OGUTA OKPRUBIA & ORS v. CHIEF NORMAN OKUMOKU & ORS
(2019)LCN/12697(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 12th day of February, 2019
CA/PH/435/2013
RATIO
LAND LAW: WHO HAS THE BURDEN TO PROVE TITLE TO LAND
“Now, in order to discharge the burden of proof of title which first burden lies on the respondents being the party that would fail if no evidence is led at all, they have to resort to either one or more of the following modes:
a. By traditional evidence/history; b. Production of title documents duly authenticated; c. Various acts of ownership and possession numerous and positive enough to warrant the inference of ownership; d. Proof of ownership and possession of adjacent land to the one in dispute, in such manner or circumstances that would render it probable that the owner of the said adjoining land would be the owner of the land in dispute. See the cases of Yusuf vs. Adegoke (2007) All FWLR Pt. 385, pg 384 at 403-404; Idundun vs. Okumagba (1976) 9-10 SC. 227; Ogunnaike vs. Ojayemi (1987) 3 SC. 215; Morenikeji vs. Adegbosin (2003) FWLR (Pt. 163) 45 at 84; and Chukwu vs. Diala (1999) 6 NWLR Pt. 608, pg. 674.” PER CORDELIA IFEOMA JOMBO-OFO, J.C.A.
JUSTICES
CORDELIA IFEOMA JOMBO-OFO Justice of The Court of Appeal of Nigeria
MOHAMMED MUSTAPHA Justice of The Court of Appeal of Nigeria
ABUBAKAR MUAZU LAMIDO Justice of The Court of Appeal of Nigeria
Between
1. OGUTA OKPRUBIA
2. JONATHAN ATAMA
3. MALON OTUFU
(For themselves and as representatives of Kilamabo family of Tien-Biseni in Yenagoa Local Government Area of Bayelsa State) Appellant(s)
AND
1. CHIEF NORMAN OKUMOKU
2. JOSEPHAT OKUMOKU
3. JOHNNY AGANGILA
(For themselves and representatives of Igbumawari family of Tein-Biseni in Yenagoa Local Government Area of Bayelsa State) Respondent(s)
CORDELIA IFEOMA JOMBO-OFO, J.C.A. (Delivering the Leading Judgment):
This appeal is against the decision of the High Court of Bayelsa State (hereinafter the lower/trial Court), presided over by Hon. Justice Kate Abiri, (Chief Judge) in suit No. YHC/4/2003, delivered 31st January, 2013.
The respondents who were the claimants at the lower Court, by a writ of summons issued 17th January, 2003 and an amended joint statement of claim dated 27th September, 2005 and filed 6th October, 2005 sought the following reliefs against the defendants (appellants herein):
1. A declaration that the plaintiffs are entitled to the Customary right of occupancy of all the piece of land situate in and around Opuasakunu lake, Toruzunu lake and Ovun lake respectively in Tien Biseni clan in Yenagoa Local Government Area of Bayelsa State.
2. N20,000,000.00 (Twenty Million Naira) as general damages for trespass of plaintiffs’ family land situate in and around Opuasakunu lake, Toruzunu lake and Ovun lake respectively in Tien Biseni clan in Yenagoa Local Government Area of Bayelsa State.
3. An order of perpetual injunction prohibiting the defendants whether by themselves, heirs, privies claiming or parading themselves as co-owners of plaintiffs’ family land. (See pages 1 – 27 of the record of appeal).
The respondents on their part filed an amended statement of defence on 5th December, 2006 and subsequently with the leave of the lower Court, filed a counter claim on 20th April, 2011 seeking as follows:
a. A declaration that all that land situate in and around Opuasakuna lake, Toruzunu lake and Ovun swamp and as covered by the claimants’ survey plan No is the joint property of the Kilamabo and Igbumawari families of Tein Biseni which land was owned, founded and disvirgined by Ikuludonu their progenitor.
b. The sum of N2.7 Million as special and general damages for vexatious claim and cost of litigation and inconveniences caused by the action.
c. An order of perpetual injunction prohibiting the claimants/defendants from parading themselves as exclusive owners of the Ikuludonu family land.
