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3PLR/1992/58  (SC)



3 NWLR (Pt. 230) 426







UCHE OMO, J.S.C. (Read the Leading Judgment)





3.WARIBOKO FOINBO ORUENE (For themselves and as representing Okoro Ngbebo family)




2.BIPISEIBAMA GREND (For themselves and as representing Grend family)



  1. C. O. Njemanze – for the Appellants
  2. I. Abibo – for the Respondents



APPEAL – Findings of facts – Failure of trial court to make where necessary – Course open to court of appeal – Proper order to make – What determines.

COURT – Action for declaration of title – Evaluation of evidence and findings of fact-Procedure to be adopted by trial court- Mogaji v. Odofin (1978) 4 S.C. 37 revisited.

COURT – Duty on. trial court to make findings – When it arises – When it does not arise.

COURT – Duty on trial court to make findings on important and material issues -. Failure to carry out – Course open to appellate court.

COURT – Duty to make findings on all issues – Failure to carry out – Whether necessarily invalidates judgment.

COURT – Duty to make findings – When it arises – Failure to carry out – Effect.

COURT- Evaluation of evidence -Conflicting assertions-Duty on court -Mogaji v. Odofin (1978) 4 S.C. 37 revisited.

COURT – Evaluation of evidence – Duty on trial court in respect thereof.

COURT – Findings of fact by trial court – Use of the phrases “I believe or “I disbelieve” by a Judge – Whether sacrosanct.

EVIDENCE – Evaluation of evidence – Conflicting assertions – Duty on court – Mogaji v. Odofin (1978) 4 S.C. 37 revisited.

EVIDENCE-Proof-Traditional history-Conflicts in-How resolved-Application of the rule in Kojo 11 v. Bonsie (1957) 1 WLR 1223.

EVIDENCE – Traditional history – conflicts therein – How resolved.

JUDGMENT AND ORDER – Findings of facts – Failure of trial court to make where necessary – Course open to court of appeal -Proper order to make – What determines.

LAND LAW -Proof-Traditional history-Conflicts in -How resolved-Application of the rule in Kojo 11 v. Bonsie (1957) 1 WLR 1223.

LAND LAW – Traditional history – conflicts therein – How resolved.

PRACTICE AND PROCEDURE-Evaluation of evidence -Conflicting assertions – Duty on court – Mogaji v. Odofin (1978) 4 S.C. 37 revisited.

PRACTICE AND PROCEDURE-Findings of facts-Failure of trial court to make where necessary – Course open to court of appeal – Proper order to make – What determines.



OMO, J.S.C. (Delivering the Leading Judgment):

Thus appeal which was dismissed after hearing counsel on 20/1/92; was then adjourned to 3/4/92 for reasons for the decision of this Court to be given.


The plaintiffs/appellants claimed against the defendants/respondents, in the High Court of Rivers State (Port Harcourt Judicial Division) for:


(a)     Declaration of title to all that certain piece or parcel of land situate at Okoro-Ngbebo family land Ederemebiri more particularly shown in EXHIBIT “A”.


(b)     Forfeiture of the Customary tenancy granted to Defendants/Respondents on account of their failure to observe the Customary right;


(c)     Perpetual Injunction.


Pleadings and plans, which are substantially identical in material particulars, were duly filed by the parties. After hearing evidence of the parties and counsel on their behalf, the learned trial Judge in his. reserved judgment found for the plaintiffs in respect of all their claims.,


The defendants, dissatisfied with that judgment, appealed to the Court of Appeal against same on several grounds of appeal, four of which only were canvassed in their brief of argument. The plaintiffs also filed their own brief, after which the defendants filed a reply brief. In its judgment, the Court of Appeal considered only two of the grounds filed and allowed the appeal on the second ground. It proceeded to set aside the judgment of the trial judge (Pepple, J. as he then was). It also ordered a refund of the costs ordered by the High Court, and granted the successful defendants N450.00 cost.


