MADUGBA & ANOR v. AHUKANNA & ANOR
(2022)LCN/17048(CA)
In The Court Of Appeal
(OWERRI JUDICIAL DIVISION)
On Monday, January 17, 2022
CA/OW/185/2015
Before Our Lordships:
Ayobode Olujimi Lokulo-Sodipe Justice of the Court of Appeal
Oludotun Adebola Adefope-Okojie Justice of the Court of Appeal
Ibrahim Wakili Jauro Justice of the Court of Appeal
Between
1. JOSEPH MADUGBA 2. RAPHAEL MADUGBA (For Themselves And As Representing Umuogar Kindred,) Ihie Village In Osisioma Ngwa L.G.A. APPELANT(S)
And
1. HRH EZE EMMANUEL AHUKANNA 2. ELDER DANIEL AHUKANNA (For Themselves And As Representing Umuahukanna Family Nwaogbu Family Of Umuogar Kindred, Ihie Village In Osisioma Ngwa L. G. A RESPONDENT(S)
RATIO
WHETHER OR NOT ANY PERSON IN POSSESSION OF LAND CAN MAINTAIN AN ACTION IN TRESPASS IN RESPECT TO THE LAND
This is because it is clear in law that any person in possession of land can properly maintain an action in trespass in respect of the land against any other person except the true owner of the same. In the same vein it is not in doubt that the Appellants who also claim to be in possession of the parcels of land in dispute, directly put their title to the said parcels of land in dispute in issue particularly given their claim for a declaration of entitlement to the grant of a customary right of occupancy over the parcels of land the Respondents claimed to be in their possession; coupled with their claims for trespass and damages for the said trespass. For the foregoing, see the following cases amongst many others: –
(i) SHOBO V SHOBO [1962] 1 SCNLR 428 wherein the Supreme Court dwelling on trespass to land stated thus: –
“The action for trespass to land is founded on possession. It is well established that a defendant may dispute the plaintiff’s possession or may set up an affirmative case and assert that he had no right to enter, the most common form being the assertion by the defendant that he himself is owner. xxx
There is no doubt that the defendants have availed themselves of both these defences; and therefore the issue of title has been raised. As I understand it, in an action for trespass, once the plaintiff has proved possession, it falls upon the defendants to justify their entry that they had a better title. See Ogunbambi V Abowab, 13 W.A.C.A. 222. It was said in that case in this respect an action in trespass differs from one of recovery of possession or for declaration of title.” PER LOKULO-SODIPE, J.C.A.
WHETHER OR NOT AN APPELLATE COURT CAN INTERFERE WITH THE FINDINGS OF THE TRIAL COURT
I further wish to emphasis the established principle of law that the taking of evidence, evaluation of the same, ascription of probative value thereto and the assessment of the credibility of witnesses/evidence are issues exclusively within the terrain of a trial Court, entertaining a case, and it is not for an appellate Court to interfere with the lower Court’s findings on such evidence except where: –
a. No finding was made on a relevant or material issue;
b. Where there is no evidence to support the particular finding complained of;
c. The evidence which the trial Court failed or neglected to evaluate is a document tendered as exhibit;
d. The finding complained of, is perverse and not the result of the proper exercise of the discretion of the Court to believe or disbelieve witnesses;
e. That proper inference(s) and or deductions is/were not drawn or made from accepted facts;
f. There has been a misapprehension by the trial Court as to what the antecedent presumptions were and where the onus of proof lies.
See the cases of AYUYA V YONRIN (2011) LPELR-686(SC) and OJIKUTU V. KUTI (2021) LPELR-56231(SC) amongst many others. PER LOKULO-SODIPE, J.C.A.
THE POSITION OF LAW ON WHEN A PARTY IS SEEKING DECLARATION OF TITLE OF OWNERSHIP
On the other hand, the lower Court having specifically found the Appellants not to have established their ownership to the parcels of land in dispute by any iota of credible evidence in my considered view, could not have properly found the counter-claim of the said Appellants as established at least as it relates to declaration of title whether or not the Respondents controverted the traditional history of the Appellants. This is because it is after a party seeking declaration has put forward evidence, that on the face of it entitles him to the declaration that the Court has the duty to weigh the evidence of the adverse party which in this case are the Respondents, in the counter-claim of the Appellants in which the said Appellants are Claimants. See the case of ONOVO V. MBA (2014) LPELR-23035(SC). PER LOKULO-SODIPE, J.C.A.
AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment delivered on 19/5/2014 by the High Court of Abia State presided over by Hon. Justice C.H. Ahuchaogu (hereafter to be simply referred to as “the lower Court” and “the learned trial Judge” respectively).
The Respondents herein as Claimants before the lower Court, by paragraph 16 of their further amended statement of claim filed on 3/7/2012, claimed against the Appellants as Defendants as follows: –
“1. A sum of N5,000,000.00 (Five Million Naira Only) being general damage for trespass committed by the Defendants on the Claimants (sic) lands namely (a) Ogwugwu (b) Nkpi and Okpulor Akpuruka being and situate at Umuatubi kindred in Ihie village of Osisioma Ngwa Local Government Area of Abia State, when the Defendants illegally entered into same, uprooted and or damaged economic crops planted by the Claimants on the land in dispute in March 2007 and also cleared some other portions of these lands preparatory to farm therein without the consent of the Claimants.
2. An order of perpetual injunction restraining the Defendants, their agents, heirs, servants and or privies from further entering and or doing anything on these lands in dispute namely (a) Ogwugwu (b) Nkpi and Okpulor Akpuruka lying and situate at Umuatubi kindred in Ihie village of Osisioma Ngwa Local Government Area of Abia State as determined in the county Court of Appellate jurisdiction of Aba Division in Suits Nos. ACCA 134/65 (Awor District Court Suit No. 39/64) dated 24/9/65 and also ACCA 125/65 (Awor District Court Suit No. 40/64) dated 24/9/65.”
The Appellants filed a counter-claim in the action of the Respondents alongside their statement of defence. The claims of the Appellants in the said counter-claim as set out in their statement of defence and counter claim on pages 61-71 of the record of appeal (hereafter to be simply referred to as “the record”) are thus: –
“a. A declaration by this Honourable Court that the Defendants are entitled to the grant of the Customary Rights of Occupancy over the following pieces of lands situate, lying and being at Ihie Umuduru Village in Okenkwu Autonomous Community in Osisioma Ngwa Local Government Area of Abia State within jurisdiction of this Honourable Court namely: –
i. Ogwugwu land,
ii. ¼ of Akpuruka land,
iii. ¼ of Okpulor Ukwu land,
iv. Okpulor Ofor land, by inheritance in accordance with the custom in Ihie Umuduru Village in particular and that of Ngwa people in general.
b. A declaration that the doctrine/plea of estoppel per rem judicatam is not applicable to any of the four pieces of land in dispute.
c. The sum of N1,000,000.00 (One million naira) being special damages and general damages against the claimants for act of trespass committed by the claimants in 2007 over the piece or parcel of land called OGWUGWU LAND where they entered and harvested a cassava tubers (sic) planted by the Defendants.
PARTICULARS OF DAMAGES
Special damage
i. Value of cassava tubers harvested by the claimants N800,000.00
ii. General damages N200,000.00
iii. Total damages claimed N1,000,00.00
d. An injunction perpetually restraining the Claimants, privies, servants and agents/workmen or anybody claiming through them or on their behalf from committing further act of trespass over the four pieces of lands or part thereof namely:
(a) Ogwugwu land
(b) ¼ of Akpuruka land,
(c) ¼ of Okpulor Ukwu land,
(d) Okpulor Ofor land.”
At hearing, parties called two witnesses apiece and tendered a total of 8 Exhibits. Exhibit A is the proceedings and judgment of the customary Court Awor in Suit No ADC/39/64 as well as the county Court of appellate jurisdiction of Aba Division in Suit No. ACCA 134/65; Exhibit B is record of proceedings and judgment of the county Court of appellate jurisdiction of Aba Division in Suit No ACCA 125/65 as well as that of Awor District Court in Suit No. ADC/40/64. Survey plan with No. AES/077/2012 dated 29/5/2012 tendered by the Respondents is Exhibit C; Survey plan with No. VEN/D08/2011 tendered by the Appellants is Exhibit D; a document titled Ala Ohimogho Juju Umuokewo Onwuma L.G.A dated 5/5/2007 is Exhibit E; summoning letter dated 20/3/2006 is Exhibit E1, a document titled Ijikweziokwu Ogwugwu-Akpu Dev. Cultural Association dated 12/10/2000, is Exhibit E2, and judgment on land dispute dated 28/5/2005 by the elderly customary cabinet is Exhibit E3.
