DANIEL MMEREM & ORS. V. EUGENE AKUJINWA & ORS.(2001)

DANIEL MMEREM & ORS. V. EUGENE AKUJINWA & ORS.

(2001)LCN/0963(CA)

In The Court of Appeal of Nigeria

On Thursday, the 5th day of April, 2001

CA/PH/23/94

JUSTICES

JAMES OGENYI OGEBE Justice of The Court of Appeal of Nigeria

IGNATIUS CHUKWUDI PATS-ACHOLONU Justice of The Court of Appeal of Nigeria

ABOYI JOHN IKONGBEH Justice of The Court of Appeal of Nigeria

Between

DANIEL MMEREM
2. CHIEF ANTHONY NNAWUBA
3. AGUWALAM EWURU
4. UZOMA OBI
(For themselves and on behalf of other members of Umuduru-Ozuruoha family of Isieke I, Awo-Omamma) Appellant(s)

AND

EUGENE AKUJINWA
2. UGO EKWEDOZOR
3. ONWEAGBA AKUJINWA
4. MICHAEL AJONU
5. IHEKWOEJEORU DURUOMAKU
6. CYRIL UCHE OZOR
7. MOSES ONUWA
8. PAUL NWAKEDIEGWU OHAKANU
9. UTAWUCHI NWOJO
10. OBIDINMA OZOR Respondent(s)

RATIO

WHETHER OR NOT A PLAINTIFF’S CLAIM MUST BE DISMISSED WHERE HE PRODUCES TWO CONFLICTING HISTORIES OF ITS OWNERSHIP OF A DISPUTED PIECE OF LAND

It is trite law that where a party produces two conflicting histories of its ownership of a disputed piece of land in support of its claim he has failed to make out a case which he set out to make and if he is the plaintiff his claim must be dismissed. See the case of Ohiari v. Akabeze (1992) 2 NWLR (Pt. 221) 1 at page 19. PER OGEBE, J.C.A.

WHETHER OR NOT A CLAIMANT MUST ESTABLISH HIS CLAIM ON THE STRENGTH OF HIS CASE IN AN ACTION FOR DECLARATION OF TITLE TO LAND

It is the duty of a claimant to a piece of land to establish his claim on the strength of his own case. See the case of Kachadadi v. Noma (2000) 15 NWLR (Pt. 692) 807. PER OGEBE, J.C.A.

O. OGEBE, J.C.A. (Delivering the Leading Judgment): The appellants sued the respondents before the High Court of Oguta in Imo State for a declaration of title to a piece of land called “Ala Ulo Ubi Duruozuruoha”, damages for trespass and injunction. The parties exchanged pleadings which were subsequently amended by both parties.
The case of the appellants in the court below was that they inherited the land in dispute from time immemorial from their ancestors. They relied on long traditional history and on past and present acts of ownership and possession which included planting of rubber trees and other economic trees and planting of three juju shrines on the land.
The respondents on the other hand also claimed the land from their ancestors.
They call the disputed land “Ala Nwaedo”.
At the conclusion of the case the trial judge dismissed the appellants’ claim in its entirety.
Not happy with the decision the appellants have appealed to this court and have filed an amended of argument in which they identified five issues for determination.
In the course of argument, the learned counsel for them abandoned issue 5 which is hereby struck out. The remaining four issues read thus:
“1. Taking the pleadings and the evidence adduced at the trial did the Appellants prove their case sufficient enough to entitle them to judgment?
2. Was the conflict if any in traditional history put forward by the Appellants material enough to deny the Appellants Judgment in this suit?
3. Can the Appellants action be dismissed taking into consideration the pleadings and evidence adduced at the trial, the finding of fact by the Trial Judge that the Appellants were in possession of the land in dispute even before the institution of this action in 1985?
4. In the light of the abundant acts of ownership and possession adduced in evidence by the Appellants did they not satisfy the test laid down in EKPO V. ITA II NLR 68 as to raise the inference of exclusive ownership in their favour?”
The respondents also filed an amended brief of argument and identified four issues.
In the course of arguing their appeal the learned counsel for the respondents abandoned the fourth issue which is hereby struck out. The remaining issues are:-
“1. From the pleadings and evidence adduced by the Plaintiffs at the trial, can it be said that the Plaintiffs proved their traditional history of the land in dispute? If the answer is in the negative were they entitled to the reliefs they sought from the Court below?
2. Whether from the pleadings and evidence of both parties before the Court the lower Court was right in its finding of fact that the Plaintiffs were in possession of the land in dispute before 1985.
B. Would long possession, if proved; entitle the Plaintiffs to a declaration of title to the land in dispute?
3. Can it be said that from the preponderance of evidence before the lower Court the Plaintiffs were entitled to the judgment of the Court?
Issue 2A in the respondents’ brief quoted above does not arise from any of the grounds of appeal and is an attempt to challenge the finding of the trial court that the appellants were in possession of the disputed land before 1985 when the suit was instituted. This finding of fact has not been challenged by the respondents in a cross appeal and they cannot therefore raise this issue as if they have cross-appealed. That issue is accordingly struck out.
The learned counsel for the appellants argued issues 1 and 2 together. He submitted that the appellants were able to establish the traditional history of the. Disputed land and that the minor discrepancy as to the original founder of the land whether “Esieke” or “Duruozuruoha” was not enough to destroy the traditional evidence. He relied on the case of Ohiaer v. Akabeze (1992) 2 CSCD 4.
In reply to issue 1 the learned counsel for the respondents submitted that the traditional evidence of the history of the land in dispute as given by the appellants was seriously discredited. The trial court was right in rejecting the traditional evidence as the evidence of PW2 conflicted seriously with that of PW1. He relied on the case of Ewulu v. Nwankpu (1991) 8 NWLR (pt.210) 487.
It is trite law that where a party produces two conflicting histories of its ownership of a disputed piece of land in support of its claim he has failed to make out a case which he set out to make and if he is the plaintiff his claim must be dismissed. See the case of Ohiari v. Akabeze (1992) 2 NWLR (Pt. 221) 1 at page 19.

