OGBAJI & ORS v. ODE & ORS (2021)

OGBAJI & ORS v. ODE & ORS

(2021)LCN/15493(CA)

In The Court Of Appeal

(MAKURDI JUDICIAL DIVISION)

On Wednesday, January 27, 2021

CA/MK/56/2015

RATIO

PLEADINGS: DUTY OF PARTIES TO LEAD EVIDENCE ON PLEADINGS

Litigation is fought on pleadings. The pleadings give the opposite party fair notice of what to expect at the trial, and define the parameters of the case. See Anyafulu v Meka (2014) LPELR-22336(SC); CN Okpala & Sons Ltd v Nigerian Breweries Ltd (2017) LPELR-43826(SC). Each party in pleadings defines and narrows down the issues in issues in contention between them. It is trite that parties are bound by their pleadings. See American Cyanamid Co v Vitality Pharmaceuticals Ltd (1991) 2 SC 47, (1991) LPELR-461(SC); Agala v Okusin (2010) LPELR-221(SC). But pleadings do not constitute evidence; Monkom v Odili (2009) LPELR-3927(CA).

It is the duty of the party to lead evidence on his pleadings, except where there is an admission by the adverse party. See Anyah v African Newspapers of Nigeria Ltd (1992) LPELR-511(SC); Ochin v Ekpechi (2000) LPELR-6819(CA).
Pleadings were graphically described by the Apex Court, per Kalgo, JSC in Jolayemi v Alaoye (2004) LPELR-1625(SC) at page 17, (2004) 12 NWLR (PT 887) 322 at 340, as the body and soul of a case in a skeleton form, which are built up and solidified by the evidence in support. See also Ladunni v Wema Bank Ltd (2010) LPELR-4418(CA). A skeleton is a carcass that remains utterly lifeless until it acquires life by receiving blood, flesh and sinews. In the same way, pleadings which have no evidence adduced to give it life, remains lifeless and incapable of assisting the party prove its case. Therefore, except where the other party has admitted particular fact or facts pleaded, a party that fails to lead evidence on facts pleaded, will be deemed to have abandoned the same. See Jolayemi v Alaoye (supra); Newbreed Organisation Ltd v Erhomosele (2006) LPELR-1984(SC); Ifeta v SPDC (2006) LPELR-1436(SC); Yusuf v Oyetunde (1998) LPELR-3536(SC); Agbi v Ogbeh (2006) LPELR-240(SC); Akande v Adisa (2012) LPELR-7807(SC). In that event, what is left for the Court is to strike out the averments that are unsupported by evidence. See Kaydee Ventures Ltd v The Hon Minister of Federal Capital Territory (2010) LPELR-1681(SC); Jelili v Adebomi (2009) LPELR-4351(CA). PER ONYEKACHI AJA OTISI, J.C.A.

DUTY OF COURT: RESOLUTION OF ISSUES FOR DETERMINATION

It is trite that a Court of law, whether of first instance or appellate, has a duty to hear, determine and make pronouncements on issues canvassed before it by the respective parties. See Honeywell Flour Mills Plc v Ecobank Nigeria Ltd (2018) LPELR-45127(SC); A.G. Leventis Nig. Plc v Akpu (2007) LPELR-5(SC); Dingyadi v INEC (2010) LPELR-952(SC); Tar v Ministry of Commerce and Industries (2018) LPELR-44216(CA). Failure by the Court to so resolve issues canvassed before it, without a valid reason, except in the clearest cases; A.G. Leventis Nig. Plc v Akpu (supra), would amount to a failure in its duty to administer justice. This is because it is a fundamental principle of administration of justice that every Court, whether of first instance or appellate, has a duty to hear, determine and resolve issues joined by the parties and raised before it for determination. See Okonji v Njokanma (1991) LPELR-2476(SC), (1991) 7 NWLR (PT 202) 131. PER ONYEKACHI AJA OTISI, J.C.A.

TITLE TO LAND: FACTS TO BE ESTABLISHED WHERE A PARTY RELIES ON TRADITIONAL HISTORY IN PROOF OF TITLE TO LAND

The settled position of the law is that where a party relies on traditional history in proof of title to land, he must give satisfactory evidence as to how he derived the particular title pleaded and claimed. He is bound to plead and establish facts such as:
1. who founded the land;
2. how he founded the land; and
3. the particulars of the intervening owners through whom he claims;
See: Nruamah v Ebuzoeme (2013) LPELR-19771(SC); Onwugbufor v Okoye (1996) LPELR-2716(SC); Dike v Okoloedo (1999) 7 S.C. (PT 111) 35; Ngene v Igbo (2000) LPELR-1987(SC); Ezeokonkwo v Okeke (2002) 5 S.C. (PT 1) 44. The Appellants therefore had the burden to prove their case. PER ONYEKACHI AJA OTISI, J.C.A.

