EMMANUEL NDUKUBA & ANOR v. PATRICK NWANKWO & ORS
(2016)LCN/8396(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 23rd day of March, 2016
CA/E/402/2012
JUSTICES
MASSOUD ABDULRAHMAN OREDOLA Justice of The Court of Appeal of Nigeria
TOM SHAIBU YAKUBU Justice of The Court of Appeal of Nigeria
RITA NOSAKHARE PEMU Justice of The Court of Appeal of Nigeria
Between
1. EMMANUEL NDUKUBA
2. SIMON EZEAKA
(For themselves and on behalf of members of Umuakuesu and Umuezehagbe kindred of Umuezekeli Agbiligba village Nanka, Orumba North Local Government Area) Appellant(s)
AND
1. PATRICK NWANKWO
2. VICTOR EZEKEKE
3. FERDINAND EZENWAJIOBI
(For themselves and on behalf of members of Umudunu-Ani kindred Umudunu Agbiligba village Nanka, Orumba North Local Government Area) Respondent(s)
RATIO
PRACTICE AND PROCEDURE: NON-JOINDER; WHETHER AN ACTION CAN BE DEFEATED ON THE GROUND OF NON-JOINDER, MISJOINDER OR MISDESCRIPTION OF THE PARTIES
However, in the circumstances of this case, where the claim of the appellants is in a representative capacity and the injunctive relief prayed for was to restrain, not only the respondents, but their agents, servants and privies, from trespassing into the land in dispute – which is the “Agu Nwankwo” land, of which Disiuka Ajofia, is only a part thereof, the non-joinder of the Umudunu people as a whole would not have defeated the appellants’ claim.I recall that in Federal University of Technology Yola (FUTY) v. Academic Staff Union of Universities (ASUU) (2013) 1 NWLR (Pt. 1335) 249 at 282, I did say, inter alia:
“I think, I should say a word on the submission of Mr. Odo, for the Appellants to the effect that the non-joinder of a party to an action defeats the action. That does not represent the law. Rather, the law is that an action cannot be defeated on the ground of non-joinder, misjoinder or mis-description of the parties because the Court suo motu or on the application of any of the parties, can join a party to an action, if found necessary. See: Chief Onwuka Kalu v. Chief Victor Odili (1992) 6 SCNJ (Pt. 1) 76 at p.115, (1992) 5 NWLR (Pt. 240) 130; Ayankoya v. Olukoya (1996) SCNJ 292 at p. 304, (1996) 4 NLWR (Pt. 440) 1, Ibrahim v. N.U.B. Ltd. (2004) 11 NWLR (Pt. 885) 537 at Pp. 549-550; Nabaruma v. Offodile (2005) WRN 47 at Pp. 64-65, (2004) 13 NWLR (Pt. 891) 599.Furthermore, even when a party who ought to have been joined to an action is not so joined, that failure to join him, does not necessarily defeat the action “and the court may in every cause or matter deal with the matter in controversy so far as regards the rights and interest of the parties actually before it” – per Mohammed, JSC in Chief Emmanuel Bello v. Independent National. Electoral Commission & 2 Ors. (2010) 3 SCNJ (Pt. 1) 127 at pp. 149-150 (2010) 8 NWLR (Pt. 1196) 342. See also Peenok Investments Ltd v. Hotel Presidential Ltd. (1982) 12 SC 1 at p. 11; Prof B. J. Olufeagba & Ors. v. Prof. Shuaibu Oba Abdul-Raheem & Ors. (2009) 12 SCNJ 349, (2009) 18 NWLR (Pt. 1173) 384.” PER. TOM SHAIBU YAKUBU, J.C.A.
PRACTICE AND PROCEDURE: RAISING AN ISSUE SUO MOTU; THE LAW ON THE POINT OF RAISING AN ISSUES SUP MUTO
The law on the point of raising an issue suo motu by a court has been well settled beyond reproach that where a court raises an issue suo motu which was not contemplated nor raised by any of the parties, the Court must invite counsel to the parties to address it, particularly on a technical point so raised, before coming to a decision on it, so as to satisfy the requirement of the golden rule of fair hearing. Cole v. Martins (1968) 1 All NLR 162; (1968) NSCC 120; Registered Trustees of the Apostolic Church, Lagos Area v. Rahman Akindele (1967) 1 All NLR 110 at 112, Ogamien v. Ogamien (1967) NMLR 245 at 248; Shittu Adeosun v. Lawani Babalola & Anor (1972) 1 All NLR (Pt. 2) 120 at 126; Adedayo v. Peoples’ Democratic Party & Ors (2013) All FWLR (Pt. 695) 203 at 241 (SC). In Araka v. Ejeagwu (2000) 12 SC (Pt. 1) 99 – the apex Court admonished that:
“On no account should a Court of law raise a point suo motu no matter how clear it may appear to be and proceed to resolve it one way or the other without hearing the parties particularly the parties that may be adversely affected as a result of the point so raised if it does so, it will be in breach of the parties right to fair hearing.” However, the fact that the counsel to the parties were not invited to address the Court on such an issue, does not automatically render the judgment of the Court as invalid unless it is shown by the appellant that a miscarriage of justice had been occasioned or the decision is not correct. Olutola v. University of Ilorin (2005) All FWLR (Pt. 245) 1151; Imah v. Okogbe (1993) 12 SCNJ 57; (1993) 9 NWLR (Pt. 316) 159 at 178 ‘Katto v. C.B.N. (1991) 9 NWLR (Pt. 214) 126; Ejowhomu v. Edok-Eter Mandilas Ltd (1986) 1 NWLR (pt. 39) 1. PER. TOM SHAIBU YAKUBU, J.C.A.
LAND LAW: TITLE TO LAND; CONDITIONS TO SUCCEED IN A CLAIM FOR A DECLARATION OF TITLE TO LAND PREDICATED ON TRADITIONAL HISTORY
I have perused the pleadings and the case made at the trial court by the appellants and it is clear to me that their claim was squarely premised on traditional history with respect to their connection to and descent from their ancestor called Nanka. It must be borne in mind that for the appellants to succeed in a claim for a declaration of title to land, predicated on traditional history, they must plead in their statement of claim and lead evidence in Court, showing the names and histories of their ancestors in such a manner as to disclose a continuous chain of devolution from one generation to the other until the land finally devolved on them. Akinloye & Anor v. Eyiyola & Ors. (1968) NMLR 92 at 95 (SC); Total Nig. Ltd. v. Nwako (1978) 5 SC 1 at 12; Elias v. Omobare (1982) 5 SC 25 at 57-58. Furthermore, it is incumbent on a claimant, such as the appellants herein, to plead and establish how their ancestor said to be Nanka founded the land in dispute, whether by conquest, uncontradicted and conclusive, for them to succeed in obtaining the Court’s declaration in their favour. Iseogbekun &Anor. v. Adelakun & Ors (2012) 4 SCNJ 100; Nruamah & Ors v. Ebuzoeme & Ors. (2013) 1 SCNJ (Pt. 1) 128; Alli v. Alesinloye (2004) 4 SCNJ 264 at 284; Piaro v. Tenalo (1976) All NLR 229 at 234. In Eze & Ors v. Atasie & Ors (2000) 6 S.C. (Pt. 1) 214 at 220, the apex Court, succinctly stated, inter alia:
“To establish traditional history of land relied on as root of title, a plaintiff must plead the name of the founder and others after him upon whom the land devolved to the last successor(s) and lead evidence in support without leaving gaps or creating mysterious or embarrassing linkages which have not been and cannot be explained. In other words, the devolution i.e. naming them one by one and the evidence in support must be reliable being credible or possible otherwise the claim for title will fail.” Further see Nwokorobia v. Nwogu (2009) 50 WRN 1 at 20 & 24; Irogbara v. Ufomadu (2009) 30 WRN 1 at 15. PER. TOM SHAIBU YAKUBU, J.C.A.
