AYANG ETABA & ORS v. EGONG OTOTO (2014)

AYANG ETABA & ORS v. EGONG OTOTO

(2014)LCN/7723(CA)

In The Court of Appeal of Nigeria

On Monday, the 23rd day of June, 2014

CA/C/88/2010

RATIO

LAND LAW: TITLE TO LAND; WHAT A CLAIMANT RELYING IN TRADITIONAL HISTORY MUST PLEAD AND LEAD EVIDENCE TO SHOW IN ORDER TO SUCCEED IN A CLAIM OF TITLE TO LAND BASED ON TRADITIONAL HISTORY AND THE EFFECT OF THE LINE OF SUCCESSION NOT SATISFACTORILY TRACED

Our understanding of these authorities is that in order to succeed in a claim of title to land based on traditional history, it is incumbent on the claimant relying on it to plead and lead evidence to show: (1) how his ancestors derived title to the land, (2) the person who founded the land and exercised original acts of possession, (3) particulars of the intervening owners through whom the party or parties claim, (4) the person or persons on whom the title in respect of the land devolved since it was founded.

The cases are too many. We shall only cite one or two of them here, Ezewusim v. Okoro and Anor [1993] 5 NWLR (pt. 294) 478; Dike v. Okoloedo (1999) 10 NWLR (pt. 623) 359; Mogaji v. Cadbury Nig. Ltd. (1985) 2 NWLR (pt.7) 393; Kupoluyi v. Phillips (2001) 13 NWLR (pt.731) 736 Elegushi v Oseni [2005] 7 SC (pt 111) 205, 213 – 214.

Where, however, the line of succession is not, satisfactorily, traced, the claim must be rejected by the court. In other words, there must be no gap in the line of succession up to the person laying claim to the land, Alade v. Awo [1975] 4 SC 215; Kalio v. Woluchem (1985) 1 NWLR (pt.4) 616; Dike v. Okoloedo (1999) 10 NWLR (pt.623) 359; Mogaji v. Cadbury Nig. Ltd. (supra). per. CHIMA CENTUS NWEZE, J.C.A.

EVIDENCE: BURDEN OF PROOF; THE BURDEN OF IDENTIFYING OR SPECIFYING THE EVIDENCE, IMPROPERLY, EVALUATED OR NOT EVALUATED ON AN APPELLANT WHO RELIES ON IMPROPER EVALUATION OF EVIDENCE TO SET ASIDE THE JUDGMENT

By way of preliminary remarks to the resolution of this issue, we note that the appellants’ complaint was that the lower court did not, properly, evaluate the evidence adduced before it. Against this background, we have to remind ourselves that it is an accepted principle that an appellant, who relies on improper evaluation of evidence to set aside the judgment, has the onus of identifying or specifying the evidence, improperly, evaluated or not evaluated. In addition, he must show, convincingly, that if the error complained of had been corrected, the conclusion reached would have been different and in favour of the party, complaining of wrong evaluation, Dakur v. Dapal (1998) 10 NWLR (pt.571) 573. per. CHIMA CENTUS NWEZE, J.C.A.

COURT: INTERFERENCE; THE PRINCIPLES AN APPELLATE COURT MUST BE GUIDED BY IN ORDER NOT TO INTERFERE WITH THE FINDINGS OF THE TRIAL COURT

In opting not to interfere with the above findings, we are guided by the prescription that in an appeal against findings of fact by a trial court, an appellate court [such as this] must: (a) attach the greatest weight to the opinion of the trial Judge who has the duty to see and indeed has seen and heard the witnesses and, (b) not to disturb the findings of fact made by him except where such findings are unsound, see, per Ogwuegbu JSC in Ehima v NO and CM CO Ltd (1995) LPELR – 1053 (SC) 16, B-C, citing Omoregie v. Idugiemwanye [1985] 2 NWLR (pt. 5) 41; Commissioner For Works and Housing v. Lababedi and Ors (1977) 11-12 SC 15; Ebba v. Ogodo and Ors [1984] 4 SC 84; [1984] 1 SCNLR 372; (1984) 1 All NLR 372. per. CHIMA CENTUS NWEZE, J.C.A.

Before Their Lordships

UZO I. NDUKWE-ANYANWUJustice of The Court of Appeal of Nigeria

CHIMA CENTUS NWEZEJustice of The Court of Appeal of Nigeria

ONYEKACHI A. OTISIJustice of The Court of Appeal of Nigeria

Between

1. AYANG ETABA
2. ORIM OKPA EYABA
3. JOHN ENYAM ETABAAppellant(s)

AND

EGONG OTOTORespondent(s)

CHIMA CENTUS NWEZE, J.C.A. (Delivering the Leading Judgment): The respondent in this appeal [as plaintiff] took out a Writ of summons against the appellants herein [as defendants] at the High Court of Cross River State, Obubra Judicial Division, (hereinafter, simply, called “the lower court”). He claimed certain declaratory and injunctive reliefs against them jointly and severally, pages 128 – 129 of the record. Pleadings were settled, filed and exchanged. The matter, which was part-heard before Ilok J (deceased), commenced de novo before Ebutta J, following the demise of His Lordship, Ilok J (of the Blessed Memory).

In proof of his case, the plaintiff [now, respondent] testified. He tendered, as exhibits in support of his pleadings, three judgments he obtained against one Ogunni Okpa, first, at the District Court; then, at the Chief Magistrates’ Court and, lastly, at the Obubra Division of the High Court of Justice. One Friday Egong Ototo, his only witness, testified in his favour in further proof of his case, page 118 of the record. On their part, the defendants [now, appellants] called two witnesses. They tendered exhibit “E” the evidence of one Eya Ejukwa in the previous proceedings before Ilok J (deceased). At the conclusion of hearing, the lower court, in its judgment of July 9, 2009, found in favour of the plaintiff [respondent in this appeal].
Dissatisfied with the lower court’s judgment against them, the defendants [now, appellants] appealed and formulated four issues for the determination of their appeal. These issues were framed thus:

ISSUES FOR DETERMINATION

1. Whether the trial Judge was right in treating the judgments between the Plaintiff and one Ogunni Okpa as previous judgments giving conclusive proof of the facts in dispute in the present case?

2. Whether the trial Judge was not in serious and gross error when his lordship concluded that the defendants did not trace their relationship to the land in dispute and did not defend in a representative capacity?

3. Whether the learned trial Judge was correct in holding that the issues of customary tenancy were raised only in the address of the counsel to the defendants and in the process not giving it the desired attention?

4. Whether the learned trial Judge properly evaluated the evidence adduced before the Lower court?

On his part, the respondent re-formulated the above four issues in a phraseology remarkable for its lucidity, concision and its lexical appeal, if not allure! Having regard to their pungency, apropos the principal agitation of the appellants in the Notice and grounds of appeal, we are more inclined to the respondent’s four issues which were couched thus:

(i) Whether the learned trial Judge was right to have placed reliance on the judgments between the plaintiff and one Oguni Okpa in respect of the disputed land as relevant documentary evidence in sustaining the plaintiff’s claims in Suit No HB/20/2004?

(ii) Whether the defendants had adduced credible and satisfactory evidence of traditional history tracing and linking them to the disputed land and whether the defendants defended the plaintiff’s claim in a representative capacity?

(iii) Whether the defendants, from the evidence on record, had led sufficient evidence of customary tenancy for the court to grant the defendants’ Counter Claim in this matter?