After a review of the respective cases of the parties; evaluation of the evidence adduced by the parties and consideration of the written addresses of the parties at the end of the proceedings, the lower Court entered judgment for the Respondents in the following manner:
“xxx
Upon the calm perusal of the pleadings of the parties in this suit as well as the written addresses of the learned counsel, the proper issue for determination in my view are:
Whether the claimants have by credible evidence proved their case as to be entitled to the reliefs sought.
The claimants’ claims are founded in damages for trespass and perpetual injunction. The trend of land law jurisprudence in this country is that whenever an action for trespass to land is coupled with a claim for injunction, then title of the parties is automatically put in issue. See
xxx
The claimants’ case is that the defendants trespassed into three portions of lands belonging to them, namely:
i. Ogwugwu land;
ii. Nkpi land
iii. Okpulor Akpruka lands being and situate at Ihie Village in Osisioma Local Government Area.
xxx
Now, in this case the defendants joined issues with the claimants on the identity of the lands in dispute contending that the claimants do not know the names and boundaries of the land in dispute. Again, the defendants contend that the claimants cannot set up a plea of Estoppel Per Rem Judicatam based on Exhibits “A and B” on the grounds that
(1) The parties are not the same
(2) The subject matter is not the same
(3) The cause of action is not the same
(4) The evidence in the previous case and this case are not the same and finally that the judgment in the two cases relied upon by the claimants did not finally dispose off the dispute between the parties.
I will like to address the question pertaining to what use the claimants can put the two Native Court Judgments which awarded the lands in dispute to their father Ahukanna Nwaogbu. There is no doubt that by Exhibits “A and B” judgment over and in respect of the lands stated to be in dispute in this case by the claimants were awarded to their father in 1964. By Exhibit A” being Awor District Court Suit No. 39/64, the Court awarded judgment to claimants’ father Ahukanna Nwaogbu over and in respect of Ogwugwu land in respect of the claim for declaration of title and injunction. The judgment was later confirmed on appeal vide Appeal No. ACCA 134/65.
Again, by Exhibit “B” being Awor District Court Suit No. 40/64 the Court awarded judgment in favour of the claimant – Ahukanna Nwaogbu over and in respect of Nkpi and Okpulor Akpuruka parcels of lands against the defendants’ people. The said judgment was later confirmed in Appeal No. ACCA/125/65. The attitude of D.I.W. Ahukanna Esq. for defendants is that the judgments in Exhibits “A and B” are not binding on the defendants for the reason given earlier.
I.I. Nwaogwugwu carefully avoided this controversy by stating that “though a claimant may not use a previous judgment as a basis for his claim he may use same to strengthen his case as an act of possession and ownership”. I.I. Nwaogwugwu conceded therefore that it is beyond the province of a claimant to plea Res Judicata, but he quickly added that such previous judgment may be pleaded to show acts of possession and ownership of the lands in dispute. If indeed estoppel is regarded as a shield and not a sword then it goes without saying that it is an instrument of protection available only to a defendant who pleads it as a defence to the plaintiff’s claim. It is noted however that there is case law authority in this country tending to show that where a defendant disputes or denies the existence of a fact even if the fact relied upon is a previous judgment between the parties or their privies relating to the fact in issue, nothing precludes the plaintiff from raising that fact even if it is a previous judgment. See the cases xxx
See also the case of AJIBARE VS AKOMOLAFE (2012) 10 WRN 62 at 116 where after recognizing the general rule that the plea of res judicata is not available to a plaintiff as a basis of his claim except by way of a reply to a defence raised by the defendant in a statement of defence, the Court still went ahead to state that “Though a plaintiff may not use a previous judgment as a plea of res juducata for his claim, he may use same to strengthen his case as an act of possession and ownership”.
Implicit in the above analysis is that at least the claimant who pleaded the two previous judgments stated to be in respect of the lands in dispute in this action recognizes the limitation imposed on a plaintiff who pleads a previous judgment as res judicata.
As the defendants did not deny the existence of Exhibits “A and B” I will where appropriate and necessary in this judgment refer to them as relevant facts as they cannot be ignored nor wished away.
Now, did the claimants identify the lands in dispute? As title is in issue based on the claimants’ claim, they then have a duty to prove the identity of the land in dispute particularly in the instant inquiry where the defendants made the identity of the land in dispute an issue. By paragraph 5 (b) (1) of the statement of defence/counter-claim the defendants pleaded that the claimants do not know the names and identity any of them. In their response, the claimants stated that they know the lands in dispute very well having been the owners in absolute possession of these lands. The claimants proceeded therefore to rely on a dispute survey plan admitted in evidence as Exhibit “C”.
In respect of Ogwugwu land, the claimants gave evidence through CW1 pertaining to its location, boundaries and features.
The defendants through DW1 merely gave evidence relating to the boundaries of Ogwugwu land but said nothing about its features.
By paragraphs 5 (b) (ii), 6 (d) (i) and (ii), 7 (d) (e) (h) (k) and 10 (a) and (g) of the statement of defence and counter-claim, the defendants referred to one and only Ogwugwu land. They also agreed that Ogwugwu land is one of the lands in dispute. In fact, the CW1 was not cross-examined as to his testimony in relation to identify of Ogwugwu land in dispute. DW1 to show that he is not mistaken as to the identity of Ogwugwu land stated that 2nd defendant on record lives on a part of Ogwugwu land where his late father died and was buried. DW1 also referred to the land in Exhibit “A” as the Ogwugwu land. Under cross- examination, DW1 stated that there is only one Ogwugwu land in Ihie, while DW2 stated in reference to Ogwugwu land that the defendants reside in it. In GBADAMOSI VS DAIRO (2007) 1 SCNJ 444 at 453, it was stated that where the land in dispute is well known to the parties, the question of proof of identity of the land does not arise and that the identity of land in a land dispute will only be in issue if the defendants’ disputes specifically either the area or the location or the feature shown in the plaintiff’s plan.
I find as a fact and I hold that the defendants know and acknowledged the Ogwugwu land in dispute as the one referred to in the claimants’ pleadings. The next is Nkpi land. Claimants CW1 – HRH EZE EMMANUEL AHUKANNA gave evidence relating to the identity of Nkpi land in dispute in relation to its boundaries and features. In their response, defendants stated that Nkpi land is the communal land of all the kindred in Ihie Umuduru and that it is not in dispute as it is still being held communally. By this assertion the Defendants are taken to have agreed at least on the identity of Nkpi land stated by the Claimants to be in dispute. What is admitted required no proof?
The next is Okpulo Akpuruka land. The defendants know Akpuruka land but stated that what is in dispute is ¼ of Akpuruka land. Akpuruka land having been previously shared into four parts among the four families of: Agughara and Achilefu, Nwaobia, Nwala and Achukanna. Defendants referring to Okpulor Akpuruka land stated that Michael Madugba planted palm seedlings on a part of Apkuruka land which was the share of Agughara and Achilefu family. The defendants even in their dispute survey plan referred to Okpulor Akpuruka land. CW1 was not cross examined with respect to his testimony on the location boundaries and features on Okpulor Akpuruka land.
Under cross-examination, DW1 referred to Okpulor Akpuruka when he answered that his father was sued by Ahukanna Nwaogbu over Nkpi and Okpulor Akpurukka lands and again that the defendants have been entering the lands in dispute which of course includes Okpuruka since 1964 up till 2007.
DW2 on his part under cross-examination stated that Surveyor John Ahukanna of the claimants’ family had his place of abode on Okpulor Akpuruka land.
The above segments of evidence point conclusively to the fact that the parties are not mistaken as to the identity of the lands in dispute.
