OKORO EGWU & ORS v. DONATUS EMEIKE & ORS
(2018)LCN/12420(CA)
In The Court of Appeal of Nigeria
On Friday, the 27th day of April, 2018
CA/E/39/2012
RATIO
COURT AND PROCEDURE: THAT THE COUNSEL’S WORDS CANNOT TAKE THE PLACE OF EVIDENCE
“It is settled law that the address of counsel no matter how brilliant does not take the place of evidence. Cases are decided on the basis of hard and legally admissible evidence before the Court and not on the conjecture or permutation of counsel. See IBRAHIM V. SHAGARI & ORS (1983) LPELR 1412 (SC), IGBIKIS V. STATE (2017) LPELR 41667 (SC). EJEZIE & ANOR. V. ANUWU & ORS. (2008) LPELR 1063 (SC), (2008) 12 NWLR (PT. 1101) 446 AT 490 (C). Where a party fails to give sufficient evidence of the origin or ownership of the land in dispute or how the original owner became the owner and link the line of succession to himself, his case must fail. See ANYAFULU V. MEKA (SUPRA) at 430 (A – C).” PER MISITURA OMODERE BOLAJI-YUSUFF, J.C.A.
LAND LAW: WAYS OF PROVING OWNERSHIP TO LAND
“In this country, it is firmly established that there are five accepted ways of proving ownership or title to land and traditional history is one of them. Whether the suit is fought at the Customary Court or the High Court, the law is that a party who relies on traditional history has the burden to lead cogent, credible and satisfactory evidence to prove (1) The founder of the land was founded. (2) How the land was found. (3) The name and particulars of the intervening owners through whom the party is claiming the land and through whom the land devolved. See BURKAR V. BASHIR (2014) 11 NWLR (PT. 1417) 68 AT 89 (F – H). SOGUNRO V. YEKU (2017) 9 NWLR (PT. 1570) 290 AT 316 (E – H). ANYAFULU V. MEKA (2014) 7 NWLR (PT. 1406) 396 AT 425 (A – C).” PER MISITURA OMODERE BOLAJI-YUSUFF, J.C.A.
LAND LAW: DECLARATION OF TITLE TO LAND
“The law is settled that in claim for declaration of title, the plaintiff must succeed on the strength of his own case and not on the weakness of the defendants’ case unless the evidence of the defendant supports his case. Where a defendant in a claim for declaration of title to land has no counterclaim, the burden on the plaintiff to prove his case is heavier. The defendant has no duty at all to prove his title to the same land in dispute. See ONOVO V. MBA (2014) 14 NWLR (PT. 1427) 391 AT 441 (E – H). ANYAFULU V. MEKA (SUPRA) AT 425 (E – F). The respondents applied for extension of time to file a counterclaim but their application was dismissed. The burden was therefore on the appellants to prove their case and it was a heavy one which they woefully failed to discharge.” PER MISITURA OMODERE BOLAJI-YUSUFF, J.C.A.
JUSTICES
HELEN MORONKEJI OGUNWUMIJU Justice of The Court of Appeal of Nigeria
TOM SHAIBU YAKUBU Justice of The Court of Appeal of Nigeria
MISITURA OMODERE BOLAJI-YUSUFF Justice of The Court of Appeal of Nigeria
Between
1. OKORO EGWU
2. MARIUS EGWU (SNR)
3. MARIUS EGWU (JNR)
4. TITUS EGWU
(For themselves and on behalf of Umuegwu family) Appellant(s)
AND
1. DONATUS EMEIKE
2. JOSEPH EMEIKE
3. CASMIR EMEIKE
4. LIVINUS EMEIKE
5.CELSIUS EMEIKE Respondent(s)
MISITURA OMODERE BOLAJI-YUSUFF, J.C.A.(Delivering the Leading Judgment): The appellants herein instituted suit no. CCU/1/2005 at the Customary Court of Enugu State, Ukana, Udi Magistratial District and claimed the following reliefs:
(a) Customary right of ownership over the said twelve (12) parcels or pieces of plaintiffs’ lands and the economic trees thereon.
(b) Interlocutory injunction restraining the defendants, his agents, servants, privies from interfering with or in any other manner disturbing the plaintiff’s possession, occupation and enjoyment of all the assets including the plaintiffs’ said lands, subject matter of the inherited lands of their late fathers.
(c) An order of perpetual injunction restraining the defendants, their servants, agents and privies, however constituted from trespassing in any manner whatsoever or dealing with the plaintiffs’ said lands.
(d) And such further or other orders as this Honourable Court may deem fit to make in the circumstances.
