SUNDAY OLOLO v. OLIVER NWOKO (2013)

SUNDAY OLOLO v. OLIVER NWOKO

(2013)LCN/6510(CA)

In The Court of Appeal of Nigeria

On Friday, the 15th day of November, 2013

CA/PH/152/2007

RATIO

AWARD OF DAMAGES: WHETHER AN APPEAL COURT MAY INTERFERE WITH AN AWARD OF GENERAL DAMAGES BY A TRIAL COURT

WHETHER AN UNDENIED STATEMENT OF CLAIM MAY BE DEEMED ESTABLISHED WITH NO NEED TO CALL EVIDENCE IN PROOF OF SAME

It is settled law that where a Defendant fails to specifically deny the averment in a Statement of Claim, that fact should be deemed to have been established without the need to call evidence in proof of same. See Samson Ajibade vs. Mayowa & Anr. (1978) 9 – 10 SC 1 @ 6; Eko Odume & Ors. vs. Ume Nnachi & Ors. (1964) 1 All NLR 329; and Basheer vs. Same (1992) 4 NWLR (PT.236) 49. The law is that a party who does not give evidence in support of his Pleadings or in challenge of the evidence of adverse party, is deemed to have accepted the evidence of the adverse party notwithstanding the general traverse. See Basher vs Same (1992) 4 NWLR (PT 236) 491 @ 502; Adegbite vs. Ogunfaolu (1990) 4 NWLR (PT 146) 578 @ 590, see also Section 123 of the Evidence Act LFN 2011 as amended. Per UWANI MUSA ABBA AJI, J.C.A. (PJ)

WHETHER MAY RELY ON THE WEAKNESS OF THE DEFENDANT’S CASE IN ESTABLISHING A CLAIM FOR DECLARATION OF TITLE

CIVIL LAW: WHETHER THE BURDEN ON THE PLAINTIFF TO ESTABLISH HIS CLAIM MAY SHIFT TO THE DEFENDANT IN PROCEEDINGS

It is the law that in civil matters, a Plaintiff has the burden of proof of establishing his claim and it does not shift to the Defendant, see Elias vs. Dusu (1961) 1 All NLR (PT.1) 215 @ 220. Per UWANI MUSA ABBA AJI, J.C.A. (PJ)

JUSTICES

UWANI MUSA ABBA AJI Justice of The Court of Appeal of Nigeria

JOHN INYANG OKORO Justice of The Court of Appeal of Nigeria

PHILOMENA MBUA EKPE Justice of The Court of Appeal of Nigeria

Between

SUNDAY OLOLO Appellant(s)

AND

OLIVER NWOKO Respondent(s)

UWANI MUSA ABBA AJI, J.C.A. (PJ) (Delivering the Leading Judgment): This is an Appeal against the judgment of Honourable Justice Obisike Oji of the High Court of Abia State sitting at Umuahia, delivered on the 9th day of March, 2005 in Suit No. HU/12/2001; wherein Judgment was entered in favour of the Plaintiff/Respondent.

The Respondent, as Plaintiff at the trial Court, filed an action seeking the following reliefs against the Defendant now Appellant; namely:
(1) “A Declaration that the Plaintiff is entitled to the Statutory Right of Occupancy of the parcel of land whereon his father’s house and hedge fencing were built and erected in 1954.
(2) The sum of N110,000.00 (One Hundred and Ten Thousand Naira) being:-

(a) General Damages of N100,000.00 (One Hundred Thousand Naira only) and
(b) Special Damages of N10,000.00 (Ten Thousand Naira) for trespass and malicious destruction of parts of the fence around the land in question, and

(3) Perpetual Injunction restraining the Defendant by himself or by his privies, servants, agents or workmen from further entry upon, destruction of, or in any way interfering or dealing with the parcel of land described above.”

The case of the Plaintiff/Respondent as per the Pleadings and evidence adduced before the trial Court was that the parcel of land in dispute was the ancestral property of one late Nwoko Uleanya, the grandfather of the Plaintiff and also of the Defendant. Nwoko Uleanya had three sons namely: Anoh, the first son, Ololo, the second and father of the Defendant and Johnson, the third and father of the Plaintiff and all the three sons are now deceased. That the landed estate of the late Nwoko Uleanya was shared amongst his three sons. That when the sharing was conducted by Anoh and Ololo, Johnson was then in Calabar. That on his return in 1954 he built on his own land, the subject matter now in dispute.