Now, the claimants sued for damages arising from trespass. The law is settled that trespass is actionable at the suit of the person in possession of the land. See xxx. The claimants as I earlier sued for damages for trespass and injunction, thereby automatically putting title in issue. The Court is therefore under duty to consider the issue of title. See xxx. Possession will be decreed in favour of one with a better title. See xxx
The claimants’ case is that the lands in dispute belong to their Umuahukanna Nwaogbu family through inheritance from their progenitor Atubiri who founded the lands through deforestation. Claimants pleaded the names of their founding fathers and those after him upon whom the lands devolved to their own father Ahukanna Nwaogbu and up to CW1 who is stated to be the present head of the family. The same line of traditional history pleaded herein is the same that was adduced in evidence in the cases given rise to the judgments in Exhibit “A and B” respectively. The defendants did not contest the authenticity of Exhibit “A and B” and did not deny the fact that the defendants in Exhibits “A and B” are their privies by blood.
The defendants who are aware of the subsisting judgments as recorded in Exhibits “A and B” merely stated that the judgment is not binding nor conclusive without stating how. The defendants admitted as alleged by the claimants that they have exercised maximum acts of ownership and possession over the lands in dispute. The Defendants for instance admitted that Enwereji Omenazu of the claimants in his lifetime had a part of Ogwugwu land as his place of abode and died on the land. DW1 admitted that Ahukanna Nwaogbu – father of the claimants sued his father in the 1964 suit and obtained judgment. Defendants also admitted that late Surveyor John Ahukanna of the claimants had his place of abode on Okpulor Akpuruka land where he erected a duplex, oil mill and planted economic crops extensively and that his family resides there even till today and that Surveyor Ahukanna was buried on Okpulor Akpuruka land.
By pleading and leading evidence to establish the acts of ownership possession comprised in having places of abode in the lands in dispute, planting economic crops, burying their relatives on the lands in dispute, I find as a fact that the acts which extended over a sufficient length of time are numerous and positive to warrant the inference that the claimants are indeed the true owners of the lands in dispute and actually in possession of same. See xxx
The defendants did not deny entering into the parcels of land in dispute. They averred that notwithstanding the judgments in Exhibits “A and B” that they have been entering into the parcels of land in dispute up till 2007 till date. The claimants having proved better title are declared to be in lawful occupation and possession of the lands in dispute. The claimants pointed to the judgments in Exhibit “A and B” as relevant facts to show that their late father in his life time successfully resisted the trespassory activities of the defendants’ fathers on the parcels of land in dispute. The defendants as earlier found as a fact admitted acts of possession as claimed by the claimants. When certain members of the claimants’ family like Omenazu who built and lived on a part of Ogwugwu land and Surveyor John Ahukanna who built a duplex, oil mill, died and was buried on Akpuruka land were on these parcels of land the Defendants never protested and filed no action against the claimants. What is admitted need no further proof? The defendants admitted even by their pleading and evidence that they entered the parcels of land in possession of the claimants as alleged against them.
The claimants have proved that defendants trespassed into the parcels of land in dispute. Although the claimants did not plead special damages, it is common learning that trespass is actionable per se i.e. damages are awarded the claimants even if he suffers no injury from the trespass. See xxx. Although the claimants did not prove actual damages, but at least they established interference with actual possession in 2007. The claimants’ case in damages for trespass against the defendants succeeds. The claim for perpetual injunction also succeeds.
Judgment is entered in favour of the claimants as follows:
1. The sum of N300,000 general damages for trespass committed by the defendants on the claimants parcels of land namely:
a. Ogwugwu land,
b. Nkpi land,
c. Okpulor Akpuruka land being and situate at Umuatubi kindred in Ihie village, Osisioma Ngwa Local Giovernment (sic) Area of Abia State.
2. Perpetual injunction restraining the defendants, their agents, heirs, servants and/or privies from interfering with claimants’ possession of survey plan No. AES/077/2012CD dated 29/5/2012.”
Dwelling on the counter claim of the Appellants, the lower Court stated thus: –
“xxx
The case of the defendants’ counter-claimants is that the lands in dispute are:
i. Ogwugwu land,
ii. Akpuruka land,
iii. Okpulor Ofor land,
iv. Opulor Ukwu Uzor land.
The defendants stated that except Okpulor Ukwu Uzor land situate and lying at Umuagugo Umuduru in Ihie, that the other three parcels of land were deforested by OSINACHI their great ancestor who exercised maximum acts of possession and ownership over all the pieces or parcels of land in dispute such as farming, cutting down trees for timber, harvesting, hunting for games, pledging, and redeeming the lands without let or hindrance from anybody.
That Osi was survived by two sons namely: OGA OSI and ATUBI OSI who inherited all his lands. That upon the death of their ancestor Osi, his two sons shared some of his lands and that each son used his share as his family land and left some of the lands to be used by them as communal property of Ihie Village till date. That the defendants are the descendants of Oga who during the said sharing got the following lands.
i. Ogwugwu land,
ii. Okpulor Inyi land,
iii. Okpulor Osi land,
iv. Apu Oriachi land.
That Oga had two sons namely: ABARAWOLU and NWAOBIA who inherited his estate and upon the death of Oga, Abarawolu got Ogwugwu land and part of Okpulor Osi as his family property while Nwaobia got Okpulor Inyi and part of Okpulor Osi. The defendants identified themselves as descendants of Abarawolu who inherited all his properties including the Ogwugwu land in dispute.
Defendant stated that Ogwugwu land from time immemorial had been the property of the descendants of Abarawolu without let or hindrance from anybody including the claimants and that the following people as family head had held Ogwugwu land in trust as family heads of the defendants, namely:
i. Okoroafor,
ii. Agughara,
iii. Madughara Achilefu,
iv. Nwogu,
v. Nwangwa,
vi. Michael the present family head.
The defendants stated that no member of the claimants’ family had farmed in Ogwugwu land or any part of it from time immemorial. That 2nd defendant and members of his family are living today in a part of Ogwugwu land. That the father of 2nd defendant George Madugba lived, died and was buried in Ogwugwu land. Defendants who submitted a dispute plan admitted in evidence as Exhibit “D” gave oral evidence relating to the lands in dispute. Defendants stated that it was when Nwamaghinna took charge as head of Ihie Village that the descendants of Osi were divided into four families namely: Agughara and Achilefu, Nwaobia, Nwala and Umuahukanna. That it was during the headship of Nwamaghinna that the four families agreed to share Akpuruka land and that in the course of the sharing that each family got ¼ of the land called Akpuruka. That it is only ¼ of Akpuruka that is in dispute in this suit.
That the other land in dispute called Okpulor Ofor was granted to one of his sons called Okoroafor by Osi and that Okpulor Ofor land derived its name from the Ofor tree planted thereon.
On Okpulo Ukwu Uzor land, defendants stated that it was granted to the entire Ihie by another village called Umuaguguo after Ihie helped them in their battle with the people of Umuidigha. That the land was later shared into four parts among the four families of Ihie. That ii (sic) is the share of Agughara and Achilefu family that is in dispute in this case.
With respect to the two native Court judgments, defendants stated that they are aware of the judgments. That the suits were personal actions by the plaintiffs against members of the defendants’ family and that it was not fought in a representative capacity. That those cases as shown in Exhibits “A and B” were not instituted against the family of the defendants.
That the defendants notwithstanding those suits have continued to be in possession of the lands in dispute. That it was between the years 2000 – 2002 that the claimants renewed their adverse claims over the lands now in dispute which made the defendants to take out native summons against the claimants.
On the present cause of action, defendants stated that it arose in 2007 when the claimants went into Ogwugwu land at night, hired labourers and harvested all the cassava tubes planted by the defendants in Ogwugwu land. That the defendant lodged a complaint at the Osisioma Police Station against the claimants for stealing their cassava tubers. While the claimants in response took out action before the Osisioma Customary Court against them. That it was based on the defendants’ application that the Customary Court suit was eventually transferred to the High Court for hearing and determination.