The plaintiffs also dissatisfied by the decision of the Court of Appeal have appealed to this Court. Briefs have been duly filed by the parties, whose counsel have also made some oral submissions.


Before proceeding to consider the briefs filed in this Court, the issues for determination, and the reason for the rather peremptory ending of this appeal, a brief background of the facts is necessary.


Both the plaintiffs and the defendants belong to OKURUTORU House of Ederemebiri (village) in Okrika Town. Whilst the plaintiffs belong to the OkoroNgbebo family (hereinafter called the Okoro family simpliciter), the defendants come from the Grend family. The plaintiffs sue and the defendants defend as representatives of their respective families.


The land in dispute is claimed by the plaintiffs as their family land. A few years after his installation as Chief of Okurutoru House (in or about 1923), Chief Daa Grend applied to and got permission of the Okoro family to build a temporary house on the land in dispute, on payment of a traditional rent of one penny (now equated to one kobo) per annum to the Okoro family, in acknowledgment of their right of ownership. Until his death Chief Dint Grend complied with this term of his tenancy. In further exercise of their right of ownership the Okoro family, before its occupation,


(a)     got a native doctor- Anyanwu – to perform a ceremony to appease the gods because a leper had been buried on the land


(b)     got a native ceremony called “Okoloba Pike” performed by Jonathan Oruene, then head of Okoro family.


Whilst in occupation, part of the house was demolished at the request of the Okoro family to accommodate a house by an Okoro family member. After the death of the two family heads involved in the original grant – Chiefs Daa Grend and Jonathan Oruene, the Okoro family demanded a return of the land to them for their use.


Following the passionate plea of Grend family members, a fresh grant of the land was made on the twin conditions that (a) the oral tenancy be reduced into writing and (b) that the grantee family voluntarily contribute to all Okoro family financial levies and other commitments when necessary.


The hand written agreement was prepared in 1957 by Chief James Aduari Owolo who was alive at the time of the hearing of the present action and in fact testified as P.W. 3 therein. Between 1957 and the death of David Grend in June 1971, the Grend family complied strictly with the terms of the said agreement. Thereafter his successor as head of Grend family-Amos Grend-flouted the second condition/term of the agreement. It is the case of the plaintiffs that other persons were granted Okoro family lands on similar conditions. The written agreement with the Grend. family was lost during the Nigerian Civil War.


The defendants denied any grant of land to them by the plaintiff. The land in dispute, they contend, is “a small portion of Okurutoru House land on which Grend built his house on or about 1915 when he was Chief of Okurutoru House”. It is part of swamp land reclaimed from the foreshore by successive Chiefs of Okurutoru House, and is therefore family land. According to the defendants there is no such family as Daa Grend in Okurutoru House which comprises Okurutoru family (named after the founder), Okoro Ngbebo family (plaintiffs), and llokirike family who are not involved in this dispute. It was the founder Okurutom, one of the earliest settlers in Ederemebiri, Okrika Town, that settled plaintiffs’ ancestor on the land. The defendants denied all the acts of ownership averted by the plaintiffs in their pleadings. Contributions to family levies/ contributions are reciprocal as between various families of Okurutoru House and is a common practice in Okrika. It is not evidence of a landlord and tenant relationship. At no time did the defendants enter into any agreement, be it oral or written, in acknowledgment of a grant of land by the plaintiffs. On 15/11/73 the 1st defendant was invited by elders of Ederemebiri to a meeting at the instance of the plaintiffs. who stated there and then that the land on which his father’s house was built belongs to them, and that the defendants should quit therefrom. On 1st defendant repudiating this claim it was withdrawn by plaintiffs, who were traditionally penalised to provision of wine for making a frivolous report/claim. Two years later, on 4/1/76, the plaintiffs again summoned the defendants before a mass meeting of the whole Okurutoru House and repeated their claim to ownership of the land in dispute, pressing that defendants should quit. The Okurutoru House. invited people from other Houses in Okrika to effect a fair arbitration. After hearing both sides, the arbitration unanimously dismissed plaintiffs claim, the decision of arbitrators being announced by one Deribe Iboroma, who was nominated by both sides.