(iv) Whether the learned trial Judge properly evaluated the evidence adduced before the lower court?

FACTUAL BACKGROUND

In his said Writ of Summons, the plaintiff [now, respondent] claimed against the defendants/appellant jointly and severally that he was entitled to the Customary Right of Occupancy over a parcel of land known as “Oyiyeng farmland.” He made the case that he inherited the said farmland from his father, Ototo Obaji (one of the sons of Obaji Ikpe). He, also, claimed to have obtained judgment against one Ogunni Okpa over the said parcel of land in the Customary Court in suit No ODC/52/98. He equally got judgment in the High Court, Obubra Judicial Division, when the case in ODC/52/98 was appealed against. He conceded, however, that the said Ogunni Okpa was no relation of the appellants.

On the other hand, the appellants canvassed the claim that the land in dispute was a larger portion which belonged to their family. Their case was woven around the claim that the respondent was not a member of their family. Rather, he was, merely, enjoying a right to the portion allotted to his father by a member of the family. His father was, in their contention, a servant. Against this background, it was their case that the respondent could not claim exclusive ownership of the land. In consequence, he was not entitled to the Customary Right of Occupancy over the said land. As noted above, the lower court found in favour of the respondent, hence, this appeal. We, now, turn to the arguments of the parties. We had hinted earlier that, in determination of this appeal, we shall adopt the issues set out by the respondent.

ARGUMENT ON THE ISSUES

ISSUE ONE

Whether the learned trial Judge was right to have placed reliance on the judgments between the plaintiff and one Oguni Okpa in respect of the disputed land as relevant documentary evidence in sustaining the plaintiff’s claims in Suit No HB/20/2004?

APPELLANTS’ ARGUMENTS

At the hearing of this appeal on March 27, 2014, counsel for the appellants, O. N. Agbor, adopted the brief of argument filed on September 8, 2010, although deemed properly filed on February 1, 2011. In the said brief, he pointed out that the lower court placed so much reliance on the judgments between the plaintiff/respondent and Ogunni Okpa admitted as exhibits “A”, “B”, and “C”. He explained that the said judgments were: ODC/52/98, the judgment in the District Court which went on appeal to the Chief Magistrates’ Court as MB/1A/92 and, thence, to the High Court of Justice, Obubra Judicial Division as HB/2A/93.
He called attention to the fact that these judgments were against one Ogunni Okpa who was not a relation of the appellants as the respondent himself admitted under cross examination at page 114 of the record. The appellants are from the same family of Adomi Omonu.
Above all, his suit at the Customary Court was fought in his personal capacity, page 114 of the record. He pointed out that from the testimony of the respondent himself, it was clear that the parties in the previous judgment were not the same. The respondent did not sue as representing the appellants’ family of which he admitted to be a member.

He, equally, drew attention to the fact that the defendants (now appellants) disclaimed the testimony of one Elder Okpa Adoni who testified for Ogunni Okpa in ODC/52/98, that is, exhibit ‘A’, page 124 of the record. He pointed out that, in exhibit “A”, the District Court, in its finding No (h) found as a fact that the evidence of Elder Okpa Etaba was suspect. The court, he observed, noted that the elder sister to the said Elder Okpa Etaba was a witness to the respondent in a previous case, ODC/198/95. The said court gave her name as Elder Esther Etaba. In his submission, all these went to show that the evidence of Elder Okpa Etaba in exhibit ‘A’ was not accepted by the District court and was therefore not acted upon.

He wondered how the lower court could have relied on the evidence in the previous judgments when the said evidence was not only in respect of a part of the land but was rejected by the District Court. He, therefore, urged the court to reject the findings of the lower court and its conclusion with respect to the said judgments, Adeshoye v Olowolagba [1996] 12 SCNJ 95; Odonigi v Oyeleke [2001] FWLR (pt.42) 172.

RESPONDENT’S SUBMISSIONS

On his part, counsel for the respondent, Innocent C. Ovat, adopted the brief of argument filed on June 1, 2011, although, deemed filed and served on June 29, 2011. In the said brief, he contended that one of the, judicially, acceptable means of proving his claims was by proof of acts of ownership positive enough to warrant the inference that the claimant is the true owner of the land, Onwubuariri v Igboasoyi (2011) 3 NWLR (pt. 1234) 357, 386; Bamikole v Oladele (2011) 1 NWLR (pt. 1229) 483, 498-499; Okunowo v Molajo (2011) 3 NWLR (pt. 1235) 434, 449. He contended, further, that a previous judgment, though not binding as estoppel per rem judicata, strengthens and establishes acts of possession. As such, such a previous judgment is treated and considered as evidence of act of ownership and possession, Agbaisi v Ebikorefe (1997) 4 SCNJ 147, 162.

He pointed out that, at the lower court, the respondent showed that, since he went into possession of the land, he had exercised acts of ownership on the land. One of them was the fact that he had, successfully, defended four court actions against one Ogunni Okpa in respect of the said land, exhibits “A”, “B”, “C” and “D” citing pages 112 – 113 of the record. He conceded that the present appellants were not parties to the proceedings in exhibits “A” “B” “C” and “D”. That notwithstanding, he submitted that these judgments in exhibit “A – D”, although not binding on the appellants as estoppel per rem judicatam, they, collectively establish and support the evidence of the respondent’s act of possession and ownership of the said land, Aliyu v Sodipo [1994] 5 SCNJ 1, 22, 22-28; Idundun v Okumugba (1976) 1 NMLR 200; (1976) 9/10 SC (sic); Agbaisi v. Ebikorefe (1997) 4 SCNJ 147, 162; Ajuwa v. Odili [1985] 2 NWLR (pt.9) 710, 712; Chief Dokubo A. Aseimo and Ors v Chief Anthony Amos and Ors [1975] 2 SC 57; Okechukwu and Ors v Okafor and Ors (1961) All NLR 685, 690.

He explained that, though the appellants were not parties on record in these proceedings (that led to the judgments in exhibits “A” “B” “C” and “D”), they were not ignorant of the existence of the said proceedings. According to him, the appellants waited and after the respondent recorded scores of victories in the above protracted litigation, they turned round to counterclaim against this plaintiff/respondent at the lower court, citing the evidence elicited from the DW1, Joseph Ayang Etaba, during cross examination, page 124 [paragraph 3] of the record and the evidence of DW3, Aya Ejukwa Obaji, exhibit “E”.

He noted that, apart from being aware of the existence of the said proceedings/verdicts, one forebear and member of the appellants’ paternal family called Elder Okpa Etaba, fully, participated in the proceedings of exhibit “D” between Ogunni Okpa and the present respondent. He even testified as a witness in favour of the said Ogunni Okpa against the present respondent. He pointed out that the said Elder Okpo Etaba did not testify that the land belonged to his family, that is, the appellants’ paternal family. On the other hand, he (the said Elder Okpa Etaba), in exhibit “D” gave evidence that the disputed land belonged to Okpa Oguni and not the respondent pages 7 – 8 of exhibit “D” record of proceedings in Suit No ODC/52/98.
He explained that it was in respect of the same land, which the said Elder Okpa Etaba, (the appellants’ paternal family member), had claimed, on May 26, 1998, belonged to Ogunni Okpa, that the appellants, in 2004, turned around to assert their ownership in their Counter Claim against the respondent. He pointed out that this obvious contradiction between the previous evidence of Elder Okpa Etaba in exhibit “D” and the subsequent evidence of the appellants in the present case on the ownership of the disputed land, clearly, revealed the falsity and, consequentially, the unreliability of the appellants’ evidence and Counter Claim in this present case, Olodo v Josiah (2010) 18 NWLR (pt.1225) 653, 673 paragraphs C-D; Ogbuokwelu v Umfanafunkwa [1994] 5 SCNJ 24, 55 lines 7-16.