LAND: TITLE TO LAND; DETERMINING WHETHER THE EVIDENCE OF TRADITIONAL HISTORY IS TRUE
The evidence of traditional history is essentially, a sort of evidence premised on the story of how a parcel of land was acquired by the forebears/progenitors of the parties, as recounted to them by their own fathers. The stories could be true or false. Yet, the parties believe them, nevertheless. Hence either party could be honestly telling the truth. Or even telling lies. However, where such evidence of traditional history, either of conquest, first settlement, inheritance or grant is satisfactorily placed before the Court and it is believed and accepted, title to the land in dispute can be declared for the claimant/plaintiff. Alli v. Alesinloye (supra); Odofin v. Ayoola (1984) 11 S.C. 72. However, where there is conflict in the traditional history evidence put forward by the parties, a trial judge by employing the principle in Kojo II v. Bosnie (supra) then resort to determining the probable traditional history between the two traditional histories projected by the parties, by reference to recent acts in recent years evidencing who has been in possession of the land. In the instant case, the appellants’ traditional history projected by them was yet to get up, such that the question of it being in conflict with that of the respondents did not arise. That is, the traditional history evidence proffered by the appellants was not credible for it to be pitched against that of the respondents, in order to determine which of them is plausible and probable.
This Court in Amuda v. Ajobo (1995) 7 NWLR (Pt. 406) 170 at 180-181, per his Lordship, Oguntade, JCA (as he then was) succinctly stated, thus:
“A conflict arises when the traditional history given in evidence by the plaintiff and which was unchallenged by the evidence of the defendants, is capable of showing clearly the source of title relied upon by the plaintiffs is set against the traditional history given in evidence by the defendant and which unchallenged by the plaintiffs is capable of showing clearly the source of title relied upon by the defendants. In the instant case, the plaintiffs’ evidence of traditional history would on its own have failed to show that Oderinlo granted the land in dispute to plaintiffs’ ancestor even if the defendants had not set up any traditional history of their own. The question of a conflict between the two traditional histories given by the parties did not arise at all. It was only in the event of the plaintiffs showing that Oderinlo granted the land in dispute to their ancestor that it could be said that they put before the lower Court evidence of traditional history which could be pitched against the traditional history of the defendants to determine if there was a conflict between both. The trial judge should have held that the plaintiffs’ evidence of traditional history in respect of the grant of the land in dispute by Oderinlo to plaintiffs’ ancestor was nebulous and insufficient. This would have led to the dismissal of plaintiff’s claim for declaration of title.” PER. TOM SHAIBU YAKUBU, J.C.A.
TOM SHAIBU YAKUBU, J.C.A. (Delivering the Leading Judgment): The parties in this appeal trace their common ancestry to Nanka. It is agreed between the parties, that Nanka had seven sons, the eldest of whom was Agbiligba, who inherited the land in dispute from his father Nanka. The land in dispute is called Agu Nwankwo land. The appellants lay claim to it through Odukalia, the first son of Agbiligba, according to them whilst the respondents lay claim to the same parcel of land, through Dunu who they claim, was the first son of Agbiligba. The appellants say that the respondents are strangers in Nanka town, because the forefathers of the respondents, were hunters from Nnobi who migrated to Nanka hundreds of years ago. On the other hand, the respondents allege that the appellants are descendants of hired war mercenaries from Ohafia, who were assimilated within the Nanka community, that is, just as the appellants allege that the respondents are strangers to Nanka, so also the latter allege that the appellants are strangers to Nanka. The appellants are of Umuakuesu and Umuezehagba Kindred of Umuezeakali Agbiligba village, Nanka, in Orumba North Local Government of
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Anambra State, whilst the respondents are members of Umudunu-Ani kindred, Umudunu Agbiligba village, Nanka, in Orumba North Local Government Area of Anambra State.
The appellants, had sued the respondents, at the Anambra State High Court of Justice, holden at Ekwulobia in August, 2007 and prayed for:
(a) A declaration of Court that the Plaintiffs are entitled or deemed to be entitled to the Customary Right of Occupancy over the piece or parcel of land lying, being and situate at Agbiligba Nanka known as “Agu Nwankwo” land.
(b) N5 million damages for trespass.
(c) Perpetual injunction restraining the defendants by themselves, their agents, servants and privies from trespassing into the land.
The respondents, naturally denied the claim as expressed in their extant 2nd Further Amended Statement of Defence and contemporaneously filed a counter claim against the appellants, and prayed, to wit:
(a) A declaration that the Umudunu-Ani family is the exclusive owner in possession of the portion of land called “Agu Nwankwo” whilst the portion called Isi-Ajofia and Ajofia belong to the whole of Umudunu community which said portions of
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land are shown in survey plan No. FS/AN 118/2007.
(b) N1,000,000.00 (One Million Naira) damages against the Plaintiffs for trespass.
(c) Order of perpetual injunction restraining the Plaintiffs, by themselves, agents, privies or assigns from further trespass on the land aforesaid.
At the close of pleadings, the parties at the trial, called witnesses and some documentary exhibits were admitted into evidence, at their instances. Thereafter, learned counsel for the parties filed and exchanged written addresses. In his judgment, the learned trial judge, found against the appellants by dismissing their claim and entering judgment, partly in favour of the respondents, in respect of their counter claim. The appellants, piqued by the decision of the Court below, approached this Court, with a Notice and 12 grounds of appeal.
In order to prosecute the appeal, the Appellants’ brief of argument, dated and filed on 23rd September, 2014 was deemed as properly filed on same date. It was settled by O. J. Nnadi, SAN and K. C. Ezeanyika, Esq. Eight issues were nominated therein for the resolution of the appeal. They are, namely:
(1) Whether
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the trial Court was right in striking out the claims of the Plaintiffs/Appellants with respect to Ajofia Disiuka portion of the Agu Nwankwo Land in dispute for non-joinder of Umudunu people as a party to the suit (Grounds 2 and 3 of the Notice of Appeal).