In his judgment the learned trial Judge found for the plaintiffs mainly on the grounds that (a) the Chief of Okurutoru House, who testified had not claimed the land in dispute as communal property of the House (b) most of the houses on the area in dispute verged green in plaintiffs’ plan belong to members of plaintiffs’ family (c) plaintiffs showed on their plan graves of their deceased family members within the land in dispute (d) the court preferred the traditional history of the plaintiffs.


On appeal to the Court of Appeal by the defendants, what were filed as briefs by the parties did not set out any issues for determination. Consequently arguments adduced were based on grounds of appeal instead of issues. These briefs were filed in the early days of the introduction of the brief system to the Court of Appeal (1984/5) and so no objection was taken either by the parties or the Court to what are strictly speaking improper briefs. In allowing the appeal of the defendants, the court below held that the learned trial Judge had failed to make findings of fact on vital issues raised and relied on by the plaintiffs particularly (a) whether or not the Okoloba Pike ceremony was performed in respect of the land in dispute (b) whether or not any annual rent has been paid to the plaintiffs by the defendants.


This is the way the Court of Appeal put it in its judgment (per J.A. Phil-Ebsie J.C.A.):


“The plaintiffs relied on the performance of Okoloba Pike, the payment of ld by the defendants family and written agreement to prove their family’s ownership of the land in dispute. These events are more recent than the traditional history. Some of them happened as early as late 50s. They are therefore very material to the success of the plaintiffs’ case and the learned trial judge ought to therefore have evaluated the evidence and made a specific finding on them. He failed to do so. Accordingly, his judgment did not take into account issues that are material to the defendants/appellants case. In other words, learned trial Judge did not follow the procedure enunciated by Fatai Williams, JSC (as he then was) in the case of MOGAJI & ORS v ODOFIN & ORS 1978 4.S.C 91 where he said at page 94:


“In short, before a judge before whom evidence is adduced by the parties before him in a civil case comes to a decision as to which evidence he believes or accepts and which evidence he rejects, he should first of all put the totality of the testimony adduced by both parties on that imaginary scale; he will put the evidence adduced by the plaintiff on one side of the scale and that of the defendant on the other side and weigh them together. He will then see which is heavier not by the number of witnesses called by each party, but the quality or the probative value of the testimony of these witnesses.”

For this reason, his judgment ought to be set aside………………………. The appeal is on this finding therefore allowed. The judgment of Pepple, J. (as he then was) is set aside……”


Against this judgment the plaintiffs (hereinafter referred to as appellants) have appealed to this Court relying on four grounds of appeal which, without their particulars, are set out thus:




The Learned Justices of the Court of Appeal erred in law and in fact when they held that the judgment of the Learned Trial Judge did not take into account (of the issues that are material to the Defendants/ Respondent’s case in the spirit of Mogaji v Odofin (1978) 4 SC. 91.




The Learned Justices of the Court of Appeal aired in law when they failed to hold that the learned Trial Judge having accepted and preferred the Traditional history of the Plaintiffs/Appellants is not required to make specific findings on other acts of possession pleaded – Balogun v Akanji (1988) 1 NWLR (Pt. 70) 301.




The Learned Justices of the Court of Appeal erred in law when they failed to consider the effect of Section 45 Evidence A((to the case.




The Learned Justices of the Court of Appeal erred in law when they . failed to consider the effect of the denial of the title of landlord by the customary tenant vis-à-vis Plaintiffs/Appellants and Defendants/Respondents.