He pointed out that, in order to avoid the aforesaid evidence of Elder Okpa Etaba, the appellants contended that he [Elder Okpa Etaba] did not testify with the authority of the paternal family and that the trial court found as a fact that the evidence of Elder Okpa Etaba was suspect. In his submission, Elder Okpa Etaba was a competent witness.
As such, his evidence on the ownership of the disputed land had to be reckoned with. He contended that it was immaterial that he has no authorization from the family and that the court attached little weight to his evidence. He observed that, in their attempt to disclaim the evidence of Elder Okpa Etaba, the appellants testified that his [Elder Okpa Etaba’s] evidence was not in respect of the entire land, citing the evidence of DW1, [the third paragraph of page 124 of the record].

He noted that DW1’s evidence on this point was not pleaded. He explained that it was during the cross examination of the DW1 that the appellants raised the issue before the lower court for the first time. In his view, the lower court, rightly, ignored such evidence, though elicited in cross-examination, Kayode v Odutola (2001) 11 NWLR (pt.725) 659, 674; UBN Plc v Okoro (2002) 10 NWLR (pt.774) 1, 13-14; Shell Petroleum Dev. Co. Ltd v Anaro (2001) FWLR (pt 50) 1815, 1837; Salaudeen v. Mamman (2000) 14 NWLR (pt. 686) 63, 77.

He pointed out that the respondent (as plaintiff), in paragraphs 4, 12 and 13 of his Statement of Claim, described the “Oyiyeng farmland.”
He pleaded that it was in that land that he got the judgment of various courts [and finally Suit No ODC/52/98] in his favour. He observed that, in paragraph 13 of the statement of Defence, the appellants (as defendants) admitted the respondent’s averments in paragraphs 12, 13 and 14 of the Statement of Claim.

He canvassed the view that the numerous judgments and verdicts of the various courts (in exhibits “A” “B” “C”), glaringly, showed the cogency and consistency of the plaintiff’s [respondent’s] case as the true owner and person in possession at the disputed land, Agbaisi v Ebikorefe (supra); Aliyu v Sodipo [1994] 5 SCNJ 1, 22. He maintained that, even if the appellants were not parties to the said proceedings, they, nevertheless created strong evidence of the plaintiff/respondent’s acts of ownership and possession of the disputed land. In his view, since the issue was the proof of title to that land, and the respondent relied on acts of ownership and long possession extending over a sufficient length of time, as two distinct ways of proving his title to the land, the lower court was right to have relied on the said judgments as conclusive proof of the plaintiff’s acts of possession and ownership of the disputed land, citing page 40, second paragraph, of the record; Agbaisi v Ebikorefe (supra); Aliyu v Sodipo (supra). He urged the court to resolve this issue in favour of the respondent.

RESOLUTION OF THE ISSUE

The complaints encapsulated in the first issue are, no doubt, woven around the lower court’s findings with regard to exhibits “A” “B” “C” and “D.” It would be more appropriate, therefore, to situate the said complaints in the con of the reasoning of the lower court. At page 139 of the record (page 12 of the judgment), the lower court found that:

There is evidence that in 1988, the Customary Court, Apiapum, delivered judgment conferring title to the land on the plaintiff, Egong Ototo (respondent in this appeal) in exhibit “D.” The facts were pleaded in paragraphs 3 – 16 of the Statement of Claim. The defendants claim that they permitted the plaintiff to be on the land. There is no such evidence in proof. There is also no evidence that the plaintiff defended the suit brought against him by Oguni Okpa in a representative capacity. Rather there is evidence that one Elder Okpa Etaba testified against the plaintiff in exhibit “D” that the land was the property of Oguni Okpa. The plaintiff (respondent in this appeal) won in exhibit D.

[Italics supplied for emphasis]

At page 140 of the record, the court turned to the relevance of the previous judgments cited above to the proceedings before it:

On estoppel, the plaintiff contends that he did not plead the plaintiff (sic) of the judgment of the courts in suits between Oguni Okpa and himself to raise estoppel as the conditions for its applicability are not ripe, as the previous judgment and subject matter do not involve the same parties or their privies having said so the issue of estoppel does not arise. That does not stop the plaintiff from relying on his victories in the litigation at the various courts as they go to show that the plaintiff was exercising act of ownership and possession over the said land… The plaintiff has shown consistent evidence of not (sic, root) of title and acts of possession and ownership to raise the inference that the land is likely to be owned by him…

[Italics supplied for emphasis]

Not done yet, it found that:

On the contrary, one of the defendants’ leaders, Elder Okpa Etaba, gave evidence against the plaintiff in that action. The court gave judgment in favour of the plaintiff. That judgment in exhibit D declared that this plaintiff (respondent in this appeal) is entitled to the right of occupancy of the land. There is no appeal against the judgment and so it is still subsisting…

[Italics supplied for emphasis]

The appellants hinged their impeachment of the above reasoning of the lower court, with regard to the said exhibits on three main grounds. The first ground was that the parties in the judgments evidenced in the above exhibits were not the same. They, equally, contended that they disclaimed the testimony of their family member, Elder Okpa Adomi, who testified in ODC/52/98 to the effect that the land in dispute belonged to Ogunni Okpa. Finally, they pointed out that the District Court disbelieved Elder Okpa Adomi’s testimony.

With due respect, the above submissions of counsel for the appellant would seem to betray a clear attempt to mix up two distinct concepts in the adjectival Law of Evidence, namely, the use of previous judgments as relevant facts, on the one hand and, pleading a previous judgment as estoppel, on the other hand. Indeed, it was as if the lower court anticipated this sort of obfuscatory submission. It, expressly, referred to the contention that “as the previous judgment and subject matter do not involve the same parties or their privies having said so the issue of estoppel does not arise.” It, sagaciously, pointed out “That does not stop the plaintiff from relying on his victories in the litigation at the various courts as they go to show that the plaintiff was exercising act of ownership and possession over the said land…”

On his part, counsel for the respondent took the view that a previous judgment, though not binding as estoppel per rem judicatam, strengthens and establishes acts of possession. As such, such a previous judgment is treated and considered as evidence of act of ownership and possession. We find considerable force in this submission. In our view, the lower court was right in its reasoning that while the plaintiff could not (indeed the said plaintiff/respondent did not) plead exhibits “A” “B” “C” and “D” as res judicata, he, nonetheless, in the apt words of Ogundare JSC in Ladimeji v Salami [1998] 4 SC 1; [1998] 4 SCNJ 1, 14, could place reliance on the said exhibits as relevant facts, approvingly, adopting Chinwendu v Mbamali [1980] 3 – 4 SC 31, 48, section 55 (1) and (2) of the Evidence Act, 2004 (section 174, Evidence Act, 2011). Indeed, just a year before Ladimeji v Salami (supra), Onu JSC in Egbaran v Akpotor (1997) LPELR -1029 (SC); (1997) 7 NWLR (pt 514) 559; (1997) 7 SCNJ 392, approvingly, endorsed the 1958 decision in Dugbo and Ors v Kporoaro and Ors (1958) NWLR 73 on such a previous judgment which was not tendered as res judicata but as constituting relevant evidence.