EVIDENCE: FIVE WAYS OF PROVING TITLE TO LAND

Any person claiming a declaration of title to land must prove by evidence that he is entitled to the declaration he seeks. See Mbadinuju v. Ezuka (1994) 8 NWLR (Pt. 364) 535 S.C; Umesie v. Onuaguluchi (1995) 9 NWLR (PT. 421), (1995) LPELR-3368(SC); Kazeem v. Mosaku (2007) 2 S.C. 22; Olodo v. Josiah (2010) 18 NWLR (PT 1225) 653. Judicially established methods of proving title to land have been well articulated with a foremost authority found in the case of Idundun v. Okumagba (1976) 9-10 SC 227 wherein the Supreme Court prescribed five ways of proving title to land thus:
1. By traditional evidence
2. By various acts of ownership numerous and positive and extending over a length of time as to warrant the inference of ownership.
3. By production of title documents
4. By acts of lawful enjoyment and possession of the land;
5. By proof of possession of adjacent land in circumstances which render it probable that the owner of such land would in addition be the owner of the other land.
See also: Mogaji v. Cadbury Nigeria Ltd (1985) NWLR (PT 7) 393, (1985) LPELR-1889(SC); Irolo v. Uka (2002) 14 NWLR (PT 786) 195. A claimant must plead and prove any of these five different ways of proving ownership of land, though he need not plead and prove more than one of these ways; Biariko v Edeh-Ogwuile (2001) 12 NWLR (PT. 726) 235; Olubodun v. Lawal(2008) 6-7 S.C. (PT. 1) 1; Yusuf v. Adegoke (2007) 6 S.C. (PT 1) 126; Balogun v Akanji (1988) 2 S.C. 199. Proof of one single root of title is sufficient to sustain the claimant’s claim for declaration of title to land. See Onwugbufor v. Okoye (1996) 1 NWLR (PT 424) 252; Olagunju v. Adesoye (2009) 9 NWLR (PT 1146) 225. Thus, a declaration of title to land can be granted on the basis of traditional evidence alone, provided that it is cogent and credible; Nkwo & Ors v. Iboe & Ors (1998) LPELR-2049(SC); Eyo v. Onuoha & Anor (2011) LPELR-1873(SC).
In proving title, the claimant must rely on the strength of his case and not on the weakness of the defence; Oje v Babalola (1991) 4 NWLR (PT 185) 267; Bello v Eweka (1981) NSCC 48; Kazeem v Mosaku (2007) 2 S.C. 22; Echi v Nnamani (2000) 5 S.C. 62; Eze v Atasie (2000) 6 S.C. (PT 1) 214; Ikpamaku v Makolomi (2011) LPELR-4513(CA). It must be emphasized that it is irrelevant that a defendant fails to defend the action. The claimant must rely on the strength of his case. The only exception to this position is that a plaintiff may quite perfectly take advantage of those facts in the case of the defence which support his claims. See Buraimoh v. Bamgbose (1989 LPELR-818(SC), (1989) ALL NLR 669; Oduaran v. Asarah (1972) 5 S.C. (REPRINT) 173, (1972) LPELR-2233(SC). The party that is able to prove title to land in issue is deserving of judgment. Therefore, the fact that Respondents as defendants and counterclaimants abandoned their defence and counterclaim by failing to give life to their pleadings by proffering evidence thereon, does by no means relieve the Appellants as plaintiffs of the burden to prove their case, by evidence and on the balance of probabilities, as required in civil claims. PER ONYEKACHI AJA OTISI, J.C.A.