The defendants gave evidence pertaining to particulars of damages as follows:
i. Value of tubers N800,000.00
ii. General damages N200,000.00
Total N1,000,000.00
Defendants’ DW1 Raphael Madugba under cross-examination stated that 1st defendant is his father while 2nd defendant is the son of George Madugba. DW1 agreed that late Nwangwa Madugba was his father’s senior brother. DW1 also admitted that Nwogu Agughara is from their family. DW1 agreed that their family members were the defendants in the 1964 suits. DW1 accepted that there is only one Ogwugwu land in Ihie village. That he did not say that OGA inherited Okpulor Akpuruka and Nkpi lands. That Osi had one son called Mgboha Osi. Stated that the defendants have been entering the lands stated to be in dispute by the claimants since 1964 up till 2007.
DW2 Emeka Bekee who testified on behalf of the defendants as boundary neighbour agreed that Surveyor John Ahukanna of the claimants’ family lived and died on Okpulor Akpuruka land. DW2 stated that nobody lives in Akpuruka land that defendants reside in Ogwugwu land.
DW1 equally agreed that Enwereji Omenazu of the claimants’ family lived and died in Ogwugwu land. DW1 also stated under cross examination that Oga was survived by three sons while Osi had only one son. DW2 denied that Osi deforested all the lands in Ihie.
In their defence to the counter-claim, the claimants re-asserted ownership to Ogwugwu land stating that all the successive heads of their Ahukanna family have held Ogwugwu land as “Ohia Oru Vuruofo”. Claimants stated with respect to Okpulor Akpuruka land that apart from the Okpulor Akpuruka in dispute that other kindred in Ihie Village including the defendants/counter-claimants have their separate Okpulor Akpuruka land from time immemorial except Umuigwe kindred.
On Okpulor Ofor land, claimants stated that no land in Ihie village answers Okpulor Ofor. That it is in the neighbouring Umuduru Village that there is an Okpulor Ofor land. Claimants also stated that they know of Okpulor Ukwu land not Okpulor Ukwu Uzo land as referred to by defendants/counter-claimants and that each kindred in Ihie have their own separate Ikpulor Ukwu land and that it is not in dispute.
Claimants challenged the traditional history of the lands put forward by the defendants and asserted that Osinachi deforested only two lands in Ihie namely: Egbelu Ukwu and Ala Oji. Claimants stated that George Madugba of the defendants’ family lived at Okpulor Egbelu land with his sons Agughara and Michael Madugba and that Okpulor Egbu land is not in dispute. Claimants stated that they are relying on the judgment embodied in Exhibits “A and B” to show that they are owners of the lands in dispute and therefore entitled to claim damages for trespass against the defendants. Claimants denied ever attending the native summons by the defendants as they do not believe in juju by reason of their Christian faith.
Under cross-examination, CW1 HRH EZE EMMANUEL AHUKANNA stated that he knows the defendants Agughara and Achilefu family. That the portion of Okpulor Akpuruka land where late Surveyor John Ahukanna had his abode is their Ahukanna family portion of Okpulor Akpiruka.
CW2, a boundary neighbor answered under cross-examination that Ogwugwu land is owned by Ihie and that Nkpi land is not in dispute.
xxx
I.I. Nwaogwugwu Esq. for the Claimants/defendants raised jurisdictional points relating to limitation of action. His contention is to the effect that as the defendants averred that the cause of action arose in 1954, that the counter-claim is therefore not maintainable since by virtue of the Abia State Limitation Law Cap 24 Laws of Abia State, 1990, Sections 3 and 18 thereof, the defendants’ failure to take action within 10 years from the date the cause of action accrued to them is fatal and robs the Court of the jurisdiction to entertain the claim. D.I.W. Ahukanna on reply on point of law merely stated that the cause of action arose only in 2007 when the claimants entered into Ogwugwu land and again that this point was not pleaded.
I agree with D.I.W. Ahukanna that the claimants are not entitled to raise any defence pertaining to limitation of action having not specifically pleaded it in their “Reply to Statement of Defence and Defence to Counter-claim”. By Order 29 Rule 7(1) and (2) of the Abia State High Court (Civil Procedure Rules) 2009, a party who intends to rely on any special defence which make an action or counter-claim not maintainable shall specifically plead same. In the case of KETU VS ONIKORO (1984) 10 SC 265, it was held that limitation law and fraud were germane to the case and must be specifically pleaded. I find and hold that the failure by the claimants/defendants to specifically plead statute bar disentitles them to invoke it in the proceedings.
Now the root of title relied upon by the defendants/counter-claimants to prove ownership of the lands stated by them to be in issue is traditional evidence. In the case of AJIBARE VS AKOMOLAFE (2012) 10 WRN 62 AT 109, the Court of Appeal Ekiti Division held as follows: xxx
The lands stated by the defence to be in dispute are: Ogwugwu land, ¼ of Akpuruka land, Okpulor Ofor land and Okpulor Ukwu Uzor land. The defendants averred that Osinachi their great ancestor founded all the lands in Ihie through deforestation except Okpulo Ukwu Uzo which was deforested by Agugo the founder of Umuagugo. Whereas the defendants pleaded that Osi had two sons named Oga and Atubi who shared his estate at his death, the defendants did not include Okpulor Akpuruka land as part of the estate of Osi that his two sons shared. The implication is that they did not plead their root of title to Okpulor Akpuruka land.
Under cross-examination, DW1 who stated that they are of Agughara and Achilefu family stated that Nwogu Agughara earlier listed as one of the people who held Ogwugwu land in trust as family head was family head of Agughara and not Madugba. Yet, Madugba family is not among the families DW1 mentioned in paragraph 21 of the written statement on oath as constituting the four families into which the children of Osi were divided. By paragraph 1(b)(iii), the defendants listed the lands stated to have been deforested by Osi the founder of Ihie and left out Okpulor Akpuruka land stated to be one of the lands in dispute. Okpulor Ofor land was similarly left out of the list of lands that Osi deforested.
In fact, DW1 emphatically answered under cross-examination that Okpulor Akpuruka was not one of the lands that their ancestor Oga inherited.
On the lineage of the defendants whereas the defendants pleaded in the Statement of Defence/Counter claim that Osi begat Oga and Atubi as his sons, DW1 under cross-examination answered that Osi had only one son called Mgboka. See also paragraph 1(v) of the rejoinder where contrary to the statement of defence, the defendants turned round to plead that Osi was survived by one son called Mgboha and that it was Mgboka and not Osi anymore that begat Atubi and Oga.
Again contrary to the statement of defence/counter-claim in paragraph 14 specifically, the defendants in paragraph 1(vi) of their Rejoinder averred that Oga begat three sons instead of two as earlier pleaded in the Statement of Defence/Counter-claim.
DW2 also contradicted the pleadings and evidence of defendants that Osi deforested all the land in Ihie by stating to the contrary under cross- examination.
The above highlighted inconsistences and contradictions in the traditional history of the lands in dispute put forward by the defence have knocked the bottom off their case. The inconsistencies and contradictions have clearly shown how unreliable and incredible the traditional history relied upon by the defendants is. The inevitable impression is that the names and lands paraded by the defendants/counter-claim as either the names of their ancestors or lands founded by the so called ancestors were largely a product of guesswork and/or speculation. I cannot even at this stage accord any credibility or probative value to the counter-claim. It is bound to fail since the root of title pleaded has broken up into pieces.
Defendants/counter-claimants action fails and is hereby dismissed.”
The lower Court further awarded costs of N20, 000.00 to the Respondents.
Aggrieved by the decision of the lower Court, the Appellants initiated this appeal by lodging at the registry of the lower Court on 11/8/2014, a notice of appeal dated 18/7/2014. The 10 grounds of appeal contained in the notice of appeal shorn of their respective particulars are reproduced hereunder: –
“GROUND ONE:
ERROR IN LAW
The learned trial Judge erred in law when he failed to consider the facts in the Exhibits “A” and “B” in his judgment notwithstanding the facts that he admitted Exhibits “A” and “B” as relevant facts in his judgment.
GROUND TWO:
ERROR IN LAW
The learned trial Judge erred in law when he held in his judgment that the OGWUGWU LAND in dispute in this case is the same as the OGWUGWU LAND which was in dispute between Claimants/Respondents father and some members of the Defendants/Appellants family are the same, notwithstanding the facts is that (sic) Exhibit “A” the evidence of the father of the Claimants/Respondents was that that (sic) OGWUGWU LAND in dispute in that case was OHIA RUA VURU OFOR which according to custom is a possession (sic) the family head only for his exclusive use, notwithstanding the fact that the Claimants/Respondents gave evidence that the OGWUGWU LAND in this case is their family communal land which they share among family members during the farming season.