As shown above, the lower court, equally, found that “the plaintiff has shown consistent evidence (through the said exhibits) of …title and acts of possession and ownership to raise the inference that the land is likely to be owned by him…” We are in agreement with the said conclusion. Surely, there is authority for the view that such a judgment evidences possession, which in turn constitutes part of the case of the party tendering it, Alli v Alesinloye [2000] FWLR (pt 15) 2010.

In Agbaisi v Ebikorefe [1997] 4 SCNJ 147, the respondent’s third issue was:

Whether the Court of Appeal was right in confirming the decision of the trial court that exhibit “D” (previous proceedings and judgment in W/7A/1972) was admissible as evidence of possession?

Onu JSC, speaking for the apex court, returned an affirmative answer, holding the firm view that the:

…trial court and the court below were undoubtedly right in treating exhibit ‘D’ as evidence of acts of possession. Thus, in Ajuwa v Odili (1985) 2 NWLR (pt.9) 710, 712 this Court held in an analogous situation that:

‘A previous judgment, as in exhibit “E” although not binding on the plaintiff as estoppel per rem judicata strengthens the case of the defence to establish acts of possession in their favour. James Oluba v. Chief Sillo [1973] 1 SC 37 at 55-56) followed.

The eminent jurist cited such other apex court cases like: Chief Dokubo A. Aseimo and Ors v Chief Anthony Amos and Ors [1975] 2 SC 57 and Okechukwu and ors v Okafor and ors (1961) All NLR 685, 690.
Against this background, we find no justification for disturbing the findings of the lower court on this issue. This is, more so, when, according to its unchallenged finding “there is no appeal against the [plaintiff’s favourable judgment in the said exhibit] and so it is still subsisting…” For sure, the lower court, rightly, placed reliance on the said previous judgments between the plaintiff/respondent and Oguni Okpa in respect of the land in dispute as relevant documentary evidence in sustaining the plaintiff’s claim before it, Ladimeji v Salami (supra); Chinwendu v Mbamali (supra); Egbaran v Akpotor (supra); Alli v Alesinloye (supra); Agbaisi v Ebikorefe (supra); Ajuwa v Odili (supra); James Oluba v. Chief Sillo (supra); Chief Dokubo A. Aseimo and Ors v Chief Anthony Amos and Ors (supra) and Okechukwu and Ors v Okafor and Ors (supra).

What is more, at page 140 of the record, the lower court observed thus:

The plaintiff went through series of litigations between 1991 and 1998 in respect of the land. The defendants showed little or no concern or interest until the plaintiff had judgment in the Customary Court in ODC/52/98 in his favour. On the contrary, one of the defendants’ leaders, Elder Okpa Etaba, gave evidence against the plaintiff [respondent in this appeal] in that action. The court gave judgment in favour of the plaintiff. That judgment in exhibit D declared that this plaintiff [respondent herein] is entitled to the right of occupancy of the land. There is no appeal against the judgment and so it is subsisting.

In all, we resolve this issue against the appellants.

ISSUE TWO

Whether the defendants had adduced credible and satisfactory evidence of traditional history tracing and linking them to the disputed land and whether the defendants defended the plaintiff’s claim in a representative capacity?

On this issue, he opined that a resume of the appellants’ case is that they are descendants of the founder of the land in dispute, late Ikpe Ehork, who deforested a large parcel of land which included Oyeyong, Oghahora/Okdedop. He pointed out that the appellants traced their ancestry to the two children of late Ikpe Ehork, namely, Obaji Ikpe and Adomi Ikpe.

Counsel drew attention to the fact that the appellants (as defendants) traced their relationship to the land to the late Aya Ejukwa whose evidence could be found on exhibit “E2, [page 123 of the record] and Etaba Adomi Ikpe, citing paragraphs 2 – 4 of their Statement of Defence and Counter claim, pages 13 – 14 of the record. He drew, further, attention to the evidence of DW1, page 122 of the record and the evidence of DW2, a grandchild of late Obaji Ikpe, pages 124 – 125 of the record.

He pointed out that, in their pleadings and evidence, the appellants [as defendants] were able to show that the respondent had no blood relationship with the appellant’s family, notwithstanding that the respondent himself [as plaintiff] asserted his membership of the appellants’ family, page 114 of the record. He observed that the respondent himself accepted the fact that his late father had two children, namely, Ototo Obaji and Ejukwa Obaji, pages 112 and 115 of the record. He, also, accepted the fact that his father’s brother, Ejukwa, had children. One of them was Aya Ejukwa, page 115 of the record.

Counsel explained that it was the same Aya Ejukwa who testified in exhibit “E” and denied the respondent’s membership of their family. In exhibit “E”, the said Aya Ejukwa stated that the land belonged to the appellants.

Counsel pointed out that the respondent (as plaintiff) never gave evidence of partitioning of the family land even between his father and his purported father’s brother, Ejukwa even though, from his own account, his father had a brother. He contended that there should have been evidence of partition to entitle the respondent/plaintiff’s father to exclusive ownership of the said land. There was no such evidence in the record, citing Adedeji v Oloso (2007) 12 WRN 114. He referred to the findings of the lower court at page 139 of the record which, in his opinion, runs against the grain of the reasoning of the apex court in Adedeji v Oloso (supra).

He urged the court to look at the issue of representative capacity. He pointed out that the lower court, also, observed that the appellants did not defend in a representative capacity as contained in the quotation above. He submitted that the joint defence and Counter Claim of the appellants was fought in a representative capacity although no order to so defend the matter was sought and obtained. He drew attention to the Counter Claim of the appellants, page 16 of the record, which, clearly, stated that they (the appellants) were claiming for themselves and on behalf of the Ikpe Ehork (Adomi Omonu) family.

He noted that, from the Joint Statement of Defence, the appellants [as defendants] defended the suit for and on behalf of the Ikpe Ehork (Adomi Ominu) family, citing the evidence of DW2, page 124 of the record to show that they defended the suit in a representative capacity. We maintained that the action was defended in a representative capacity, Jack v Whyte [2001] FWLR (pt 43) 247. He urged the court to uphold the appeal even on this issue alone.

RESPONDENT’S ARGUMENTS

On this issue, counsel for the respondent contended that the respondent and the appellants claimed and counterclaimed in suit No. HB/20/2004. As such, both parties were treated as plaintiffs or claimants. Each party had the burden of proving his respective or individual claims to the title or ownership of the land in dispute, Ogundipe v Adenuga (2006) All FWLR (pt. 336) 266, 295. In his submission, they could do either by conclusive traditional evidence, or by exercise of maximum acts of ownership over a sufficient length of time, numerous and positive enough to warrant the inference that they were the exclusive owners of the land, Alhaji Awodi v Mallam Ajagbe (2009) All FWLR (Pt.454) 1413, 1445.

He pointed out that the appellants pleaded and relied on traditional history in defence to the claim and as proof of their root of title to the land they counterclaimed in HB/20/2004. He observed that, from the records, it could be seen that the appellants’ evidence of traditional history was riddled with inexplicable gaps and fatally silent on the chain of succession or devolution to the land that links the appellants to the disputed land, Nkado v Obiano [1997] 5 SCNJ 33, 47. He noted that the appellants failed in this regard as they adduced scanty and unsatisfactory evidence of traditional history.

