the pleadings. That one who pleads a document to show that there was admission against interest in a cases of traditional history as means to prove title, cannot claim that the evidence of traditional history in the said document, tendered is not a relevant issue in the case at hand, which also relies on traditional history over the same land. Of course when the document was admitted, to prove title by traditional history that fact became relevant issues. That the law would have been different if a document is put in evidence without any particular specification. In such a case, the document is presumed to be totally put in evidence and the court can use any portion of it.

Finally, that in the instant case, the trial court had observed such inherent contradictions and sharp irreconcilable differences in appellants pleadings and evidence, especially, when the trial court found, as a fact, that the traditional history pleaded and led in the case, was completely different from the traditional history led in the said previous case – O/20/58 and it would be wrong and mischievous, for the appellants to seek to place reliance on page 23 of the Exhibit K, only (to harvest evidence against interest), but reject the cause, whereof the evidence was adduced. The law would be unduly technical and absurd, to allow appellants to do that, and reject the evidence, which works against their (appellants’) cause, in the same document (exhibit K) touching on the other issues raised in the case of appellants.

The court held that the whole evidence in exhibit K was, therefore, available for the use of the Lower Court, in the circumstances.

HELD:
In conclusion, the Court found no merit in the appeal and accordingly dismissed same.

Appearances:
DR. LIVY UZOUKWU O.O.N. SAN, with him,
A.S. KOLAWOLE, ESQ and C.K. UBA, ESQ.
-For Appellant(s)
KELECHI NWAIWU, ESQ. with him, D.U. MBUKO (MISS.)
– For Respondent(s)
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