ASIMOLE NMANUMEIHE v. JOHN SHIMOBI NJEMANZE
(2016)LCN/8311(CA)
In The Court of Appeal of Nigeria
On Friday, the 18th day of March, 2016
CA/OW/318/2012
RATIO
LAND LAW: TITLE TO LAND; WHAT MUST A PARTY RELYING ON TRADITIONAL HISTORY PLEAD TO PROVE HIS TITLE TO LAND
A party relying on traditional History, to prove his title to land, must plead and lead evidence on the root of the title, i.e., how he became the original owner. Was it by deforestation, conquest, purchase, grant etc? See the case of Awodi & Anor vs Ajagbe (2014) LPELR – 24219 (SC); Akinloye vs Eyiyola (1968) 2 NWLR 92; Owoade vs Omitola (1988) 2 NWLR (pt 77) 413. In the case of Odumosu & Anor vs Oluwole & Anor (2002) LPELR – 12307 CA, this Court, relying on the Supreme Court case of Alli vs Aleshinloye (2000) 6 NWLR (pt. 660) 177 at 201, held:”It is not sufficient for a party who relies for proof of title, on traditional history, to merely prove that he or his predecessors owned and possessed the land from time immemorial. Such a party is bound to plead such facts as
a) who founded the land;
b) In what manner was the land founded, and the circumstance leading to it;
c) The names and particulars of the successive owners and trustees through whom the land devolved, from the founder to a living descendant or descendants, who most likely will give oral history. The traditional evidence of first settlement on or the founding of the land will not be admissible let alone accepted and acted upon, without the above pleadings.” Akinloye vs Eyiyola (1968) NWLR 92; Mogaji vs Cadbury Nig Ltd (1985) 2 NWLR (pt. 7) 373; Adejumo vs Ayantegbe (1989) 3 NWLR (pt. 110) 417. per. ITA GEORGE MBABA, J.C.A.
JUSTICES
IGNATIUS IGWE AGUBE Justice of The Court of Appeal of Nigeria
ITA GEORGE MBABA Justice of The Court of Appeal of Nigeria
FREDERICK OZIAKPONO OHO Justice of The Court of Appeal of Nigeria
Between
ASIMOLE NMANUMEIHE Appellant(s)
AND
JOHN SHIMOBI NJEMANZE Respondent(s)
ITA GEORGE MBABA, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of Imo State, delivered on 30/03/12 by Hon. Justice P. O. Nnadi, as he then was, now Hon. Chief Judge of Imo State, in Suit No. HOW/4/82 and HOW/211/82 (consolidated), where-of his Lordship dismissed the Plaintiff?s action.
In Suit No. HOW/4/82, the Respondent (who was Plaintiff therein) sued the Defendant on 13/1/1982, seeking:
1) ?A declaration that the Plaintiff is entitled to a statutory Right of Occupancy of a piece or parcel of land situate at No. 6 Iheanacho Street, Amawon, Owerri, an urban town in Imo State, annual value N10.00 (Ten Naira) in Owerri Judicial Division
2) N500.00 (Five Hundred Naira) damages for trespass in that on or about the 4th day of January, 1982, the Defendant by himself and/or agents or servants on his behalf broke and entered the said land destroying the fence, clearing and cutting down Plaintiff?s vegetables and crops on the said land, dug foundation, heaped sand and gravel, preparatory to constructing a building therein, without the leave or licence of the
Plaintiff.
3) Perpetual injunction to restrain the Defendant, his agents and servants from further act of trespass on this land.? (See page 2 of the Records of Appeal)
?But in HOW/211/82, Appellant (as Plaintiff therein) sued the Defendant (who was Plaintiff in HOW/4/82) on 31/8/82, claiming as follows:
?The Plaintiff?s claim against the Defendant is for N50,000.00 (Fifty Thousand Naira) being general and special Damages for Trespass on the Plaintiff?s House known as and called No. 6 Iheanacho Street, Owerri, which said land is in the possession of the Plaintiff.? (See page 4 of the Records of Appeal).
The two Suits were consolidated and the Plaintiff in HOW/4/82 remained the Plaintiff in the consolidated suit, while the Defendant therein (Plaintiff in HOW/211/82) also remained the Defendant in the consolidated Suit. The original Plaintiff and Defendant were Edinburgh Nmanumehe and Shimobi Njemanze, respectively, later substituted by the Appellant and Respondent on record.