He contended that the essential elements of the evidence of traditional history were, completely, missing in the appellants’ evidence before the lower court. He observed that the appellants called two witnesses who testified in their favour, citing Joseph Ayang Etaba (DW1) and Adomi Obaji Edukwa [DW2]. They tendered exhibit “E”, pages 122 – 124 of the record, for the evidence of DW1 and pages 124 – 125 of the record, for the evidence of DW2. He submitted that where title is founded on traditional history, the plaintiff must plead and adduce evidence establishing the following facts: the founding of the land; the person who founded the land and exercised original acts of ownership/possession; the person on whom the title in respect of the land had devolved since it was founded, Lawal v Salami (2002) FWLR (pt.87) 638, 667; Gbadamosi v Okege (2011) 3 NWLR (pt.1233) 175, 199-200; Jiya v AWUMI (2011) 4 NWLR (Pt.1238) 467, 487; Alhaji Awodi v Malam Ajagbe (2009) All FWLR (pt.454) 1413, 1438-1439C and Obiora v Duru [1994] 10 SCNJ 48, 61.

He pointed out that, throughout the evidence at these two defence witnesses, nothing was said on who founded the disputed land and how the land was founded. He drew attention to paragraph 4 of the Joint Statement of Defence and Counter Claim. There, the appellants pleaded that one Ikpe-Ehort, their great-grandfather, deforested the disputed land. He noted that this averment had to do with who and how the land was founded, pages 13 – 19 of the record. He observed that the appellants failed to give evidence in support of these pleaded facts of who and how the land was founded and so they are deemed abandoned, shell Petroleum Dev. Co. Ltd v. Anaro (2001) FWLR (pt.50) 1815, 1842; West Construction Co. Ltd v Batalla (2006) All FWLR (pt. 315) 1, 5, Agbi v Audu Ogbe (2006) All FWLR (pt. 329) 941, 985.

He submitted that the appellants’ failure to adduce evidence establishing who founded the land and how it was founded undoubtedly made their evidence of traditional history unsatisfactory, inconclusive. Their claim to title to the disputed land, based on this inconclusive traditional history, was, thus, bound to fail, Achiakpa v Nduka (2001) FWLR (pt.71) 1804, 1829. The appellants, he contended, woefully failed to adduce evidence on the particulars of the intervening owners from the founder to them. This aforesaid omission violated the primary principle of law that a party who relies on traditional history or traditional evidence to assert his ownership of land must plead the names and the history of his ancestors in such a manner to disclose a continuous chain of devolution, Ekekwe v Amajuoyi (2000) FWLR (pt.30) 2689, 2699. He contended that, just as the appellants failed to adduce evidence of who and how the land was founded, they also failed to lead evidence of the intervening owners of the land from the founder to the present counter claimants. He maintained that the totality of the evidence of the two appellants’ witnesses left gaping holes and unanswered fundamental questions on who founded the land, how it was founded and the particulars of the successive owners through whom they counter claimed.

Counsel pointed out that, rather than state the particulars of the intervening owners of the land, the evidence of the appellants’ witnesses was basically on a spurious history of the respondent, coupled with an inconsistent and incongruous evidence of the descendants of one Ikpe Ehork. In his view, this haphazard evidence made it impossible to even guess or imagine a chain of devolution, paragraphs 5. 22, (a) – (j), pages 9 -10 of the respondent’s brief. In his submission, it was, therefore, not surprising, that the lower court declared that their traditional history was riddled with inexplicable gaps, mysterious linkages, page 140 of the record. He maintained that the appellants were misconceived when they contended that they traced their ancestry to the children of late Ikpe Ehork, citing page 39 of the record.

Counsel explained that, in Suit No HB/20/2004, the plaintiff sued in a personal capacity while the appellants (as defendants) were sued in their personal capacities simpliciter. He pointed out that it was in the Counter Claim that the appellants (as counter claimants) sued in their personal capacities and as representatives of the Ikpe Ehork (Adomi Omonu) family, citing the Joint Statement of Defence and Counter claim, pages 13 – 19 of the records, particularly, page 16 thereof “Counter Claim.”

He submitted that the fact that the defendants/appellants counterclaimed in a representative capacity does not mean that such representative capacity must be extended and imported to the respondent’s claim where the appellants were clearly sued in their personal capacities.
According to him, this must be so because Counter Claim is an independent, complete and distinct cause of action. As such, it is a separate action which should stand or fall on its own merits, Prime Merchant Ltd v Mn-Mountain Company (2000) FWLR (pt.9) 1587, 1513; Zenith Int’l Bank Ltd v Vickdab and Sons (Nigeria) Ltd (2011) (sic) 337, 351.

RESOLUTION OF THE ISSUE

This issue has two limbs. The first one deals with the question whether the appellants [as defendants/Counter Claimants] adduced credible and satisfactory evidence of traditional history. The second limb is limited to the question whether they defended the plaintiff’s claim in a representative capacity. We shall tackle the first limb at once.
DW1, [pages 122-123 of the record] and DW2, (pages 124 -125 of the record) testified in this regard. The lower court was not satisfied that their testimonies satisfied the threshold test enunciated in case law. Listen to its assessment of the testimonies of these two witnesses:

The defendant’s (sic) evidence is that they are entitled to the land tracing gave (sic) to Ikpe Ehorh (Adomi Omonu) family. This was by the evidence of DW1 and DW2 and exhibit E. Their evidence showed devolution down to Etaba Adomi Ikpe but that the land is vested in Aya Ejukwa Obaji and the defendants. The question is what is the relationship of the defendants to the land in dispute? They did not purport, in their Joint Defence that they were defending in a representative capacity. Their Counter Claim is distinct. The defendants are, therefore, not proved to be linked with the said Ikpe Ehorh or any other family. The plaintiff did not lay claim to additional parcel of land, at least not on the pleadings.

[page 139 of the record]

According to the court:

The evidence of the defendants further did not show that they knew the land in dispute. The earliest evidence of the defendants on action (sic), the land in that they entered the land in 2003 when they told plaintiff to vacate the land as it belongs to their forefathers, they being members of the defendant’s family. They forgot that one Elder Okpa Etaba had testified in exhibit D that the land was the property of Oguni Okpa when the plaintiff sort (sic) to defend his title to the said land between 1991 and 1998. The defendant’s evidence on the traditional history was riddled with inexplicable gaps, where (sic, were) they descendants of Obaji Ikpe or Ikpe Ehork?…

[pages 139-140 of the record, italics supplied]

The court was not yet done. It proceeded thus, in arriving at the finding in favour of the respondent:

I have carefully analysed the evidence adduced on either side. I believe that the evidence of the plaintiff is mine (sic, more) probable than that of the defendants. The plaintiff has shown consistent evidence of not (sic, root) of title and acts of possession and ownership to raise the inference that the land is likely to be owned by him. The defendants, on the other hand, have not been able to prove that they are entitled to the claim…the defence showed that they came on the land in 2003 and there is no other evidence of possession before them…

[page 140, italics supplied]

In other words, the appellants, by the findings of the lower court, did not know the land; could not, even, chart their nexus with the land; did not show their linkage with either Obaji Ikpe or Ikpe Ehork, simply put, their traditional evidence was riddled with inexplicable gaps and mysterious linkages; worse still, their family member had given evidence against their interest by testifying that the land, actually, belonged to one Oguni Okpa. In our humble view, contrary to the contention of the appellants’ counsel, these findings find firm anchorage on binding authorities.