(2) Whether the evidence of PW1, PW3, PW4 in a land matter required corroboration from an independent witness and the evidence of PW2 (as independent witness) did not meet the required standard of corroboration (Ground 4 and 5).
(3) Whether the trial Court was right when the court held that the evidence of DW2 from a family other than the defendants/Respondents’ family corroborated the evidence of the defendants/Respondents as descendants of Nanka and Agbiligba without regard to the findings of fact by the trial Court in suit No. AA/29/72 (Ground 7).
(4) Whether the trial Court was right in rejecting the traditional history of the Plaintiffs/Appellants as to descent of the land from Nanka (the foremost father) to the Plaintiffs/Appellants of the land in dispute. (Ground 6).
(5) Whether the trial Court on the findings of fact in suit No. AA/29/72 (Exhibit P6) not disturbed or interfered
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within the Judgment of the Court of Appeal in Appeal No. FCA/E/18/78 (Exhibit P1) was right in invoking Section 135 of the Evidence Act LFN 2011 against the Plaintiffs/Appellants when the Court held that the evidence of possession and acts of ownership of land surrounding the land in dispute shows that the defendants/Respondents are the owners of the land in dispute. (Grounds 8 and 11 of the Notice of Appeal).
(6) Whether the trial Court was right to rely on suit No. CCA/42/98 and suit No. AG/4A/02 and not suit No. AA/29/72 and Appeal No. FCA/E/18/78 in holding that there was a material contradiction in the traditional history of the Plaintiffs/Appellants as given in evidence and the traditional history of the Plaintiffs/Appellants is unreliable and thus disregarding same. (Ground 10).
(7) Whether the trial Court was right in refusing to act on the findings of fact in suit No. AA/29/72 and Appeal No. FCA/E/18/78 and in the further refusal to hold with respect to the counter claim of the Defendants/Respondents that they are caught by estoppel. (Grounds 9 and 12 of the Notice of Appeal).
(8) Whether on preponderance of evidence placed on an
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imaginary scale of justice, the case of the defendants/Respondents far out weights the case of the Plaintiffs/Appellants and therefore justifies the dismissal of the case of the Plaintiffs/Appellants and the grant of the Counter Claim of the defendants/Respondents with respect to the remaining Agu Nwankwo portion of the land in dispute. (Ground 1).
The Respondents’ brief of argument, settled by Mrs. F. A. Ogbuli and C. O. Anah, SAN, was dated 24th November, 2014 and filed on 27th November, 2014. In it five issues were identified for the determination of the appeal, to wit:
a) Whether the trial Court was right when it rejected the Plaintiffs/Appellants’ evidence of traditional history and acts of ownership as basis for a declaration of title. (This issue is distilled from grounds four, five, six and eight of the grounds of appeal).
b) Whether the trial Court was right in accepting the evidence of traditional history and acts of ownership of the Respondents over the Agu-Nwankwo portion of land in dispute. This issue two is distilled from grounds seven and ten of the grounds of appeal.
c) Whether the trial Court was right when it held that the
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finding in suit No. AA/29/72 does not operate as an issue estoppel over the claims of the Respondents. This is distilled from grounds Nine, eleven and twelve of the grounds of appeal.
d) Whether the trial Court was right when it struck out the claim of the Appellants over Ajofia Disuka portion of the land in dispute. This issue takes care of grounds two and three of the grounds of appeal.
e) Whether on the preponderance of evidence, the case of the Respondents far out weights the case of the Appellants with respect to Agu-Nwankwo portion of the land dispute. This is distilled from ground one of the grounds of appeal.
The Appellants’ Reply brief of argument, dated 30th March, 2015 was filed on 1st April, 2015. At the hearing of the appeal, on 29th February, 2016, learned counsel for each side, adopted their respective briefs of argument as their submissions, in respect of this appeal.
Upon my perusal of the pleadings of the parties; the pieces of evidence proffered by the witnesses; the findings of the learned trial judge; the grounds of appeal and the issues formulated by the parties learned senior counsel, I am satisfied that the
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appellants’ issue (1) is covered by respondents’ issue (d); appellants’ issues (2), (3), (4), (5) and (6) are covered by respondents’ issue (a) and (b); appellants’ issues 7 is covered by respondents’ issue (c) whilst the appellants’ issue (8) is covered by respondents’ issue (e). Therefore, in my consideration and determination of this appeal, I shall be guided by the five issues nominated by the respondents, as they have been tied to the appellants’ issues, respectively.
Appellants’ issue (1) and Respondents’ issue (d).
It is the appellants’ contention that their complaint is not against any other kindred in Umudunu or against Umudunu as an entity, but only against the respondents of Umudunu-Ani kindred of Umudunu for their trespass to the Agu Nwankwo land. Hence, the appellants’ claim is not with respect to the portion of land called “Ajofia Disuka.” Paragraphs 4, 28 to 34 of the appellants’ Statement of Claim were referred to and that it is the plaintiffs claim which determine the jurisdiction of the Court. Reliance was placed on Adeyemi v. Opeyori (1976) 9-10 SC 31 at 51. The appellants insisted that the necessary parties to their action
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were themselves and the respondents of the Umudunu-Ani sub family who trespassed into the Nwankwo-Agu land also known as Ajofia Disuka portion. In any event, they contended that even if party who ought to have been joined to an action was not joined, the non-joinder of the party will not affect the plaintiffs’ claim. Reliance was placed on FUTY v. ASUU (2013) 1 NWLR (Pt. 1335) 249 at 282.
Furthermore, it is the contention of the appellants’ learned senior counsel, that the learned trial judge raised the question of non-joinder of Umudunu people to the appellants’ action, suo motu, without affording the parties, the opportunity to address him on it and infringed on the right to fair hearing of the appellants. Authorities such as Kuti v. Balogun (1978) 1 LRN 253; Ochonma v. Unosi (1965) NWLR 321; Araka v. Ejeagwu (2000) 12 SC (Pt. 1) 99; Salu v. Egeibo (1994) 6 NWLR (Pt. 348) 23; Omokhodion v. F.R.N. (No. 2) (2005) 10 NWLR (Pt. 934) 581 at 608, amongst others were relied upon by the appellants’ learned senior counsel.