APPEAL: RELEVANCE OF THE FILING OF A RESPONDENT’S BRIEF

Having failed to file a Respondents’ Brief in response to the appeal, it can be said that the appeal was not contested. However, notwithstanding this fact, the Appellants had the duty to establish that they were entitled to the success of the appeal. See Aubergine Collections Ltd. & Anor v. Habib Nigeria Bank Ltd (2001) LPELR-6981(CA).
It is trite that the failure of a respondent to file a respondent’s brief has no bearing on the success of the appeal. An appellant must succeed or fail on his own brief or case. He must succeed on the strength of his arguments and on the position of the law. As succinctly put by Ogbuagu, JSC in Ogbu & Anor v. The State (2007) LPELR-2289(SC), the absence of a respondent’s brief will not place the appellant at an undue advantage. This is because the respondent has already a judgment of the Court below or a trial Court, in his favour. And, findings of a lower Court are presumed correct until they are set aside. Therefore, it is for the appellant to establish that the decision of the lower Court was flawed and liable to be set aside. See also Cameroon Airlines v. Otutuizu (2011) LPELR-827(SC).
However, a respondent who fails to file a brief is deemed to have admitted the truth of everything stated in the appellant’s brief in so far as such is borne out by the record of proceedings. See Echere & Ors v. Ezirike & Ors (2006) LPELR-1000(SC); Tractor & Equipment Nigeria Limited & Ors v. Integrity Concepts Limited & Anor (2011) LPELR-5034(CA). The respondent would also be taken to have adopted the issues formulated on behalf of the appellant for the determination of the appeal. See Okelola v. Adeleke (2004) LPELR-2438(SC). PER ONYEKACHI AJA OTISI, J.C.A.

Before Our Lordships:

Onyekachi Aja Otisi Justice of the Court of Appeal

Oludotun Adebola Adefope-Okojie Justice of the Court of Appeal

Joseph Eyo Ekanem Justice of the Court of Appeal

Between

1. CHIEF EMMANUEL OGBAJI 2. MOSES ONDA 3. OMENKA OKPOLE OMANA 4. OKEREKE AGIRA (Suing For Themselves And On Behalf Of Otunche Community Of Anchim) APPELANT(S)

And

1. CHIEF ODIGIRI ODE 2. PAUL EDO 3. SILAS OGODO 4. AARON ODE (For Themselves And On Behalf Of Oye Community Oye Community) RESPONDENT(S)

ONYEKACHI AJA OTISI, J.C.A. (Delivering the Leading Judgment): This is an appeal against the decision of the High Court of Justice, Benue State, sitting at Makurdi, Coram S.O. Itodo, J., delivered on November 30, 2012 in which the claims of the Appellants to ownership of the land in two villages, known as Ijegwu and Odamabugu, in Otunche of Anchim in Iyeche Clan of Oju Local Government Area of Benue State, were dismissed.

The facts leading to this appeal can be summarized as follows: The Appellants as plaintiffs had sued the Respondents before the High Court of Benue State claiming declaratory, injunctive and monetary reliefs against the Respondents over ownership of two villages, Ijegwu and Odamabugu. The Respondents filed their defence to the claim and also counterclaimed over the same villages. At the close of the Appellants’ case, the Respondents failed to lead evidence in defence and in support of their counterclaim. The trial Court closed the defence and ordered parties to file written addresses. On 30/11/2012, the learned trial Judge entered judgment against the Appellants on the ground that the Appellants failed to establish their case.

The trial Court also failed to either categorically dismiss the counterclaim of the Respondents or make any pronouncement thereon. Dissatisfied by the decision of the learned trial Judge, the Appellants lodged the instant appeal by Notice of Appeal filed on 27/2/2013. An Amended Notice of Appeal was filed on 15/7/2015 but deemed properly filed and served on 10/4/2017 on three grounds of appeal.

In line with the rules of Court, the Appellants’ Brief of Argument was filed on 15/7/2015 but deemed properly filed and served on 10/4/2017. The Respondents, who were served with the Appellants’ Brief, filed no Brief in response. At the hearing of the appeal on 18/11/2020, O.D. Obande, Esq., moved a motion on notice for an order of accelerated hearing of the appeal and to have the appeal heard on the Appellants’ Brief alone. S.O. Okpale, Esq., for the Respondents, did not oppose the grant of the application, which orders were thereupon granted as prayed. Mr. Obande then adopted the arguments as adumbrated in the Appellants’ Brief and urged the Court to allow the appeal.