On these grounds the following issues were formulated


  1. “Whether Plaintiffs/Appellants discharged the burden of proof required of them to entitle them to judgment for a declaration of customary right of occupancy in respect of the land-in-dispute. And once satisfactorily discharged whether the appellate Court can disturb the findings of fact by the trial court without proper reason(s)?


  1. What is the effect of section 45 Evidence Act in this case?


  1. Whether the Trial Court having accepted and believed the traditional evidence (history) of the Plaintiffs/Appellants as being more impressive and conclusive, is expected to still consider acts of possession and make specific findings on them before giving judgment in favour of the Plaintiffs/Appellants.


  1. What is the legal effect of a Customary tenant who challenges the overlord’s title?”


The defendants (hereinafter referred to as “respondents”) set out the following issues in their brief for determination:


  1. Whether the learned trial judge considered material and relevant issues in support of the Plaintiffs/Appellants case vis-à-vis that of the Defendants/Respondent and if from the totality of the evidence in the case the Appellants discharged the burden of proof.


  1. Whether, in fact, the learned trial judge did any evaluation of the evidence or resolution of the conflicting evidence in the case of the parties and if not, whether the Court of Appeal was justified in reversing the decision of the lower court.


  1. Whether there was any proof of the existence of Customary tenancy relationship between the Appellant and the Respondent.”


Only the appellants first issue and the respondents first and second issues will be considered in this appeal because a decision on them is enough to determine same. What is more, in the course of oral argument before us, both counsel agreed to this and what the consequent and appropriate order of this Court should be.


In arguing the first issue in their brief appellants set out various issues including the two which the Court of Appeal said no finding was made upon by the trial judge, and proceeded to show that evidence was led by the appellants on them. The other material issues are (a) whether there was in fact an arbitration set up by the Okurutotu (War Canoe) House into this dispute, what it decided, and the legal effect of same on the present action (b) whether there was conclusive proof that there was a written agreement between the parties said to have been prepared by P. W. 3 (c) was the land in dispute reclaimed land? No where in the brief however is it shown, by reference to the record of proceedings, that the learned trial judge made any finding on these five important issues. When in oral argument before us appellant’s counsel was asked to show where findings on these issues were made by the trial judge, he was unable to do so, referring the court to the conclusion of the trial judge where he stated:


“I am satisfied from the evidence that defendants have deliberately defied plaintiffs and challenged them fully knowing that the land belong to them. Denial of an over-lord’s title is one of the gravest breaches that a customary tenant could. commit.”


On further questioning by the court he agreed that this conclusion did not constitute findings on the issues raised. Respondents’ brief on the other handset out each of these issues and proceeded to show that no findings were made on them vide paragraph 1.3 (pages 6-8) of respondents’ brief. He also submitted that findings on these were necessary. In his oral submission. counsel for the respondent submitted that findings were not made on not less than seven material issues.


It is trite law that it is the duty of a trial court to make findings of fact on material evidence/issue adduced before it vide Kaho v Woluchem 1985 1 NWLR (Pt.4) 610; Obiaso & Ors v Okoye & Ors, (1989) 5 NWLR (PLI19) 80. Unless issue is joined between the parties, the trial judge is not expected to make any finding of fact thereon; and such non-finding cannot lead to a miscarriage of justice vide Adeyemo v. Arokopo (1988) 2 NWLR (Pt.79)703; Latunde v Lajinfin (1989) 3 NWLR. Pt.108)177 (178,189). In the instant case, the learned trial judge failed to make findings on the very material and important issues set out earlier. These are issues the resolution of which will affect the decision of the court one way or the other with so many issues unresolved, the learned trial judge latched on to only two ~f them, to wit (1) that most of the houses and graves on the land in dispute belonged to the respondents and (ii) that the Head of Okurutoru House (P. W.5) did not unequivocally state in his testimony in court that the land in dispute is communal land of the House; and proceeded to come to the conclusion based on these, that the plaintiffs “have proved that they have a better title to the land than the defendants”. What he should have done is to place the two findings he made, along with the findings on five issues set out earlier, on the scale of justice, and weighing them, decide which is heavier vide Mogaji v Odofin (supra). This he failed to do. It is important to observe also that the issues on which he made no finding refer to acts of ownership in recent times which, if found for the plaintiffs, would have supported his fording that the traditional evidence of the plaintiffs is preferred. This is so because, since the traditional evidence of the parties is in conflict, he is expected to come to such a conclusion only by reference to acts (of ownership/possession)” within recent times” vide Kojo v Bonsie (1957) 1 W.LR. 1223.