The appellants’ case is that the appellants are members of Umuegwu family of Uwani Obiagu Awhum in Udi Local Government Area of Enugu State while the respondents are members of Emeike family of Uwani Obiagu Awhum in Udi Local Government Area of Enugu State, while the respondents are members of Emeike family of Uwani Obiagu Awhum in Udi local Government Area of Enugu State. The appellants claimed that the 12 (twelve) parcels of land in dispute was originally owned by their grandfathers by inheritance from their forefathers and in accordance with the native law and custom of Awhum people. According to the appellants, Diagbene begot two male sons namely Ezeonyia and Ezebinugwu. The appellants are descendants of Ezeonyia while the respondents are descendants of Ezebinugwu. They claimed that before the civil war, the respondents departed from their genealogical homestead at Uwenu Obiagu Awhum to the appellant?s Obiagu Awhum because of incessant maltreatment and sale of human being at Uwani Obiagu Awhum. The respondents? fathers and their families were accommodated at Uwani on the condition that they would be paying tribute to show that they are tenants to the appellants and the respondents’ fathers were paying but on the death of their fathers, the respondents stopped paying tribute to the appellants.
The respondents denied the appellants’ claim. Both parties testified and called their witnesses. The Customary Court by a majority of 2 to 1 granted the appellants’ claim. The respondents were dissatisfied with the judgment. They appealed to the High Court of Enugu State. Briefs were filed and exchanged between the parties at the High Court. In its considered judgment delivered by Honourable Justice I. S. Amanoh, on 18/11/2008 the High Court in its appellate jurisdiction, found that the appellants failed to establish their root of title to the lands in dispute. The Court set aside the majority judgment of the Customary Court and its consequential orders.
The appellants are aggrieved by the judgment and have appealed to this Court vide an amended notice of appeal filed on 24/2/2017 pursuant to the order of this Court made on 14/2/2017. The three (3) grounds of appeal with their particulars are as follows:
GROUND 1
The learned judge erred in law by holding that the appellants were unable to prove title to the land in dispute.
Particulars of Error.
a. The appellate Courts normally consider liberally the records of proceedings of the Customary Courts once such proceedings were conducted in pursuit of the justice of the case.
b. The Claim before the Customary Court Ukana, Enugu State was for declaration of title to 12 parcels of land situate at Obiagu Awhum, Udi L.G.A and the Appellants gave credible traditional evidence of how the 12 pieces of land devolved on them, payment of tribute, evidence of acts of long possession/usage and ownership of adjourning lands to the land in dispute which renders it probable that they also own the land in dispute.
c. It is established principles of our law that a party need not prove all the five methods laid down in the case of IDUNDUN VS OKUMAGBA (1976) 9/10 SC 27 to be awarded the reliefs sought in a case of declaration of title to land.
d. Where an appellate Court is not fully satisfied with the evidence on record from the Customary Court in proof of title to land, the appropriate order the Court should make is to remit the said matter to another Customary Court for re-trial.
GROUND 2
The learned judge erred in law in relying on evidence of a party not given on oath and the evidence of witness who failed to make himself available for cross examination to arrive at her decision instead of remitting the whole case back to another Customary Court for re-trial.
Particulars of Error.
a. It is the law that only evidence adduced in Court and subjected to the heat of cross examination that a Court can rely on to reach a verdict.
b. Our Courts are enjoined not to act on unsworn evidence of parties and evidence of a witness who did not offer himself for cross examination.
GROUND 3
a. The judgment is against the weight of evidence.
The appellants filed amended appellants? brief of argument on 24/2/17 pursuant to the order of this court made on 14/2/2017. The respondents filed their brief of argument on 22/3/17.
The appellants raised the following two issues for determination:
a. Whether the plaintiffs/appellants were able to prove their title to the 12 parcels of land in issue which includes payment of tributes to the appellants.
b. Whether the judgment of the High Court is against the weight of evidence adduced at the Customary Court.
The respondents adopted the above two issues for determination. I have considered the claim of the appellants at the Customary Court, the entire evidence led by both parties, the judgment of the Customary Court which is the majority judgment and the judgment of the High Court (Court below) and the grounds of appeal in this Court. It is clear that the issue thrown up for determination in this appeal is:
‘Whether the Court below was right when it held that the appellants failed to establish their root of title to the land in dispute.’
It is submitted that it is clear from the evidence of the appellants on pages 9 – 16 of the record and the evidence e of the 1st appellant that Ezeonyia cleared and settled on the land at Uwani Obiagu Awhum where the appellants are living including the land in dispute while the respondents did not proffer any evidence as to why they left their homestead at Uwenu Obiagu Awhum for Uwani Obiagu Awhum shown to be their maternal home and from the evidence on record it is clear that the lands in dispute are located in the maternal home of the respondents.
