HYACINTH ANYANWU V. ROBERT ACHILIKE MBARA & ANOR.
(1992) LCN/2531(SC)
In the Supreme Court of Nigeria
Monday, June 15, 1992
Case Number: SC.266/1988
JUSTICES:
MUHAMMADU LAWAL UWAIS
SAIDU KAWU
PHILLIP NNAEMEKA-AGU
IDRIS LEGBO KUTIGI
MICHAEL EKUNDAYO OGUNDARE
APPELLANTS
HYACINTH ANYANWU
RESPONDENTS
1. ROBERT ACHILIKE MBARA
2. JAMES OSUJI
RATIO
WHEN WILL AN APPELLATE COURT INTERFERE WITH THE EVALUATION OF EVIDENCE OF A TRIAL COURT?
On the feeble complaint about the handling of the important duty of evaluation of evidence by the courts below, I have not been persuaded that the courts misused their powers in this respect in any way. Rather after a view of the whole case, 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”- Per Nnaemeka JSC.
WHEN WILL AN ERROR BE A GROUND FOR ALLOWING AN APPEAL?
It is the law, however, that the fact that a party has established an error in the proceeding’s does not necessarily means 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- Per Nnaemeka JSC.
POWER OF THE JUDGE TO VISIT THE 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, it is regarded as part of the evidence called in the case. 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 Odor v. James Nwosu (1974) 1 All NLR (Pt.11) 478, at p.484- Per Nnaemeka JSC.
WHEN IS IT APPROPRIATE FOR THE JUDGE TO VISIT THE LOCUS IN QUO?
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. On the above principles, it appears clear to me that in the instant case, the learned trial Judge had no power to order the visit in the first place without the consent of the parties or application by any of them, Also when he ordered it as he did and the appellant showed no interest in it but allowed it to lapse, he cannot now complain against the failure of the Judge to visit the locus- Per Nnaemeka JSC.
DUTY ON THE PARTY IN AN ACTION OF TITLE TO LAND WHO RELIED ON TRADITIONAL EVIDENCE TO PROVE HIS TITLE
The first question is whether the plaintiff based his case on tradition. I would have agreed with the learned counsel for the appellant that if the plaintiff’s case rested on tradition it was insufficiently pleaded. 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. What we are faced with in this case is, therefore, not the result of failure to prove tradition relied upon by the plaintiff: he did no rely on any tradition. So, the cases cited on failure to prove tradition when pleaded are not in point. Recognizing the fact there are five ways of proving title (for which See Idundun v. Okumagba (1976) 9-10 S.C. 227 and Atanda v. Ajani (1989) 3 NWLR (Pt.111) 511, the only question is whether the plaintiff proved acts of possession and ownership and/or ownership of contiguous lands which he relied upon- Per Nnaemeka JSC.
WHETHER IT IS NECESSARY TO PLEAD STATUTES AND SECTIONS?
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- Per Nnaemeka JSC.
NNAEMEKA-AGU, J.S.C. (Delivering the Leading Judgment): This is a further appeal by the defendant, Hyacinth Anyanwu, against the judgment of the Court of Appeal, Enugu Division which had on the 21st April, 1988, dismissed his appeal against the judgment of Nwogu, J., sitting in an Owerri High Court.
One James Kamalu Mbara had, in a suit commenced by a writ of summons, sued Nwogu Anyanwu for the following reliefs:-
“(a) Declaration of title to the parcel and piece of land known as and called “NWAOKPU” situate at Libie Umunahu, Uratta in Owerri Judicial Division with annual value of 10 pound.
(b) 200 pound damages for trespass unto the said land.
(c) An injunction permanently to restrain the defendant, his servants, agents, and or workmen from further interference upon the said land.”
The appellant was later substituted for the defendant and the respondents for the plaintiff, the original parties having died. The learned trial Judge in his judgment held that although the claim before the court was for a declaration of title followed by consequential reliefs yet,
“At a very careful and close examination of the facts of this case, and after hearing both parties to the dispute, it appears to me the real question in controversy is the ascertainment of the boundary between the plaintiffs’ village of Libie and the defendant’s family of Ihitte.
Further he stated:
“From the pleadings, the plans and the evidence of the parties, the real issue between the parties is:-
(i) Whether the land in dispute is separated from Umunahu land on the northern boundary by Ovum immediately adjoining the residential quarters of the plaintiffs, i.e. Libie people in Umunahu Uratta in which case the area verged pink in defendant’s plan, Exhibit ‘B’ and designated land in dispute also forms part of the defendant’s land, or
(ii) Whether the plaintiffs’ land extends over the northern boundary (where the defendant says there is an Ovuru which forms the boundary between plaintiffs and the defendant) immediately adjoining the residential quarters of the plaintiffs, in which case the area shown on Exhibit ‘A’ as the land in dispute which is clearly across the farm land forms part of the plaintiffs’ land and therefore belongs to the plaintiffs.”