In the circumstances, the Court of Appeal was right to have set aside the judgment of the trial court; hence the order made by this Court dismissing this appeal and affirming the decision of the Court below. The consequential order which must follow, and which the Court of Appeal failed to make, is that this case is hereby returned to the Rivers State High Court for a re-hearing vide Okuwobi v Ishola 1973 3 S.C. 43; Anukanti v Ekivonyeaso (1978) 1 S.C. 37. The respondents are entitled to the costs of this appeal which I fix at N I,000 only.


UWAIS, J.S.C.: I have had the advantage of reading in draft the reasons for judgment read by my learned brother Uche Omo, J.S.C. As it was for the same reasons that I too dismissed the appeal on the 20th day of January, 1992,. with N1,000.00 costs to the respondents, I adopt the said reasons as mine and I have nothing to add.


NNAEMEKA-AGU, J.S.C.: On the 20th of January, 1992, this Court heard this appeal and after reading the briefs filed by the parties and listening to the argument of counsel, I dismissed it summarily but reserved the reasons for my judgment till to-day. I now give my reasons.


I have read the lead Reasons For Judgment just delivered by my learned brother, Uche Omo, J.S.C., and agree with his reasoning and conclusions. It was for the same reasons that I dismissed the appeal,


It cannot be overemphasized that making findings on issues joined by parties in litigation on their pleadings is an indispensable part of the exercise of writing a good judgment. For the ultimate verdict is supposed to flow naturally from those findings. The law takes the view that a trial judge who has listened to and watched the witnesses testify is in a pre-eminent position to make such findings. Where a court of trial fails to make findings on material and important issues of fact or approaches the evidence called by the parties wrongly the appellate court has no alternative but to allow the appeal: See – .


Reynard v. William Allan 2 W.A.C.A. 52, P.53;


Onyema Oke & Ors. v. Amos Eke & Ors. (1982) 12 S.C. 218; Awote v. Owodunmi (No.2) (1987) 2 NWLR. (Pt.57) 367.


After allowing the appeal for failure to make findings, the appellate court will consider whether it will order a retrial or enter a judgment for the appellant. Unless it is satisfied that it is not a matter which depends wholly or in part on the credibility of witnesses and hence that it is in as vantage a position as the trial court, the course open to it is to order a retrial: See Watt or Thomas v. Thomas (1947) A.C. 484, P. 487-8; Fatoyinbo & Ors. v. Williams alias Sanni & Ors. (1956) SCNLR 274, (1956) 1 F.S.C. 87.


This Court, per Lewis, J.S.C., summarized the principle in the case of Armel’s Transport Ltd. v. Martins (1970) 1 All NLR: 27, at P.32:


“The learned trial judge never made any finding as to which witnesses he believed and it is not the practice of this Court to put ourselves in his place and make a determination which he should have made as we were asked to do by Mr. Lambe. As a Court of appeal we are reluctant in regard to evidence adduced in the lower court to determine other than whether the trial judge rightly -evaluated or drew a proper inference from evidence which he found proved (compare Benmax v. Austin Motor Co. Ltd. (1955) 1 All E.R. 326 and Akinola v. Oluwo (1962) 1 All N.L.R. 224), because for us to determine whether a particular witness’s evidence is robe believed, when there is no finding by the learned trial judge, would be to do so without having had the opportunity to see the witness and to determine thereafter whether or not he appears to be a witness of truth.. As the learned trial judge made no proper findings of fact and wrongly, in our view, relied on matters in the sketch plan which were in fact inadmissible we have no alternative but to order    that this case be re-heard.”