Responding in his issue four (d), the learned counsel to the respondents, submitted that since the appellants’ case is that the
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“Ajofia Disuka” portion of the land in dispute was the communal lands of Umuakuesu and Umuezehagba of the appellants, and on the other hand, the respondents counter-claimed that the same portion of land which they call “Isi Ajofia and Ajofia” respectively is the communal land of the Umudunu family, the said entire Umudunu family is a necessary party to the appellants’ action. Therefore, the non-joinder of the said Umudunu family was fatal to the appellants’ claim with respect to the “Ajofia Disuka” portion of the land in dispute. He referred to Adisa v. Oyiwola (2000) 10 NWLR (Pt. 674) 116 at 180; Ekpere v. Atorise (1972) All NLR (Pt. 1) 220; Ifeacho v. Inland Medical Co. (Nig) Ltd (2000) 1 NWLR 105. He submitted that in the circumstances of this case, the learned trial judge did not dismiss the appellants’ claim as submitted at paragraph 4.25 of the appellants’ brief of argument. He insisted that the Court below had the competence to strike out a claim where a proper party was not joined in an action. He referred to Ayoride v. Oni (2000) 3 NWLR (Pt. 649) 348; Ekpere v. Afonje (1972) l All NLR (Pt. 1) 220. He also submitted that the Court below had the power
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to either strike out or dismiss a claim without calling on the parties to address him and the necessity to call on parties to address the Court before it acts, is in cases of non-suit. He placed reliance on Ishola v. Ajiboye (1994) 6 NWLR (Pt. 352) 506; Anyaduba v. NRTC Ltd (1992) 5 NWLR (Pt. 243) 535; Etaluku v. Attor. Gen. Delta State (1997) 8 NWLR (Pt. 516) 308; Onwumalu v. Osadebe (1971) 1 All NLR 14. He furthermore, submitted that the court below rightly exercised her discretion in striking out the claims of both parties with respect to the “Ajofia Disuka” portion of the land in dispute and the appellate court such as this Court, should not interfere with the exercise of that discretion. He referred to Abiegbe v. Ugbodume (1973) 1 SC 133; Onward Ent. Ltd v. Matrix (2009) 4 WRN 103 at 109; WAAE Co. Ltd. v. Akinsete (1999) 13 NWLR (Pt. 636) 600; Odusote v. Odusote (1971) 1 All NLR 219.
Resolution:
I have perused paragraphs 16, 17 and 18 of the appellants’ Statement of Claim and it is clear to me that the upper part of the land in dispute – Agu Nwankwo is called “Ajofia Disiuka”. And it is clear to me too, that part of the land in dispute has been
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in contention between the appellants and the Umudunu people. Indeed, the respondents’ counter claim, apart from claiming exclusive possession and ownership of “Agu Nwankwo”, they also claimed the portions of the land called Isi-Ajofia and Ajofia as belonging to the whole Umudunu communally. Therefore, generally, it could have been appropriate to have joined the Umudunu community to the appellants’ action since Ajofia portion of the land is communally owned by the Umudunu community and not limited only to the Umudunu-Ani kindred of the respondents. However, in the circumstances of this case, where the claim of the appellants is in a representative capacity and the injunctive relief prayed for was to restrain, not only the respondents, but their agents, servants and privies, from trespassing into the land in dispute – which is the “Agu Nwankwo” land, of which Disiuka Ajofia, is only a part thereof, the non-joinder of the Umudunu people as a whole would not have defeated the appellants’ claim.I recall that in Federal University of Technology Yola (FUTY) v. Academic Staff Union of Universities (ASUU) (2013) 1 NWLR (Pt. 1335) 249 at 282, I did say, inter
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alia:
“I think, I should say a word on the submission of Mr. Odo, for the Appellants to the effect that the non-joinder of a party to an action defeats the action. That does not represent the law. Rather, the law is that an action cannot be defeated on the ground of non-joinder, misjoinder or mis-description of the parties because the Court suo motu or on the application of any of the parties, can join a party to an action, if found necessary. See: Chief Onwuka Kalu v. Chief Victor Odili (1992) 6 SCNJ (Pt. 1) 76 at p.115, (1992) 5 NWLR (Pt. 240) 130; Ayankoya v. Olukoya (1996) SCNJ 292 at p. 304, (1996) 4 NLWR (Pt. 440) 1, Ibrahim v. N.U.B. Ltd. (2004) 11 NWLR (Pt. 885) 537 at Pp. 549-550; Nabaruma v. Offodile (2005) WRN 47 at Pp. 64-65, (2004) 13 NWLR (Pt. 891) 599.Furthermore, even when a party who ought to have been joined to an action is not so joined, that failure to join him, does not necessarily defeat the action “and the court may in every cause or matter deal with the matter in controversy so far as regards the rights and interest of the parties actually before it” – per Mohammed, JSC in Chief Emmanuel Bello v. Independent National
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Electoral Commission & 2 Ors. (2010) 3 SCNJ (Pt. 1) 127 at pp. 149-150 (2010) 8 NWLR (Pt. 1196) 342. See also Peenok Investments Ltd v. Hotel Presidential Ltd. (1982) 12 SC 1 at p. 11; Prof B. J. Olufeagba & Ors. v. Prof. Shuaibu Oba Abdul-Raheem & Ors. (2009) 12 SCNJ 349, (2009) 18 NWLR (Pt. 1173) 384.”
Therefore, the learned trial judge had the competence to have joined the Umudunu Community, suo motu, to the action, instead of striking out the claim of the appellants, with respect to the Ajofia portion of the land in dispute.
The other aspect of this issue, is the complaint by the appellants to the effect that the learned trial judge ought to have invited counsel to the parties to have addressed him, since it was he who raised suo motu, according to him, the “technical but fundamental” question of the non-joinder of the Umudunu family, before coming to a decision on it. The law on the point of raising an issue suo motu by a court has been well settled beyond reproach that where a court raises an issue suo motu which was not contemplated nor raised by any of the parties, the Court must invite counsel to the parties to address it,
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particularly on a technical point so raised, before coming to a decision on it, so as to satisfy the requirement of the golden rule of fair hearing. Cole v. Martins (1968) 1 All NLR 162; (1968) NSCC 120; Registered Trustees of the Apostolic Church, Lagos Area v. Rahman Akindele (1967) 1 All NLR 110 at 112, Ogamien v. Ogamien (1967) NMLR 245 at 248; Shittu Adeosun v. Lawani Babalola & Anor (1972) 1 All NLR (Pt. 2) 120 at 126; Adedayo v. Peoples’ Democratic Party & Ors (2013) All FWLR (Pt. 695) 203 at 241 (SC). In Araka v. Ejeagwu (2000) 12 SC (Pt. 1) 99 – the apex Court admonished that:
“On no account should a Court of law raise a point suo motu no matter how clear it may appear to be and proceed to resolve it one way or the other without hearing the parties particularly the parties that may be adversely affected as a result of the point so raised if it does so, it will be in breach of the parties right to fair hearing.” However, the fact that the counsel to the parties were not invited to address the Court on such an issue, does not automatically render the judgment of the Court as invalid unless it is shown by the appellant that a
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miscarriage of justice had been occasioned or the decision is not correct. Olutola v. University of Ilorin (2005) All FWLR (Pt. 245) 1151; Imah v. Okogbe (1993) 12 SCNJ 57; (1993) 9 NWLR (Pt. 316) 159 at 178 ‘Katto v. C.B.N. (1991) 9 NWLR (Pt. 214) 126; Ejowhomu v. Edok-Eter Mandilas Ltd (1986) 1 NWLR (pt. 39) 1.