?The learned trial Judge, who had to hear the case de-novo, from March 2010, had held as follows, at the end of the trial:
?In conclusion, this Court finds and so holds that the claimant in the consolidated suit, having failed to prove ownership and possession of the land in dispute, has also failed to prove trespass therein and the need for order of injunction as they relate to Suit HOW/4/82, as the Defendant herein, having been found to be the owner and in possession, cannot be liable in trespass or be restrained by an order of injunction. Finally, this Court finds and so holds that the claimant in HOW/4/82 has failed to establish and prove his case to warrant the reliefs sought in his statement of claim herein and his Suit is liable to be dismissed. On the other hand, the Defendant in HOW/211/82 is found to be the owner and in possession of the land in dispute and is entitled to the reliefs sought in Suit No. HOW/211/82? Consequently, the Court hereby orders as follows, in each of the consolidated suits:
1) In HOW/4/82, the Plaintiff case therein is hereby dismissed.
2) In Suit No. HOW/211/82, the claimant therein is entitled to the following orders:
i. The Defendant in Suit No. HOW/211/82 shall pay the sum of N17,000.00 (Seventeen Thousand Naira) being
special damages for trespass into the claimant?s land situated at No. 6 Iheanacho Street, Owerri, Imo State
ii. An order of injunction is hereby made restraining the Defendants (sic), his agents, workers and servants from further trespass on the said land.
iii. A declaration that the claimant is entitled to the statutory Right of Occupancy over No. 6 Iheanacho Street, Owerri, Imo State.
iv. The Defendant shall pay cost to the claimant assessed at N10,000.00 (Ten Thousand Naira).? See pages 156 – 157 of the Records of Appeal.
That is the judgment Appellant is appealing against, as per the Notice of Appeal on pages 158 to 159 of the Records disclosing three (3) grounds of Appeal. Appellant filed his brief of argument on 11/4/13 and distilled 2 Issues for the determination of the Appeal, as follows:
“1) Did the Defendant prove the grant, to Shimobi by his father, of the land in dispute under customary law?
2) Whether the Defendant?s long possession, as was held by the Court and acts of ownership sufficient to adjudge him owner of the land.?
?The Respondent filed his brief of arguments on 28/8/2014 and
distilled a lone issue for the determination of the appeal, namely:
“Who was entitled to judgment among the parties, based on preponderance of evidence?”
The appeal was heard on 22/2/2016, when the parties adopted their briefs.
Arguing the appeal, Chief E. T. O. Njoku, who settled Appellant’s brief, on Issue 1, said it was common to both parties, that they had a common ancestor, OKORIE EKEONUNWA to whom they traced their descent; that paragraph 10 of the Amended Statement of Claim stated that Njemanze Iheanacho gave birth to many sons, among whom was Onwuegbuchulam Njemanze; that that paragraph was admitted in the Respondent’s paragraph 10 too, and that in paragraph 21 of the Amended Statement of Defence, the Respondent stated that Njemanze Iheanacho used the land in dispute as a yam barn, but when the colonial soldiers entered Owerri and ravaged Njemanze Iheanacho?s yam barn, he gave it to Onwuegbuchulam; that that is to say that the land in dispute was a gift inter vivos to the Respondent?s grandfather by Njemanze Iheanacho.
Counsel said that under cross examination, the Defendant admitted that the same
Owuegbuchulam also made a gift of the land in dispute to his father Shimobi, who was the 2nd son of his. Thus, Njemanze Iheanacho made a gift, inter vivos, to Owuegbuchulam, who in turn made a gift inter vivos of the land in dispute to Shimobi Njemanze.
Counsel relied on the book by B. O. Nwabueze – NIGERIAN LAND LAW, page 367, on the modes of constituting a gift, when the author said:
“It’s already noted, customary law requires no writing for the transfer of land, whether by way of sale or by way of gift. In lieu of writing, however, there must be actual handing over of the land to the donee in the presence of witnesses and an acceptance by him of the gift.”
Counsel also relied on the case of Folarin vs Durujay (1988) NSCC 255 at 265, with reference to customary transfer, where Oputa JSC said:
“To transfer an absolute title under customary law, it ought to be pleaded and proved that the gift was made in the presence of witnesses. To that effect, names of those witnesses should also be pleaded as well as the fact that they witnessed the actual delivery or handing over of the land to the purchaser or
donee.”