Having failed to file a Respondents’ Brief in response to the appeal, it can be said that the appeal was not contested. However, notwithstanding this fact, the Appellants had the duty to establish that they were entitled to the success of the appeal. See Aubergine Collections Ltd. & Anor v. Habib Nigeria Bank Ltd (2001) LPELR-6981(CA).
It is trite that the failure of a respondent to file a respondent’s brief has no bearing on the success of the appeal. An appellant must succeed or fail on his own brief or case. He must succeed on the strength of his arguments and on the position of the law. As succinctly put by Ogbuagu, JSC in Ogbu & Anor v. The State (2007) LPELR-2289(SC), the absence of a respondent’s brief will not place the appellant at an undue advantage. This is because the respondent has already a judgment of the Court below or a trial Court, in his favour. And, findings of a lower Court are presumed correct until they are set aside. Therefore, it is for the appellant to establish that the decision of the lower Court was flawed and liable to be set aside. See also Cameroon Airlines v. Otutuizu (2011) LPELR-827(SC).
However, a respondent who fails to file a brief is deemed to have admitted the truth of everything stated in the appellant’s brief in so far as such is borne out by the record of proceedings. See Echere & Ors v. Ezirike & Ors (2006) LPELR-1000(SC); Tractor & Equipment Nigeria Limited & Ors v. Integrity Concepts Limited & Anor (2011) LPELR-5034(CA). The respondent would also be taken to have adopted the issues formulated on behalf of the appellant for the determination of the appeal. See Okelola v. Adeleke (2004) LPELR-2438(SC).

The Appellants formulated the following issues for determination of this appeal:
1. Whether Appellants conclusively proved how the land in dispute was acquired by them. Distilled from grounds 1 and 2 of the grounds of appeal.
2. Whether the learned trial judge erred in law in not dismissing the counter claim of the respondents in the circumstances of this case. Distilled from ground 3 of the grounds of appeal.
I shall also adopt these issues.

ISSUE 1
The learned trial Judge dismissed the Appellants’ case before him in the following terms, page 257 of the Record of Appeal:
“An over view of the plaintiffs’ evidence has not conclusively proved their entitlement to the land to warrant an order declaring their ownership of the land. That being so they have not proved that they are entitled to the declaration. As a result the action fail(sic) and it is dismissed.”

The Appellants contended that this conclusion of the learned trial Judge was not supported by the evidence adduced, which was in line with the facts as pleaded by the Appellants in the Amended Statement of Claim. The evidence of the Appellants with regards to the persons who were among the first settlers/founders of the land, and who led the movements to the settlement of Ijegwu as pleaded, was not at all contested. The Respondents in their Statement of Defence simply made a general denial and failed to join issues with the Appellants in respect of Odamagbudu village. The Respondents had rather made averments relating to Ijegwu with no mention of Odamagbudu in their pleadings. It was submitted that the Respondents are deemed to have admitted the Appellants’ claims, and the Appellants were relieved from proffering any evidence in respect of their claim over Odamagbudu village. The comment of the learned trial Judge that the evidence adduced by the Appellants dwelt on Ijegwu and scarcely on their claim over Odamagbudu was of no moment since the pleaded facts and evidence in support were not contested by the Respondents. The witnesses of the Appellants were also not cross examined on their claim over Odamagbudu. Counsel argued that the uncontroverted evidence adduced in support of the Appellants’ claims satisfied the requirements of the law in proof of their claims and ought to have been relied on by the trial Court. Counsel relied on a number of judicial authorities in support of their contentions.