The Defendant on the other hand, denied the Plaintiff’s Claim and averred that the land in dispute is owned by the late mother of the Plaintiff namely Mrs. Hannah Ololo, (even though he testified that Mrs. Hannah Ololo was his mother). He stated that the land was previously pledged to the late father of the Plaintiff Ololo Nko by Umundidianwa family of Ndiumumba Okpurugba Nsirimo and that the said Umundidianwa family came to redeem the land and that the Plaintiff’s mother Hannah Ololo and one Mrs. Aguta bought the land in dispute for value under customary tenure, He also testified that the said land was shared between Plaintiff’s mother Hannah Ololo and the said Mrs. Aguta. That the portion of land partitioned to the late Plaintiff’s mother Hannah Ololo is the subject matter of this Suit.
The Plaintiff/Respondent testified as PW1 and called two other witnesses. The Defendant testified as DW1 and called one witness. After the close of evidence, parties filed Written Addresses. In a considered judgment delivered on the 9th day of March, 2005, the learned trial Judge entered judgment for the Plaintiff, hereinafter referred as the Respondent.

Being dissatisfied with the said decision, the Defendant hereinafter referred to as the Appellant filed a Notice of Appeal on the 21st of March, 2005, see pages 72 – 74 of the Records of Appeal containing Four (4) Grounds of Appeal. The Grounds of Appeal are hereunder reproduced without their particulars.

GROUNDS OF APPEAL
1) “The learned trial Judge erred in law when he held that the Plaintiff proved his ancestry and hence title to the land in dispute through traditional history.

2) The learned trial Judge erred in law when he held that the boundary of the land in dispute was not in issue.

3) The learned trial Judge erred in law when he held the Defendant liable in Damages.

4) The decision of the learned trial Judge now Appealed against is against the weight of evidence.

Pursuant to the Rule of this Court, parties filed and exchanged Briefs of Argument. The Appellant’s Brief of Argument dated and filed 21/1/13 was settled by A. O. Uhegbu, of Counsel wherein he nominated a lone Issue for Determination to wit:

Whether the Respondent is entitled to the judgment of the court below having regard to the Pleadings, evidence before the court and the state of the law.

The Respondent on his part filed a Respondent’s Brief of Argument on 19/2/2013, settled by Obioma Chianakwalam of Counsel. In the Brief, the Respondent’s counsel adopted the sole issue formulated by the Appellant.

At the hearing of the Appeal on the 16th day of September, 2013, learned counsel for the Appellant adopted and relied on the Appellant’s Brief of Argument dated and filed on 21st day of January, 2013 and urged us to allow the Appeal. The Respondent’s Counsel adopted and relied on their Brief of Argument dated 14th day of February, 2013 and filed on the 19th day of February, 2013 and urged the Court to dismiss the Appeal. The Appeal will be determined on the lone Issue nominated by the Appellant, to wit:

Whether the Respondent is entitled to the Judgment of the court below having regard to the Pleadings, evidence before the court and the state of the law.

In arguing this lone Issue, learned counsel for the Appellant, Uhegbu, Esq. submitted that the claim of the Plaintiff/Respondent is for a Declaration of Title to land and that the Plaintiff must succeed on the strength of his case and not on the weakness of the Defendant. He argued that in proof of his claim, the Respondent relied on traditional history, that the land in dispute was originally occupied by his grandfather Nwoko Uleanya and that the said Nwoko Uleanya had three sons, namely, Anoh, Ololo, the Defendant’s father and Johnson his father, and stated further that when the landed estate of Nwoko Uleanya was shared, the land in dispute was given to his father and that in his view, the learned trial judge erred in law when he held that the Respondent proved his ancestry and hence entitled to the land in dispute through traditional history. Learned counsel argued that the evidence led by the Respondent as well as his Pleadings fell short of the requirement of proof on Declaration of Title on traditional history.