Counsel submitted that pleading such facts is very important in this case, since Njemanze Iheanacho had many sons and Onwuegbuchulam had five (5) sons; that it was necessary to prove that the donors of the land chose the persons, out of the rest of the sons, to make the donation; that apart from pleading those facts, no witness came to give evidence of being present during the gift; that is to say, there was no proof that Njemanze Iheanacho made a gift of the land in dispute and there was similarly no proof that Onwuegbuchulam made a gift of the same land to Shimobi Njemanze. Rather, Counsel said, the traditional history of the Appellant flowed unbroken, from Okorie Ekeonunwa to the Appellant, as was pleaded and given in evidence. He relied on Mogaji vs Cadbury Nig. Ltd. (1985) 2 NWLR (pt. 7) 393, on the need to trace the linking chain or line of succession in the traditional history of land holding.
He said that it was curious the trial judge failed to make a finding on the Issue as to whether the Respondent had a valid gift of the land in dispute under customary law; that the trial Court rather descended into the arena and made a
case for the Respondent. He referred us to the reasoning of the trial Court on 146 and 152 of the Records of appeal. He said that there was no evidence by the parties that the land, No. 6 Iheanacho Street, was ?a dreaded and evil land?, which needed the performance of traditional rites of atonement before anybody could return to it; that this finding was not based on pleading or evidence by either party; that the trial Court was wrong to embark on that voyage of discovery. He relied on the case of Ikenyi vs Ofune (1985) 2 NWLR (pt. 5) 1 at 13; Aermaechi vs A. I. C. Ltd. (1986) 2 NWLR (pt. 23) 443; Ekanem Ita vs Fetuga (1991) 7 NWLR (pt. 204) 449 at 413.
On Issue 2, Counsel referred us to the reasoning of the trial Court on page-153 – 154 of the Records, where it said:
“These acts of possession of the land in dispute by the defendant and his predecessors in title are numerous, as can be gathered from the pleadings, evidence and observations at the locus and are positive enough to warrant the findings and conclusion that they were exercised by the defendant and his forebears as owners of the land in dispute and the Court so
finds.”
Counsel said the above conclusions of the trial Court were in keeping with the principles in Ekpo vs. Ita, XI MLR 68 (even though it was not so stated). However, he said that that amounted to stretching the principle too far, to defeat the ends of justice; that under the indigenous system of land ownership, occupation and use of land, even without customary tribute, are not conclusive of a claimant?s title, under customary law; this is because occupation and use may have been with the consent of the real owner. Thus, he said, it is not correct that frequent and positive numerous acts, within living memory, are essential to justify inference of ownership. He relied on Modern Bar Advocacy by C. A. Oputa; Maselewa Thomas vs. Preston Holder (1996?) 12 WACA 78.
Counsel argued that in this case, the Respondent was claiming title by inheritance from his father; that Issue 1, raised in this appeal, was questioning the validity of the grant, inter vivos, by the grandfather of the Respondent; that until that issue was resolved, the question of ownership by the Respondent could not arise.
Besides, Counsel said, having adjudged the
Respondent as the owner in possession of the land in dispute, the trial Court proceeded to award the sum of N17,000.00 special damages to the Respondent for trespass. He argued that in the case of Pius Amakor vs Benedict Obiofuna (1974) 3 SC 67 at 68, the need for one who claimed damages for trespass, to prove exclusive possession of the land, was emphasized, or that he had a right to that possession; that once the defendant claims to be the owner of the land, title to the land is put in issue and in order to succeed, the plaintiff must show a better title than that of the defendant. Counsel said the parties in their cases (consolidated) had each sued for title, trespass and injunction; that it was not proved the Respondent had a valid grant of the land under customary law; thus, by the principle of the case of Amakor vs. Obiafuna (supra) the Respondent cannot succeed in a case of title; that the trial Court was wrong to award damages for trespass to Respondent.
