NTOE ANDREW O. NSA & ORS v. REV. MARCUS N. ENENE & ORS
(2015)LCN/7996(CA)
In The Court of Appeal of Nigeria
On Monday, the 31st day of August, 2015
CA/C/306/2013
RATIO
EVIDENCE: BURDEN OF PROOF; WHICH OF THE PARTIES HAS THE BURDEN OF PROOF IN CIVIL CASES
As earlier pointed out, the respondents did not counter-claim thereby leaving the onus of situating the land in dispute squarely on the appellants. ADEREMI, JSC put it very succinctly thus:
“In civil cases, the like of the one under consideration, on the burden of proof on the pleadings, the rule is that the burden of proof rests on the party (whether plaintiff or defendant , who substantially asserts the affirmative of the issue. When it is said that onus of proof shifts from plaintiff to defendant and vice versa from time to time as the case progresses, it means no more than the burden of proof may shift depending on how the scale of evidence preponderates. However, subject to the scale of evidence preponderating, the burden of proof rests squarely on the party who would fail if no evidence at all, or no more evidence as the case may be, were given on either side. per. JOSEPH OLUBUNMI KAYODE OYEWOLE, J.C.A.
EVIDENCE: BURDEN OF PROOF; WHEN DOES THE BURDEN OF PROOF SHIFTS FROM THE PLAINTIFF TO THE DEFENDANT
However, let me quickly say that if a plaintiff on whom always rests the onus of proving that affirmative of what he asserts, no burden shifts to the defendant unless he has counter-claimed.” See IROAGBARA VS UFOMADU (2OO9l 38 NSCQR 222 at 235. per. JOSEPH OLUBUNMI KAYODE OYEWOLE, J.C.A.
JUSTICES
CHIOMA EGONDU NWOSU-IHEME Justice of The Court of Appeal of Nigeria
PAUL OBI ELECHI Justice of The Court of Appeal of Nigeria
JOSEPH OLUBUNMI KAYODE OYEWOLE Justice of The Court of Appeal of Nigeria
Between
1. NTOE ANDREW O. NSA
2. HON. STEPHEN BASSEY
3. MADAM MARGARET ISO
4. ASSIM O. A. ITA
5. PATRICK AGBOR O. EDEM
(For themselves and on behalf of Kasuk Qua clans, Calabar) Appellant(s)
AND
1. REV. MARCUS N. ENENE
2. REGISTERED TRUSTEES OF THE METHODIST
CHURCH OF NIGERIA (Wesley Church City
Of Testimonies Branch of the Methodist
Church of Nigeria)
3. METHODIST CHURCH OF NIGERIA
4. PRINCE EMMANUEL E. ISHIE (4th Defendant
For and on behalf of prince Etim Effiong Nta,s Family)
6. CHIEF EKPEYONG EKE EFFIONG
7. ELDER EDET EKE EFFIONG
CHIEF NTA EKE EFFIONG
8. PRINCE OFFIONG EKE EFFIONG
(5th-8th defendants for and on behalf of late chief
Eke Effiong Nta’s family) Respondent(s)
JOSEPH OLUBUNMI KAYODE OYEWOLE, J.C.A. (Delivering the Leading Judgment).: This is an appeal against the judgment of the High Court of Cross-River State, Calabar Judicial Division delivered on the 28th day of March , 2013 by Hon. Justice Akon B. Ikpeme.
The appellants as plaintiffs had approached the trial Court via the instrumentality of a writ of summons wherein they claimed as follows:
1. A declaration that the plaintiffs are entitled to the Certificate of Occupancy over the land in dispute in plan No. JEJ/CR/11080.
2. An order of perpetual injunction restraining the defendants by themselves, their agents, assigns or servants from further interfering, entering upon or dealing with the said land in dispute in any manner whatsoever without the consent of the plaintiffs.
3. An order for account and return of all monies either paid out or collected over the land in dispute.
4. N15 million damages for trespass.
The two sides joined issues in their pleadings and at the end of the trial, the learned trial Judge in a considered judgment found no merit in the appellants’ case and accordingly dismissed it. Obviously
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dissatisfied with this development, the appellants invoked the appellate jurisdiction of this Court via a Notice of Appeal filed on 28th June, 2013 containing 7 grounds.
At the hearing of the appeal, the learned lead counsel for the appellants, Mr. Ironbar adopted his amended appellants’ brief filed on 25th February, 2015.
Therein the learned counsel distilled and argued 5 issues for determination tied to the various grounds of appeal as follows:
1. Whether having regard to the evidence in this matter the appellants identified the land in dispute and proved trespass thereon. (Ground 1).