He also argued that the Respondent did not plead specifically how the land in dispute devolved on to him and gave no evidence on this as he never stated in his evidence or pleading that the land in dispute devolved on him from his father Johnson Nwoko. Reliance was placed on the following cases; Agwu vs. Ibenye (1988) 62 LRCN 4805; Piaro vs. Tenalo (1976) 12 SC 31 @ 41; and Osafile vs. Odi (1994) 2 SCNJ 1 @ 5.

Learned counsel also argued that the Respondent having joined issues with the Appellant on the boundaries of the land in dispute as per paragraph 8 of the Respondent’s Statement of Claim and paragraph 20 of the Statement of Defence, the onus shifted to the Respondent to prove same.

He also argued that the evidence of boundaries as given by PW3 at page 30 lines 29 to 34 of the Records of Appeal is at variance with the evidence of the Respondent as well as Exhibit C, the Survey Plan tendered by the Respondent. He further argued that in an action for declaration of title to land, the Plaintiff must prove with certainty the boundaries of the land in dispute and that the finding of the learned trial Judge that there was no dispute as to the identity of the land in dispute is wrong. Reliance was placed on the cases of Okedare vs. Adebare (1994) 6 SCNJ (PT II) 254; Udeze vs. Chidebe (1990) 1 NWLR (PT 125) 141; and Okechi vs. Animkwo (2004) 114 LRCN 2924.

Learned counsel has also argued that the learned trial Judge was wrong to have found the Appellant liable in damages. It is his view that there was overwhelming evidence at the court below that the Appellant has been in exclusive and undisturbed possession of the land in dispute. He referred to the evidence of the Respondent under Cross Examination that the Appellant’s brother used part of the kitchen rooms that belonged to their mother to build his house. It is his view that this admission shows that the Appellant’s brother built on the part of the disputed land unchallenged, and which also forms part of the land where the Appellant’s mother’s kitchen stood. It is also his view that this fact was accepted by the lower court wherein it held at page 67 of the Record, lines 24 that both parties have been in possession of the land in dispute through their mothers or step mothers. That to this extent according to Learned counsel, the Order of Injunction against the Appellant is wrong. He relied on Okolo vs. Uzoka (1987) 4 SC 77. He further submitted that the decision of the lower court is against the weight of evidence and urged the court to resolve the Issue in favour of the Appellant and to set aside the decision of the rower court.

The learned counsel for the Respondent relied on, and adopted the sole issue nominated by the Appellant. However, he did not proffer arguments on the sole issue of the Appellant which he adopted. The Respondent’s counsel contrary to the Rules of brief writing argued in his brief grounds and not the issue for determination. The arguments by the Respondent’s counsel on the grounds of appeal are wrong. It is settled that arguments are to be canvassed on the basis of the issues formulated and not on the grounds of appeal. For, while a resolution of an issue which is a question in dispute between the parties may determine an appeal, a ground of appeal which forms part of that issue may not. The issues for determination when formulated displace the grounds of appeal just as the statement of claim supersedes the writ of summons.

The practice of Brief writing has been with the court for a very long time now and no counsel can feign ignorance of the fact that it is the issue or issues and not the ground(s) of appeal that are argued on Appeal. See the cases of; Shitta-Bey vs. Attorney General of the Federation (1998) 5 – 7 SCNJ 264 @ 272; Ogunsola vs. Nicon (1998) 1 NWLR (PT 575) 126. The attitude of the Respondents counsel portrays him as indolent and is totally condemnable. However, be that as it may, the court will not close its eyes to the so called faulty brief filed by the Respondent, and to the fact that a brief of the Respondent exists, see Oyebade vs. Ajayi (1993) 1 NWLR (PT.269) 313.

In arguing his Appeal, learned counsel for the Respondent referred to the evidence of the Plaintiff/Respondent wherein he testified as PW1 at page 20 lines 14 to 24, the evidence of PW3 at page 30 lines 20 to 25 of the Records of Appeal and paragraphs 4, 5, 6, and 7 of the Respondent’s Statement of Claim to submit that the learned trial Judge was entitled to draw inferences that the land in dispute was deforested by one Nwoko Uleanya and devolved on his father Richard Johnson who built his house in 1954 and that the Respondent is the only son of Richard Johnson and that the Appellant did not challenge these pieces of evidence but was setting up a claim based on a purported pledge and purchase. It is his view that based on the evidence presented, the lower court was right to found a claim for title to land by traditional evidence. It is also his view that the Respondent proved title to land by evidence of long possession in view of the uncontroverted evidence that the Respondent’s father built a house on the land in 1954. He referred to cases of Thomas vs. Holder 12 WACA 78; and Chief Tijjani vs. Bakare Gbajumo (1974) 10 SC 183 @ 187, to further submit that the Respondent received a valid title to the land in dispute which ripened over the years to exclusive ownership by inheritance.