The claimants with the leave of Court filed their defence against the counter-claim on 10th November, 2011.
In the course of hearing the case, the claimants called 6 witnesses i.e. PW1 – PW6 and tendered some exhibits, while the defendants called 4 witnesses (the DW1 – DW4) and also tendered some exhibits. At the close of evidence, counsel to both parties filed and exchanged written addresses.
In a considered judgment delivered 31st January, 2013, the learned trial Judge entered judgment in favour of the claimants while the defendants’ counter claim was dismissed in its entirety.
Displeased with the judgment the defendants (now appellants) appealed against the judgment by way of a Notice of Appeal filed 11th March, 2013.
In line with the rules and practice of this Court, the parties filed and exchanged their respective briefs of argument. The appellants? brief of argument dated and filed 6th July, 2015 was settled by C. I. Enweluzo SAN, while the respondents? brief dated and filed 16th April, 2018 and deemed properly filed and served the same 16th April, 2018 was settled by Gogo George Otuturu, Esq.
From the 4 (four) grounds of appeal the learned senior counsel identified the following 2 (two) issues for determination:
a. Whether the lower Court properly and meticulously evaluated the evidence adduced by both parties in this case which is for a claim of declaration of title to land before arriving at his decision in entering judgment for the respondents. This issue is distilled from grounds (sic) 3 of the Notice and Grounds of Appeal.
b. Whether the learned trial Judge was right in law in basing his decision and entering judgment for the respondents thereafter from a finding of fact on evidence and custom not pleaded by the parties before the lower court. This issue is distilled from grounds (sic) 2 of the Notice and Grounds of Appeal.
The learned counsel for the respondents on their part donated the following 2 (two) issues as proper for determination of the appeal:
1. Whether the respondents were able to establish their root of title to the land in dispute before the lower Court?
2. Whether the lower Court was right to have entered judgment in favour of the respondents considering the evidence before it?
I think that the 2 (two) issues as raised by the respondents catch the essence and meat of the appeal. I shall therefore adopt them and they are so adopted in deciding this appeal.
ISSUE 1 (ONE)
Whether the respondents were able to establish their root of title to the land in dispute before the lower Court?
In arguing their case the appellants made the salient point that a claimant in a suit for declaration of title to land has to succeed squarely on the strength of his own case and not on the weakness of the defendant’s case. Learned senior counsel for the appellants submitted that the DW4 in his evidence gave a vivid account of how the lands the subject matter of this suit became the bona fide property of the Ikuludonu family in general which also encompasses the respondents. That the DW4 in proof of their counter claim traced the root of title from their grandfather Ikuludonu which later in turn devolved on the two sons to wit: KilaIgbuma; and how the Ikuludonu family in general has been maintaining acts of possession on the lands in question until only the waterways on the lands were shared by the family following the self-exile of Igbuma on account of sex scandal. Learned senior counsel submitted that under cross examination the DW4 had maintained that the claimants were not enjoying any royalties and compensations from the land except fishing right; that the whole land mass was jointly owned originally. Fishing channels were shared in time of history following dispute between the parties, the water rights were shared and not the surrounding land area.
Appellants contended that these pieces of evidence adduced by the DW4 was not shaken under cross examination instead it was corroborated materially particular by the PW5 who when asked under cross examination to wit: ‘You were not there when the water rights were shared between Igbumaweri and Kilamabo’ and PW5 answered thus ‘I was not present, but my grandfather told me history, lakes were also shared’. Appellants contended that despite the avalanche of evidence in proof of the appellants’ case, the learned trial Judge without any evaluation of the said evidence went ahead to hold that the lands in dispute are the exclusive property of the respondents.
Further in their submission the appellants canvassed that the respondents merely pleaded that Igbuma founded the lands and nothing more. No facts as to how he founded the lands, who the lands devolved to after the death of Igbuma and the present persons that own the lands was never pleaded by the respondents. See Dagaci Dere vs. Dagaci of Ebwa (2006) 7 NWLR Pt. 979, pg. 382, 452 – 453, paras. G – C, or ratio 14; and Lebile vs. Registered Trustees of C & S. (2003)13 NSCQR 19 at 28.
