⦿ CASE SUMMARY OF:
George Onobruchere & Anor v. Ivwromoebo Esegine & Anor (1986) – SC
– Possession of land;
– Concurrent findings;
George Onobruchere & Anor
Ivwromoebo Esegine & Anor
(1986) 1 NWLR (Pt.19)799;
(1986) All N.L.R 289;
(1986) 2 S.C. 385
⦿ LEAD JUDGEMENT DELIVERED BY:
* FOR THE APPELLANT
– Mr. G. O. K. Ajayi (SAN).
* FOR THE RESPONDENT
– Mr. T. J. O. Okpoko.
⦿ FACT (as relating to the issues)
The Appellants who were Plaintiffs in the court of first instance sued the Respondents who were the defendants claiming as follows:
1. Declaration of title to all that piece or parcel of land known as and called Ogorode’ situate at Afiesere Bush, Ughelli within the jurisdiction of this Honourable Court.
2. An Order of the Honourable Court that an alleged pledge of part of the said Ogorode by one Emunotor (now late of the Plaintiffs family to one Idiarhoewvwe (now late) the ancestor of the Defendants family is null and void and of no legal consequence OR in the alternative an Order of this Honourable Court that the said portion of land allegedly pledged to Idiarhevwe by Emunotor aforesaid be redeemed.
3. An Order of perpetual injunction to restrain the defendants, their agents and/or servants from further entering upon the said land.
4. 100 (One hundred pounds) damages for trespass committed by the defendants, their agents and/or servants etc.
Pleadings were ordered, filed and duly exchanged. After due trial on supposedly relevant evidence, like Exhibits E E1 E2 E3 and F the trial court dismissed the Plaintiff’s claims in their entirety.
The plaintiff appealed to the Court of Appeal which dismissed the appeal; hence, a further appeal to this court.
1. Whether or not the Court of Appeal was right in the view it took on the onus of proof.
2. Whether or not the judgment Exhs. E, E1 and E2 were admissible in evidence.
3. Whether or not the judgment Ex. F standing by itself alone could ground the plea of res judicata.
⦿ HOLDING & RATIO DECIDENDI
[APPEAL: ALLOWED. THE SUPREME COURT ENDED WITH: “In the final result, this appeal is allowed, the judgment and Orders of the court below are set aside, the judgment of Amissah, J. dated 27th February 1979 is also set aside including his Orders as to costs. In its place it is hereby ordered that this case be sent back to the Ughelli High Court for a retrial by another Judge with the defendants having the onus to begin.”]
1. ISSUE 1 WAS RESOLVED IN FAVOUR OF THE APPELLANT BUT AGAINST THE RESPONDENT.
i. Definitely the Omovwodo family cannot sell the land in dispute to the defendants’ ancestors unless they had the radical title. It is therefore common ground that radical title once resided in the plaintiffs. The plaintiffs say they (the Omovwodo family) pledged the land to the defendants but still retained their radical title. The defendants say it was an outright sale which extinguished the radical title. The defendants having thus admitted that at one time the radical title was in the plaintiffs, the onus is on them (the defendants) to prove that that radical title had been extinguished by the alleged sale pleaded by them in paragraph 6, 10, 11, 12, 13, 14, and 22 of the Statement of Defence.
ii. If section 145 of the Evidence Act of 1958 will compel a defendant who admits that the plaintiff is in possession of the land in dispute to establish that such plaintiff is not the owner, a fortiori, a finding by a court that the plaintiffs descended from the “original founder” of the land in dispute coupled with the defendants averment of sale to them by the plaintiffs will definitely shift the burden of proof on the defendants to show that the original owners had extinguished their title. To hold otherwise will be to “overlook the established rule that once it is proved” (here it was admitted by the defendants and found by the trial court) that the original ownership of property is in a party the burden of proving that that party has been divested of the ownership rests upon the other.
iii. Once it is found that there had been a misapprehension as to the onus of proof and a misdirection casting such onus on the wrong party, I think it will be reasonably fair to assume the likelihood of a miscarriage of justice. To go further would be to speculate. How can the appellate court determine, for instance, the part such a misdirection played in the trial judge’s assessment and evaluation of evidence and on the witnesses who testified?
2. ISSUE 2 WAS RESOLVED IN FAVOUR OF THE APPELLANT BUT AGAINST THE RESPONDENT.
i. Exhibit E will be admissible under Section 93(1) of the Evidence Act if it is the original. The court below did not admit Ex. E as an original document. Exhibit E itself ex facie testifies to the existence of the “Original in Court Record Book”. Even if Ex. E were admissible under Section 96(2)(c) it should be a certified copy of the “Original in Court Record Book”. In other words, someone other than the maker should have compared Ex. E with the “Original in Court Record Book” and will then certify Ex. E as a true copy of the original. This was not done. The signature on Ex. E has not been proved to be that of the District Officer, Sabo Division. If it were so proved, then Ex. E would have been admitted under Section 93(3) of the Evidence Act as a counterpart original. Whether one proceeds under Section 96(2)(c) or Sections 110 or 111 of the Evidence Act, Ex. E has to be certified to be admissible as secondary evidence. It was not so certified. Exhibit E was therefore wrongly admitted.
ii. Exhibit E1 and Ex. E2 ex facie purported to be judgments. The pages of the relevant Record Books containing these judgments are clearly reflected on the two Exhibits. Exhibit E1 refers to page 189 of the Record Book and Ex. E2 refers to p. 198 of the Record Book. If these two judgments are to be tendered, Section 131(1) of the Evidence Act makes the Record Book itself the primary evidence. Failing to produce the primary evidence, a party relying on Exhibits E1 and E2 will at least tender admissible secondary evidence of these two judgments. Such secondary evidence will necessarily be certified true copies. Exhibits E1 and E2 do not purport to be certified true copies. They were therefore wrongly admitted.
3. ISSUE 3 WAS RESOLVED IN FAVOUR OF THE APPELLANT BUT AGAINST THE RESPONDENT.
i. Finally I have carefully examined Exhibit F which is a claim for 5 pounds cost of fishes killed in the plaintiffs’ pond. Where is this pond? The answer is not clear from Exhibit F. There is therefore nothing in Ex. F to connect the pond with the land in dispute in the case now on appeal. But the more fundamental vice is that though Ex. F purports to be a “certified true copy certified by the Deputy Registrar Ughelli, no one signed Ex. F as such Deputy Registrar Ughelli. The issue of res judicata will only arise if Ex. F is proved to have been properly admitted. From the original copy in the exhibit file, Ex. F does not bear any signature of the certifiying officer, it therefore shares the same fate with Exhibits E, E1 and E2. They were all wrongly admitted.
⦿ SOME PROVISIONS
⦿ RELEVANT CASES
⦿ NOTABLE DICTA
The policy of this Court enunciated in a long line of its decided cases is that it will not disturb concurrent findings of fact of two courts unless there is some miscarriage of justice or a violation of some principle of law or procedure. – Oputa, JSC. ONOBRUCHERE v. ESEGINE (1986)
Documents which are to be used in civil cases must be proved in accordance with the law. A circumvention of the law by short cuts, possibly aimed at a quick conclusion of a case, will inevitably lead, in the long run, to a wasted effort. – Aniagolu, JSC. ONOBRUCHERE v. ESEGINE (1986)
I merely will say that the finding as to acts of ownership numerous and positive is only relevant where traditional history is inconclusive and the case has to be decided on question of fact of possession. – Oputa, JSC. ONOBRUCHERE v. ESEGINE (1986)