I may observe, however, that sometimes the issues could be resolved on documentary evidence or other forms of evidence of such a permanent nature that the sense of hearing could be assisted by other senses. Such documents or other. real evidence could be resorted to by an appellate court in order to resolve the issue by itself. In that case, there would be no need to order a retrial. Such is the situation also when there are conflicting oral testimonies as well as documentary evidence which supports one version of the conflict. Such a documentary evidence should, and ought to be used as hanger from which to test the veracity of the oral testimonies. In the case of S. B. Fashanu v. MA. Adekoya (1974) 1 All NLR. (Pt. 1) 35, this Cotta held-


“that where the court of trial is left only with the oath of one side, but with a number of documentary evidence which tell the same story, it is useful to test the veracity of the parties against the rigid yard-stick produced by documentary evidence, i.e. which is evidence of a permanent character and that if the test had been applied, it would have been found that the defendants case was hopeless.”


In the instant case, the learned trial judge failed to make any findings on five vital issues, which form the main plank of the cases for the parties and which have been spelt out in the lead judgment. Most of them depend on the credibility of witnesses because evidence on them is conflicting. He tried to resolve conflicting evidence of tradition as though it were a question which depended on the credibility of witnesses and weight of evidence instead of applying the principle in Kojo 11 v. Bonsie (1957) W.L.R. 1223, and F.M. Alade v. Lawrence Awo (1975) 4 S.C. 215. He thought that he could surmount the problem by hiding under the cloud of “I believe” or “I disbelieve”. But he ought to note that belief or non-belief of witnesses or evidence given by them serves no useful purpose when such a belief or non-belief is the product of a wrong approach to the particular type of evidence tendered. This was true of his handling of the evidence of tradition. Even so, as the Court of Appeal rightly pointed out, he mixed up matters of tradition which were matters beyond living memory to which the above principle applied, with facts within living memory, which ought to be matters of credibility of witnesses. As. the issues are such that without the advantage of seeing and hearing the witnesses, I cannot resolve them from evidence on cold print, I allowed the appeal and ordered a retrial but adjourned the reasons for my judgment till to-day. I have now given my reasons.

WALI, J.S.C.: I have the advantage of reading in advance a copy of the Reasons For Judgment of my learned brother, Uche Omo, J.S.C. I entirely agree with them and adopt the same as mine.


Having nothing more useful to add, I too, hereby dismiss the appeal and affirm the judgment of the Court of Appeal and direct that the case be sent back to the Rivers State High Court for a retrial before another judge.


The respondents are awarded N1,000.00 costs against the appellants.


AKPATA, J.S.C.: On 20th January, 1992, I dismissed this appeal and indicated then that I would give reasons for my decision today. I have read before now the reasons given by my learned brother, Onto JSC., for his judgment dismissing the appeal. I adopt as mine his reasons. In essence there is only one reason. It is that the learned trial judge failed to mace findings of fact in respect of relevant and material issues in the case.


For there to be a valid decision in a civil matter such as this, the evidence adduced by either side on the issues in controversy, must be assembled by way of a review by the trial judge. He would then proceed to appraise them and in the process prune out irrelevancies such as inadmissible evidence and make findings of fact. He would then weigh the positive findings in favour of each side in his mind, which is an imaginary scale, and note which outweighs the other. If the findings in favour of the plaintiff are more preponderant in terms of quality and probable value he wins, otherwise he loses.


There was therefore no valid decision by the trial judge by his failure to make findings on relevant and material issue. It was for this reason I dismissed the appeal. I adopt the consequential orders made by my learned brother, including his order as to costs.


Appeal dismissed Re-trial ordered






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