Upon referring to the finding of the learned trial Judge as contained at page 234 of the record of appeal, the learned senior counsel for the appellants went on to question the basis upon which the learned trial Judge entered judgment for the respondents having already made the finding of fact that the said respondents did not prove their root of title as required by law. He submitted that the proof of root of title as pleaded is the foundation that could in law sustain any subsequent acts of ownership and any attempt to do otherwise will definitely in law amount to putting something on nothing which will certainly collapse. See Aderibigbe vs. Abidoye (2009) 4 MJSC. Pt. 111, pg. 77, 99, para. B. Learned senior counsel also contended that the evidence of the DW1 and DW2 respectively to the effect that only the fishing lakes and the creeks were shared and not the lands, was unchallenged by cross examination, and yet no comments whatsoever was made by the learned trial Judge about the unchallenged evidence.
He relied on the case of Anionwu vs. Anionwu (2009) All FWLR pt. 497 to canvass that a Court has the duty to act on unchallenged and uncontradicted evidence of a witness not cross examined by the opposing party. See also Ezeanua vs. Onyema (2011) 12 NWLR Pt. 1263, pg. 36, 78, para. A or R. Oforlete vs. State (2002) FWLR Pt. 12, pg. 2081 at 2099, paras. A ? D., and Broadline Enterprises Ltd. vs. Monterey Maritime Corporation (1995) 9 NWLR Pt. 417, pg. 1 at 27, upon which the appellants placed reliance to submit that the lower Court should have rather than remain silent in the course of proper evaluation on those points properly evaluated those pieces of evidence and rule one way or the other. Appellants contended that on the whole the entire judgment of the lower Court in this case was tainted with both non-evaluation and improper evaluation of evidence. They added that on a balance of probabilities, the appellant has through their witnesses especially the DW1 and DW2 which were unchallenged and uncontroverted, successfully debunked the case of the respondents, hence there was no probable cause for the judgment delivered by the lower Court in their favour. Appellants urged on us to allow the appeal on the strength of the above.
In their reaction, the respondents submitted that they were able to lead evidence to establish the fact that they have been using the land in dispute exclusively. They contended that the appellants failed to establish either by documents tendered before the lower Court or by oral evidence, joint ownership of the land in dispute. The appellants submitted that the lower Court did not base its judgment on the custom and tradition of the Biseni people but on proof of ownership. Respondents canvassed that they have been in possession of the water ways, as confirmed by the appellants and by Exhibits ‘E’ and ‘G’ which show that they had exclusive possession as their name was listed on the shell trace line map and the judgment delivered in their favour in respect of the land in dispute. They also relied on acts of ownership.
RESOLUTION OF ISSUE 1 (ONE)
The respondents as claimants at the lower Court in their pleadings are laying bona fide and exclusive ownership to the parcel of land lying, being and situate at and around Opuasakudu lake, Toruzunu/Otonzunu lake and Ovon lake all of Tien Biseni which parcels of land are more particularly described and verged red in the survey plan No. FSA/BYS 002-LD/2004. The appellants on their part denied the respondents’ claim of exclusive ownership of the named pieces and parcels of land. They, on the contrary asserted joint ownership of same with the respondents being of one common ancestry with them. With issues thus joined, each of the parties is to succeed or fail in their claim based on the strength or weakness of their respective cases. See Kodilinye vs. Mbanefo Odu (1935) 2 WACA 336; Okpala vs. Ibeme(1989) NWLR Pt. 102, pg 208; and Atuanya vs. Onyejekwe (1975) 3 SC. 115.
Now, in order to discharge the burden of proof of title which first burden lies on the respondents being the party that would fail if no evidence is led at all, they have to resort to either one or more of the following modes:
a. By traditional evidence/history;
b. Production of title documents duly authenticated;
c. Various acts of ownership and possession numerous and positive enough to warrant the inference of ownership;
d. Proof of ownership and possession of adjacent land to the one in dispute, in such manner or circumstances that would render it probable that the owner of the said adjoining land would be the owner of the land in dispute.