He resolved the issues in favour of the plaintiffs and granted them the declaration and other reliefs they sought. On the defendant’s appeal to the Court of Appeal, Enugu Division, that Court. per Omosun, J.CA., in his lead judgment with which Olatawura, J.CA. (as he then was) and Onu, J.CA, agreed, dismissed the appeal.
The defendant has, therefore, further appealed to this Court. From the grounds of appeal filed, the learned counsel for the appellant, Chief Ahamba, formulated the following issues for determination:-
“(1) On what ground did the respondent base their root of title judging from the pleadings and evidence led on the issue
(2) Can a litigant who fails to establish his claim based on one of the five grounds for establishing ownership of land as stated in Idundun v. Okumagba (1976) 9-10 S.C. 227 jump to any of the remaining four ways
(3) Did the respondents discharge the onus placed on them as plaintiffs in a land in dispute as to warrant the grant of the declaration sought
(4) Was the trial Judge right to have considered Exhibit ‘C’ and evidence of other acts of ownership irrelevant in the determination of this case considering that they were properly admitted, and remained undiscredited and unchallenged by the respondents
(5) In the circumstances of this case was the Court of Appeal right in sustaining the refusal of the trial court to visit the locus in quo after fixing a date for same.
(6) Was the Court of Appeal right in sustaining the findings of fact made in this case which did not take into consideration the totality of the evidence properly admitted or proved on record”
In the view of learned counsel for the respondents only three issues arise for determination in this appeal He set them out as follows:-
“(i) Whether the Court of Appeal was right in law in upholding the findings and decision of the trial court that the plaintiffs/respondents had successfully established ownership of the land in dispute by proving acts of ownership and long possession of the land in dispute.
(ii) Whether the court of trial or the Justices of the Court of Appeal applied wrong principles of law or procedure in arriving at their concurrent findings and judgment in favour of the plaintiffs/respondents which amounted to miscarriage of justice to warrant the Supreme Court to disturb the concurrent findings and judgment of the two lower courts.
(iii) Whether it was necessary for the trial Judge to have inspected the land in dispute in order to locate the position of the ‘UZO ISU’ , the “ANCIENT FOOT-PATH’ when both parties in their pleadings agreed that the ‘IZO ISU’, the ‘ANCIENT FOOT-PATH’ was located at the southern-end of the land in dispute as clearly shown on both plans filed by the parties.”
Considering of this appeal should, of necessity, begin with the first issue raised on behalf of the appellant. This is because the learned trial Judge based his judgment on section 45 of the Evidence Act and acts of possession and ownership. He used these to address the real issue identified by him to wit: Where does the boundary between the parties lie Is it at the boundary claimed by the plaintiffs or the one claimed by the defendant
It must be noted that quite often, in a claim for title to land by one contiguous community against the other the question resolves itself on where the boundary between them actually lies. This is the position in this case. For each party concedes to the other title and possession to the land at one side of the boundary, the thorny question being where the boundary actually lies.
There can be no doubt that the plaintiffs pleaded proof of ownership by acts of possession in paragraphs 5 and 6 of the statement of claim where they averred:-
5. From time immemorial the land has been owned by and in possession of the plaintiff and his people who have been exercising maximum acts of ownership by farming thereon, and granting portions of it to people to farm on, harvesting economic crops thereon, by living thereon, pledging some part of it to people without let or hindrance from the defendant.
6. The plaintiff and his people have also their juju called ‘Alaubi’ on the land. This juju which is sacrificed to before farming, has been owned and worshipped by the plaintiff’s ancestors until, by acts of inheritance it passed over to the plaintiff and his people from time immemorial who have been making diverse use of the said land.”
These are a pleading of ownership based on acts of possession and ownership. The defendants joined issues on these averments and in paragraph 4 of their statement of defence went ahead to plead their tradition and acts of possession and ownership.
They pleaded as follows:-
“4. Defendant denies paragraph 5 of the statement of claim. In further answer to paragraph 5 of the statement of claim the defendant states that from time immemorial the land in dispute has been owned and possessed by defendant’s ancestors starting from Alum to Odu to Omoro to lro to Evule to Opara to Anyanwu his father, and now to himself and they have been exercising maximum acts of ownership by living thereon; by farming, by exploiting economic trees, by granting fishing rights to people at the Okatankwo stream, e.g. Augustine Ukwunwagbara, by customary pledge to Chief Ejimofor in 1966 area verged green on defendant’s plan, by customary grant for annual farming to the Christian Mother’s Society in 1970, area verged violet in defendant’s plan, and other pledges, without any interference from the plaintiff and his people.”