On the issue of the boundaries of the land in dispute, learned counsel submitted that, facts admitted or deemed admitted need not be proved. He argued that the Respondent duly pleaded the boundaries of the land in dispute in paragraph 8(a) to (d) in his Statement of Claim and delineated on the Survey Plan Exhibit A, and that the Appellant failed to join issues with the Respondent on the land in dispute by merely stating that he denies the averments thereof without proffering his own version of the boundaries so as to join issues with the Respondent. He thus argued that a general traverse without making specific response to those paragraphs does not constitute sufficient denial and have been held to amount to admission. Reliance was placed on the cases of; Dikwa vs. Modu (1993) 3 NWLR (PT.280) 170; and Sanusi vs. Makinde (1994) 5 NWLR (PT.343) 214, to further submit that the Respondent was not under obligation to prove the facts, they are deemed to have been admitted. Section 123 of the Evidence Act, 2011 (as amended) was referred to.

On the issue of damages, the learned counsel argued that the award of general damages is a matter which is entirely at the discretion of the trial court and the Court of Appeal will not generally interfere unless it is shown to be perverse and that the Appellant failed to show this Court why it should interfere with the findings of the trial court. Reliance was placed on the cases of: Aniekan Amos Peters vs. IGP (2001) FWLR (PT.49) 1449; UBN Ltd. vs. Odusote Bookstores Ltd. (1995) 9 NWLR (PT.421) 558; Nwobodo vs. A.C.B. Ltd. (1998) 6 NWLR (PT.464) 658 and Ziks Press Ltd. Ikolu 13 WACA 188. He also submitted that costs follow event and relied on the cases of Wurno vs. UAC Ltd (1956) 1 FSC 33 @ 34; Biode Pharmaceutical Ltd vs. Adsell Ltd (1986) 5 NWLR (PT 46) 1070. The Court was urged to resolve the Issue against the Appellant and to dismiss the Appeal.

The main contention in this appeal is that the Respondent did not prove his entitlement to the land in dispute as the traditional evidence adduced fell short of the requirement of the law. It is the law that in civil matters, a Plaintiff has the burden of proof of establishing his claim and it does not shift to the Defendant, see Elias vs. Dusu (1961) 1 All NLR (PT.1) 215 @ 220. The onus of proof in a suit for declaration of title as in this appeal, lies on the Plaintiff and he must succeed on the strength of his case and not on the weakness of the Defendant’s case, if any. See Kodilinye vs. Mbanefo Odu (1935) 2 WACA 336; Mogaji vs. Cadbury Nig. Ltd (1985) 2 NWLR (PT.7) 393.

The question that arises is, did the Respondent prove his entitlement to the land in dispute through traditional history to entitle him to the judgment of the lower, court? It is trite that where a Plaintiff relies on traditional history to prove ownership of land, he must give credible and consistent evidence which leave no gap as to claim of succession. He must plead and prove devolution of land right from its original founder to himself without leaving any unexplained or unexplainable gaps in the line of succession. Therefore, an insufficient averment and evidence as to the founder and devolution of the land in dispute will not found a claim on traditional history. In other words, where a Plaintiff fails to discharge the burden of proof on him, his case is liable to be dismissed. See Falomo vs. Onakanmu (2005) II NWLR (PT.935) 126 @ 158; Ugwuze vs. Adeleke (2008) 2 NWLR (PT.1070). (EVIDENCE, EVIDENCE OF TRADITION HISTORY, Duty of a plaintiff who relies on traditional history to prove ownership of land)

In the instant case, the Plaintiff/Respondent has pleaded traditional history, one of the five ways decided in Idundun & Ors vs. Okumagba (1976) 9 – 10 SC 227; (1976) 9 – 10 SC (Reprint) 140, for proving ownership of land in dispute in an action for declaration of title to land and in this respect the Plaintiff has to prove inter alia by evidence, (1) who founded the land in dispute. (2) How he founded it and (3) The succession inheritance up to the Plaintiff.