In order to appreciate the lower court’s findings to the effect that the defendants/appellants did not, successfully, chart their relationship with the land in dispute, we think it would be neat and proper to outline or delineate the nature of their onus, as clearly, enunciated in case law in this regard. Our understanding of these authorities is that in order to succeed in a claim of title to land based on traditional history, it is incumbent on the claimant relying on it to plead and lead evidence to show: (1) how his ancestors derived title to the land, (2) the person who founded the land and exercised original acts of possession, (3) particulars of the intervening owners through whom the party or parties claim, (4) the person or persons on whom the title in respect of the land devolved since it was founded.

Against this background, we find no merit in the appellants’ complaint in this first limb of this issue. We resolve it against them. The second limb is limited to the question whether they defended the plaintiff’s claim in a representative capacity.

It is difficult to understand the basis of the appellants’ agitation with respect to this second limb. We have perused the Writ of Summons and Statement of Claim, pages 1-3 of the record and the respondent’s Reply to the Joint Statement of Defence and Counter Claim, page 8 of the record. A look at page 13 of the record would reveal that the appellants never defended the suit in a representative capacity. It was only at page 16 of the record that part of the appellants’ process titled “Counter Claim” contained an expression indicating that they were counter claiming “for themselves and on behalf of the Ikpe Ehork (Adomi Omonu) family.” That, in no way, would suggest that the said appellants defended the plaintiff/respondent’s suit, commenced by his Writ of Summons and Statement of Claim (supra), in a representative capacity. We, entirely, agree with the submissions of the respondent’s counsel that a Counter Claim is an independent, complete and distinct cause of action. As such, it is a separate action which should stand or fall on its own merits, Usman v Garke [2003] LPELR -3431 (SC); Ogbonna v AG, Imo State and Ors (1992) LPELR -2287 (SC); Obala of Otan – Aiyegbaju and Ors v Adesina and Ors (1999) LPELR -2149 (SC); [1999] 2 NWLR (pt 590) 163; Oragbade v Onitiju (1962) 1 All NLR 32; Jeric (Nig) Ltd v UBN Plc (2000) LPELR -1607 (SC); [2000] 12 SC (pt 11) 133; Dabup v Kola [1993] 9 NWLR (Pt 317) 254; Prime Merchant Ltd v Mn-Mountain Company (supra); Zenith Int’l Bank Ltd v Vickdab and Sons (Nigeria) Ltd (supra. We, equally, find no merit in their complaint in this limb of this issue, Accordingly, we resolve it against them.

ISSUE THREE

Whether the defendants, from the evidence on record, had led sufficient evidence of customary tenancy for the court to grant the defendants’ Counter Claim in this matter?

Counsel explained that he formulated this issue before the lower court as a point under the main question of whether possession in customary law, no matter however long, could ripen to proof of title and ownership over and above real owners of the land. He observed that, it was in the course of arguing the above main question, that he raised the issue of customary tenancy as a sub point at page 32 of the record. He pointed out that the defendants/appellants pleaded the issue of customary tenancy and gave evidence to that effect through the DW1, page 122 of the record. He noted that the respondent/plaintiff never cross examined the DW1 on the issue pertaining to the instructions on the use of the farm land, page 124 of the record. The issue, therefore, must be taken as having been admitted, Fatilewa v State (2007) 6 WRN 41. He submitted that the plaintiff’s failure to pay allegiance to the defendants/appellants’ family amounted to a breach of their right of user, Ishie v Ansa (2001) FWLR (pt 80) 1529.

RESPONDENT’S CONTENTION

Learned counsel for the respondent submitted, on this issue, that contrary to the appellants’ contention, the respondent joined issues with the appellants on the question of customary inheritance. In particular, the respondent traversed and denied the appellants’ averments that he was their customary tenant, paragraph 1 (a) – (d); (g) – (j); paragraphs 2; 5-6,9 of the Reply to the Joint Statement of Defence and Defence to Counter Claim, pages 6-9 of the record. He, further, pointed out that the respondent pleaded facts that clearly and completely negatived the existence of customary tenancy.

He observed that, from his pleading, the respondent’s case was that his grandfather (named Obaji Ikpe) deforested the land in question and that, at his death, his father (Ototo Obaji) inherited the land in accordance with the prevailing native laws and custom. At the death of his father in 1986, he, in turn, inherited the land, paragraphs 3-4; 6-11 of the Statement of Claim, pages 3-7 of the record.

He noted that, at the trial, the respondent maintained that his father – Ototo Obaji – was not a stranger but an indigene of Apiapum and not Okorokpana, page 114 of the record. Furthermore, he led evidence to show that his grandfather deforested the land. He (the respondent) inherited this land under the prevailing custom. He drew attention to pages 112- 121 of the record where the respondent averred that the defendants/appellants were not the owners of the land. He submitted that the appellants did not lead any credible evidence of customary tenancy.

He wondered how there could have been customary tenancy when the appellants’ family member and forebear – Elder Okpa Etaba – in exhibit “D” testified before the Okum District Court in suit No ODC/52/98 that the land in question belonged to Ogunni Okpa and not to the appellants’ paternal family as the customary landlords, citing the findings at page 140, paragraph 4, of the record.

He contended that, contrary to the appellants, contention, the respondent herein (as plaintiff) cross-examined and challenged the appellants on the issue of customary tenancy. In particular, the respondent’s counsel cross-examined the appellants’ witness Aya Ejukwa Obaji – on the issue of customary tenancy. DW1 tendered the evidence of Aya Ejukwa Obaji in the subsequent proceedings as exhibit “E” under section 34 of the Evidence Act (then applicable to the proceedings).
He invited attention to exhibit “E.” There, the said Aya Ejukwa Obaji, in his evidence-in-chief, adduced evidence of customary tenancy against the appellants [plaintiffs, at the lower court]. He, further, drew attention to pages 2-3 of exhibit “E” to show the plaintiff/respondent’s counsel cross examined and challenged the defendants/appellants on the issue of customary tenancy. Thus, it would be incorrect to assert that the respondent admitted the issue of customary tenancy.

He urged the court to place reliance on the records which pointed to the fact that the respondent (as plaintiff) cross examined the appellants on this issue, Ozims v Anoruo (1991) 3 NWLR (Pt 181) 571, 579. He explained that the land, which Elder Okpa Etaba claimed belonged to Oguni Okpa, is the subject matter of the present suit in which the appellants are now claiming ownership. He urged the court to resolve this issue in favour of the respondent.

RESOLUTION OF THE ISSUE

With profound respect to the appellants’ counsel, the submission that the respondent did not cross examine the appellants on the issue of customary tenancy flies in the face of the record. Again, we have, meticulously, gone through the records transmitted to this court. First, we invite attention to the averments in the respondent’s Reply to the Joint Statement of Defence and Defence to Counter Claim, paragraph 1 (a) – (d); (g) – (j); paragraphs 2; 5 – 6, 9 thereof pages 6-9 of the record. What is more, we endorse the contention of the respondent’s counsel that paragraphs 3-4; 6-11 of the Statement of Claim, pages 3-7 of the record, clearly and completely negatived the existence of customary tenancy.