GROUND THREE:
ERROR IN LAW:
The learned trial Judge erred in law when he failed in his judgment to award OGWUGWU LAND to the Defendants/Appellants having regard to the admission of the father of the Claimants/Respondents in Exhibit “A” that he brought Juju for the father of the Defendants/Appellants in respect of Ogwugwu land in 1954 for the father of the Defendants/Appellants to swear for him that the Defendants/Appellants family are the owners of OGWUGWU LAND and that he sworn (sic) same and survived the oath according to custom.
GROUND FOUR:
ERROR IN LAW:
The learned trial Judge erred in his judgment when he found the Defendants/Appellants liable in trespass without proof notwithstanding the facts the admissions and uncontradicted evidence of the parties that AKPURUKA LAND in dispute as well as OKPULOR UKWU UZO were shared among the four families in Ihie village and each family till today is in peaceable possession on (sic) its share and that NKPI LAND is not in dispute in this case.
GROUND FIVE:
ERROR IN LAW
The learned trial Judge erred in law in his judgment notice (sic) of the evidence before him (sic), considered them, the contradictions admissions prevacations (sic), in the evidence of the parties and their witnesses also the facts shown in the Exhibits tendered that is to say Exhibits Ä”, “B”, “C, “D”, E”, E1”, E3” & E3” notwithstanding the fact that he said he rely (sic) on credible and liable evidence on (sic) arriving at his judgment.
GROUND SIX
ERROR IN LAW
The learned trial Judge erred in law in holding that the Claimants/Respondents put forward a more cogent, reliable, traditional evidence in proof of their case that the Defendants/Appellants without regard to the fact that the traditional evidence of the claimants put forward in their evidence was merely the catalogue of names of the supposed members of their family whom they claimed succeeded to the land in dispute without showing how, when or the acts each of them carried out on the land in dispute or in what capacity each of them held the land either for himself absolutely or in trust for the family.
GROUND SEVEN
ERROR IN LAW
The learned trial Judge erred in law in given (sic) judgment in favour of the claimants without regard to the fact that the claimants did not discharge the onus of proof required on a claimant in all land cases.
GROUND EIGHT
ERROR IN LAW
The learned trial Judge erred in law when he failed to resolve all issues between the parties as giving (sic) in evidence by the parties to prove their claim and counter claim which would have enable (sic) him to resolve all the issues between the parties so as not to give way to future litigation between the parties or their predecessors (sic).
GROUND NINE
ERROR IN LAW
The learned trial Judge erred in law in holding that claimants proved the identity of the lands in dispute with regard to the facts that it was the Defendants who challenged the claimants saying they did not know the identity of the land where upon the Defendants filed a survey plan showing the identity of the lands with their boundaries and features as a result on (sic) which the claimants filed a survey plan which did not prove the identities of the land in dispute. But the learned trial judge preferred the claimants’ survey play (sic) to that of the defendants without given (sic) any reason.
GROUND TEN
ERROR IN LAW.
The judgment is against the weight of evidence.”
The reliefs sought by the Appellants in this Court are: (i) to set aside the judgment of the learned trial Judge in Suit No. HOS/77/2010 aforesaid and dismiss the suit; (ii) to award the Defendants/Counter claimants all the reliefs claimed by them in the above suit in their counter claim.
On 20/10/2021 when this appeal was entertained, learned counsel for the Appellants C.D. Wokonko adopted and relied on the Appellants’ brief of argument dated 17/9/2018 and filed on 15/10/2018, but deemed as properly filed on 31/1/2019 as well as the Appellants’ reply brief dated 16/1/2018 and filed on 18/1/2018 but deemed as properly filed and served on 31/1/2019. Respondents were absent and not represented by counsel at the hearing of the appeal despite the service of hearing notice on them on 15/10/2021. Consequently, the Court deemed the Respondents as having argued the appeal on the Respondents’ brief of argument dated and filed on 19/12/2018 but deemed as properly filed on 31/1/2019.
The Appellants raised 7 issues for the determination in this appeal. They read: –
“1. Whether or not the learned trial Judge erred in law when he failed to consider the facts in Exhibit A and B and the evidence thereto which he admitted were relevant facts in his judgment (distilled from grounds one, two, and three).
2. Whether or not the learned trial Judge erred in law when he held that the Defendants/Appellants are trespassers to the Akpuruka land Okpulor Ukwu Uzo land and Mkpi land having regard to evidence before him (distilled from ground four)
3. Whether or not the learned trial Judge relied on credible evidence before him in arriving in his decision (distilled from grounds five and six).
4. Whether or not the Claimants/Respondents discharged the onus proof of (sic) required of a claimant to succeed in land cases: (distilled from ground seven).
5. Whether or not the learned trial Judge resolved the issues between the parties as placed before him (distilled from ground eight).
6. Whether or not the learned trial Judge was right in law to hold that the Claimants/Respondents proved the identity of the lands in dispute having regard to the evidence before him (distilled from ground nine).
7. Whether or not the judgment is against the weight of evidence.”
On their part the Respondents formulated two issues for the determination of the appeal in their brief of argument. The two issues are: –
“1. Whether the findings of fact by the trial Court that led to its judgment in favour of the Claimants/Respondents are supported by the evidence on record.
2. Whether the trial Court was right when it awarded judgment in favour of the Claimants/Respondents and held the Defendants/Appellants as trespassers by dismissing Defendants/Appellants Counter-Claim.”
The cause of action of the Respondents in the action which they initiated against the Appellants is basically founded in/on the tort of trespass to land. However, as they also claimed for an order of perpetual injunction, they thereby put their title to the parcels of land in dispute, in issue. However, this is not to say that if they failed to prove their title to the said parcels of land which they claimed to be in possession of, their action for trespass must fail. This is because it is clear in law that any person in possession of land can properly maintain an action in trespass in respect of the land against any other person except the true owner of the same. In the same vein it is not in doubt that the Appellants who also claim to be in possession of the parcels of land in dispute, directly put their title to the said parcels of land in dispute in issue particularly given their claim for a declaration of entitlement to the grant of a customary right of occupancy over the parcels of land the Respondents claimed to be in their possession; coupled with their claims for trespass and damages for the said trespass. For the foregoing, see the following cases amongst many others: –
(i) SHOBO V SHOBO [1962] 1 SCNLR 428 wherein the Supreme Court dwelling on trespass to land stated thus: –
“The action for trespass to land is founded on possession. It is well established that a defendant may dispute the plaintiff’s possession or may set up an affirmative case and assert that he had no right to enter, the most common form being the assertion by the defendant that he himself is owner. xxx
There is no doubt that the defendants have availed themselves of both these defences; and therefore the issue of title has been raised. As I understand it, in an action for trespass, once the plaintiff has proved possession, it falls upon the defendants to justify their entry that they had a better title. See Ogunbambi V Abowab, 13 W.A.C.A. 222. It was said in that case in this respect an action in trespass differs from one of recovery of possession or for declaration of title.”
(ii) AMAKOR V OBIEFUNA (1974) NSCC 141, wherein the Supreme Court per Fatai-Williams, JSC (as he then was) stated thus: –
“xxx
It is trite law that trespass to land is actionable at the suit of the person in possession of the land. That person can sue for trespass even if he is neither the owner nor a privy of the owner. This is because exclusive possession of the land gives the person in such possession the right to retain it and to undisturbed enjoyment of it against all wrongdoers except a person who could establish a better title.
Therefore, anyone other than the true owner, who disturbs his possession of the land, can be sued in trespass and in such an action, it is no answer for the defendant to show, (as the defendant/respondent had sought to show in paragraph 7 of his statement of defence, although he gave no evidence in support of this averment), that the title to the land is in another person. To resist the plaintiff’s claim, a defendant must show either that he is the one in actual possession or that he has a right to possession.
xxx
This alleged possession must, of course, be adverse to that claimed and proved by the plaintiff/appellant, and although two or more persons may be concurrently in possession of a piece of land as joint tenants or as tenants in common, there can be no such thing as concurrent possession by two persons (such as the plaintiff and the defendant in the present case) claiming adversely to one another.