Now what was the evidence of the Respondent in prove of his claim for Declaration to the land in dispute? The Respondent testified as PW1 as follows:-

“I know the land in dispute. It belongs to our forefathers. It was originally occupied by my grandfather Nwoko Uleanya. He had three sons viz Anoh, Ololo the Defendant’s father and Richard Johnson my father. They were all from one mother.”

He further stated that,

“The estate of Nwoko Uleanya was shared long ago and each of the sons had his own portion till their death. At the time of the sharing my father was away to Calabar where he was working, He was given his share in his absence and when he returned his brother Anoh and Ololo showed him his portion. The land in dispute was my father’s portion…” see page 20 lines 14 to 19 of the Records of Appeal.

PW3 also testified as follows: –

“The Plaintiff is the only son of Johnson. The estate of Nwoko Uleanya was shared by his three sons before we were born i.e. myself, the Plaintiff and the Defendant. The land in dispute was got by Johnson Nwoke Uleanya when the estate was shared. It is where late Johnson Nwoko Uleanya built his house in 1954. There is nothing like Umundidianwa family in Nsirimo…” See page 30 lines 20 – 26 of this Records of Appeal.

This evidence of the Plaintiff/Respondent was unchallenged and uncontroverted and in line with his Pleadings in paragraphs 4, 5, 6 and 7, that the land in dispute was the estate of Nwoko Uleanya which was shared among his three children; Anoh, Ololo and Johnson in order of seniority. Ololo and Johnson were the fathers of the Appellant and Respondent, while Anoh was the father of PW3, Boniface Anoh, who testified for the Plaintiff but a cousin of both parties. It is in evidence that the land devolved to the Respondent upon the death of his father Richard Johnson. It is also not in dispute that he was the only son.

The Appellant has however argued that the Respondent did not give an account of how the area under contest devolved on him in his effort to prove title to the land in dispute. The Appellant did not deny the Respondent’s genealogy, see paragraph 6 of the Statement of Defence but the Appellant argued that the land in dispute was a pledge to his father from Umundidianwa family and after some years decided to sell it and because his father Ololo Nwoko had no money and that his mother Hannah Ololo and Aguwa Anoh contributed money and bought the property in dispute and that the land in dispute devolved upon him as inheritance from his mother. In his evidence, DW2 stated that the land in dispute belongs to his forefathers and that he was told it belonged to his family called Onyenze family which pledged the land to the father of the Defendant and that it was the Defendant’s father that bought the property in dispute. It is clear from the Records that the Appellant has not been able to establish his assertion that the land in dispute is not part of the estate of Uleanya, their ancestor. He also did not plead and did not account for how Umundidianwa family came to own the land in the midst of Uleanya land. The evidence of his witness DW2 completely destroyed the case of the Appellant as stated above. He testified that the whole homestead of the Uleanyas was given to them by the DW2’s family. The Appellant had stated that he does not know how his father came about the land they live in.

It is trite that the onus lies on a Plaintiff to satisfy the court that he is entitled on the evidence brought by him to the declaration of title sought. The Plaintiff must rely on the strength of his case and not on the weakness of the Defendant’s case. The Plaintiff is said to discharge the burden on him when the evidence preponderates in his favour. See Odofin vs. Mogaji (1978) 11 LRN 217; Ezeigwe vs. Awudu (2008) 11 NWLR (PT.1097) 158 @ 175 and Ukaegbu vs. Nwololo (2009) 12 WRN 1 @ 44. In the instant Appeal, the evidence led by the Respondent and that of the Appellant put on an imaginary scale, the evidence led by the Respondent preponderates over the one adduced by the Appellant and the lower court is right in the circumstances to give judgment for the Respondent as there is nothing to tilt the balance in favour of the Appellant.