From these pleadings it can be stated that the plaintiff originally based his case on acts of possession whereas the defendant based his case on tradition and acts of possession.
Furthermore the plaintiff in paragraphs 4 and 7 of the statement of claim pleaded as follows:-
“4. The said land is bounded as follows:
On the North by the land of the plaintiff; On the South by the ancient way called’ Uzo Isu’ and the land of Umualuma: On the East by the Okatankwo stream and the land of the plaintiff; On the West by the land of Libie people.
7. The said portion of the land where the defendant trespassed and planted cassava in 1971 is one contiguous piece of land with the other area not trespassed upon. In this area the plaintiff’s family, Emmanuel Ononiwu, Augustine Osuji, Raphael Nwagbara, and Frederick Agumanu live for a long time now.
From time immemorial ‘Uzo Isu’, has been a demarcating boundary between Uratta and Ihitte. This ancient route is shown on the plan filed with this statement of claim.”
The defendant joined issues on these averments. Furthermore in paragraph 6(iii) of the statement of defence, he pleaded as follows:
(iii) The land in dispute is separated form Umunahu land un the Northern boundary, by an ancient ridge which runs from Okatankwo stream to the North-West boundary and beyond. Amanwa Okpu road runs across the said ditch otherwise called ‘Ovuru’.”
From the state of the pleadings of both parties, it is clear that whereas in paragraphs 4 and 7 of the statement of claim the plaintiff’s pleading of the continuity of the land in dispute with other lands of the plaintiff’s people envisages proof of ownership under section 45 of the Evidence Act, the defendant countered this and went ahead to aver that the correct boundary between the parties was the ancient ridge called “Ovuru” which runs from Okatankwo stream to the North-Western boundary and beyond. It is, therefore, not correct as learned counsel for the appellant submitted that the plaintiff did not plead section 45 of the Evidence Act which was one of the pegs upon which the learned trial Judge based his judgment. 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. In Re Vandervell’ s Trust (No.2), White v. Vandervell Trustees Ltd. (1974) 3 All E.R. 205, Lord Denning, M.R., stated the current rule at p.213 thus:-
“Counsel for the executors stressed that the points taken by counsel for the trustee company were not covered by the pleadings. He said time and again: ‘This way of putting the case was not pleaded’; ‘No such trust was pleaded.’ And so forth. The more he argued the more technical he became. I began to think we were back in the bad old days before the Common Law Procedure Acts, when pleadings had to state the legal result; and a case could be lost by the omission of a single averment (See Bullen and Leake 2). All that has been long swept away. It is sufficient for the pleader to state the material facts. He need not state the legal result. If, for convenience, he does so, he is not hound by, or limited to, what he has stated. He can present, in argument, any legal consequence of which the facts permit.”
In the instant case, I am of the clear view that by pleading that the land in dispute was contiguous with other lands of the plaintiff, he pleaded section 45 of the Evidence Act which states as follows:-
“45. Acts of possession and enjoyment of land may be evidence of ownership or of a right of occupancy not only of the particular piece or quantity of land with reference to which such acts are done, but also of other land so situated or connected therewith by locality or similarity that what is true as to the one piece of land is likely to be true of the other piece of land.”
Learned counsel for the appellant was therefore in error when he submitted that section 45 was not pleaded. This is because the facts pleaded in paragraphs 4 and 7 of the statement of claim set out above were a sufficient pleading of the section. I shall consider late; on in this judgment whether the pleading was sustained. I would first like to dispose of other questions raised in the appeal.
The first question is whether the plaintiff based his case on tradition. I would have agreed with the learned counsel for the appellant that if the plaintiff’s case rested on tradition it was insufficiently pleaded. 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. What we are faced with in this case is, therefore, not the result of failure to prove tradition relied upon by the plaintiff: he did no rely on any tradition. So, the cases cited on failure to prove tradition when pleaded are not in point. Recognizing the fact there are five ways of proving title (for which See Idundun v. Okumagba (1976) 9-10 S.C. 227 and Atanda v. Ajani (1989) 3 NWLR (Pt.111) 511, the only question is whether the plaintiff proved acts of possession and ownership and/or ownership of contiguous lands which he relied upon. The court limited itself to the two grounds duly pleaded by the plaintiff.