Thus, a trespasser in possession of land, as against everyone but the true owner, can devise or convey his interest in the land or transmit it by inheritance (see Asher v. Whitlock (1865) LR. 1 Q.B. page 1).
In this connection, we refer, with approval, to the statement of Cockburn, C.J. at page 5 of the judgment in the Asher case.
It reads
“But I take it as clearly established, that possession is good against all the world except the person who can show a good title; and it would be mischievous to change this established doctrine. In Doe v. Dyeball Mood and M 346, one year’s possession by the plaintiff was held good against a person who came and turned him out; and there are other authorities to the same effect. Suppose the person who originally inclosed the land had been expelled by the defendant, or the defendant had obtained possession without force, by simply walking in at the open door in the absence of the then possessor, and were to say to him, ‘you have no more title than I have, my possession is as good as yours,’ surely ejectment could have been maintained by the original possessor against the defendant.”
It only remains for us to add that, on the authority of the above doctrine, an original trespasser, as against every one but the true owner, can, if he is in exclusive possession of the land, maintain an action in trespass against a later trespasser whose possession, whether taken by force or not, would be clearly adverse to that of the original trespasser. Therefore, assuming, without deciding, that the plaintiffs/appellants in the case in hand is also an original trespasser, it seems to us that they can maintain an action for trespass against the defendants/respondents who has disturbed their possession.
xxx”
See also the cases of YUSUF V. AKINDIPE (2000) LPELR-3532(SC) and OMOTAYO V. CO-OPERATIVE SUPPLY ASSOCIATION (2010) LPELR-2662(SC).
Against the backdrop of the foregoing, and in the light of the positions enunciated in the cases cited above, particularly the position of the law that possession of a disputed parcel of land cannot be in two persons claiming adversely of one another as well as the position of the law to the effect that the plaintiff in such a situation has to establish a better title to the disputed land, the simple or straightforward issues for determination in the instant appeal are as to (i) “whether the Appellants are right in their position that the lower Court was wrong to have found in favour of the Respondents and
(ii) whether the lower Court was wrong to have dismissed their (Appellants’) counter-claim”. Accordingly, the issues formulated for the determination of the appeal by both the Appellants and the Respondents will abide the resolution by the Court of the two simple issues stated hereinbefore. It should also be appreciated that inasmuch as the position of the law is that a counter-claim is a separate and independent action, these self-same issues have to be resolved in favour of the Appellants before the lower Court can be said to be wrong in dismissing the counter claim of the Appellants.
Dwelling on their issue 1, the Appellants contended that the lower Court failed to test the evidence of the Respondents against Exhibits A and B. They also submitted that the lower Court shut its eyes to the contradictions between the Respondents’ evidence and Exhibits A and B and consequently arrived at an erroneous conclusion.
Dwelling on their issue 2, it is the stance of the Appellants in the main that if the lower Court had considered the admission of the Respondents that Okpulor Akpuruka land was shared with each family having a portion as well as the content of Exhibit B, the said Court would not have arrived at a conclusion that they (Appellants) are trespassers on the parcels of land in dispute.
Dwelling on their issue 3, it is the stance of the Appellants that the lower Court failed to consider the contradictions in the evidence adduced by the Respondents. They also argued that the lower Court did not consider Exhibits A – E3. They further submitted to the effect that the Respondents did not successfully challenge by credible evidence their (Appellants’) claims over the four pieces of land the subject of their counter-claim.
Dwelling on their issue 4, the Appellants in the main submitted that the Respondents failed to discharge the burden of proof required of them as claimants given the contradictions in the evidence they placed before the lower Court particularly, the admission in the Respondents’ defence to the counter claim that Okpulor Ofor land and Okpulor Ukwu land does not belong to them and referred to pages 124-125 of the record.
Dwelling on their issue 5, the Appellants submitted to the effect that the lower Court failed to resolve the issue of the claim of the Appellants over 1/4 of the Okpulor Ukwu Uzo land and 1/4 of Okpulor Akpuruka land and the claim of the Respondents that their portion of Okpulor Akpuruka land is being occupied by late Surveyor John Ahukanna’s family. The Appellants further submitted that the lower Court failed to pronounce upon the issue of oath taking and thus failed to resolve the issues placed before it.
It is the stance of the Appellants in respect of their issue 6, that the lower Court erred in holding that the Respondents proved the identity of the parcels of land in dispute. The Appellants further submitted that Exhibit C did not show the identity or features of the parcels of land claimed by the Appellants. They (Appellants) added that the Respondents as shown in the said Exhibit C failed to indicate the portion of Okpulor Akpuruka owned by each of the families. Further, that the Respondents included in the said Exhibit, Mkpi land although it was the Respondents’ case that Mkpi land was not in dispute. It was further argued that the Appellants by Exhibit D showed the identity, boundaries and features of and or of the pieces of land in dispute. The Appellants contended that the lower Court chose to prefer Exhibit C tendered by the Respondents over Exhibit D of the Appellants without giving cogent reasons.
Dwelling on their issue 7, the Appellants submitted that if the lower Court had properly considered the contradictions and admissions in the evidence of the Respondents along with the Exhibits tendered, the lower Court would not have held that the Respondents proved their case. They added that the lower Court misconceived the respective cases of the parties and as such its decision ought to be set aside. This Court was urged by the Appellants to resolve all the issues raised in the instant appeal in their favour.
In arguing the two issues they formulated for the determination of the appeal together, the Respondents submitted to the effect that there were no contradictions in the evidence they adduced before the lower Court and that the judgment of the lower Court is supported by credible evidence. Respondents argued that the parties being privies to the parties in Exhibits A and B, can rely on the said Exhibits as constituting acts of possession and ownership of the parcels of land in dispute and further that the lower Court rightly held that Ogwugwu land in dispute is the same as that in Exhibit A. The Respondents’ stance is that the issue of oath taking was resolved by the judgments in Exhibits A and B and that the decision of the Court in Exhibit A which is yet to appealed against is binding on the parties. Respondents further argued to the effect that any act of the lower Court in evaluating the evidence presented before it vis-à-vis that in the said Exhibits A and B would amount to the lower Court sitting on appeal over the decisions in question. It is the stance of the Respondents that Exhibits E, E1, E2 and E3 are irrelevant in/to the instant case having been made after the judgments in Exhibits A and B. Respondents also submitted that some of the parcels of land the Appellants claimed in their counter-claim were not claimed by them (Respondents) in their own action. Such parcels of land included Okpulor Ukwu Uzor land and Okpulor Ofor land. That in the circumstances the lower Court rightly considered relevant and substantial admissions as well as credible evidence in arriving at its decision finding the Appellants liable in trespass over the parcels of land claimed by them. That there were no substantial or material discrepancies in the evidence of the Respondents. The stance of the Respondents is that the Appellants have not shown that the findings of the lower Court did not flow from the evidence adduced before that Court and that an appellate Court can only interfere with the findings of the lower Court where it is shown that such finding of facts are not supported by evidence. Respondents further posited that they proved their case on traditional history and that Exhibits A and B supports the oral evidence of the Respondents’ witnesses. That the lower Court rightly held that the Respondents proved the identity of the land in dispute given the evidence before that Court more so as Exhibits C and D are clear on the identity of the parcels of land in dispute the identity of which are well known to the parties. It is the Respondents contention that the counter-claim of the Appellants was caught by the doctrine of estoppel res judicata given Exhibits A and B. In conclusion, the Respondents submitted that the judgment of the lower Court is not against the weight of evidence as the same was borne from a proper evaluation of the evidence of the parties.
I see no need to dwell on the Appellants’ reply brief of argument as the arguments contained therein are not in respect of any new or fresh issue that can be said to have been raised by the Respondents in their brief of argument. In this regard see Order 19 (5) of the Court of Appeal Rules, 2021, and the case of CAMEROON AIRLINES V. OTUTUIZU (2011) LPELR-827 (SC).