I have demonstrated earlier in this judgment that the learned trial judge was clearly in error for striking out the appellants’ claim with respect to the “Ajofia Disiuka” portion of the “Agu Nwankwo” land in dispute because of the non-joinder of the Umudunu family to the appellants’ action. That decision was not correct. I therefore resolve issue 1 of the appellants and issue (d) of the respondents, in appellants’ favour.
Appellants’ issues – 2, 3, 4, 5 and 6 vis-?-vis Respondents’ issues (a) and (b).
The contention of the appellants, on these issues is to the effect that there is no requirement of corroboration of the evidence of a witness who testified on traditional history. He submitted that the reliance by the learned trial judge on Lambe v. Jolayemi (2002) 12 NWLR (Pt. 784) 343 at 357 which applied the apex Court’s
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decision in Oba R.A.A. Oyediran of Igbonla v. Oba Alebiogu II & Ors (1992) 6 NWLR (Pt. 249) 550 at 558, with respect to prove of customary law and the need for its establishment and corroboration of evidence of the party who asserts it, is not applicable in the circumstances of this case, because according to him, the subject matter of the appellants’ action at the trial Court had nothing to do with native law and custom.
On his part, learned Respondents’ counsel submitted in his issue one, to the effect that the rejection of the appellants’ traditional history evidence was because of the fact that the appellants’ evidence is at variance with their pleadings. He referred to instances of such contradictions in the pieces of evidence proffered by the PW2, PW3 and PW4. He submitted that what the learned trial judge meant by saying that the pieces of evidence by the PW2 was not corroborated was no more than saying that those pieces of evidence were not cogent. He insisted that the appellants had the duty to plead and lead evidence in accordance with their pleadings as to the traditional history of who founded the land, how he founded it and give
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consistent particulars of the intervening owners of the same land before it finally devolved on the appellants. He referred to Nwokorobia v. Nworgu (2009) 50 WRN 1 at 20 & 24 (SC); First African Trust Bank Ltd. v. Partnership Co. Ltd (2001) 1 NWLR (Pt. 695) 519; Onibudo v. Akibu (1982) 7 SC 60; Adesanya v. Aderonmu (2000) 13 WRN L04; Irogbaa v. Ufomadu (2009) 30 WRN 1 at 15 (SC); Ukaegbu v. Nwokolo (2009) 12 WRN 1 at 43 (SC).
Resolution:
I have perused the pleadings and the case made at the trial court by the appellants and it is clear to me that their claim was squarely premised on traditional history with respect to their connection to and descent from their ancestor called Nanka. It must be borne in mind that for the appellants to succeed in a claim for a declaration of title to land, predicated on traditional history, they must plead in their statement of claim and lead evidence in Court, showing the names and histories of their ancestors in such a manner as to disclose a continuous chain of devolution from one generation to the other until the land finally devolved on them. Akinloye & Anor v. Eyiyola & Ors. (1968) NMLR 92 at 95
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(SC); Total Nig. Ltd. v. Nwako (1978) 5 SC 1 at 12; Elias v. Omobare (1982) 5 SC 25 at 57-58. Furthermore, it is incumbent on a claimant, such as the appellants herein, to plead and establish how their ancestor said to be Nanka founded the land in dispute, whether by conquest, uncontradicted and conclusive, for them to succeed in obtaining the Court’s declaration in their favour. Iseogbekun &Anor. v. Adelakun & Ors (2012) 4 SCNJ 100; Nruamah & Ors v. Ebuzoeme & Ors. (2013) 1 SCNJ (Pt. 1) 128; Alli v. Alesinloye (2004) 4 SCNJ 264 at 284; Piaro v. Tenalo (1976) All NLR 229 at 234. In Eze & Ors v. Atasie & Ors (2000) 6 S.C. (Pt. 1) 214 at 220, the apex Court, succinctly stated, inter alia:
“To establish traditional history of land relied on as root of title, a plaintiff must plead the name of the founder and others after him upon whom the land devolved to the last successor(s) and lead evidence in support without leaving gaps or creating mysterious or embarrassing linkages which have not been and cannot be explained. In other words, the devolution i.e. naming them one by one and the evidence in support must be
19
reliable being credible or possible otherwise the claim for title will fail.” Further see Nwokorobia v. Nwogu (2009) 50 WRN 1 at 20 & 24; Irogbara v. Ufomadu (2009) 30 WRN 1 at 15.
In the instant matter, there is uncontradicted evidence to the effect that Nanka was the founder of the land in dispute. However, there is no averment in the appellants’ pleadings as to how, he founded it. Was it by conquest, deforestation/first settlement or how? Furthermore, if Nanka’s interest in the land, upon his death devolved on his first son, Agbiligba, who was the first son of Agbiligba on whom the land devolved after Agbiligba’s demise. The PW1, under cross-examination at page 451 of the record of appeal, said:
“I know the history of Nanka very well. I know the history of Agbiligba very well. Agbiligba had three sons, in order of seniority namely – Umueze. I now say that Agbiligba had an only son – named Odukalia.”
In further cross-examination at page 452 of the record of appeal, the PW1 said:
“Odukalia had two sons namely:- Ezekei, I now say that he had only one son.”
On the part of PW2 at page 454 of the record of appeal,
20
he answered questions to the effect that:
“Agbiligba had 3 sons namely:- Odukalia, Dim Abakam and Oka. Odukalia was his biological son whilst he adopted Dim Abakam and Oka.”
And with respect to the children of Odukalia, PW2 said at page 455 of the record of appeal, inter alia:
“I told the Court that Ezekeli was the 1st son of Odukalia.”
This presupposes that Odukalia had other children apart from Ezekeli.
Furthermore, at 456 of the record of appear, the PW2, said:
“I know that land in dispute. It is in Agbiligba. It is called Agu-Nwankwo between his two sons. The two sons are Ezehaga and Akuesu.”
On his own part, PW3 at page 458 of the record of appeal said that it was Ezekeli who took over the offor of Agbiligba and that Ezekeli had 14 sons.
It is very clear to me that the pieces of evidence extracted from the PW1, PW2, PW3 and pw4 with respect to the traditional history of the devolution of the land in dispute from Agbiligba to Odukalia or Ezekeli, is fraught with inconsistencies and contradictions which no reasonable tribunal would believe and act upon. Yes, the learned trial judge missed the point when
21
he talked of corroboration of the evidence of PW2.