Before dealing with these two questions, it is convenient to deal with the fourth issue raised by learned counsel for the appellant. He complained about the way the learned trial Judge treated Exhibit C tendered by the appellant as well as other acts of possession relied upon by the defence. Exhibit C runs thus:
“EXHIBIT “C”
PLEDGE OF FARM LAND – BY NATIVE LAW AND CUSTOM DATED AT THE PALACE ND UMOHA, UMUORI URAITA, OWERRI, THIS 31ST DAY OF OCTOBER. 1966
This is to certify that I, Mr. Nworgu Anyanwu, of Umualum Ihilta, have this day pledged my farm lands known as:-
UZO NWORKPU of TEN IME-UBIS, situate on the Libie to Ihilta Road and also:-
UHU UMUALUM IHITTA of TEN UME-UBIS, situate on the Lihie to Ihitta main road; both for the sum of FORTY POUNDS (f40-0-0d), the receipt of which I hereby acknowledge, to hold the same and farm on them until redemption. The first, UZO NWOKPU is due farming next January, 1967, while the second, UHU UMUALUM is due farming in January, 1968.
Pledged to Chief Michael Emeribe Ejimofor, of the Palace Ndumoha, Umuori Uratte.
(RTI) NWORGU ANYANWU
His right thumb impression
(PLEDGOR)
(SGD)
CHIEF M. EMERIBE EJIMOFOR
(PLEDGEE)
WITNESSES:-
1. (SGD)
D. A. CHUKWUEKE
2: (SGD)
H.N.ANYANWU
3. (SGD)
I.N. INNOCENT ANYANWU
FOR NZE EJIMOFOR
4. ONYELEGONU MBARA
Her right thumb impression
5. (SGD)
MARTIN OGBEDETO
ANYANWU
JURAT:
The above agreement was read over and interpreted into the Ibo language to the parties concerned, and they all understood it and agreed it was correct before they affixed their signatures and thumb prints hereunto.
(SGD) M.E. EJIMOFOR.”
The learned trial Judge after admitting Exhibit C without objection, rejected it in his judgment on the ground that neither did any of the parties nor the witnesses thereto testify at the trial. But, as pointed out by the learned counsel for the appellant, the second witness to the document, Mr. Hyacinth Anyanwu in fact testified as D.W.1. So, clearly, the learned trial Judge refused to consider Exhibit C on erroneous grounds.
The question here in whether this mistake is sufficient to make this court allow the appeal. It is the law, however, that the fact that a party has established an error in the proceeding’s does not necessarily means 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.
In considering whether the error with respect to Exhibit C was substantial, I should also bear in mind the provision of section 226(2) of the Evidence Act where it is provided:-
“226(2) The wrongful exclusion of evidence shall not of itself be a ground for the reversal of any decision in any case if it shall appear to the court on appeal that had the evidence so excluded been admitted it may reasonably be held that the decision would have been the same.”
In considering the value of Exhibit C, if properly considered, I must note that it was a private document which was not registered and, therefore, could not be said to have constituted a notice to the whole word. There was no evidence that a plan was attached to it so that the making of it would have attracted the attention of a vigilant owner. Nor was there evidence that the pledges consequently, pursuant to Exhibit C, went on the land in dispute to farm or do anything which the plaintiff and his people could have noticed. I am, therefore, bound to come to the conclusion that if the learned trial judge had not expunged Exhibit C but gave it its due consideration, he would probably have come to the conclusion that it did not advance the appellant’s case materially. This is because, although the making of an unregistered document of pledge between and 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. Such is the case here. I am, therefore, of the clear view that although the learned trial Judge was in error when he rejected Exhibit C on the ground that neither the parties nor any of the witnesses thereto testified, that error did not affect the result of the case. 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. (]976) 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.
In issue number 5, learned counsel for the appellant pointed out that the plaintiff pleaded that a ditch called “Ovum” marked his boundary with the defendant. This was denied and constituted a very important issue in the case. In spite of the oral evidence of D.W.1 and D.W.2 about the existence of the “Ovum” the learned trial Judge failed to resolve the issue. Counsel pointed out that the learned trial Judge decided to visit the locus in quo, but failed to pursue that course. He therefore, submitted that if the learned Judge had conducted the visit, he would have seen the “Ovum” as maintained by the appellant. He submitted that this was a case in which the conflicting claims of the appellants, to wit that “Ovuru” existed and was the boundary between the parties, and the defendant that the boundary was Uzo Isu could have been best resolved, by a visit to the locus in quo. The failure of the learned Judge to conduct the visit was wrong and led to a miscarriage of justice, he submitted. Learned counsel for the respondents submitted that on the state of the pleadings and the evidence, the visit to the locus in quo was unnecessary in this case.
To begin with, it is necessary to put the records in respect of this aspect of the case right. None of the parties applied for a visit to the locus in quo. Rather, at the close of defence case on 4/7/78 the learned trial Judge, suo motu, recorded as follows:-
“Court: Case is adjourned to 4/10/85 for the visit of the locus and possibly for address.