Before I begin with a consideration of the issues so nominated for the determination of this appeal, I wish to bring to the fore that the Appellants, having regard to their grounds of appeal apparently are calling on this Court to appraise the evidence placed before the lower Court and ascertain whether indeed the lower Court arrived at its decision upon proper evaluation of evidence adduced before it. The Appellants contend that the evidence of the Respondents was marked with inconsistencies, that the lower Court failed to give adequate interpretation to Exhibits A and B, that the identities of the parcels of land in dispute were not proved by the Respondents and that the evidence of tradition adduced by the Respondents was insufficient to sustain the judgment of the lower Court granting them their claims.
I further wish to emphasis the established principle of law that the taking of evidence, evaluation of the same, ascription of probative value thereto and the assessment of the credibility of witnesses/evidence are issues exclusively within the terrain of a trial Court, entertaining a case, and it is not for an appellate Court to interfere with the lower Court’s findings on such evidence except where: –
a. No finding was made on a relevant or material issue;
b. Where there is no evidence to support the particular finding complained of;
c. The evidence which the trial Court failed or neglected to evaluate is a document tendered as exhibit;
d. The finding complained of, is perverse and not the result of the proper exercise of the discretion of the Court to believe or disbelieve witnesses;
e. That proper inference(s) and or deductions is/were not drawn or made from accepted facts;
f. There has been a misapprehension by the trial Court as to what the antecedent presumptions were and where the onus of proof lies.
See the cases of AYUYA V YONRIN (2011) LPELR-686(SC) and OJIKUTU V. KUTI (2021) LPELR-56231(SC) amongst many others.
It must also be borne in mind that the position of the law is that an appellate Court entertaining an appeal is not concerned with the correctness of the reasons for the judgment on appeal; an appellate Court is only concerned with the correctness or otherwise of the decision on appeal. Hence, it is not every error in the judgment of a lower Court that would warrant the setting aside of the judgment of the said Court. An error, to warrant the same must have occasioned a miscarriage of justice to an appellant. See the cases of NDAYAKO V DANTORO (2004) LPELR-1968 (SC) and AJIDAHUN V. OJO (2014) LPELR-41108(CA).
The issue as to which of the parties (whether the Respondents or the Appellants) proved or established a better title to the parcels of land which they respectively claim to be in their exclusive possession is a common one to be decoded in the main case and also in the counter claim. It would however appear that the Appellants do not appreciate the fact that they can only counter-claim against the Respondents in respect of parcels of land which the said Respondents are claiming to be in possession of. This is because it is antithetical to reasoning that a counter claimant would be seeking for declaration of title in respect of parcels of land which is not being claimed as his/their own by the initiator of the main action. Against this backdrop, it is worrisome that the Appellants expected or are challenging the decision of the lower Court in not granting their declaratory relief in respect of Okpulor Ukwu Uzor land and Okpulor Ofor land and which parcels of land the Respondents never claimed that the Appellants trespassed upon. The Appellants in my considered view, would appear to want to surreptitiously establish their ownership or right to ownership of the aforementioned parcels of land by introducing the said parcels of land into the case of the Respondents without joining to their counter claim the persons that are in possession of the same. This glaringly would be in violation of the hallowed principle of fair hearing as it relates to those in possession of the said Okpulor Ukwu Uzor land and Okpulor Ofor land. To this extent therefore, even if the Appellants are correct that the lower Court was wrong to have dismissed the entirety of their counter claim, the said Court cannot be said to be wrong in dismissing the Appellants’ claim in respect of parcels of land the Respondents do not claim to be their own.
On the issue of identities of the parcels of the land in dispute, it would also appear that the Appellants totally misapprehended the case of the Respondents vis-à-vis their counter-claim. This is because (and permit me my lords to use the word “antithetical” again) it is simply antithetical for the Appellants in their counter-claim to have claimed for declaration of title and trespass in respect of parcels of land in dispute if they are not known to them. It is therefore clear that that the position of the Appellants cannot legally stand given the very fact that they (Appellants) have brought a counter-claim against the Respondents in respect of the parcels of land which the said Respondents claim to be in their possession and as they (Appellants) have also sought for damages and injunction in respect of the said parcels of land. The fact that the said parcels of land are known by some other name or names by the Appellants, cannot in the circumstances of the counter claim of the Appellants necessitate the establishment of the said parcels of land in the manner in which the Appellants would appear to want. This is more so as the lower Court held to the effect that given the pleadings of the Appellants and evidence before it parties were not in doubt as to the identities of the parcels of land claimed by the Respondents in the main action.
Flowing from the foregoing is that the lower Court was eminently correct when it found in its judgement to the effect that the Appellants know the identity of the various parcels of land they were alleged by the Respondents to have trespassed on. See the cases of AYUYA V. YONRIN (2011) LPELR-686(SC) and ATANDA V. ILIASU (2012) LPELR-19662(SC).
In respect of all the arguments weaved around Exhibits A and B by the Appellants, all I can say is that the use to which the Appellants expected the lower Court to have put the said Exhibits is not supported by the relevant provisions of the Evidence Act, 2011 dealing with the use to which proceedings and judgments in a former case can be put and/or utilised. See in this regard the provisions of Section 46 of the Evidence Act 2011 which states thus: –
(1) Evidence given by a witness in a judicial proceeding, or before any person authorised by law to take it, is admissible for the purpose of proving in a subsequent judicial proceeding or in a later stage of the same judicial proceeding the truth of the facts which it states, when the witness cannot be called for any of the reasons specified in Section 39, or is kept out of the way by the adverse party. Provided that –
(a) the proceeding was between the same parties or their representatives in interest;
(b) the adverse party in the first proceeding had the right and opportunity to cross-examine; and
(c) the questions in issue were substantially the same in the first as in the second proceeding.
(2) xxx
Also relevant is the provisions of Sections 232 and 233 of the Evidence Act (supra) which state thus –
“232: A witness may be cross-examined as to previous statements made by him in writing or reduced into in writing or reduced into writing and relative to matters in question in the suit or proceeding in which he is cross-examined without such writing being shown to him or being proved, but if it is, intended to contradict such witness by the writing, his attention must, before such writing can be proved or such contradictory proof given, be called to those parts of the writing which are to be used for the purpose of contradicting him; Provided always that it shall be competent for the Court at any time during the trial to require the production of the writing for its inspection, and the Court may thereupon make use of it for the purposes of the trial, as it deems fit.
233: The credit of a witness may be impeached in the following ways by any party other than the party calling him or with the consent of the Court by the party who calls him –
(a) by the evidence of persons who testify that they, from their knowledge of the witness, believe him to be unworthy of credit;
(b) by proof that the witness has been bribed, or has accepted the offer of a bribe, or has received any other corrupt inducement to give his evidence; or
(c) by proof of any part of his evidence which is liable to be contradicted.”
It is in my considered view clear as crystal from the provisions re-produced above, that it is not for the Court on its own to rake for contradictions in the evidence of any party or witness given in a previous proceeding but for the party seeking to indict the Court for not taking note or cognizance of the alleged contradictions in the evidence adduced in a previous proceeding to demonstrate before an appellate Court what the said party did to bring the said contradictions to the attention of the lower Court in question.
On the other hand and given the position of the Respondents in their brief of argument wherein they argued to the effect that the lower Court was wrong in not applying Exhibits A and B as constituting estoppel per rem judicata in the instant case (a position in respect of which there is no ground of appeal and or Respondent’s notice for this Court to affirm or vary the decision of the lower Court on that ground), I am however of the considered view that it is a serious misapprehension on the part of the said Respondents of the doctrine of estoppel per rem judicata and issue estoppel that has resulted in the position taken by the Respondents in respect of the said Exhibits A and B. This is because it is clear from the judgment of the lower Court that even though the lower Court did not specifically state so or use the term issue estoppel, all the said Court did in finding the aforementioned Exhibits to have established acts of ownership and possession in favour of the said Respondents was nothing more than an application of the doctrine of issue estoppel in the instant case. See in this regard the case of IKENI V. EFAMO (2001) LPELR-1474(SC) and BWACHA V. IKENYA (2011) LPELR-8105(SC).
It is the last and the most important of the factors or ingredients that parties wherein have to establish i.e. the issue of better title that will now be considered. Having regard to the respective cases of the parties, neither of them claim to be the original owners of the various parcels of land in dispute. It is not in doubt that the Respondents and Appellants respectively relied on evidence of tradition in proving their ownership to the parcels of land which they claim they are entitled to.