Resolution
Any person claiming a declaration of title to land must prove by evidence that he is entitled to the declaration he seeks. See Mbadinuju v. Ezuka (1994) 8 NWLR (Pt. 364) 535 S.C; Umesie v. Onuaguluchi (1995) 9 NWLR (PT. 421), (1995) LPELR-3368(SC); Kazeem v. Mosaku (2007) 2 S.C. 22; Olodo v. Josiah (2010) 18 NWLR (PT 1225) 653. Judicially established methods of proving title to land have been well articulated with a foremost authority found in the case of Idundun v. Okumagba (1976) 9-10 SC 227 wherein the Supreme Court prescribed five ways of proving title to land thus:
1. By traditional evidence
2. By various acts of ownership numerous and positive and extending over a length of time as to warrant the inference of ownership.
3. By production of title documents
4. By acts of lawful enjoyment and possession of the land;
5. By proof of possession of adjacent land in circumstances which render it probable that the owner of such land would in addition be the owner of the other land.
See also: Mogaji v. Cadbury Nigeria Ltd (1985) NWLR (PT 7) 393, (1985) LPELR-1889(SC); Irolo v. Uka (2002) 14 NWLR (PT 786) 195. A claimant must plead and prove any of these five different ways of proving ownership of land, though he need not plead and prove more than one of these ways; Biariko v Edeh-Ogwuile (2001) 12 NWLR (PT. 726) 235; Olubodun v. Lawal(2008) 6-7 S.C. (PT. 1) 1; Yusuf v. Adegoke (2007) 6 S.C. (PT 1) 126; Balogun v Akanji (1988) 2 S.C. 199. Proof of one single root of title is sufficient to sustain the claimant’s claim for declaration of title to land. See Onwugbufor v. Okoye (1996) 1 NWLR (PT 424) 252; Olagunju v. Adesoye (2009) 9 NWLR (PT 1146) 225. Thus, a declaration of title to land can be granted on the basis of traditional evidence alone, provided that it is cogent and credible; Nkwo & Ors v. Iboe & Ors (1998) LPELR-2049(SC); Eyo v. Onuoha & Anor (2011) LPELR-1873(SC).
In proving title, the claimant must rely on the strength of his case and not on the weakness of the defence; Oje v Babalola (1991) 4 NWLR (PT 185) 267; Bello v Eweka (1981) NSCC 48; Kazeem v Mosaku (2007) 2 S.C. 22; Echi v Nnamani (2000) 5 S.C. 62; Eze v Atasie (2000) 6 S.C. (PT 1) 214; Ikpamaku v Makolomi (2011) LPELR-4513(CA). It must be emphasized that it is irrelevant that a defendant fails to defend the action. The claimant must rely on the strength of his case. The only exception to this position is that a plaintiff may quite perfectly take advantage of those facts in the case of the defence which support his claims. See Buraimoh v. Bamgbose (1989 LPELR-818(SC), (1989) ALL NLR 669; Oduaran v. Asarah (1972) 5 S.C. (REPRINT) 173, (1972) LPELR-2233(SC). The party that is able to prove title to land in issue is deserving of judgment. Therefore, the fact that Respondents as defendants and counterclaimants abandoned their defence and counterclaim by failing to give life to their pleadings by proffering evidence thereon, does by no means relieve the Appellants as plaintiffs of the burden to prove their case, by evidence and on the balance of probabilities, as required in civil claims.

The Appellants had relied on traditional history in proof of their title to the disputed land. Expounding what is implied by traditional history in proof of ownership of land, the Supreme Court, per Akpata, JSC in Ohiaeri v Akabeze (1992) LPELR-2360(SC) at page 16, said:
“Where a plaintiff pleads in terms of traditional history that a parcel of land was originally the property of his ancestors and pleads that line of descent, he is saying in effect that his ancestors were the founders of the land, the first persons to own the land. The word “originally” or “original” is used in contradistinction to ownership by inheritance, grant or conquest. “Originally” or original” pertains to the origin of something; that existed at first or has existed from the first. (See Shorter Oxford Dictionary, Volume II, 3rd edition page 1464). Law reports are replete with instances where the phrase “original owner of property” or a similar phrase or expression is used interchangeably with the phrase “the founder of the land.”
The settled position of the law is that where a party relies on traditional history in proof of title to land, he must give satisfactory evidence as to how he derived the particular title pleaded and claimed. He is bound to plead and establish facts such as:
1. who founded the land;
2. how he founded the land; and
3. the particulars of the intervening owners through whom he claims;
See: Nruamah v Ebuzoeme (2013) LPELR-19771(SC); Onwugbufor v Okoye (1996) LPELR-2716(SC); Dike v Okoloedo (1999) 7 S.C. (PT 111) 35; Ngene v Igbo (2000) LPELR-1987(SC); Ezeokonkwo v Okeke (2002) 5 S.C. (PT 1) 44. The Appellants therefore had the burden to prove their case.