Sgd. E.I Nwogu
Judge
4/7/85”
As it turned out, there was no sitting on 4/10/85, for some undisclosed reason. The court resumed on 3/12/85, but counsel for the defence was not present; he was reported to be busy in the Court of Appeal at Enugu. The Judge, however, reluctantly granted an adjournment which he emphasized was the last adjournment. When the hearing resumed on 10/2/86, none of the parties said anything about the visit to the locus in quo. They went ahead to address the court. The least I can say about the above state of the facts is that none of the parties, particularly the defendant, did like to ask or insist on a visit to the locus. It is on defendant’s behalf that the failure of the learned trial Judge to visit the locus is being raised as an issue.
As I understand the complaint of the appellant from the background of the above facts, I believe he is not saying that he called all the evidence to entitle him have the issue resolved in his favour but the learned trial Judge failed so to do. Rather, he is saying that the learned trial Judge should have suo motu supplemented the oral evidence he called on the issue with a visit to the locus in quo which none of the parties did ask for. This is because a most essential piece of evidence about the positicm of the “Ovum” which he was relying upon on his pleading was lacking, he did not show it in his plan, Exhibit B, even though the plaintiffs had shown an “Ovum” in their own plan, Exhibit A, somewhere on the Southern part of the “Land of Lebie”; immediately outside the land in dispute. 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.
If both parties to this suit had shown the respective boundaries they claimed but given the necessary but conflicting evidence about the existence and location of the “Ovum”, then the need for the learned trial Judge to supplement and resolve what he had heard with what he could see would have arisen. But as the appellant, who pleaded and relied upon the “Ovum” failed to show it in his plan, an impartial Judge ought not to have aided him in the proof of his case by going on the scene to see whether or not the “Ovum” was there as the appellant alleged.
But assuming, but not agreeing, that the appellant had put in all the evidence which would have made a visit to the locus necessary and compelling, how could it have been initiated From the facts I have stated above, none of the parties in litigation asked for it or even showed any interest in it when it was suo motu raised by the learned trial Judge. It could only have been undertaken as an imposition on the parties by the learned trial Judge. Would it have been proper if the learned Judge insisted on it by imposing it on the parties To answer this question correctly, 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, it is regarded as part of the evidence called in the case. 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 Odor 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.”
Such is, I believe 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. On the above principles, it appears clear to me that in the instant case, the learned trial Judge had no power to order the visit in the first place without the consent of the parties or application by any of them, Also when he ordered it as he did and the appellant showed no interest in it but allowed it to lapse, he cannot now complain against the failure of the Judge to visit the locus. In any event by his failure to show in his plan the “Ovuru” which he pleaded and relied upon he did not call the quality or evidence that would have entitled him to insist upon such an inspection. The case of Seismograph Services Ltd, v. Akporuovo (1974)] All NLR 115 is distinguishable. I must, therefore, resolve this issue against the appellant.
I shall now deal with the crucial question; did the plaintiffs/respondent discharge the onus of proof on them In considering this most important issue, I must observe that although the plaintiff pleaded facts which show that they were relying on both section 45 of the Evidence Act and acts of possession and ownership, the learned trial judge in fact decided the case on section 45. This is as it should be. For, as I pointed out above, each party concedes to the other ownership of land at the other side of the common boundary. The real issue which was correctly identified by the learned trial Judge was where that common boundary lay, The learned trial Judge held:-
“There is evidence that the plaintiffs live on the Northern area of the land in dispute and have their farm on the Southern, Eastern and Western sides of the said land.
Acts of possession and enjoyment of land may be evidence of ownership or of a right of occupancy not only by the particular piece or quantity of land with reference to which such acts are done but also of other land so situate or connected therewith by locality or similarity that what is true as to the one piece of land is likely to be true of the other piece of land, (see section 45, Evidence Law Cap, 49 Laws of Eastern Nigeria, 1963.
It is true, however, that while possession may raise a presumption of ownership, it does not do more and cannot stand when another proves good title. This the defendant has failed to prove, See the case of DaCosta v. Ikomi (1968) 1 NMLR 394 at page 398,”
Then after pointing out the unsatisfactory aspects of the defendant’s case, he preferred the boundary claimed by the plaintiffs and entered judgment for them.