See the cases of Yusuf vs. Adegoke (2007) All FWLR Pt. 385, pg 384 at 403-404; Idundun vs. Okumagba (1976) 9-10 SC. 227; Ogunnaike vs. Ojayemi (1987) 3 SC. 215; Morenikeji vs. Adegbosin (2003) FWLR (Pt. 163) 45 at 84; and Chukwu vs. Diala (1999) 6 NWLR Pt. 608, pg. 674.
The case of the respondents includes the fact that though of a common ancestry with the appellants, Ikuludun being their forebear, yet it was their father Igbuma who founded the land in dispute and which land upon his demise devolved on the said respondents. They have since been enjoying exclusive ownership as well as exercising acts of ownership over same without let or hindrance from anyone. Such act of ownership include the correspondences between them on the one part and the Shell Petroleum Development Company when the Opuasakunu lake got blocked as a result of the construction being carried out by the latter. The correspondences were admitted at the lower Court as Exhibits A, B and C. Also admitted in evidence as Exhibit E is copy of the judgment in suit No. YHC/22/93 between Josephat Okumoku (2nd respondent) and Shell Petroleum Development Company over the Opuasakunu lake. Some other correspondences admitted at the lower Court include Exhibits F1 – F6 and Exhibit G which latter exhibit is the Shell Trace Line Map showing all the families affected by the construction of pipelines. While ?Igbuma? the father of the respondents is included therein, the names of the appellants were missing therefrom.
Much as the appellants are asserting joint ownership of the subject matter with the respondents, they have placed little or nothing before the Court to satisfy their claim. As rightly pointed out by the learned trial Judge, Exhibits L ? V tendered in evidence by the appellants relate to other lakes and lands such as Puyon Ovon, Asabe, Okosu as opposed to Opusakunu, Toruzonu and Ovon lakes. Undoubtedly, the learned trial Judge had made the following findings of facts:
Holding unto the joint ownership of the lands in dispute, DW3 stated that it was only the lakes and not the surrounding lands that were given to the claimants (respondents). But one interesting aspect of the case is that there is nowhere in the pleadings or evidence led when the said lakes were given to the claimants and who were witnesses or who gave them these lakes. It is however the evidence of the DW3 under cross examination that in Biseni tradition the owner of the lake owns the surrounding land. I think that accords with good reason as the lake is also part of the land. Therefore in line with that custom or practice the Opuasakunu, Torunzunu and Ovon lakes and the surrounding land mass belong to the claimants.
Obviously, it is the law that facts not pleaded go to no issues. Thus, the evidence of the DW3 touching on the practice and custom of ownership of lakes and the surrounding parcels of land lacks probative value as facts of same were not pleaded. Be that as it may, and still with the available evidence before the Court, the respondents were able on the preponderance of same and strength of their case, to establish their exclusive ownership of the lands in dispute.
Therefore, the question whether the respondents were able to establish their root of title to the land in dispute, is answered in the affirmative. This is to say that issue 1 (one) is resolved in favour of the respondents and against the appellants.
It follows on the heels of this, that the question in issue 2 (two), which is whether the lower Court was right to have entered judgment in favour of the respondents considering the evidence before it, is likewise resolved in the affirmative.
With the 2 (two) issues for determination being resolved in favour of the respondents and against the appellants it follows that the appeal is bereft of merit. The said appeal is hereby dismissed while the decision of the lower Court per Hon. Justice Kate Abiri, (Chief Judge) in suit No. YHC/4/2003, delivered 31st January, 2013 is affirmed.
MOHAMMED MUSTAPHA, J.C.A.: I had the advantage of reading the lead Judgment just delivered by my Learned brother CORDELIA IFEOMA JOMBO-OFO, JCA.
The Appeal lacks merit and it is hereby dismissed. I abide by the consequential orders in this appeal.
ABUBAKAR MUAZU LAMIDO, J.C.A.: I have had the privilege of reading in draft the Judgment just delivered by my learned brother Jombo-Ofo, JCA. I have nothing to add as I agree with the reasoning and conclusion reached therein. I too dismiss this appeal and affirm the decision of the trial Court.
Appearances:
C. I. Enweluzo SAN with him, E.K. OnwukaemeFor Appellant(s)
G. C. OtuturuFor Respondent(s)