However, the fact is that there were contradictions in the evidence of the PW1, PW2, PW3 and PW4 as highlighted above, such that, that was enough to cause the failure of the appellants’ claim as being unreliable and not cogent. There is need to reiterate the principle enunciated in Kojo II v. Bosnie with respect to proof of title to land on the basis of traditional history evidence. It was graciously explained by Adekeye, JSC in Nwokidu & Ors v. Okanu & Anor (2010) 1 SCNJ 167 at 196, inter alia:
“In the scenario before the Court where the case is fought on evidence of traditional history – which in other words becomes a matter of hearsay upon hearsay which is the nature of traditional evidence, the trial Court in its traditional role of an umpire has a duty to examine the evidence of the parties and come to the conclusion which is more probable in the circumstances of the case, by testing it against the other evidence. Where witnesses of one party contradict each other on the traditional history relied upon the trial court will be right to reject the traditional history. If the evidence
22
adduced on one side is supportive of the traditional history relied on by the other side, the trial Court will be right in accepting the traditional history. It is only when it can neither find any of the two histories probable nor conclusive that he will declare both inconclusive and proceed to decide the case on numerous and positive acts of possession and ownership.”
Further see Matanmi v. Dada (2013) 2 SCNJ 816 at 832 where his Lordship Fabiyi, JSC., re-echoed the apex Court’s position inter alia:
“What then is the Rule in Kojo II v. Bosnie? The Rule which has stood the test of time for quite sometimes now is that where traditional evidence proffered by the parties are inconclusive, the Court is enjoined to take into consideration facts in recent times given by the parties in order to determine which of the traditional evidence is more probable. To resort to the rule, the traditional evidence of the parties must be capable of being believed but that since the two are competing, a Court cannot prefer one to the other. Rather, it is enjoined to look out for further facts in recent times to see which of the traditional history is more
23
probable.
The finding of the trial judge that, there is no cogent evidence of tradition to prove the claim for declaration of title put steam out of the plaintiffs’ case. The Court below felt that the trial Court was right in the position taken by it. With respect, the Court below was wrong. Indeed, the two Courts below erred. The evidence of the plaintiffs that was rejected by the trial court had no chance of being tested under the Rule in Kojo II v. Bosnie (supra) The application of the Rule in the prevailing circumstance is not apt.”
The evidence of traditional history is essentially, a sort of evidence premised on the story of how a parcel of land was acquired by the forebears/progenitors of the parties, as recounted to them by their own fathers. The stories could be true or false. Yet, the parties believe them, nevertheless. Hence either party could be honestly telling the truth. Or even telling lies. However, where such evidence of traditional history, either of conquest, first settlement, inheritance or grant is satisfactorily placed before the Court and it is believed and accepted, title to the land in dispute can be declared for the
24
claimant/plaintiff. Alli v. Alesinloye (supra); Odofin v. Ayoola (1984) 11 S.C. 72. However, where there is conflict in the traditional history evidence put forward by the parties, a trial judge by employing the principle in Kojo II v. Bosnie (supra) then resort to determining the probable traditional history between the two traditional histories projected by the parties, by reference to recent acts in recent years evidencing who has been in possession of the land. In the instant case, the appellants’ traditional history projected by them was yet to get up, such that the question of it being in conflict with that of the respondents did not arise. That is, the traditional history evidence proffered by the appellants was not credible for it to be pitched against that of the respondents, in order to determine which of them is plausible and probable.
This Court in Amuda v. Ajobo (1995) 7 NWLR (Pt. 406) 170 at 180-181, per his Lordship, Oguntade, JCA (as he then was) succinctly stated, thus:
“A conflict arises when the traditional history given in evidence by the plaintiff and which was unchallenged by the evidence of the defendants, is capable of
25
showing clearly the source of title relied upon by the plaintiffs is set against the traditional history given in evidence by the defendant and which unchallenged by the plaintiffs is capable of showing clearly the source of title relied upon by the defendants. In the instant case, the plaintiffs’ evidence of traditional history would on its own have failed to show that Oderinlo granted the land in dispute to plaintiffs’ ancestor even if the defendants had not set up any traditional history of their own. The question of a conflict between the two traditional histories given by the parties did not arise at all. It was only in the event of the plaintiffs showing that Oderinlo granted the land in dispute to their ancestor that it could be said that they put before the lower Court evidence of traditional history which could be pitched against the traditional history of the defendants to determine if there was a conflict between both. The trial judge should have held that the plaintiffs’ evidence of traditional history in respect of the grant of the land in dispute by Oderinlo to plaintiffs’ ancestor was nebulous and insufficient. This would have led to the
26
dismissal of plaintiff’s claim for declaration of title.”
My Lords, the above position of the law was more recently reiterated by the apex Court in Matanmi v. Dada (supra) at page 631, per Fabiyi, JSC, to wit:
“I need to emphasize the point here that the position of law on the effect of rejection of traditional evidence is as stated by this Court in Odofin v. Ayoola (1984) 11 SC 72 at 106; (1984) NSCC (vol. 15) 711 at 720 per Karibi-Whyte, JSC as follows:
“It follows therefore that where traditional evidence of that alleged from which title is derived, is lacking or rejected, as was in this case, such evidence is not merely inconclusive but also cannot be relied upon whether any other acts positive or numerous can support evidence of ownership. The basic foundation, that is traditional evidence, having been rejected there is nothing on which to found acts of, ownership.”
It is against the backdrop of the decisions of this Court in Amuda v. Ajobo (supra) and that of the Supreme Court in Matanmi v. Dada (supra) that I have come to the considered opinion that since the appellants’ traditional history evidence was yet to get up, it
27
was unreliable and unbelievable. Therefore, there was no foundational evidence upon which to predicate traditional evidence proffered by the appellants, which was rightly rejected by the trial judge.
In the end, the appellants’ claim merited a dismissal, since it was not proved. Therefore, I resolve issues 2, 3, 4, 5 and 6 against the appellants.
Issues 7 and 8:
The appellants contention with respect to issue 7 is that the doctrine of estoppel was applicable in the circumstances of this case, premised on the judgment in AA/29/72 and FCA/E/18/78 – Exhibit P1 and that they operate against the respondents; contrary to the decision of the learned trial judge that the doctrine of estoppel was inapplicable to the appellants’ claim. On issue 8, it is the appellants’ contention that on the balance of probability, the appellants’ claim ought to have succeeded. The respondents expectedly support the trial judge’s decision with respect to the two issues aforementioned.
Resolution:
I have considered the trenchant submissions of both learned senior counsel in this appeal, with respect to the applicability or otherwise of the doctrine of
28
estoppel, in the instant matter.
In law, estoppel is an admission or something which the law views as equivalent of an admission. By its very nature, it is so important and conclusive that the party whom it affects will not be allowed to plead against it or adduce evidence to contradict it. Yoye v. Olubode (1974) All NLR 657; Ukaegbu v. Ugoji (1991) 6 NWLR (Pt. 196) 127; Koiki v. Magnusson (2001) FWLR (Pt. 63) 167. It is a common law principle which has gained statutory acceptance in Nigeria, such as Section 169 of the Evidence Act No. 18 of 2011. It forbids a person or party who having shown that he agrees with a state of affairs, to later turn round and disclaim his act or omission. Hence both in common and statutory law, such conduct is not permitted. For example in Section 151 of the Evidence Act, 2004 which is in pari materia with Section 169 of the Evidence Act, 2011, the use of the phrase that:
“neither he nor his representative in interest shall be allowed” is emphatic. This was explained better by the apex Court in Ude v. Osuji (1998) 10 SCNJ 75 thus:
“The principle of estoppel by conduct is that where one party has, by his
29
words or conduct, made to the other a promise or assurance which was intended to affect the legal relation between them and to be acted upon accordingly, then once the other party had taken at his word and acted on it, then the one who gave the promise or assurance cannot afterwards be allowed to revert to the previous legal relations as if no such promise or assurance has been made by him. He must accept their legal relation as modified by himself even though it is not supported in point of law by any consideration, but only by his word or conduct. See Combe v. Combe (1951) 1 All ER 69 at 770,” See also Buhari v. INEC (2009) All FWLR (Pt. 459) 419 at 517.