It is certainly not correct, as I have pointed out, that the respondents did not plead facts which showed that they were relying on section 45 of the Evidence Act. They did so in paragraphs 4 and 7 of the statement of claim, wherein it was pleaded that the plaintiffs and their people own land to the North, West and East of the land in dispute; that the boundary between them and the appellant was an ancient footpath called “Uzo Isu”; and so that the plaintiff owned lands contiguous to the land in dispute; excepting the parcel of land beyond the pleaded boundary. These averments are clearly borne out by the evidence, including the plaintiffs’ plan, Exhibit A, the evidence of the 2nd plaintiff and to some extent P.W.1, James Osuji, and P.W.2. James Ejimofor. Even the plan of the defendant, Exhibit B, shows that the land in dispute is surrounded on three sides by the land of the plaintiff’s people and kith and kin, with the land of the plaintiff to the North, that of Ndionwu Umunahu to the West and that of Umunahu Uratta to the east. On this state of the facts 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. But I must bear in mind the fact that proof in a civil case is on a balance of probability. So, when this probability of ownership was put on one side of the scale and the failure of the defendant to even properly identify on his plan the boundary which he claimed was put on the other, it appears to me that the conclusion that the plaintiffs owned the land in dispute was irresistible to the learned trial Judge and to the Court of Appeal which gave judgment to the plaintiffs.
On the feeble complaint about the handling of the important duty of evaluation of evidence by the courts below, I have not been persuaded that the courts misused their powers in this respect in any way. Rather after a view of the whole case, 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.”
I have not been persuaded that there was anything wrong with the concurrent findings in favour of the respondents by the two lower courts.
All the issues raised by the appellant have failed. I, therefore dismiss the appeal with N1,000.00 costs in favour of the plaintiffs/respondents.
M. L. UWAIS, J.S.C.: I have had the opportunity of reading in draft the judgment read by my learned brother Nnaemeka-Agu, J.S.C. I entirely agree with his reasonings and conclusion. I, therefore, adopt the judgment as mine.
Accordingly, the appeal is hereby dismissed with N1,000.00 costs to the respondents.
S. KAWU, J.S.C.: I have had the advantage of reading, in draft, the lead judgment of my learned brother, Nnaemeka-Agu, J.S.C. which has just been delivered. I am in complete agreement with his reasoning and also with his conclusion that the appeal should be dismissed. I am of the view that on the evidence adduced at the trial, the trial Court was right in awarding the land in dispute to the respondents and that the Court below was also right in affirming that decision. I see no justification whatsoever in our interfering with the findings of fact of the two lower Courts. I too will dismiss the appeal with N1,000.00 costs in favour of the respondents.
I. L. KUTIGI, J.S.C.: I had a preview of the judgment of my learned brother NnaemekaAgu, J.S.C. with which I agree. I also dismiss the appeal with costs of N1,000.00 in favour of the respondents.
M. E. OGUNDARE, J.S.C.: By a writ of summons issued in 1971, James Kamalu Mbara sued one Nwogu Anyanwu claiming declaration of title to a piece or parcel of land situate at Libie Umunahu, damages for trespass and an injunction. Pleadings were ordered and filed and exchanged. In his statement of claim he pleaded, inter alia, as follows:-
“3. The plaintiff and his people are the owners of the land in dispute known as and called ‘NWOKPU’ land or in full Mbagu Uzo Nwaokpu situate at Libie, Umunahu Uratta, in Owerri Judicial Division and is more particularly described in the Plan No.: E/GA1/72 filed with this statement of claim and verged green.
4. The said land is bounded as follows:-
On the North by the land of the plaintiff; On the South by the ancient way called ‘Uzo Isu’ and the Land of Umualuma; On the East by the Okitankwo stream and then the land of the plaintiff; On the West by the land of Libie people.
x x x x x x x x x x
7. The said portion of the land where the defendant trespassed and planted cassava in 1971 is one contiguous piece of land with the other area not trespassed upon. ‘In this area the plaintiffs family Emmanuel Ononiwu, Augustine Osuji, Rapheal Nwagbara, and Fredrick Agumanu live for a long time now.
From time immemorial ‘Uzo Isu’, has been a demarcating boundary between Uratta and Ihitta. This ancient route is shown on the plan filed with this statement of claim.”
The defendant for his part pleaded in his statement of defence, inter alia, as hereunder:
“2. Defendant admits receiving plan NO.E/GA/72 filed with the Statement of Claim but denies the rest of paragraph 3 of the Statement of Claim. In further answer to paragraph 3 of the Statement of Claim the defendant states that he is the owner by inheritance of the land in dispute which comprises two sections separated by Amanwa Okpu Road. The Eastern portion is known as and called “UHE APU UMUALUM IHITTA and the Western portion is known as and called UZO NWAOKPU – both portions are more particularly described in defendant’s Plan No.: UND/5/72 filed with this statement of defence are situate at Umualum Ihitta Ogada within Owerri, Judicial Division.
3. Defendant denies paragraph 4 of the Statement of Claim. In further answer to paragraph 4 of the Statement of Claim the defendant states that the land in dispute is bounded as follows:-
North: By Umunahu land called NWANTATU and UHU OCHA lying respectively East and West of Amanwa Okpu Road.
South: (a) From Amanwa Okpu Road eastwards by UZO UHU APUUMUALUM IHITTA and defendant’s land.