The Appellants pleaded in paragraphs 3 and 5[a], [b], [c], [d], [e], [[f], [g], [[h], [i], [[j], [k], [1] and [n] of the Amended Statement of Claim thus, pages 55-57 of the Record of Appeal:
3. The plaintiffs shall contend that the defendants and their community of Okete-Oye have recently started to contest the ownership of IJEGWU and ODAMAGBUDU villages with the plaintiffs and the matter has generated serious tension within the communities and all attempts to have the matter resolved amicably has failed.
5. The plaintiffs shall contend that –
[a] The present Ijegwu settlement and Odamagbudu is(sic) part of the original Ajimole farmstead of the Otunche community.
[b] The settlements in question are as old as the beginning of the 19th century. Some of the early settlers of Ajimole were – EBELE EJUGWU, ODA ODE OKORE, IDOKO ODA, OKEKREKE ODE, OLOJA OKIRO, EDO OHUO, IHIE ODE, OGAJIIKPEE, IJAGBO OMENKA, OGO ICHIKO, ONU ICHIKO, OMIRIGBE OCHI, OKPEE ODE, OGBAJI ADOGO, OMIRIGBE ADOGO, AKPA ONWU, ODA ODE, ODA OGINYE and ODE AGIRA, amongst others and these people were married and have children, except EDE OHUO, who although married, never had any child. Almost all these people are from Otunche Anchim.
[c] The only non Otunche people that lived in Ajimole, now called Ijegwu with the Otunche people were from OHIRIGWE-ANCHIM, OJEGBE-ADA and IKPAKILEWU-ADA.
[d] These non Otunche people from Ohirigwe, Ojegbe and Ikpakilewu lived happily with the Otunche people until about 1945 when a strange epidemic [smallpox] called in local parlance “akiri” broke out in Ajimole killing several persons and this led the settlers to shift from the particular settlement of Ajimole, some to Otunche village while others to their farmsteads of Ijegwu, initially called IMAH but renamed IJEGWU by ODE OMENKA from Otunche, who led the movement from Ajimole to Ijegwu.
[e] While the people settled at Ajimole, the present Ijegwu and Odamagbudu were their farmsteads/lands and they shared boundary to the east with Odoko people and the side of Uloko stream. The surrounding land all belong to the Ajimole and within this land is Ima [salt] stream, and sub-stream called OBA-OLOJA named after a renowned fisherman from Otunche called OLOJA OKIRO, who was renowned for fishing with his fishing traps in the streams. Within this land is also farmland and swamp owned by ODE AGIRA and now also called UWA NYODE AGIRA, a famous farmer from Otunche.
[f] The present ODAMAGBUDU settlement which the Oye people are now claiming ownership of is part and parcel of the Ajimole land of Otunche people. The road that leads to Ohimenyi-Oye passes through Ima [Ijegwu] and Uwa Nyode Agira and through Orihi.

[g] It is the decision of Ajimole elders to move from this point of epidemic that gives(sic) birth to the Ima, now Ijegwu-Otunche as a village in 1945. The name Ijegwu was given to the place by Ode Omenka from Otunche. It is land lying within the Ajimole farmland and lies between Ima and Oba-Oloja streams all within. It is situated leftwards of the old Ajimole settlement.
[h] At the time of movement from old Ajimole settlement, the following people moved directly to the present Ijegwu, led by Ode Omenka and Ebelle Ejugwu, Ede Ohou [he is son to Egulo Ejugwu], sister to Ebelle Ejugwu whom Egwulo begat for Ohuo in Obachita in Ukpa but had to come to stay with Ebelle at the death of his father at Obachita], Ibu Udu [aka INAMANSHANGBO], Onu Ichiko, Ochonga Ogbida, Ogbaji Ajogi, Agwu Ajom, Ajom Ajogi, Ogbaji Ode, Onda Agira, Oga Ona [aka Ona Onwuakpu], Otor Adikpe [from Ohirigwe], Joseph Udor [from Ohirigwe], Ikande Aleje [from Ikpakilewu], Ogbo Ochiwu [from Ikpakilewu], Agburu Oleje and Okwor Oleje [from Ojegbe village].
[i] One Agburu lived at Ijegwu but moved to Edor at Ugo to live with his friend being an ex-lankadede(sic) he assisted Edor in collecting tax at Oye and carry the tax money to Oju barracks. He later on returned to settle at Ijegwu where he collected tax from Ijegwu people. This time Ugbodu now called Oye was still in the dark ages. When Agburu left Joseph Udo took over the tax agentship(sic) in Ijegwu and was later succeeded by John Akpa. All this while it was the Ijegwu people that were collecting tax from Oye people and not the Oye people collecting tax from Ijegwu people.
[j] There was no time the Ijegwu and Oye people agreed to have a common tax collector/agent.
[k] The plaintiffs will lead evidence to show that the places belong to Otunche and this includes community tax receipts in the past, registration of identity cards computer print out, letters of complaint by the defendants dated 31st day of July, 2000, etc. at the trial.
[l] The plaintiffs reported this acts (sic) of dispute on Ijegwu and settlement by the defendants’ community to the ADA/OCHECHE, the common father of the plaintiffs and defendants, for traditional settlement but the defendants have always refused to attend the settlement meetings. The plaintiffs shall lead evidence to that effect at the trial. Rather than attend the settlement meeting with ADA/OCHECHE the defendants took the matter to the Ad’Utu of Igede for settlement. The defendants in taking the matter to the Ad’Utu lied that the plaintiffs evaded their villages of Ijegwu which is not true.
[m] The plaintiffs contend that they are not satisfied with the way and manner the now acting Ad’Utu [he was not in his acting capacity at the time he handled the matter] handled the matter leading to the alleged resolution which was given in the absence of the plaintiffs and the plaintiffs complained on this in writing. The plaintiffs shall rely on letters dated the 30th July, 2005, 3rd August, 2005, 4th August, 2005, the ruling of the acting Ad’Utu Igede and letter dated the 15th September, 2005, at the trial.