2. Whether the onus of identifying the land in dispute in Exhibit 13, a plan tendered by the respondents was rightly placed on the appellants by the trial Court. (Ground 3).
3. Whether the trial Court was right to hold in the circumstances of this matter that the Judgment in Suit No. C/88/76 which became CA/E/210/96 and ended as SC/92/2002 constituted res Judicata against the appellant. (Ground 2).
4. Whether from the evidence on record including exhibits tendered the appellants proved that the grant of the land – to the defendants ancestors was
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with conditions. (Ground 4).
5. Whether the trial Court was justified in finding that the respondents could lease the land at will and in going ahead to make a binding decision upon an issue abandoned instead of striking it out. (Grounds 5 and 6)
For the respondents their learned counsel, Mr. Akpabio adopted the respondents’ brief filed on 28th March, 2O14 but deemed properly filed and served on the 22nd September, 2014 wherein the respondents adopted and argued the issues for determination distilled and argued by the appellants.
Mr. Ironbar argued the first two issues together. The reality is that the fate of this appeal actually turns on these two issues especially issue 1, as the remaining three are adjunct and would become academic depending on the fate of the first two. The two issues are as follows:
1. Whether having regard to the evidence in this matter the appellants identified the land in dispute and proved trespass thereon. And
2. Whether the onus of identifying the land in dispute in Exhibit 13, a plan tendered by the respondents trial rightly placed on the appellants by the trial Court.
He submitted that although the
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appellants were prevented by the respondents from producing a land in dispute plan, they sufficiently identified the land in dispute in their pleadings and through their witnesses as required by law thereby faulting the conclusion of the learned trial Judge that they failed to identify the land they claimed.
He further submitted that from the pleadings on both sides the identity of the land in dispute was not in contention thereby obviating the necessity of proof. He referred to OSHO VS APE (1998) 6 SCNJ 139.
Mr. Ironbar submitted that the respondents conceded that the original ownership of their holding including the land in dispute was in the forebears of the appellants, onus was on them to show how it devolved on them and the dimension of the land so ceded to them. He referred to GWAR VS ADOLE (2003) 3 NWLR (PT 808) 516 and BALOGUN VS LABIRAN (1988) 3 NWLR (PT 80) 66.
He pointed out that while the appellants’ position was that the land covered by the Supreme Court judgment between the parties did not include the land in dispute, the respondent who insisted that it included it had the onus of proving it. He referred to OBAWOLE VS WILLIAMS
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(1996) 12 SCNJ 415 at 430.
Also taking the two issues together, Mr. Akpabio for the respondents submitted that the appellants’ case was that the 5th-8th respondents who had on conditions been granted a large piece of land constituting lkot Effiong Nta Village veered outside their area of grant to lease the land in dispute to the 1st – 3rd respondents. The appellants failed to file any plan identifying the original area of grant or the area supposedly trespassed upon. He argued that the area contained in Exhibit 14 tendered by the respondents, is consistent with the respondents’ case that the area leased was within the portion granted to them, constituting Ikot Effiong Nta Village and that the said village was included the area of dispute covered by the Supreme Court judgment as shown in Exhibit 13.
He further argued that the appellants’ witnesses were unable to point out the land presently in dispute in Exhibit 13 thereby conclusively showing that the appellants who sought declaration of title could not identify the area claimed. He referred to IKYERE VE IORDYE VS TOR IHKYAMBE (2001) FWLR (PT 31) 2881 at 2882.
A perusal of the pleadings filed by
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the parties put a few facts beyond contention. It is not in dispute here that the appellants sought a declaration of title to the piece of land said to be in dispute between the parties’. It is also not in dispute that the appellants predicated this relief on the fact that the ownership of the entire land in the area was in their ancestors who granted a portion thereof to the forebears of the 4th-8th respondents with certain conditions assuring their overlordship.
The contention was however that while appellants stated that the 4th-8th respondents violated the terms of their grant by leasing a portion of land outside the area granted them to the 1st-3rd respondents without recourse to the appellants, the 4th-8th respondents insisted however that they had outright grant without conditions and that they legitimately leased portion of their land to the 1st-3rd respondents.
The parties were accordingly not ad idem on the location of the land teased by 4th-8th respondents to the 1st-3rd respondents. The only party seeking declaration of title to the land was the appellants and the law had been repeatedly stated that the primary duty of a party seeking
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declaration of title to a piece of land is to establish the identity of the said land.
This Court per ABBA AJI, JCA held as follows:
“It is trite law that before a declaration of title to land is granted, the land to which the claim relates must be identified with certainty and that it is the duty of the plaintiff in such a case to show the Court clearly the area of the land to which the claim relates and if not so ascertained, the claim must fail.”