(b) From Amanwa Okpu Road westwards by OVURU and defendant’s land.
East: By Okatankwo Stream
West: By Ndiokwu Umunahu land.
x x x x x x x x x
6. Defendant denies paragraphs 7 and 8 of the Statement of Claim. In further answer to the said paragraphs defendant states –
(i) That plaintiffs relations live on the portion verged brown on defendant’s plan outside the land in dispute. the same having been allowed to plaintiff’s relations to live on by Umunwigbe of Umunahu Uratta.
(ii) That the route referred to as UZO ISU in plaintiff’s plan is the one referred to as UZO UHU APU UMUALUME IHITTA in defendant’s plan and does not form any boundary between Uratta and Ihitta.
(iii) The land in dispute is separated from Umunahu land on the Northern boundary. by an ancient ridge which runs from Okatankwo stream to the North-west boundary and beyond Amanwa Okpu road runs across the said ditch otherwise called “Ovuru”‘,
(iv) In March 1971 defendant lawfully entered the Northern portion of the land in dispute verged yellow in defendant’s plan and planted cassava but the plaintiff wrongfully interfered with his possession.”
While the action was pending in the trial court, the original parties died and were substituted by the present parties. Evidence was led on both sides and after addresses by learned counsel for the parties, the learned trial Judge in a reserved judgment found for the plaintiffs and entered judgment in their favour in terms of their claims. The defendant, being dissatisfied with the judgment appealed to the Court of Appeal but his appeal was dismissed. He has now further appealed to this Court.
My learned brother, Nnaemeka-Agu, J.S.C. has in his judgment stated the facts and the issues, calling for determination in this appeal. He has also adequately dealt with most of the issues raised in this appeal. I need not go over them again but shall confine myself in this judgment to issue (3) which reads:
“Did the respondents discharge the onus placed on them as plaintiffs in a land dispute as to warrant the grant of the declaration sought”
I have earlier in this judgment set out the averments in the pleadings of the parties relevant to the question under discussion. Judging from these averments, the plans tendered by the parties (Exhibits A and B) and the evidence led at the trial, I cannot but agree with the learned trial Judge when he stated in his judgment that the issue between the parties is essentially an issue of the boundary between them, for it is not in dispute that they are adjoining land owners. The learned Judge observed:-
“It is interesting to note that on both Exhibits’ A’ and ‘B’ (plaintiffs’ and defendant’s plans) the area designated ‘land in dispute’ have almost identical boundaries and both parties are not in doubt as to the area of land in dispute, and its identity. The plaintiffs’ and defendant’s description of the ‘land in dispute’ in quite clear that it leaves neither party in doubt. At a very careful and close examination of the facts of this case, and after hearing both parties to the dispute, it appears to me the real question in controversy is the ascertainment of the boundary between the plaintiffs’ village of Libie and the defendant’s family of Ihitta. The plaintiffs’ case is that their boundary with the defendant is the ancient road, Uzo Isu separating the two villages. The defendant’s case is that his family land extends across the Uzo Uhu lsi Apu Umualum (hitta. Otherwise known and called Uzo Isu (by the plaintiffs) to an ancient ridge which runs from Okatankwo stream to the North-west boundary and beyond.
What I can make out of this boundary description is that the defendant is saying that his land stretches to the boundary of plaintiffs’ residential quarters, covering the farmlands verged pink in Exhibit ‘B’.
From the pleadings, the plans and the evidence of the parties, the real issue between the parties is:-
(i) Whether the land in dispute is separated from Umunahu land on the Northern boundary by Ovuru immediately adjoining the residential quarters of the plaintiffs, i.e. Libie people in Umunahu Uratta in which case the area verged pink in defendant’s plan. Exhibit ‘B’ and designated land in dispute also forms part of the defendant’s land, or
(ii) Whether the plaintiffs’ land extends over the Northern boundary (where the defendant says there is an Ovuru which forms the boundary between plaintiffs and the defendant) immediately adjoining the residential quarters of the plaintiffs, in which case the area shown on Exhibit ‘A’ as the land in dispute which is clearly across the farmland forms part of the plaintiffs’ land and therefore belongs to the plaintiffs.”
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 behooved each party, particularly the plaintiffs, to prove the boundary that was being claimed – See: Omoregie v. Idugiemwanye (1985) 2 NWLR (Pt.5) 41, 60. The plaintiffs in this case tendered a plan showing their boundary with the defendant and led in support of that boundary. The defendant, on the other hand, though he pleaded that “Ovuru” marked his boundary with the plaintiffs’ land, failed to show in his plan the “Ovuru” (ancient ridge). As if this is not enough, the evidence led by the defence of the position of this “Ovuru” on the land was very confusing indeed. The defendant as D.W.I in his evidence stated thus:
“On the boundary between the land in dispute i.e. land of Umualum and the land of Umunahu people are Ovuru (ancient boundary mound). You also have a pit, palm tree, oil bean tree, a sawyers pit.”