In this case the appellants pleaded that the original founder of the land in dispute was one Esieke and that Duruozuruoha got a portion when Esieke was dividing his land among his sons.
PW1, Daniel Mmerem gave evidence in support of this pleading but when PW2, Ejitugha Nnawuchi gave evidence, he stated categorically that Duruozuruoha was the original founder of the land in dispute. In my view this is a violent conflict between the evidence of PW1 and that of PW2 both of whom were plaintiffs in the court below.
The trial court in its judgment held as follows:-
“The plaintiffs did not give evidence of how Isieke, their ancestor deforested the land. They did not also give evidence of how he appropriated the land as these would establish acts of possession and ownership of Isieke. The position of the plaintiffs was even made worse by PW2 who said in evidence that it was Duruozuruoha who originally founded and owned the land in dispute. This piece of evidence is a material contradiction by the plaintiffs as regards issue of traditional history. Thus the plaintiffs are putting forward two inconsistent evidence of traditional history. But the principle in Kojo II v. Bonsie (1957) 1 NWLR 1223 does not apply in principle will apply where the plaintiffs are putting forward traditional history that is inconsistent with the traditional history is that the plaintiffs have failed to prove by credible evidence the traditional history which they set out to rest their claim on as the root of their title.”
I agree entirely with this finding of the trial court and I resolve issues 1 and 2 against the appellants.
On the 3rd and 4th issues which were argued together the appellants’ main argument was that there was evidence before the trial court of various acts of ownership and possession exercised by the appellants were in possession before the respondent invaded the land in dispute at the time of the commencement of the action the court ought to have the judgment in favour of the appellants’ He urged this court to give u prop., decision based on this finding. He relied on the case of Sanusi v. Ameyogun (1992) 4 NWLR (Pt. 237) 27.
In reply to this the learned counsel for the respondents said that even if the appellant were in possession of the land before the cause of action arose in 1985 long possession itself can only be used to defeat a claim for declaration of title and trespass and not to establish a claim for declaration of title and damages for trespass against the true owner.
On the 3rd issue the learned counsel for the respondents submitted that the appellant failed to prove their root of title and therefore their claim was rightly dismissed by the trial court.
It is the duty of a claimant to a piece of land to establish his claim on the strength of his own case. See the case of Kachadadi v. Noma (2000) 15 NWLR (Pt. 692) 807.