?Counsel for the Respondent, E. C. Mere Esq, who settled the brief, said the Respondent was entitled to the judgment by the trial Court, based on the preponderance of evidence. He relied on the
Idundu vs. Okumagba (1976) 9 – 10 SC 227 on the five ways of proving title to land – i.e.
a. Proof of traditional evidence.
b. Proof by production of title documents.
c. Proof by acts of ownership and possession over length of time.
d. Long possession.
e. Proof by possession of connected or adjacent land in circumstances rendering it probable that the owners of such land would in addition own the land in dispute.
Counsel submitted that prove of any of the five methods entitles one to declaration of title to land and added that the Respondent had proved (a) and (c) above to be entitled to the declaration. He argued that Njemanze Iheanacho was the person who deforested the land; that from him the land passed on to Onwuegbuchulam and from Onwuegbuchulam to Shimobi and finally, to John Shimobi Njemanze – Respondent. He argued further, that though both Manumeihe Okorie and Iheanacho Okorie were of the same father, it was not compulsory for Okorie (their forebear) to be the deforester of every land in their domain; that, after all, Ekeonumwa was cited as their foremost forebear of both parties, but the same was not pleaded as the one
who deforested the land.
?Counsel further stated that, Edinburgh Manumeihe (original Appellant) whose evidence was tendered as Exhibits A – A3, had clearly admitted that the Respondent?s father lived on the land in dispute, since his birth, though PW1 made a futile attempt to deny that; that evidence showed that Njemanze Iheanacho used the land as yam barn and when the yam barn was ravaged, he (Njemanze Iheanacho) gave the land (in his life-time) to his son Onwuegbuchulam, as a gift; that Shimobi inherited the land from his father, Onwuegbuchulam. He said that that traditional evidence was not impeached. He added that evidence (DW2) showed that Onwuegbuchulam Njemanze?s land stretched from No. 29 Okorie Street, to No. 6 Iheanacho Street; that Onwuegbuchulam lived at No. 29 Okorie Street, Owerri, until his death and No. 6 Iheanacho Street and No. 29 Okorie Street, are contiguous. He added that since the Respondent?s possession was abundantly confirmed, the law presumed him the owner, until the contrary was proved by the Plaintiff, who woefully failed to do so. He relied on Section 146 of the Evidence Act, Cap 112 LFN 1990 and on the case
of Auhonare Vs Omoroge (1976)12 SC 11 at 43; Da Costa Vs Ikomu (1968) 1 ALL NLR 394; Ekpanya Vs Akpan (1991) 2 NWLR (pt.101) 86 at 98.
Counsel further argued that Appellant did not produce any boundary neighbor to testify for him, but the Respondent did – DW2 and DW3, who confirmed that Dw1 was born on the land, lived thereon with his father (original defendant) and family; they also confirmed that Defendant?s father and brother – Clement Njemanze, were buried on the land in dispute, without any let or hinderance.
Counsel said the evidence of the Appellant’s witnesses were contradictory, particularly, that of PW1 and the orginal Plaintiff – Edinburgh Manumeihe; that Appellant had admitted that Respondent live on No. 6 Iheanacho Street and was born on that land in dispute. Counsel said that what is admitted requires no further proof. Akibu Vs Odutan (1992) 2 NWLR pt.222 at 226.
On Issue of trespass, Counsel said, since the Appellant, through thugs, entered into the land, which land was in possession of and occupied by the Respondent, caused damage, he was a trespasser and liable to payment of damages. He said that what was necessary
to be proved in the circumstances, was whether possession was established and whether there was trespass; that that was done in this case and damages therefore, simply followed. He relied on Aanyanwu Vs Uzowuaku (2009) Vol. 177 LRCN 204 at 246; Adewole Vs Dada (2003) 24 NWLR (pt.801) 869; Nwadiogbu Vs Nnadozie (2001) 12 NWLR (pt.727) 315.
Counsel called our attention to the pleading of Appellant, in paragraph 13 of their Amended Statement of Claim, and evidence thereon about the calamity that befell them on the land causing them to vacate the village/land for fear, that if they continued to live there, they too would suffer what befall their relations. Counsel said that was enough justification for the use of the words “dreaded and evil land” to describe Appellant’s earlier attitude to land; that it was mere choice of words and based on the circumstance, the words were apt; he said that the case of Ikenyi Vs Ofume (supra); Aermachi Vs AIC Ltd (supra) and Ekanem – Ita Vs Petuga (Supra), relied upon by the Appellant, were not relevant to this appeal.