The defendant’s plan Exhibit B does not show any of the features mentioned in this piece of evidence on the boundary claimed by him on that plan. Cross-examined, the defendant testified thus:
“The boundary trees are on a sort of boundary ridge Traditionally described as ‘Ovum’. This ‘Ovuru’ runs across the Southern end of Exhibit ‘B.’
This ‘Ovuru’ divides my family land and that of Libie and Ndokwu people.
On a part of the ‘Ovuru’ is my land and those of my relations (Cyril Nnaji and Boniface Ejiogu) and on the other side the land of Ndokwu and Libie people. The land of the plaintiffs and that of the defendant all run to the stream (South East).”
(Italics is mine)
Considering that this witness had earlier testified:-
“Defendant admits that there are boundary trees in the south of Exhibit ‘B’ and the boundary is between him and his other relations. They are: (Cyril Nnaji and Boniface Ejiogu families)” (Italics mine)
it would appear that the defendant was fixing the boundary between him and the plaintiff at the southern end of the land in dispute. This runs counter to the position of the boundary he claimed on Exhibit ‘B’. He called a member of his family as a witness. In his evidence as D.W.2, when testifying on the boundaries of the land in dispute, he deposed thus:-
“There is also ‘Ovuru’ ancient ridge by the North of the land in dispute. I showed the ‘Ovuru’ to the surveyor. On the Northern boundary is Ugba stump, oil palm trees, Ugba tree, Odunankiri. All were shown to the surveyor.”
(Italics mine)
All these features mentioned by the witness and said to have been shown to the surveyor do not appear on the boundary claimed on the defendant’s plan Exhibit B. Cross-examined, this witness confused the defendant’s case the more when he said:-
“On the South from the Ukpo tree to Ama Nwa Okpu road in (sic) ‘Ovuru’ denoting ancient boundary. It is boundary between Uzo Nwaokpu land and Mbagu land.”
(Italics mine)
Nwaokpu is a name given by the plaintiffs to the land in dispute. So also is Mbagu – see paragraph 3 of the Statement of Claim. One finds it difficult to make any sense out of the evidence of this witness; he seems now to the fixing the boundary at the southern end of the land in dispute contrary to defendants’ pleadings and plan. This witness to confuse their case the more had said in examination-in-chief:-
“Our land does not get to Uzo Isu”
This piece of evidence affirms the plaintiffs’ case and demolishes that of the defendant.
I have stated earlier that plaintiffs led evidence in support of the features of the boundary claimed by them. Essentially this boundary is marked by Uzo Isu an ancient footpath which is denoted on their plan Exhibit A. This ancient footpath is also denoted on the defendant’s plan Exhibit B and therein it is called Uzo Uhu Apu Umualum. D.W.2 in his evidence, admitted that what the plaintiffs call Uwu Isu is what ‘they’ of the defendant’s family call Uzo Uhu Apu Umualum. There is thus no dispute as to the identity of the footpath which the plaintiff claimed as marking their boundary with defendant’s land. It is not surprising therefore that with the confused state of the evidence led for the defence, the learned trial Judge remarked in his judgment as follows:-
“I have no doubt in my mind whatsoever that he was referring to the southern boundaries of the land in dispute as the actual boundary between him (the defendant) and the plaintiffs when in answer to a question under cross-examination he said ‘The boundary trees are on a sort of boundary ridge traditionally described as ‘Ovuru’. This Ovuru runs across the southern end of Exhibit ‘B’. This Ovuru divides my family land and that of Libie and Ndokwu people.’ This is where Uw Isu is in Exhibit ‘A’ and Uw Uhu Isu Apu Umualum Ihitta in Exhibit ‘B’.”
On the totality of the evidence before him, he, rightly in my view, held:
“Having considered the totality of the evidence adduced by the parties and having examined Exhibits ‘A’ and ‘B’, i.e. the plaintiffs and defendant’s plan (of the land in dispute) respectively, I seem to prefer the evidence of the plaintiffs.”
Having thus therefore, accepted the plaintiff’s case as to the boundary he was right, in my respectful view, to give judgment for the plaintiffs and the Court of Appeal was equally right to affirm that judgment.
With the reasons given above and the other reasons given in the judgment of my learned brother Nnaemeka-Agu, J.S.C., with which I am in full agreement, I agree that this appeal be dismissed with costs as assessed in his judgment.
Appeal dismissed.
Appearances
Chief M.I. Ahamba For Appellant
AND
- C. Ajoku For Respondent