See OLOKUNLADE VS ADEMILOYO (2011) 14 NWLR (PT 1269) 72 at 95.
In this regard IGHU, JSC stated further as follows:
“There can be no doubt that the most common and, perhaps, the easiest way of establishing the precise area of land in dispute is by the production of a survey plan of such land. It is, however, equally clear that it is not in all cases for declaration of title to land that it is necessary to survey and/or tender the survey plan of the land in dispute. There are many cases in which no survey plans are essential for a proper determination of the issue. What the Court must consider is whether, in a particular case, it is necessary for the proper trial of the action for a survey
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plan to be produced. Where there is no difficulty in identifying the land in dispute, a declaration of title may be made without the necessity of tying it to a survey plan. See Chief Sokpui V. Chief TAYAGBAZO (1951) 13 WACA 241, Chief Daniel lbuluya V. Dikibo (1976) 6 SC 97 etc. Similarly, where the identity of the land in dispute is not in issue between the parties, no onus, naturally, lies on a claimant for declaration of title to such land to prove the said identity as that fact is not an issue for determination between the parties in the suit. See Atolagbe V. Shorun (1985) 1 NWLR (part2) 360 at 365”.
See ALHAJI GONI KYARI VS ALHAJI CIROMA ALKALI & ORS (2001) 6NSCQR 819 at 837.
A microscopic perusal of the entire evidence presented at the trial by the appellants’ oral and documentary, shows that contrary to the submission of
Mr. Ironbar, the appellants neither presented a survey plan nor a consistent description of the land in respect of which they sought declaration of title before the Court.
?Furthermore, the appellants had the onus of showing that the Judgment of the Supreme Court did not cover the area now freshly litigated by
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them to justify the fresh litigation. The witnesses of the appellants while failing to tender a plan, failed to conclusively locate the land in dispute on Exhibit 13 tendered by the respondents, justifying the conclusion that they had no exact knowledge of the land appellants claimed.
As earlier pointed out, the respondents did not counter-claim thereby leaving the onus of situating the land in dispute squarely on the appellants. ADEREMI, JSC put it very succinctly thus:
“In civil cases, the like of the one under consideration, on the burden of proof on the pleadings, the rule is that the burden of proof rests on the party (whether plaintiff or defendant , who substantially asserts the affirmative of the issue. When it is said that onus of proof shifts from plaintiff to defendant and vice versa from time to time as the case progresses, it means no more than the burden of proof may shift depending on how the scale of evidence preponderates. However, subject to the scale of evidence preponderating, the burden of proof rests squarely on the party who would fail if no evidence at all, or no more evidence as the case may be, were given on either side.
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However, let me quickly say that if a plaintiff on whom always rests the onus of proving that affirmative of what he asserts, no burden shifts to the defendant unless he has counter-claimed.” See IROAGBARA VS UFOMADU (2OO9l 38 NSCQR 222 at 235.
I agree with the learned trial Judge that the appellants failed to discharge the onus on them to establish the identity of the land they claimed. Contrary to the circumstances alluded to by Mr. Ironbar, the parties were not ad idem on the location of the land in dispute and I must therefore resolve these two issues against the appellants and in favour of the respondents.
Having arrived at this conclusion, the remaining issues are academic and shall not attract the attention of the Court.
I hold in totality that this appeal lacks merit and I accordingly dismiss it.
Parties shall bear their respective costs.
CHIOMA EGONDU NWOSU-IHEME, J.C.A.: I had the preview of the judgment delivered by my learned brother, J. O. K. OYEWOLE, JCA. I agree with his reasoning and conclusion.
I adopt the facts of this case as set down in the lead judgment. It is apparent that this appeal is devoid
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of merit and I also dismiss same. I endorse the order as to costs made by J. O, K. OYEWOLE, JCA.
PAUL OBI ELECHI, J.C.A.: I have had the privilege of reading in draft the lead Judgment just delivered by my Learned brother, Joseph Olubunmi Kayode Oyewole, JCA. His Lordship has dealt with the issues that have arisen for consideration and determination, I am in complete agreement with the reasoning and conclusion arrived thereto. As a result therefore, I have nothing also to add to the Judgment.
Accordingly, I also find the Appeal to be unmeritorious and is hereby not allowed. Appeal dismissed.
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Appearances:
MR. O. I IRONBA, Esq. with him, MR. N. B. M, Esq.For Appellant(s)
MR. A. E. AKPABIO, Esq.
For Respondent(s)
Appearances
MR. O. I IRONBA, Esq. with him, MR. N. B. M, Esq.For Appellant
AND
MR. A. E. AKPABIO, Esq.For Respondent