There are principally, two kinds of estoppel. In Osunrinde & Ors v. Ajamogun & Ors (1992) 7 SCNJ 79; (1992) LPELR-2819 SC at 39, his Lordship, Ogundare, JSC (now of blessed memory) succinctly stated, to wit:
“Now, there are two kinds of estoppel by record inter partes or per rem judicatam as it is generally known. The first is usually referred to as ’cause of action estoppel’ and it occurs where the cause of action is merged in the judgment, that is transit in rem judicatam. There is
30
however, a second kind of estoppel inter partes and this usually occurs where an issue has earlier on been adjudicated upon by a Court of competent jurisdiction and the same issue comes incidentally in question in any subsequent proceedings between the same parties (or their privies); in these circumstances. “issue estoppel arises.”
Furthermore, on the effect of estoppel, his Lordship, at page 46 of the report, stated: “The general rule of law undoubtedly is that no person is to be adversely affected by a judgment in an action to which he was not a party, because of the injustice in deciding an issue against him in his absence. But this general rule admits of two exceptions, one is that a person who is in privity with the parties, a “privy” as he is called is bound equally with the parties, in which case, he is estopped by res judicata: the other is that a person may have so acted as to preclude himself from challenging the judgment in which case he is estopped by his conduct.”
Indisputably, for the doctrine of estoppel to operate in any particular case, it must be established that,
(i) The parties (or their privies as the case may
31
be) in the previous case are the same as in the present case;
(ii) The issues and the subject matter or res litigated upon in the previous case is the same as in the subsequent or present case;
(iii) The previous action must have been determined by a Court of competent jurisdiction;
(iv) The said decision in the previous case, must have finally decided the issues between the parties. The four-fold pre-requisites for the applicability of the doctrine of estoppel, must co-exist, such that a failure of one, perforce damnifies its applicability. Now, who were the parties in the Suit No. AA/29/72? The said judgment is at Page 328 of the record of appeal. The heading which included the parties, is set out as follows:
“IN THE HIGH COURT OF ANAMBMRA STATE OF NIGERIA IN THE HIGH COURT OF AWKA JUDICIAL DIVISION HOLDEN AT AWKA
BEFORE HIS LORDSHIP: HON. JUSICE A. OBI-OKOYE ? JUDGE ON MONDAY THE 28TH DAY FEBRUARY, 1977
SUIT AA/29/72
1. Matthew Ezendeche
2. Raymond Ezebeyem – Plaintiffs
v.
1. Ezenwafor Ezerioha
2. Gilbert Ezekoye
3. Emmanuel Okafor
4. Cyril Odobeatu – 1st of
32
Defendants
and
1. Ezekoye Ezembadugha
2. Ezekeke Onukwo – 2nd set of Defendants
Parties present.
JUDGMENT
By the time this Suit which was commenced in March, 1972, proceeded to trial in October, 1976, the pleadings of all the parties had been amended at least once, the final ones being the amended statement of claim dated 4th of December, 1974; the amended statement of Defence of Umudunuani defendants dated 1st of May, 1974, and the amended Statement of Defence of the last two defendants dated the 10th of March, 1975. The Umudunuani defendants were originally represented by the first three defendants. They increased their number after the filling at all the amended pleadings, to four. For convenience, the 4th man was added as the 4th defendant with the effect that the last two defendants formerly numbered 4 and 5 became 5th and 6th defendants; and all references in the pleadings to 4th and 5th defendants would read 5th and 6th defendants. I would also mention that the plaintiffs in their writ and pleadings, referred to the last two defendants as representing the families of Umuakuesu and Umuezeoke, but these two
33
defendants in their joint statement of defence, referred to themselves as representing the families of Umuakuesu and Umuezehagba.
Umudunu is a family in Agbiligba village of Nanka town in Aguata Local Government Area. Umudunu itself is made up of four families called Ezieke, Oluawo, Uhueze and Umudunuani. This suit is brought by two persons suing on behalf of themselves and Ezieke family. There are two sets of defendants, viz, 1-4 sued on behalf of Umuduani family, and 5-6 sued on behalf of two other families who are not part of Umudunu. The other two families of Umudunu, namely, Oluawo and Uhueze are not parties to the suit – they did not sue, they were not sued, and they did not apply to be joined.
The plaintiffs’ claim is threefold. The claim that a piece of land called Agu Isi Ajofia delineated in a plan No. E/GA/181/72 is the communal property of the entire Umudunu family. They also claim damages for trespass, and perpetual injunction against all the defendants.”
It is clear to me that the action in Suit AA/29/72 was instituted at the instance of the claimants therein of the Ezieke sub-family in Umudunu against the 1st set of
34
Respondents therein, of the Umudunuani sub-family in Umudunu (the respondents herein). The 2nd set of defendants in suit No. AA/29/72 are the appellants herein. The said action was primarily between the two sub-families of Ezieke and Umudunuani of Umudunu, before the appellants were joinded as the second set of defendants. It is noteworthy that the other two sub-families of Oluawo and Uhueze of Umudunu were not parties in suit No. AA/29/72. And it is instructive that the learned trial judge inn suit No. AA/29/72 found that the action therein, did not involve the whole of Umudunu as a community, hence he rejected the claim of the Ezieke subfamily of Umudunu. It is glaring to me that the action in suit No. AA/29/72 was instituted by the Ezieke sub-family for the plaintiffs therein and on behalf of the Ezieke family and not the Umudunu family as a whole. So also, the said action against the respondents herein, was on their behalf and of the Umuduani family only and not the whole of Umudunu family. Therefore, the judgment in AA/29/72 certainly did not bind the entirety of the Umudunu family because they were not parties thereto. The appeal in respect of AA/29/72
35
to the Court of Appeal gave birth to Exhibits P1 and D4 – FCA/E/18/78.
The grouch of the appellants in Exhibits P1/D4 was the award of the land in dispute in AA/29/72 to the 2nd set of defendants therein, that is, the appellants herein, who did not counter-claim for it. The Court of Appeal in Exhibits P1/D4 was emphatic when it held in its judgment that:
“The Statement that the land belongs to the second set of the Defendants seems to be erroneous in the circumstance. Again the declaratory statement of the judge failed to take into consideration that there was no issue of title joined.”