He urged us to resolve the issue against Appellant and dismiss the appeal.
RESOLUTION OF ISSUES
I shall consider this appeal on the two (2) Issues distilled by the Appellant for the determination of the appeal, and shall take the two Issues together.
Did the defendant (Respondent herein) prove the grant to Shimobi by his grandfather of the land in dispute, under customary law? And, was the long possession of the land by the Respondent sufficient to adjudge him the owner of the land, as the trial Court held?
Appellant had argued that Njemanze Iheanacho had many sons and Onwuegbuchulam, who was one of his sons, himself, had five (5) Sons; that it was necessary to prove that the donors of the land chose the persons, alleged, out of the rest to make the donation; that apart from pleading those facts, no witness came to give evidence of being present during the gift. Thus, he said there was no proof that Njemanze Iheanacho made a gift of the land in dispute to Onwuegbuchulam and there was also no proof that Onwuegbuchulam made a gift of the same land to Shimobi Njemanze.
?I am not aware those were the issues at the trial Court, especially as nobody from the line of Njemanze Iheanacho nor of Onwuegbuchulam appeared to
have contested the claims of the Respondent.
Both parties in this case had traced their ancestry to the same person – Okorie Ekeonunwa. The trial Court made findings to that effect, when he said:
?From the pleadings and evidence of the parties, it is not disputed that the claimant and the defendant has (sic) a common ancestor, called Okorie Ekeonuwa, who begat Iheanacho Okorie, the great grand-father of the defendant and Nmanumihe Okorie, the great grandfather of the Claimant. Both sides traced their genealogy to the same ancestor Okorie. However, with respect to the land in dispute, the parties disagreed as to the origin and source of the land.? See page 146 of the Records.
?While the appellant claimed that the land in dispute was part of the land of Okorie Ekeonunwa, which was shared to his sons; and the land in dispute (called No. 6 Iheanacho Street) was given to Nmanumehe Okorie, the great grandfather of the Claimant, who took possession of same and lived there with his sons, the Respondent said this land was not part of Okorie Ekeonunwa?s land, rather it belonged to Njemanze Iheanacho, originally, who deforested the land
and used it as a yam barn; that the yam barn was later invaded by the soldiers of the Colonial masters, and the land was later given by Njemanze Iheanacho to one of his sons, Onwuegbuchulam Njemanze, the father of Shimobi Njemanze (original defendant).
The trial Court also made findings, based on the evidence of the Defendant, that:
1) ?the defendant showed that apart from Iheanacho Street, which bound the land on one side, the boundary neighbors on the other sides of the land are relations of the Defendant, and none is a relation of the claimant;
2) the defendants father and a brother of the defendant, Clement Njemanze, were all buried on the land in dispute, showing acts of ownership and user of the land in dispute on the part of the defendant.
3) that . . . evidence showed that the father of the defendant was born on the land in dispute, lived for 70 years on the land, died and was buried on it and that the defendant was also born on the land in dispute and lived on same.
4) That? the defendant proved ownership and exclusive possession of the land in dispute and that the claimant trespassed into same. See pages 142 –
143 and also 150 of the Record of Appeal.
The trial Court also acknowledged that the Appellant had also made strong claims to being in possession of the land; that the claimant had pleaded and gave evidence.
“that his forebears Nwanumehe Okorie lived on the land in dispute with his children and after his death, Ndukwe Nmanumihe to whom the land was given lived thereon with his family and brothers, until Ndukwe died with all the members of his family following an influenza that occurred after the 1st world war, and that made his brothers to flee or vacate from the land, but Thomas Nwanuehe used it as a yarm barn and, thereafter, Joseph Nwanumehe used it as a vegetable and fruit garden.” See page 151 of the Records.
The trial Court said:
“Thus, when the traditional history presented by the claimant is put on that imaginary scale of evaluation along side that of the defendant, that of the defendant surely outweighs that of the claimant and tilts or preponderates the scale in favour of the defendant and the Court hereby finds the traditional history… presented by defendant more probable, cogent and
convincing…” (See page 151 0f the Records).