At the trial, the Appellants testified mainly in line with their pleadings, relying on traditional history and long possession.

The elements required to be proved to ground a claim of ownership of land relying on traditional history, as established by judicial pronouncements, have been outlined above. The primary element is for the claimant to prove who founded the land in dispute. The learned trial Judge had found that there was a gap in the evidence of the Appellants as regards who founded the land, and I agree completely. The evidence for the Appellants plainly demonstrates the unassailability of this finding.

The Appellants had pleaded and testified that the Otunche people originally settled at Ajimole. During the period, the disputed Ijegwu and Odamagbudu were their farmsteads/lands. Following an epidemic of small pox in 1945, the Otunche people moved to other places, including their farmstead, Ijegwu. The farmstead, Ijegwu, was so renamed by one Ode Omenka, who led the movement from Ajimole to Ijegwu. Ede Ohuo was one of the early settlers on the disputed land. In his statement on oath, PW1 stated in paragraph 5(v), page 122 of the Record of Appeal, that:
“Otunche is the founder of Ijegwu land because they first settled there from their elders till date while others came later on to settled(sic) with them and for them.”

PW1 under cross examination further testified that Otunche is a village under Anchim, which is a clan made up of two units, Olewu and Oha. Four villages make up Oha, of which Otunche is one. He then said that Anchim was founded by Ochim Ibodo. By his evidence, Anchim is a clan with Ochim Ibodo as their progenitor. This evidence however does not explain who founded the disputed lands, Ijegwu and Odamagbudu.

PW4 testified under cross examination, page 203 of the Record of Appeal, that:
“Onu Ichiko is the founder of Ijegwu village. Onu Ichiko was the first person to settle at Ajimole. The founder of Otunche was Ode Akobi. Ede Efoe followed Onu to settle at Ijegwu.”

From his evidence therefore, Onu Ichiko, who founded Ijegwu village, was the first person to settle at Ajimole. However, the evidence that Onu Ichiko was the first settler in Ajimole and that Ode Akobi was founder of Otunche were not pleaded. The evidence therefore goes to no issue; Amadi v Nwosu (1992) 6 SCNJ 59; Sapo v Sunmonu (2010) LPELR-3015 (SC). Rather, it was pleaded in paragraph 5 (b) of the Amended Statement of Claim, and stated in the written deposition of PW5, that Onu Ichiko was one of the early settlers of Ajimole.

The entire people of Otunche in the Oha unit of Anchim could not have been the founders or first settlers in the disputed lands. As the learned trial Judge rightly observed, pages 256 – 257 of the Record of Appeal:
“The entire Otunche people could not have all founded the land. At a point in their evolution their fore bearer must have founded the land. It is instructive therefore to know who among the Otunche people of which Ijegwu is said to be a part that found the land, whether it be by conquest or finding it a virgin land, and the genealogy of the land through the years before devolving to the present generation. The available evidence show the first settlers on the land, it did not say whether any of the first settlers on the land and particularly that Onu Ichiko was the founder of the land and how it was founded…On the particular facts of this matter there is no evidence showing how the land was first acquired, the person or persons within Otunche who acquired it and how it devolved over the years.
Some persons are named as being the first settlers, in particular Onu Ichiko. Is he the founder or the first settler? The gap there remain and in the absence of evidence it is no duty of the Court to read into evidence what is not there.