The appellant? counsel submitted that it is known that in most Igbo communities no person ever inherits and/or owns land in his maternal home unless by permission and it is unheard of in the appellants part of Igbo land that a son is contesting ownership of land in his maternal home with the maternal uncles. He further submitted that the Customary Court that visited the locus in quo and observed the lands in dispute is in a better position to evaluate the evidence and make findings of fact based on what they saw. He argued that in view of the proving of possession by the appellants which spanned many years dating back beyond the period of slave trade, a proper view of the evidence of both parties shows that the traditional history of the appellants is most probable and supports the principle in KOJO II V. BONSIE & ANOR. (1957) 1 WLR 1226. It is submitted that the unchallenged evidence of payment of tribute or any token is a clear evidence of acknowledgement of the over lordship of the appellants with respect to the lands in dispute.
It is the contention of the appellants’ counsel that the instant case is one in which an order of non-suit ought to have been made and the case remitted back to the Customary Court for retrial. He referred to OKOEBOR V. POLICE COUNCIL (1998) 9 NWLR (PT. 566) 534. TIAMIYU V. OLAOGUN (2009) ALL FWLR (PT. 451) 690 AT 980. ABIEGBE V. UGBODUME (1991) 11 SCNJ 1 AT 13. Counsel submitted that the Court below did not properly evaluate the evidence upon which the Customary Court based its majority judgment.
In response, the respondents’ counsel submitted that the appellants were not able to state who founded the lands they are claiming, how it was founded and the particulars of intervening owners through whom they claim. He referred to the evidence of the appellants’ spokesperson on pages 1-12 of the record of appeal. He submitted that the evidence shows that both parties have the same father and it was never stated that Dinagbere’s children shared their land which means that the land is owned in common by both parties. He submitted that the appellants failed to show acts of possession and enjoyment of the land long before 1967 and thereafter whereas PW1 stated that the respondents were living on the land before 1967 and that they are now living in a communal land owned by Obiagu village in general which shows that the issue of Uwenu Obiagu and Uwani Obiagu does not arise.
On the issue of tribute, he referred to the evidence on pages 26 of the record of appeal. He submitted that the respondents stated that Igbu-Awa and Nchisi Ihine is not a tribute but a festival performed by Odo Cult group in Awhum. He further submitted that the party seeking a declaration of title is to prove his case by virtue of Section 131 (1) of the Evidence Act and all the argument as to the weakness of the respondents? case will not help the appellant. He referred to ODU V. KODILINYE(1935) WACA 336. OGBUOKWELU V. UMEANAFUNKWA (1994) 4 NWLR (PT. 341) PAGE 676 (5).
RESOLUTION:
In this country, it is firmly established that there are five accepted ways of proving ownership or title to land and traditional history is one of them. Whether the suit is fought at the Customary Court or the High Court, the law is that a party who relies on traditional history has the burden to lead cogent, credible and satisfactory evidence to prove (1) The founder of the land was founded. (2) How the land was found. (3) The name and particulars of the intervening owners through whom the party is claiming the land and through whom the land devolved. See BURKAR V. BASHIR (2014) 11 NWLR (PT. 1417) 68 AT 89 (F – H). SOGUNRO V. YEKU (2017) 9 NWLR (PT. 1570) 290 AT 316 (E – H). ANYAFULU V. MEKA (2014) 7 NWLR (PT. 1406) 396 AT 425 (A – C).
The appellants’ counsel submitted that the evidence on pages 11 and 12 shows that Ezeonyi cleared and settled on the lands in dispute. I reproduce below the said evidence of Okoro Egwu (1st appellant) on pages 11 – 12:
‘We the plaintiffs and the defendants are from Obiagu Awhum. We the plaintiffs are from Uwani Obiagu while the defendants are from Uwenu Obiagu Awhum. One man called Dinagbene begot 2 male sons (1) Ezeonyia (2) Ezebinugwu. We the plaintiffs are the descendants of Ezeonyia while the defendants are descendants of Ezebinugwu.’
On the defendants sides Ezebinugwu begat 3 male children:(1) Eze Ohachi (2) Eze-Ochu-ugo (3) Idodo. We are going to give detail on Idodo’s lineage only since they are the people we have case with. Idodo begot three (3) male sons (1) Ikpiri-oma (2) ebune Oha and (3) Ezejimike. We are going to focus on Ezejimike because they are the people that this matter concerns. Ezejimike begot Aniemeike, Aniemeike begot Omeinyi, and then Omeinyi begot Ugwu-Emeike, who begot the defendants in this matter.