I think the trial Court, handled, the evaluation of the evidence of the two sides, properly, when in the circumstance of competing versions of traditional histories of the parties to the land, it sought to find out which one was more credible, probable and convincing. I agree with the trial Court that, though the claimant (Appellant) had asserted that the land originally belonged to Okorie Ekeonunwa (their common ancestor), Appellant did not supply any evidence as to how the said original owner came by the land.
A party relying on traditional History, to prove his title to land, must plead and lead evidence on the root of the title, i.e., how he became the original owner. Was it by deforestation, conquest, purchase, grant etc? See the case of Awodi & Anor vs Ajagbe (2014) LPELR – 24219 (SC); Akinloye vs Eyiyola (1968) 2 NWLR 92; Owoade vs Omitola (1988) 2 NWLR (pt 77) 413.
In the case of Odumosu & Anor vs Oluwole & Anor (2002) LPELR – 12307 CA, this Court, relying on the Supreme Court case of Alli vs Aleshinloye (2000) 6 NWLR (pt. 660) 177 at 201, held:
“It is not sufficient for a party who relies for proof of title, on traditional history, to merely prove that he or his predecessors owned and possessed the land from time immemorial. Such a party is bound to plead such facts as
a) who founded the land;
b) In what manner was the land founded, and the circumstance leading to it;
c) The names and particulars of the successive owners and trustees through whom the land devolved, from the founder to a living descendant or descendants, who most likely will give oral history. The traditional evidence of first settlement on or the founding of the land will not be admissible let alone accepted and acted upon, without the above pleadings.” Akinloye vs Eyiyola (1968) NWLR 92; Mogaji vs Cadbury Nig Ltd (1985) 2 NWLR (pt. 7) 373; Adejumo vs Ayantegbe (1989) 3 NWLR (pt. 110) 417.
There was also an admission by the original claimant, Edinburgh Nmanumeihe, that the Respondent’s father lived on the land in dispute since his birth. See Exhibit A – A3 as tendered by the Appellant (See page 142 of the Records).
The Respondent, therefore, appeared to have been more firm and credible in his traditional
evidence, when he traced the root of title of the land to the deforestation of the land by his great grandfather Njemanze Iheanacho, and the subsequent gift of same to his son Onwuebuchulam and occupation and use of the lands by his said son, Onwegbuchulam and how the same devolved, right down to the Respondent. The evidence of the surrounding land belonging to the relations of the Respondent (not of the claimant) also tend to register the strong presumption, that the land in dispute is part of the adjoining or adjacent lands, which belong to the members of the family of the Respondent.
In his observation, at locus in quo, the trial judge said, on page 149 of the Records:
1) ?The land in dispute is located at Iheanacho Street, Owerri
2) Both parties call it No. 6 Iheanacho Street, Owerri
3) The land in dispute includes an uncompleted decked house (at present) but originally a mud thatch house,
4) There is a soak-away/septic tank . . .
5) The land in dispute includes half of the bungalow on the left side (standing on the Road on Iheanacho Street) and facing the land in dispute
6) That Onwuegbuchulam (Defendants?
grand father) owns the land from the boundary of the land in dispute at No.6 Iheanacho Street,to Okorie Street No. 29 Okorie Street, Owerri.
7) That Augustine Njemanze, 1st son of Agbalaukwu, who is the 1st son of Onwuegbuchulam owns the upstairs on 29 Okorie Street (left side).
8) That Shimobi lived and died in the batcher, earlier built, where the decked house now stands.
9) That both sides agree that the house of Nze Diala Onyeanu or Diala Nze and Madam Love Chukwu share boundaries with the land in dispute on the left side at Iheanacho . . . ?
Meanwhile, PW1 had said there is no decked building at No. 6 Iheanacho Street, Owerri! He was telling a lie. He, however, admitted that no member of Nmanumihe family owned any land that shares boundary with No. 6 Iheanacho Street. See page 85 – 86 of the Records of Appeal.
The above tends to support the position of the Respondent?s Counsel, that the survey plans – Exhibit A, A1 and E and admission by the claimant showed that No. 6 Iheanacho Street is contiguous to No. 29 Okorie Street, owned by the father of the defendant and as such, Section 46 of the Evidence Act, applies in
favour of the defendant. See page 144 of the Records.