An overview of the plaintiff’s evidence has not conclusively proved their entitlement to the land to warrant an order declaring their ownership of the land. That being so they have not proved that they are entitled to the declaration.”
I agree completely with the finding and conclusion of the learned trial Judge. The state of the evidence was not such that a firm finding on who founded the lands in dispute can be made. The ancestral history of ownership of the lands in dispute must be proved; Osu v Igiri (1988) 2 SC 24, (1998) LPELR-2814(SC). This is fundamental, as the legitimacy of long possession and other acts of ownership can only be grounded thereon; Fasoro v Beyioku (1988) LPELR-1249(SC), more so where the plaintiff relied on traditional history as their root of title; Balogun v Akanji (1988) 2 SC 199, (1988) LPELR-720(SC); Owhonda v Ekpechi (2003) 9-10 SC 1, (2003) LPELR-2844(SC).

The learned trial Judge had also observed page 254 of the Record of Appeal:
“It should be noted that one fact stood out clearly in the plaintiff’s’ action. That is, that even though their claim as pleaded in paragraph 3 of the statement of claim was over Ijegwu and Odamagbudu villages, the evidence eventually adduced tend to dwell more on their claim over Ijegwu with little or scant evidence to support their claim over Odamagbuudu village.”

The Appellants’ Counsel had argued that the Respondents, who did not defend the action, were deemed to have admitted the Appellants’ claims, and the Appellants were relieved from proffering any evidence in respect of their claim over Odamagbudu village. On this point, I will simply reiterate that the fact that the action was not defended by the Respondents would not automatically result in a decision in favour of the Appellants. A plaintiff must establish to the Court that he is entitled to the declaratory relief sought, whether or not the action is defended; Titiloye v Olupo (1991) LPELR-3250(SC), (1991) 9-10 SC 120.

The Appellants failed to prove their case. I therefore see no reason to disturb the conclusion of the learned trial Judge. Issue 1 is thus resolved against the Appellants.

Issue 2
The Respondents had counterclaimed against the Appellants but failed to give evidence on the counterclaim.

The complaint of the Appellants is that the trial Court made no pronouncement on the counterclaim at all. The Appellants relied on a number of authorities to submit that the counterclaim ought to have been dismissed.

Resolution
It is trite that a Court of law, whether of first instance or appellate, has a duty to hear, determine and make pronouncements on issues canvassed before it by the respective parties. See Honeywell Flour Mills Plc v Ecobank Nigeria Ltd (2018) LPELR-45127(SC); A.G. Leventis Nig. Plc v Akpu (2007) LPELR-5(SC); Dingyadi v INEC (2010) LPELR-952(SC); Tar v Ministry of Commerce and Industries (2018) LPELR-44216(CA). Failure by the Court to so resolve issues canvassed before it, without a valid reason, except in the clearest cases; A.G. Leventis Nig. Plc v Akpu (supra), would amount to a failure in its duty to administer justice. This is because it is a fundamental principle of administration of justice that every Court, whether of first instance or appellate, has a duty to hear, determine and resolve issues joined by the parties and raised before it for determination. See Okonji v Njokanma (1991) LPELR-2476(SC), (1991) 7 NWLR (PT 202) 131.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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The Appellants had in final address, urged the trial Court to dismiss the counterclaim which had been abandoned, the Respondents having failed to adduce any evidence in support thereon. The learned trial Judge however failed to address this issue at all. In the light of the established position of the law as demonstrated by the judicial authorities afore cited, it is clear that the Appellants were correct in their contention that the trial Court, which made no pronouncement thereon, ought to have so resolved this question.

This appeal thus succeeds in part. The decision of the High Court of Justice, Benue State, sitting at Makurdi, Coram S.O. Itodo, J., delivered on 30/11/2012 dismissing the claim of the Appellants is hereby affirmed. It is further ordered that the counterclaim of the Respondents, dated 28/6/2005, having been abandoned, is hereby struck out. It is also ordered that parties are to bear their costs.

OLUDOTUN ADEBOLA ADEFOPE-OKOJIE, J.C.A.: I have read in draft the judgment of my learned brother, Onyekachi A. Otisi, JCA and I am in agreement with my Lord’s reasoning and conclusion. I concur therewith.

JOSEPH EYO EKANEM, J.C.A.: I read in its draft form the lead judgment of my learned brother, OTISI, JCA, which has been delivered. I agree with the reasoning and conclusion therein which I adopt as my own in holding that the appeal succeeds in part. I abide by the consequential orders made in the lead judgment.

Appearances:

O.D. OBANDE, ESQ., with him, KENNETH CHIMA, ESQ. For Appellant(s)

S.O. OKPALE, ESQ., with him, J.U. EZEOKAFOR, ESQ. and V.N. CHIAHEMBA, ESQ. For Respondent(s)