More, pertinently, pages 2-3 of exhibit “E” indicate that the plaintiff/respondent’s counsel cross-examined and challenged the defendants/appellants on the issue of customary tenancy. The said exhibit “E” was tendered under section 34 of the Evidence Act (then applicable to the proceedings). It was, perhaps against this background that the lower court proclaimed at page 141 of the record that:

…a party is presumed to be the owner of the land in dispute until the contrary is proved to rebut the presumption. The only way to rebut the presumption is by strict proof of alleged customary tenancy. This, the defendants [now, appellants] have not done, citing Udeze v Chidebe (1990) 1 NWLR (pt 125) 141, 160-161 …There is no evidence on record that the plaintiff recognized the defendants or their predecessors as their overlords. Rather, the totality of the evidence is even more consistent with the plaintiff’s claim that his title to the land in dispute is absolute…

Earlier, at page 140 of the record, the lower court had found that:

There is no evidence of payment of anything by the plaintiff or his father to the defendants’ family as customary tenant. The absence of this evidence cannot be filled by learned counsel’s submissions (sic) there is also no evidence of terms and conditions which the plaintiff or his father kept or ought to keep as regards his occupation of the land.

There is no appeal against the finding that “there is no evidence of payment of anything by the plaintiff or his father to the defendants’ father as customary tenant.” As such, the appellants are bound by it, Olateju v Sanni (2011) All FWLR (Pt 590) 1257; (2011) 31 WRN 83; (2010) LPELR – 4752 (CA). We, therefore, find no merit in their complaints in this issue. In all, we resolve this issue against them.

ISSUE FOUR

Whether the learned trial Judge properly evaluated the evidence adduced before the lower court?

APPELLANTS’ SUBMISSIONS

On this issue, counsel pointed out that, from the traditional history as pleaded and given in evidence, the respondent could not link his ancestry to that of the appellants having himself asserted that his grandfather was late Obaji Ikpe. He noted that respondent’s grandfather, Obaji Ikpe, had two sons, namely, Ototo Obaji (respondent’s father) and Ejukwa Obaji. He observed that the evidence of Aya Ejukwa in exhibit ‘E’ is quite relevant.

He noted that the said late Aya Ejukwa traced the family history of Obaji Ikpe. He did not mention the respondent’s father as one of the children of Obaji Ikpe. He, further, noted that this witness, who was the only surviving grandchild of Obaji Ikpe, told the court that the respondent’s late father, Ototo Obaji (Enyam), was only brought into the family after being treated and cured of a strange ailment. He pointed out that this evidence was in tandem with that of DW1 and DWII. According to him, the evidence of DWII corroborated that of DW1. He pointed out that this evidence was quite relevant because the DW11, Adom Obaji Ejukwa, was a son of the late Obaji Ejukwa whom the PW11, Friday Egong Ototo mentioned. He observed that this evidence was not shaken in cross examination as the respondent opted not to cross examine the DW11 on this issue.

He submitted that, where a party pleads a root of title, that root has to be established first, Orunengimo v Egbe (2007) 52 WRN 1; Fasoro v Beyioku [1988] 2 NWLR (pt 76) 263, 271. He pointed out that, in the instant case, the plaintiff pleaded and led evidence that he was a grandchild of Obaji Ikpe. He, however, could not substantiate or corroborate the said evidence in the face of the various independent testimonies of the defendants and their witnesses, as shown above.
He canvassed the view that the onus of pleading and proving evidence of traditional history is that such a party must prove the origin of ownership claim to the land in dispute and evidence of a chain of devolution to the land through successive ancestors without leaving any unexplained or unexplainable gaps in the line of successors, Awo Di v Ajagbe (2007) 47 WRN 95.

He, further, submitted on this issue that even assuming, but no conceding, that the plaintiff/respondent proved his family ties to the appellants’ family that would not entitle him to exclusive claim of ownership over and above the entire family when there was no evidence of partitioning of the said family among members. He pointed out that, if Obaji Ikpe, the supposed grandfather of the respondent had two sons, Ototo Obaji and Ejukwa Obaji, (as per evidence of the respondent) the respondent would not claim exclusive ownership. He maintained that a party claiming absolute title in the family property must prove such exclusive entitlement, Akpadiaha v Owo (2001) FWLR (pt 57) 940.

He contended that the testimonies of the appellants and their witnesses were more positive to the fact that the respondent was not a member of the family. On the other hand, he was a servant to their family member, Obaji Ikpe, who cured his [respondent’s] father, late Ototo Obaji. He pointed out that to corroborate this fact was the evidence of late Aya Ejukwa in exhibit 2E. This witness, counsel noted, stated that even after the respondent’s father died, the respondent did not perform the burial to his family but to the maternal family of the respondent’s father who came from Okorigbana. He noted that the respondent had no witness from any family member to corroborate his evidence of membership of the family. He urged the court to allow the appeal.

RESPONDENT’S SUBMISSIONS

On this last issue, counsel contended that the respondent pleaded and adduced credible and cogent evidence of his ancestry vis-a-vis the land in dispute. Together with the court judgments in exhibits “A-D”, he showed and established his acts of possession and ownership thereto. The respondent [PW1 at the lower court], counsel pointed out, traced his ancestry to his grandfather – Obaji Ikpe. His said grandfather begat two children, namely, Ototo Obaji and Ejukwa Obaji. Ejukwa Obaji predeceased Ototo Obaji, who begat the respondent as his only child. He explained that, according to evidence of PW1 (respondent), his father, Ototo Obaji, through whom he claimed, inherited the land from Obaji Ikpe [the respondent’s grandfather] to the exclusion of his brother, Ejukwa, citing page 114 of the record for the evidence of the exclusive entitlement of the respondent’s father. This exclusive entitlement devolved on the respondent on the death of his father [Ototo Obaji] in accordance with the prevailing custom. This evidence was corroborated by the PW2 [Friday Egong Ototo], pages 118 -121 of the record.

He explained that the appellants, on their part, maintained that the respondent was not a member of their family and did not inherit the land as such. He referred, once more to the judgment of the Okum District Court in Suit No ODC/52/98 between one Ogunni Okpa (as the plaintiff) and the respondent herein (as defendant). One Elder Okpa Etaba, the appellants’ forebear and a member of their paternal family, testified in exhibit “D” in favour of the said Ogunni Okpa against the respondent (who was defendant in ODC/52/98). He noted that the said Elder Okpa Etaba, as a witness in ODC/52/98, did not say that the disputed land belonged to the defendants/appellants’ paternal family. Rather, he averred on oath that the land in question belonged to Ogunni Okpa. He pointed out that the respondent got judgment in ODC/52/98. He noted that the appellants claimed title to the same in the present action.

Counsel explained that the lower court was faced with the respondent’s credible, cogent and straight forward evidence backed up with court judgments, on the one hand and the appellants’ haphazard evidence of their genealogy characterized by their inconclusive evidence of traditional history that was riddled with gaping holes and filed with mysterious linkages, on the other hand. The lower court, which had the privilege of hearing the parties’ witnesses, studying their demeanour and evaluating the evidence on record, [both oral and documentary], believed the respondent’s version. It disbelieved the evidence of the appellants [as defendants] as it was its duty to do so, Gbinijie v Odji (2011) 4 NWLR (pt 1236) 103, 132; Onwubuari v Igboasoiyi (2011) 3 NWLR (pt 1234) 357, 358; Ogunleye v Aina (2011) 3 NWLR (pt 1235) 479, 574; Aro v Lagos Island LGC (2000) FWLR (pt.13) 2132, 2156 and Anyanwu v Uzowuaka (2009) 13 NWLR (pt.1159) 445, 464, 486.