Generally, the primary duty of the Plaintiff who comes to Court to claim a Declaration of Title to land, is to show the court clearly the area of the land to which his claim relates so that the land can be identified with definitive certainty. In other words, in an action of declaration of title to land, the onus is on the Plaintiff to prove title to a defined area to which the declaration can be attached. In the instant Appeal, the Respondent by paragraph 8(a) to (d) of his pleading clearly pleaded the boundaries of the land in dispute. This paragraph was not controverted by the Appellant in his Statement of Defence as he only averred in paragraph 20 thereof that, “The Defendant denies paragraph 8 of the Statement of Claim.”

In the circumstances, the Appellant having not denied paragraph 8(a) to (d) of the Statement of Claim wherein the boundaries of the land were clearly stated, it no longer becomes an issue for determination as the parties have not joined issues on the boundaries of the land in dispute. The Appellant having not joined issues with the Respondent, he cannot now be heard to complain that the Respondent did not prove the boundaries of the land in dispute. This is the actual position of the law that where facts are admitted or deemed to be admitted, they need not be proved. See also section 123 of the Evidence Act 2011 (as amended.)

Learned counsel for the Appellant had also argued that the learned trial Judge erred in law when he held the Defendant liable in Damages. The lower court having found that the Respondent established his genealogical ancestry to the land in dispute based on the Pleadings and the evidence, and having come to the conclusion that the Respondent has proved his root of title to the land in dispute by preponderance of evidence, awarded N30,000.00 Damages to the Respondent against the Appellant.

The general principle of law is that an award of general damages is a matter for the trial court and that normally, an Appeal Court will not interfere with such an award, unless; (i) where the trial Judge has acted under a mistake of law, (ii) Where he has acted in disregard of principle, (iii) Where he acted under misapprehension of facts, (iv) Where he has taken into account irrelevant matters or failed to take account of relevant matters, or (v) Where injustice would result if the Appeal Court does not interfere. Thus, it has long been established and settled that an Appeal Court will not disturb the award of Damages of a trial court unless it is convinced that the trial court acted on a wrong principle of law or the amount awarded is too high or low that there was an entirely erroneous estimate of Damages see Nwobosi v. A.C.B. Ltd. (1995) 6 NWLR (PT.404) 658, Okudo vs. IGP (1998) 1 NWLR (PT.533) 366.
In the instant case, the learned trial judge judicially and judiciously exercised his discretion and awarded N30,000.00 only to the Respondent as against the N100,000.00 asked for by the Respondent, and the Appellant has not shown in what way this has occasioned miscarriage of justice to him by either showing that the award was made under a misapprehension of the law or in disregard of any principle of law or that he did not appreciate the facts and took into account irrelevant matters or vice versa. The Appellant has a duty to establish either of these grounds to the satisfaction of the court. It is the law that an Appellate Court is not justified in substituting a figure of its own for that awarded by the lower court simply because it would have awarded a different figure if it had tried the case at first instance. See UBN Ltd vs. Odusote Bookstores Ltd. (1995) 9 NWLR (PT 421) 558. Having regard to the principles of law stated above, and also having regard to the finding of the learned trial Judge, I am not convinced that the award of N30,000.00 as Damages was most unreasonable.

Based on the foregoing therefore, I find no merit in this Appeal and it is hereby dismissed. The judgment of the lower court delivered on the 9th day of March, 2005 is hereby affirmed. I award a costs of N30,000.00 against the Appellant in favour of the Respondent.

PRONOUNCEMENT: Honourable Justice John I. Okoro, J.C.A. has been elevated to the Supreme Court and cannot make contribution on this judgment.

PHILOMENA MBUA EKPE, J.C.A.: I have had the privilege of reading in draft the lead Judgment just delivered by my learned brother and Presiding Justice UWANI MUSA ABBA AJI, J.C.A. His Lordship has painstakingly and comprehensively identified and dealt with all the issues raised and the applicable law in this Appeal. I have nothing more to add than to adopt the reasons and conclusions reached herein as mine.

Consequently, I too find no merit in this Appeal and it is also hereby dismissed. The judgment of the court below delivered on the 9th day of March 2005 is hereby affirmed. I abide by my Lord’s order as to costs.

Appearances

O. A. Uhegbu, Esq.For Appellant

AND

Obi – Chianakwalam, Esq. with him U. Ochulor, Esq.For Respondent