There is nothing in the above evidence to support the contention that Ezeonyia cleared and settled on the land. The above evidence is nothing but a mere narration of the genealogy of Ezeonyia. The appellants had a duty to plead and prove by credible evidence how their ancestor got to the land, either by been the first to settle and clear the land, conquest or grant which they failed to do. See ADDAH & ORS. V. UBANDAWAKI (2015) LPELR 24266 (SC). AWODI V. AJAGBE (2014) LPELR 24219 (SC).
In the instant case, the evidence on record is that the father of Ezeonyia and Ezebinugwu was Dinagbene. He was not linked to the lands in dispute. According to Okoro Egwu (1st appellant), the appellants are the descendants of Ezeonyia. He too was not linked to the lands in dispute.
I have perused the entire evidence on record, none of the appellants gave evidence of who founded the land, how it was founded and the particulars of the intervening owners who had owned the lands before they devolved on the appellants. It is neither the duty of counsel nor the Court to supply the link. The submission of the appellants’ counsel the evidence reproduced above shows that Ezeonyia cleared and settled on the lands in dispute amount to counsel trying to smuggle in a piece of evidence not on record.
It is settled law that the address of counsel no matter how brilliant does not take the place of evidence. Cases are decided on the basis of hard and legally admissible evidence before the Court and not on the conjecture or permutation of counsel. See IBRAHIM V. SHAGARI & ORS (1983) LPELR 1412 (SC), IGBIKIS V. STATE (2017) LPELR 41667 (SC). EJEZIE & ANOR. V. ANUWU & ORS. (2008) LPELR 1063 (SC), (2008) 12 NWLR (PT. 1101) 446 AT 490 (C). Where a party fails to give sufficient evidence of the origin or ownership of the land in dispute or how the original owner became the owner and link the line of succession to himself, his case must fail. See ANYAFULU V. MEKA (SUPRA) at 430 (A – C).
The appellants failed in my view to give evidence of ownership of the land in dispute by anybody before alleged agreement of their grandfather and his other brothers to give the lands in dispute to the respondents. It is not difficult to see why the Court below held that:
‘The plaintiffs/respondents traced their genealogy from their forefathers to the present plaintiff/respondents. They referred to the defendants/appellants genealogy. They testified that their forefathers gave defendants/appellants forefathers the disputed lands to pay tribute. However throughout the length and breadth of their testimony no iota of evidence was given of how these plaintiffs/respondents forefathers came to own and possess these lands and eventually pass it on to them. Plaintiffs/respondents counsel submitted that they have proffered the evidence, but could not show where that evidence exists. It is trite that where a plaintiff fails to prove root of title he pleaded and relied on his claim must be dismissed. They have not been able to prove the evidence required on their root of title.’
The law is settled that in claim for declaration of title, the plaintiff must succeed on the strength of his own case and not on the weakness of the defendants’ case unless the evidence of the defendant supports his case. Where a defendant in a claim for declaration of title to land has no counterclaim, the burden on the plaintiff to prove his case is heavier. The defendant has no duty at all to prove his title to the same land in dispute. See ONOVO V. MBA (2014) 14 NWLR (PT. 1427) 391 AT 441 (E – H). ANYAFULU V. MEKA (SUPRA) AT 425 (E – F). The respondents applied for extension of time to file a counterclaim but their application was dismissed. The burden was therefore on the appellants to prove their case and it was a heavy one which they woefully failed to discharge.
The appellants’ counsel submitted their evidence of acts of possession by the appellant spanned many years and it shows that the evidence of the appellants is reliable and supports the principle in KOJO II V. BONSIE (SUPRA). First, the principle in KOJO II V. BONSIE applies in a situation where there are two conflicting traditional histories before the Court and the two appears probable. In the instant case, there is no evidence of traditional history by the appellant at all.
The issue of competing traditional histories does not therefore arise. Secondly, the appellants relied heavily on payment of tribute as evidence of acts of possession according to them. They said the tribute is Igbu Ewa which is a ceremony that takes place when a woman marries and the man she marries is living in another person’s land, the Ewa would be shared into three. According to the appellants one part would go to the woman’s paternal side, one to the husband?s side and the other to the person that gave the husband the land where he is living. (See pages 12 and 21 of the record). However, under cross-examination, Mr. Hyacinth Nduke was asked when such tribute was last paid by the respondents and where it was received, the items and the witnesses to the payment. He said it was during the funeral ceremony of the father of Ugwu Emeike. According to him, as the custom of Awhum demands, Ugwu Emeike killed a cow and shared it into two equal parts.