In support of the fact that the lower Court appreciated that it is evidence of tradition that the parties relied on to establish their respective ownership to the parcels of land in dispute, it’s the fact that the lower Court, as it can be seen from the portions of its judgment reproduced hereinbefore, extensively considered not only the glaringly different evidence of traditional history adduced by the parties, but also apparently relied on numerous acts of ownership and possession adduced by the Respondents in finding them to have proved their right to the ownership of the parcels of land in dispute. The lower Court in my considered view was very correct to have proceeded in the manner it did in respect of the Respondents’ case having regard to the provisions of Section 35 of the Evidence Act which states thus: –
“35: 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 with it 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 also the cases of IDUNDUN V OKUMAGBA (1976) LPELR-1431(SC) and AYORINDE V SOGUNRO (2012) LPELR-7808 (SC) wherein the evidence adduced in the manner specified in Section 35 has been judicially recognised as one of the 5 ways or methods of proving ownership to land.
On the other hand, the lower Court having specifically found the Appellants not to have established their ownership to the parcels of land in dispute by any iota of credible evidence in my considered view, could not have properly found the counter-claim of the said Appellants as established at least as it relates to declaration of title whether or not the Respondents controverted the traditional history of the Appellants. This is because it is after a party seeking declaration has put forward evidence, that on the face of it entitles him to the declaration that the Court has the duty to weigh the evidence of the adverse party which in this case are the Respondents, in the counter-claim of the Appellants in which the said Appellants are Claimants. See the case of ONOVO V. MBA (2014) LPELR-23035(SC).
Furthermore, the lower Court having regard to its judgment clearly found the evidence of the Appellants unreliable and implausible. The duty and burden of proof therefore was on the Appellants as counter claimants to prove their title to the parcels of land in dispute given their express relief for declaration of entitlement to the customary right of occupancy in respect of the same vis-à-vis the case of the Respondents in which their title to the parcels of land in dispute only arose as a result of their claim for trespass because they joined same with a claim for perpetual injunction. This is more so as the lower Court in portions of its judgment reproduced hereinbefore distinctively found that the Respondents were in actual possession of the parcels of land in dispute prior to the Appellants trespassing. The duty and burden of proof was on the Appellants as Claimants in their counter claim to have established a better title to the parcels of land in dispute and in respect of which the Respondents never sought for a declaration of title despite being in exclusive possession prior to the trespass committed by the Appellants on the said parcels of land. It must always be borne in mind that a claim for trespass is rooted in exclusive possession and that even the exclusive possession, if illegal can still rightly sustain the said claim. The only person against whom a person in illegal possession of a parcel of land cannot succeed in an action for trespass is a true owner. The Appellants having not established their title to the parcels of land in dispute not to talk of better title, in the circumstances cannot oust the possession of the said parcels of land by the Respondents.
Flowing from the above is that the resolution of the two issues earlier set out in this judgment by the Court to wit: whether the Appellants are right in their position that the lower Court was right to have found in favour of the Respondents and whether the lower Court was wrong to have dismissed their (Appellants’) counter-claim, is that the lower Court was eminently right. Consequently, all the issues formulated by the Appellants for the determination of this appeal are resolved against them without much ado. On the other hand, the two issues formulated by the Respondents for the determination of this appeal are resolved in their favour.
In the final analysis the instant appeal is unmeritorious and it fails. It is accordingly dismissed. The judgment of the lower Court awarding the Respondents the reliefs they seek in their action and dismissing the counter-claim of the Appellants in its entirety, is affirmed.
Costs of N200,000.00 is awarded against the Appellants and in favour of Respondents.
OLUDOTUN ADEBOLA ADEFOPE-OKOJIE, J.C.A.: I have had a preview of the judgment of my learned brother, AYOBODE OLUJIMI LOKULO-SODIPE, JCA, where the facts and contentions of Counsel to the parties have been set out and determined. I am in agreement with my learned brother’s reasoning and conclusions.
As resolved by my learned brother and which I agree with, a Plaintiff who claims damages for trespass as well as injunction regarding the land in dispute puts his title in issue. He succeeds on proving that he has a better title to the land than the Defendant. The principle also applies, as in the instant case, where the Defendants (Appellants herein) also counter-claimed for the land in dispute.
In establishing title, either party may avail himself of any of the five ways of proving title and succeeds on the strength of his case rather than on the weakness of his adversary. See Olaniyan v. Fatoki (2013) 17 NWLR Part 1384 Page 477 at 493 para A-C per Muhammad, JSC; Oyeneyin v. Akinkugbe (2010) 4 NWLR Part 1184 Page 265 at 95 Para D-H per Adekeye JSC; Sogunro v. Yeku (2017) 9 NWLR Pan 1570 Page 290 at 329-330 para H-A per Peter-Odili, JSC.
Civil cases, including declarations of title to land are decided on the balance of probabilities. The test is whether the Plaintiff has been able to prove to the satisfaction of the Court that he has a better title than the Defendant which is what the Respondents have successfully done, as rightly held by the lower Court.
On the issue of the identity of the lands in dispute, it is trite law that, a defendant who counter-claims for declaration of title to land in dispute cannot turn round to argue that the identity of the land has not been established. See Anyanwu v. Uzowuaka (2009) 13 NWLR Part 1159 Page 445 at 476 Para D-Eper Tabai-JSC (as he then was); Oke v. Sotunde (2019) 4 NWLR Part 1661 page 119 at 136 para F per Ekanem, JCA.
Also worthy of mention is the fact that the Appellants are challenging the decision of the lower Court in not granting the reliefs they claimed for in their counter-claim, which includes a declaration of title in respect of Okpulor Ukwu land and Okpulor Ofor land which the Respondents never laid a claim to in the main case. One wonders how a party can ‘counter-claim’ what was never claimed in the first instance. The Appellants, It appears, failed to truly appreciate the very nature of a counter-claim.
The nature of a counter-claim was well elucidated by the apex Court in Nsefik v. Muna (2014) 2 NWLR Part 1390 Page 151 at 184 Para C-D per Ariwoola, JSC thus:
A counter-claim is a distinct cause of action and has all the tapestry of an action. It is a weapon of offence which enables a defendant to enforce a claim against the plaintiff as effectively as in an independent action. It must, however, be directly related to the principal claim but not outside and independent of the subject matter of the claim.
(Underlining mine)
Learned Counsel to the Appellants has also challenged the evaluation of the evidence by the lower Court. Findings of fact by the trial judge involve both perception and evaluation, I hold. It is only where and when the trial Court fails to evaluate the evidence before it properly or at all that a Court of Appeal can intervene and itself re-evaluate such evidence, by way of re-hearing as if it were a trial Court. See Esuwoye v Bosere (2017) 1 NWLR Part 1546 page 256 at 315 Para C-F per Onnoghen, JSC (as he then was); Momoh v. Umoru (2011) 15 NWLR Part 1270 Page 217 at 281 Para C perAdekeye, JSC.
Consequently, where evidence is properly evaluated i.e. to say when all the principles of law relevant are properly considered, an Appeal Court will not disturb the findings arrived at by the trial judge. See Guardian Newspapers Ltd. v. Ajeh (2011) 10 NWLR Part 1256 page 574 at 592 para F-H per Rhodes Vivour, JSC.
As held by my learned brother and which I agree with, the lower Court rightly evaluated the evidence before it. There is thus no reason to interfere with the decision of the lower Court.
For these and the fuller reasons given by my learned brother I also find this appeal without merit and dismiss it. The judgment of the lower Court is accordingly affirmed. I subscribe to the orders for costs made by my learned brother.
IBRAHIM WAKILI JAURO, J.C.A.: I have read the draft judgment just delivered by my learned brother Lokulo-Sodipe, JCA. I am of the considered view that his lordship has decisively dealt with the issues raised in this appeal.
I am in complete agreement with the reasoning and conclusion reached therein that the appeal lacks merit and must fail. I equally dismiss same.
I abide by the orders made by my learned brother.
Appearances:
C.D. Wokonko for 2nd Appellant For Appellant(s)
Respondents absent and not represented by counsel.
For Respondent(s)