He submitted that the respondent, by preponderance of evidence, had successfully discharged the burden placed upon him to establish his claims against the defendants/appellants. That onus placed on him was discharged on the balance of probabilities, Alhaji Awodi v Mallam Ajagbe (supra) 1445 paragraph D. He maintained that the appellants, on their part, woefully failed to establish their defence to the respondent’s claims. Worse still, they could not prove their Counter Claim. They were, thus, adjudged liable to the respondent’s claims. Their Counter Claim was, justly, dismissed. He urged the court to resolve this issue in favour of the respondent and dismiss the appeal as being unmeritorious. That the court should affirm the lower court’ judgment delivered on July 9, 2009.

RESOLUTION OF THE ISSUE

That notwithstanding, we find that the lower court, properly, evaluated the evidence of traditional history in its judgment. We invite that court to speak for itself:

The evidence adduce (sic) by the plaintiff and his witness is that his grandfather deforested the land and it subsequently devolved on his father, Ototo Obaji, then to him. He tendered exhibits A, B, C and D to support his claim and that they are evidence that he highlighted over this piece of land against Oguni Okpa between 1991 and 1998 and these were acts of ownership and possession extending over a length of time, (citing paragraphs 6 – 10 of the Statement of Claim).

The defendants contended that the plaintiff could not prove his ancestry over the land and could not prove exclusive ownership of the land. I note that there is evidence by the plaintiff that Obaji Ikpe deforested the land in dispute. He also stated that Obaji had two children, Ototo and Ejukwa. By his evidence, Ejukwa died first. Thereafter his own father died and having done the burial rites, he inherited the land. It was contended that the plaintiff is not a member of the defendants’ family. The plaintiff gave evidence that he is the grandson of Obaji Ikpe. Apart from the near (sic, mere) assertion that he is not, not much was said about the devolution of the land by defendants on the defendants. The defendants themselves could not link to either Obaji Ikpe or Ikpe Ehorh (alias Adomi Omonu) how the land devolved on them. Even exhibit E which the defendants rely upon, the said witness [in] the exhibit E said the defendants are not his grandchildren but members of his paternal family
[pages 138 – 139 of the record, italics supplied for emphasis]

Still on the paucity, or rather, the poverty of the defendants’ evidence in this regard, the lower court made these findings:

The defendants’ evidence is that they are entitled to the land tracing gave (sic) to Ikpe Ehorh (Adomi Omonu) family. This was by the evidence of DW1 and DW2 and exhibit E. Their evidence showed devolution down to Etaba Adomi Ikpe but that the land is vested in Aya Ejukwa Obaji and the defendants. The question is: what is the relationship of the defendants to the land in dispute? They did not purport in their Joint Defence that they were defending [in] a representative capacity. Their Counter Claim is distinct. The defendants (appellants) are, therefore, not proved to be linked with the said Ikpe Ehorh or any other family. The plaintiff did not lay claim to additional parcel of land, at least, not in the pleadings…

[page 139 of the record, italics supplied for emphasis]

Still on the poverty of the appellants’ evidence, the lower court found that:

The evidence of the defendants further did not show that they knew the land in dispute. The earliest evidence of the defendants on action (sic), the land in that they entered the land in 2003 when they told [the] plaintiff to vacate the land as it belongs to their forefathers, they being members of the defendants’ family. They forgot that one Elder Okpa Etaba had testified in exhibit D that the land was the property of Oguni Okpa when the plaintiff (respondent in this appeal) sort (sic, sought) to defend his title to the land between 1991 and 1998. The defendants’ evidence on the traditional history was riddled with inexplicable gaps, where (sic, were) they descendants of Obaji Ikpe, Ejukwa or Ikpe Ehorh?

[page 140 of the record, italics supplied for emphasis]

Armed with these far reaching findings, products of a most painstaking evaluation of the evidence of the parties on the imaginary scale, the lower court turned to the belief and disbelief of the witnesses.
Hear the court’s verdict in this regard:

I have, carefully, analysed the evidence adduced on either side. I believe that the evidence of the plaintiff is mine (sic, more) probable than that of the defendants. The plaintiff has shown consistent evidence of not (sic, root) of title and acts of possession and ownership to raise the inference that the land is likely to be owned by him. The defendants, on the other hand, have not been able to prove that they are entitled to the claim. While the plaintiff’s evidence is mere (sic, more) plausible, the defence showed that they came on the land in 2003 and there is no other evidence of possession before them. For these and other reasons earlier stated in this judgment, I hold the view that the plaintiff has proved his case as required by law on the balance of probabilities.

[page 140 of the record, italics supplied for emphasis]

In the first place, the lower court was faced with evidence, which bordered, virtually, on whom to believe, having had, in addition, the advantage of hearing and seeing the witnesses testify. It believed one side, namely, the plaintiff/respondent’s story. There was ample evidence to support this. It, accordingly, made its above findings which could not be said to be perverse. In consequence, this appeal court would not be entitled to disturb its said findings, see, per Uwaifo JSC in Akaaer Jov v Kutuku Dom (1999) LPELR -1635 (SC), 17-18, F-A, citing Ebba v. Ogodo and Ors (supra) at 98.

What is more, we are emboldened by the magisterial position of the apex court on this question. It comes to this. If appellants (such as the appellants in this appeal) must succeed in an appeal against findings of facts, they must show that, in the performance of its primary duty of appraisal of oral evidence and ascription of probative values to such evidence, that the court of first instance made imperfect use or improper use of the opportunity of hearing and seeing the witnesses.

Alternatively, that it drew wrong conclusions from accepted or proved facts which those facts do not support, Omoregie v Edo (1971) 1 All NLR 282, 289; Fashanu v. Adekoya (1974) 1 All NLR 35, 41; Okolo v. Uzoka [1978] 4 SC 77, 86, see, generally, per Uwaifo JSC in Akaaer Jov v Kutuku Dom (supra). The appellants did not succeed in showing any of these. In consequence, we shall, firmly but politely, decline their invitation for us to disturb the above findings. We find that we cannot do that. We, accordingly, resolve this issue against them. Having resolved all the issues against them, we proceed to enter an order dismissing their appeal as being unmeritorious. Appeal dismissed. We, in consequence, affirm and uphold the well-considered judgment of B. T. Ebuta J delivered on July 9, 2009. N30,000.00 costs in favour of the respondents.

UZO I. NDUKWE-ANIYANWU, J.C.A.: I had the privilege of reading in draft form, the Judgment just delivered by my learned brother C, C, Nweze, JCA. He has dealt with all the issues presented for determination and found no merit in them. This appeal is therefore dismissed by me. I abide by all the consequential orders contained in the lead Judgment.

ONYEKACHI A. OTISI, J.C.A.: My learned Brother, Chima Centus Nweze, JCA, advanced a draft copy of the Judgment just delivered, dismissing the appeal. I am in complete agreement with the scholarly reasoning and the conclusions reached; which I adopt as mine.
I also dismiss the appeal and affirm the judgment of the lower court.

Appearances

O. N. AgborFor Appellant

AND

Innocent C. OvatFor Respondent