He gave one to his Umunna and half to the appellants on whose land they are living. In another breadth when the witness was asked to repeat the items that is used for tributes. He said one jar, 5 tubers of yam, cola-nuts and snuff. When the same question was directed to Romanus Ogbueruro as to how many times he witnessed the respondents? father performing this tribute, he said he does not know because he is not from Uwani. The same question was directed to PW5, John Okeatu, he too said he did not know. On the other hand, DW1 in his evidence on page 26 of the record stated that:
“Igbu-Awa as a native custom is not a land tribute in Awhum but a ceremony of ‘Odo’ culture or odo rites and we the ome emeikes the defendants sent our Awa to onu odo nwa Ngwu nwa Onokpabanya. In the case of Nchisi-Ihine is a preamble for Igbu- awa by a woman and cannot be used for tribute for land transaction in Awhum and is usually done or takes place in the woman’s husband’s premises.”
DW1 was not asked any question on what the Igbu Ewa is and when it is performed. From the evidence of both parties on the payment of tribute, it is obvious that the appellants gave contradictory and conflicting evidence on when Igbu Ewa is performed. Is it during marriage ceremony or during burial or mere sharing of items like food and other things during marriage or burial ceremonies? Whereas the evidence of DW1 that it is performed when a woman gets married and in her husband’s place and not a tribute for land as the appellants wanted the Court to believe was not challenged. Apart from this, Okoro Egwu admitted under cross-examination at page 13 of the record that one Joseph Aguka bought land from the respondent’s uncle but he said the land is not part of the lands in dispute. He did not say where that land is. On acts of possession and ownership, the Court below held as follows on pages 141 – 142 of the record:
“On long acts of possession, ownership and enjoyment of the lands the evidence before this Court shows that the defendants lived on the disputed lands and after relocating to another land still harvest the economic trees thereon. On the other hand the plaintiffs did not proffer any evidence to prove acts of ownership extending over a sufficient length of time, numerous and positive enough to warrant the inference that they have exclusive ownership.
In consideration of all the above the plaintiffs/respondents having failed to establish their root of title to the disputed lands it was wrong and perverse to grant the plaintiffs/respondents title to the land in question.
In consideration of all the above majority judgment of the customary Court of Ukana is hereby set aside. Consequential orders are also set aside.”
Considering the entire evidence on record, the finding cannot be faulted. For acts of long possession and ownership to qualify as evidence of ownership of land, it must not only extend over a sufficient length of time but must also be numerous and positive enough to warrant the inference that the plaintiff is the exclusive owner of the land. See EZEOKONKWO V. OKEKE (2002) 11 NWLR (PT. 777) 1. AKPAN V. OTONG (1996) 10 NWLR (PT. 476) 108. In the instant case, the appellants did not adduce any evidence of acts of ownership or possession at all much less acts of possession extending over a long period of time to warrant an inference that they are the owners of the lands in dispute and to shift the burden on the respondents. The appellants have failed to show that the finding of the Court below is wrong or perverse. The appeal fails. It is hereby dismissed.
The judgment of the High Court of Enugu State delivered in its appellate jurisdiction by Honourable Justice I. S. Amanoh, on 18/11/2008 in suit no. E/ 19A/2007 is hereby affirmed. There shall be N100,000.00 (One Hundred Thousand Naira) costs against the appellants and in favour of the respondents.
HELEN MORONKEJI OGUNWUMIJU, J.C.A.: I have read the erudite judgment just delivered by my learned brother M!SITURA OMODERE BOLAJl-YUSUFF JCA. I have also read the record of appeal and I am convinced that the lower Court was right to have set aside the findings of fact by the Customary Court to the effect that the appellants as claimants proved their title to the parcels of land in dispute. I agree that the appeal be dismissed for lacking in merit and the judgment of the lower Court in Suit No. E/19A/2007 be and is hereby affirmed. I also abide by the order as to costs.
TOM SHAIBU YAKUBU, J.C.A.: I am in complete agreement with the reasons proffered in the lead judgment, rendered by my Lord, MISITURA OMODERE BOLAJI-YUSUFF, J.C.A.
I am satisfIed that the appeal is grossly lacking in merits. I, too dismiss it in its entirety. The judgment of I. S. Amanoh, j., in re – suit No. E/19A/2007 delivered on 18th November, 2008 is also affirmed, by me.
I adopt the award of costs contained in the lead judgment, as mine.
Appearances:
W. O. Abonyi with O. E. OgbodoFor Appellant(s)
V. O. DiugwuFor Respondent(s)