The present action herein, undoubtedly is between the appellants for themselves and the Umuakuesu and Umuezehagba kindred of Umuezekeli of Agbiligba village, Nanka against the respondents for themselves and on behalf of members of Umudunu-Ani kindred of Agbiligba village, Nanka. The action was essentially between the Umuakuesu and Umuazehagba kindred of Umuezekeli against the Umudunu-Ani kindred. Therefore, it is not difficult to see that the action herein, just as the action in suit No. AA/29/72 and Exhibits P1/D4 were not targeted at the Umudunu family as
36
a whole. Hence, I am unable to see how the parties in the present action and those in AA/29/72 are the same. They are not. So, on that condition for the application of the doctrine of estoppels inter parties, the action rightly failed.
Furthermore, the cause of action, that is the land in dispute in AA/29/72 and Exhibits P1/D4 related to Agu Isi Ajofia delineated in a Plan No. E/GA/181/72 – bounded to the north by the land of Eti people and to the east by the land of Oka people. In the instant case, the land in dispute is called “AGU NWANKWO”- shown in Survey Plan No. TA/AN010D/2007 – Exhibit P4. For the doctrine of estoppel per cause of action (res judicatam) to operate in the present case, there must be in evidence that the land in dispute in suit No. AA/29/72 and Exhibits P1/D4, that is, “Agu Isi Ajofia” is the same with the land in dispute in the instant case, that is, “AGU-NWANKWO”.
So that when the Survey Plan in the Suit No. AA/29/72, that is, E/GA/181/72 is juxtaposed with the Survey Plan TA/AN010D/2007 (Exhibit P4) in the present case, they would be the same, as to their area, size, location and features. Upon my perusal of the record
37
of appeal, I found that neither the record of the Suit No. AA/29/72 nor the Survey Plan filed therein, that is, E/GA/181/72 was admitted into evidence as an Exhibit. Hence, it could not be established that the land in dispute in the Survey Plan E/GA/181/72 in respect of the Suit No. AA/29/72 is the same with the land in dispute vide the Survey Plan TA/AN010D/2007 (Exhibit P4) in the present case. Therefore, it cannot be said that the subject matter of the action in Suit No. AA/29/72 is the same with that in the present action. In other words, the land in dispute in the Suit No. AA/29/72 is not the same with the land in dispute in the present action.
In sum, the appellants’ contention that the parties and the subject matter in the suit No. AA/29/72 read together with Exhibits P1/D4 are the same with the parties and the subject matter in the instant case, as being the same, is without merits. The doctrine of estoppel is therefore inapplicable here. Issue 7 is resolved against the appellants.
With respect to issue 8, I am of the firm and considered opinion that with the resolution of issues 2, 3, 4, 5, 6 and 7 against the appellants, there is no
38
force in the contention of the appellants to the effect that the learned trial judge ought to have held in favour of the appellants who had produced evidence of acts of ownership in respect of the land in dispute. Having held that the appellants did not prove by cogent and reliable evidence, the traditional history that they had projected in respect of the acquisition of the land in dispute, the law is well settled to the effect that any act of possession allegedly exercised on a parcel of land upon which the title to it was not proved by the claimant, was tantamount to an act of trespass. Fasoro v. Beyioku (1988) 2 NWLR (Pt. 76) 263; Adebayo v. Ighodalo (1998) 5 NWLR (Pt. 450) 507; Irawo-Osan v. Folarin (2008) 48 WRN 127.
The learned trial judge rightly in my considered opinion, weighed the pieces of evidence, proffered by the witnesses at the trial, as he demonstrated at page 490 of the record of appeal, inter alia:
“Apart from the already recorded pit falls in the case of the Plaintiffs, there are also material contradictions in the testimony of their witnesses. P.W.4 contradicted the testimony P.W.1, P.W.2 and P.W.3 to the effect that the
39
Defendants live next to the land in dispute. Thus during his cross-examination on the 23rd of February, he denied the Defendants live nearest to the land in dispute. He denied also that the Plaintiffs must pass the Defendants’ land before getting to the land in dispute. Also whilst P.W.1 listed the sons of Agbiligba as of the Odukalia, Dim and Oka; P.W.2 stated that the Defendants’ Dunu are regarded as the 3rd son of Agbiligba. The law is still settled that material contradictions in the evidence of a party and that of his witnesses render the case of that party unreliable. In such circumstances, it cannot by any stretch of the imagination be said that a Plaintiff whose testimonies are materially at variance with those of his witnesses has proved his case as required by the law. Rather such plaintiff, as the one under consideration would have failed in the primary responsibility of proving his case on a balance of probability……… it seems to me therefore that the case of the Defendants far outweigh that of the Plaintiffs in the proverbial imaginary balance.
Consequently, I am compelled to cast my lot in their favour.”
I am unable to impeach
40
the evaluation/assessment of the pieces of evidence put before the learned trial judge and that the evidence of both parties weighed together, on the imaginary scale of justice clearly preponderated, in favour of the respondents. The law needs be reiterated that:
“The burden of establishing a case based on a declaration rests more on the plaintiff whose evidence must be convincing, positive, affirmative and unequivocal in support of his case. Such evidence must be in accordance with his pleadings.” Per Adekeye, JSC in Arowolo v. Olowokere (2011) 18 NWLR (Pt. 1278) 280 at 304. Further see Uchendu v. Ogboni (1999) 5 NWLR (Pt. 603) 337; Owoade v. Omitola (1988) 2 NWLR (Pt. 77) 413.
In the end, I resolve issue 8 against the appellants. Having therefore resolved virtually all the issues, except issue 1, against the appellants, the appeal fails and it is dismissed. Accordingly, the judgment of Vin N. Agbata, J., in re – Suit No. AG/116/2006 delivered at the Anambra State High Court of Justice, holden at Ekwulobia on 24th July, 2012 is hereby affirmed.
N100,000.00 cost is awarded to the respondents against the appellants.
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41
MASSOUD ABDULRAHMAN OREDOLA, J.C.A.: I have read before now, the lucid lead judgment just delivered in this matter by my learned brother, Hon. Justice Tom Shaibu Yakubu, JCA. I agree entirely with the said lead judgment. Thus, for the same reasons and conclusion contained therein, I too find that this appeal matter ought to fail. I accordingly dismiss it, since it has failed. I also abide by the consequential orders contained in the said lead judgment, inclusive of the one made with regard to costs.
RITA NOSAKHARE PEMU, J.C.A.: I had the advantage of reading in draft the lead judgment just delivered by my brother TOM SHAIBU YAKUBU, JCA.
I am in total agreement with his reasoning and conclusions.
I also dismiss the appeal.
I abide by the consequential order made as to costs.
42
Appearances
K. C. Ezeanyika, Esq.For Appellant
AND
Mrs. F. A. Ogbuli with D. C. Nwizu, Esq. and B. M. IkeagwuFor Respondent