DW2, Prince Martin Fada Onuh Njemanze, who said he was born on October 12, 1919, told the Court that the land in dispute belonged to Njemanze family, not Nmanumihe family; that Onwuegbuchulam succeeded his father, Njemanze Iheanacho and even cohabited with his (PW2?s) mother (the father?s wife), at the death of his father, in 1920, and begat children; he said that he (PW2) was biological son of Njemanze Iheanacho, but that his (PW2) mother became married to Onwuegbuchulam, after the death of his father.
In his evidence – in chief, he said:
?I know the land in dispute. It situates at No. 6 Njemanze Street, Owerri. The land originally belonged to Njemanze Iheanacho – my father. My father, in his life time, gave the land in dispute to my brother/foster father, Onwuegbuchulam Njemanze. The land was my father?s yam barn.? See page 79 of the Records.
With such evidence, coupled with the fact that the Respondent?s father lived on the land in dispute, died and was buried there, and the Respondent and his family had exercised effective and exclusive possession over
the land in dispute, I think that the trial judge was correct in adjudging the land for the Respondent. There was credible evidence, that the land in dispute was given to Onwuegbuchulam (the grandfather of the Respondent), in his life time, by his father Njemanze Iheanacho, said to have deforested the land, and later he gave it to his son Onwuegbuchulam, and the land was inherited by the father of the Defendant, at the death of his father.
Those pieces of evidence were not challenged or disturbed by the Appellants, at the trial. The trial Court held:
?From the foregoing and evidence adduced, it is clear that the defendant succeeded in establishing that his grandfather lived in the land and that his father had a mud house existing there. It is not disputed that the father of the present defendant, called Shimobi Njemanze, who lived up to 70 years, before the dispute over the land in dispute arose, was not only born on the land in dispute but lived for that period on the land. . . and was buried on the land in dispute. These acts of possession . . . by the defendants (sic) and his predecessors in title are numerous as can be gathered from the
pleadings, evidence and observations at the locus and are positive enough to warrant the findings and conclusion that they were exercised by the defendant and his forebears as owners of the land in dispute and the Court so holds.? See pages 153 and 154 of the Records.
The trial Court further, said:
“Furthermore, it is necessary to state that there is nothing existing on the land presently to show any of the acts of possession claimed by the claimant to be his and those of his forebears. It is pertinent to point out that the claim of the claimant, that in 1970 and 1972 he challenged the original defendant over his building a mud house on the land in dispute does not appear probable and credible, when considered against the surrounding circumstances, such as the denial of those claims by the defendant, and the claimant?s failure to show what steps he took to assert his ownership of the land in dispute, between 1970 and 1972, when according to him, the defendant encroached into the land and damaged crops and built mud houses and refused to appear for any arbitration Page 154 of the Records.
I think those findings
by the trial Court are unassailable and I noticed that the Appellant did not raise any appeal against any of those findings by the trial Court. They therefore, remain binding and conclusive. See the case of Ebemighe vs chi (2011) 2 NWLR (pt. 1230) 65; Amoshima vs State (2011) 14 NWLR (pt. 1768) 530 CPC vs INEC (2011) 18 NWLR (pt. 1279) 493; Adewale & Anor vs Adeola & Ors (2015) LPELR – 25972 (CA); Kazuare & Ors vs Kafinta & Ors (2014) LPELR – 22901 (CA); Agodi vs Anyanwu &Ors (2014) LPELR – 23746 (CA).
I therefore resolve the issues against the Appellant, as I do not see any merit in this appeal. The appeal is accordingly, dismissed, with cost of N50,000.00 against the Appellant, to the Respondent.
IGNATIUS IGWE AGUBE, J.C.A.: I had the privilege of reading in advance, the Lead Judgment of my Learned brother I. G. Mbaba, JCA, and am in total agreement with his reasoning and conclusion that this Appeal is devoid of any merit and it is also dismissed by me.
I abide by the consequential order as to Costs.
FREDERICK OZIAKPONO OHO, J.C.A.: I had the advantage of
reading the draft of the judgment just delivered by my learned brother, Ita George Mbaba, JCA. I am in agreement with the reasoning and conclusions in disallowing the Appeal as lacking in merit and consequently dismissing same.
I abide by the consequential orders made by this Court.
?
Appearances
Chief E. T. O. Njoku with him, Ijeoma Emeku (Mrs)For Appellant
AND
E. C. Mere, Esq. with him, D. C. Chukwueze (Mrs)For Respondent