The appellants in this case gave a distorted history of how they came about the land. The trial court also rejected their claims to various acts of ownership. The only finding in favour of the appellants was to the effect that they were in possession of the disputed land as at the time of the cause of action. There was no clear finding that the possession was adverse and entitled them to any damages in trespass. It is however clear that their principal claim was that of title and since the claim for title collapsed, the claim for trespass was could not stand by itself. At the conclusion of the judgment, the trial court held as follows:-
“On the totality of the evidence before me as duly considered and evaluated I hold that the plaintiffs have not proved their case on some of the fronts already considered, and these fronts are crucial. Having not made out a case that will entitle them to a declaration of right of occupancy the reliefs, damages for trespass and injunction, consequently collapse with the claim for declaration. The entire claim of the plaintiffs fail and is hereby dismissed. Since the defendants did not counter-claim, a declaration of right of occupancy over the land in dispute cannot be awarded to them.”
I have no quarrel with this conclusion. Consequently, I am of the firm view that this appeal lacks merit and ought to be dismissed. I dismiss the appeal and affirm the decision of the trial court. The respondents are entitled to costs of N5, 000.00 against the appellants.

IGNATIUS CHUKWUDI PATS-ACHOLONU, J.C.A.: I have read the Judgment of my learned brother Ogebe JCA and I agree with him. When two witnesses to a party give inconsistent testimony to a given state of affairs in this case the root of title and ownership of land relating to as who was the founding father, every item of evidence preferred must be considered in establishing preponderance. Where therefore an issue of very cognate importance is left in doubt, the court cannot pick and choose and the proponent of that case must lose. For a matter to preponderate along the line of the basic proposition relied on, the evidence must be transparently clear and should not lend itself to doubt or obscurantism. The case of the appellants is obviously unreliable having regards to the evidence I would therefore dismiss the appeal and I do dismiss it and abide by the order in the leading Judgment.

ABOYI JOHN IKONGBEH, J.C.A.: I had the privilege of reading the draft of my learned brother, Ogebe, J.C.A. I agree without any reservation with his conclusion that this appeal lacks merit and should be dismissed. I agree with his reasoning thereto.
The learned trial Judge was perfectly justified in dismissing the appellants, claims in their entirety. They pleaded a root of title to prove which they made little or no effort. Their pleading as to root of title was that the land of which the pieces in dispute form a part originally belonged to their forebear, Isieke. The portion encompassing the piece in dispute, according to them came down to Duruozuruoha, their ancestor, as his inheritance. They did not plead how Isieke came to be the owner of the land. Was it by conquest or first settlement or inheritance or by purchase or by some other method? The judge gave them a chance (undeservedly, I must say) to improve their case. They, however, threw the opportunity away. All that the 1st appellant (who was also the 1st plaintiff and testified as P. W. 1) said about their root of title in his evidence-in-chief was that-
“…..our ancestor called Duruozuruoha got Ala Ulo Ubi Duruozuruoha land as one of his shares of land when Isieke sons shared their father’s land.”
The opportunity they threw away came during his cross-examination. He testified that –
“My father and our ancestor farmed and have been farming on Ala Ulo Ubi Duruozuruoha since the time it was deforested by Isieke.”
Defence counsel then took objection to the italicised words on the ground that the fact they sated was not pleaded. The court, however, overruled him, holding that _
“What parties are required to plead is the material fact and not the evidence whereby such material fact should be proved. Deforested by Isieke, is merely evidence of history of the land which was largely pleaded.”
One would have thought that the plaintiffs’ counsel would seize on this undeserved and un- merited opportunity and developed the history of the founding of the land by deforestation.
But no, counsel most complaisantly let the matter rest there, leaving their root of title in a rather inchoate state.
As if that was not bad enough for the plaintiffs, the 2nd plaintiff (P.W.2), contrary to their pleadings and the evidence of P.W.1, had to enter the witness box and shove everything overboard by testifying in cross-examination that-
“Duruozuruoha was the original owner and founder of the land in dispute.”
To drive the point home that Isieke had no hand in the founding of the land in dispute, he testified as to the descendants of Isieke who, according to him, inherited his land. Hear him:
“Isieke had 10 sons namely Umudururuigwe, Umuobinofia, Umuojiagwu, Umunweze, Umuokpararku, Odokika, Omereofo, Umuikoroha, Ndinakuabia. These are not sons of Isieke.
Duruozuruoha was not included among the children. If only the sons of Isieke inherited his land, it followed that Duruozuruoha, not being one of sons, could not have been one of the inheritors.
Having thus disproved their case as pleaded this proving it in another direction by saying how Duruozuruoha came to be the original owner.
Considering everything, I do not see how anybody could fault the learned trial judge’s conclusion that P.W.2 put the final nail in the plaintiffs’ case. I too dismiss the appeal. I abide by the order as to costs.