ADELE IHUNWO & ANOR v. JOHNSON IHUNWO & ORS(2004)

ADELE IHUNWO & ANOR v. JOHNSON IHUNWO & ORS

(2004)LCN/1575(CA)

In The Court of Appeal of Nigeria

On Wednesday, the 5th day of May, 2004

CA/PH/77/2001

RATIO

COURT AND PROCEDURE: WHETHER PARTIES ARE BOUND BY PLEADINGS

“It is however not sufficient to make allegation in pleading, this must be proved by credible evidence as pleading do not constitute evidence, and go to no issue. See (i) Nkamu v. Adiyenu (1993) 7 NWLR (Pt.24) (ii) Bello v. Mrs. Maria Babalola (1986) 3 NWLR (Pt 27) at 67; (iii) UDL v. Ladipo (1971) 1 NWLR 102 at 108. Since parties are bound by their pleadings, any evidence given at variance with the pleadings go to no issue; consequently when the learned trial court having ruled that he found that the 1st plaintiff had been in possession of the land in dispute for upwards of 41 years, land and concluded dispute thus that the 1st plaintiff has failed to prove a claim for declaration of statutory right of occupancy. The conclusion failed to reflect the flow of evidence, which in effect, makes such a conclusion to be perverse.” PER VICTOR AIMEPOMO OYELEYE OMAGE, J.C.A.

LAND LAW: POSSESSION OF LAND

“Possession of land raises a rebuttable presumption of ownership; which in this case has not been rebutted; see Atanda v. Nijani (1989) 3 NWLR p. 547 (Pt 111) paras. E & F, and it is settled law, that long possession of a parcel of land is a defence even on equitable title. The defendants have not challenged in any way the equitable ownership of the said land by the 1st plaintiff; and if I may add, a possession of land for 41 years, “nec vi, noe clam noc preparo” “with let or hindrance or violence entitles the possession to a claim for a declaration sought.” PER VICTOR AIMEPOMO OYELEYE OMAGE, J.C.A.

JUSTICES

VICTOR AIMEPOMO OYELEYE OMAGE Justice of The Court of Appeal of Nigeria

PIUS OLAYIWOLA ADEREMI Justice of The Court of Appeal of Nigeria

MONICA BOLNA’AN DONGBAN-MENSEM Justice of The Court of Appeal of Nigeria

Between

ADELE IHUNWO
2. EMMANUEL IHUNWO Appellant(s)

AND

JOHNSON IHUNWO
2. CHRISTIAN IHUNWO
3. FELIX IHUNWO
4. OGU IHUNWO Respondent(s)

VICTOR AIMEPOMO OYELEYE OMAGE, J.C.A. (Delivering the Leading Judgment):

This is an appeal against the decision of the High Court sitting in Port Harcourt of Rivers State judiciary. The decision was given on 2nd February 2001 in suit No: PHC/459/93, Coram D. W. Okocha; judge of the High Court.

The facts of the case in the court below is as follows. The 1st plaintiff is the father of the 2nd plaintiff. The 1st defendant is the elder brother of the 1st plaintiff of the same parents; and he is the father of the; 2nd to 4th defendants.

The issue in dispute is the claim by the plaintiff that the 1st plaintiff is the owner by a grant made orally of the land known and described by the plaintiff as “Ohia npa mini Chinda”. The defendants called the land “Ohia Nkpomini Ihunwo Echeonwu”.

In the court below the plaintiff deposed that some time in 1949, the then head of the Wele family named Ikendu also known as Josiah Okamkpa, asked the 1st plaintiff in two consecutive years to rid a bush known as bad bush in “Ohia Npa mini chinda” of “awhiri’ plant and take the land thereby. The 1st plaintiff who testify as PW1 said it took him all of five years to rid the land of “awhiri” dangerous plant, which had infected the land and destroyed the raffia palms on the land and a neighbouring land. Awhiri plant is allegedly dangerous in contact with human body; consequently, no one wanted to go to the marshy land where awhiri resided.

The bush was called the bad bush because it was where the people were buried who died of small pox or chicken pox; it was a forbidden forest.

It was at the Riagbo meeting of the elders when in the free period the elders gathered to relax; the then head of the Welle family in the presence of elders Genesis Wopara, Magnus lhunwo, Michael Okamkpa, Ralph Amadi, Benjamin Amadi and Owajungba Worgu; that elder Ibandri Okamkpa gave to the 1st plaintiff his land in dispute. The said land was acquired by conquest of the people of Iriebe; who originally owned the entire large area of land. The family of Wele, Chinda and Wokerebe fought Iriebe people and acquired the said larger parcel of land. From the time that the 1st plaintiff said he was advised by one Alferlihar a land or forester, to set fire to burn the frightful awhiri plant, he took possession of the said land, after filling it with sand or soil.

Over the years the 1st plaintiff planted on the said land economic crops and trees, like palm wine trees, mangoes and various economic crops. In doing so without let or hindrance, with acknowledgement from several people that the land belong to him the 1st plaintiff deposed that he was exercising right and claims of ownership to the said land until recently in the nineties When the defendant wrongfully entered the land and destroyed all the economic trees. The defendant’s claim they belong to the family of Ihunwo part of the Wele family to which the 1st plaintiff also belong.

The defendant averred in their statement of defence, but did not testify in the, High Court, that the story of the 1st plaintiff is untrue that 1st plaintiff was given the land in dispute by Ikendu Akamkpa and other elders, because in 1949, the 1st plaintiff was about 26 years and there were people older than the 1st plaintiff at the time more suitable to perform the task of clearing the land in dispute. The defendant through its witnesses said that the land in dispute was required for allocation to other members of the family who had no land yet. They deposed that the matter of ownership of the land has been resolved in an alleged tribunal, which determined possession and ownership of the said land in the Ihunwo Unit family and not to the 1st plaintiff. At the hearing in the court below, the judgment of the native arbitration was tendered by the defendant as exhibit B.

The plaintiff denounced the judgment of the native arbitration, and said though he had at first voluntarily attended it, but as the defendants attacked and stabbed his son he had withdrawn from the arbitration before its conclusion and did not participate in it before it delivered its bias judgment in the testimony of the defendants alone. He urged the court to discountenance the contents of exhibit B since it is a judgment from a court not known to law.

The plaintiff cited the case of Inyong v. Essien 1975 NSCJ where the Supreme Court held as ineffective and incompetent a judgment delivered by a tribunal of Imams; not created by raw. The plaintiff with the 2nd plaintiff testified and called four other witnesses tendered the plan of the land in dispute as exhibit A, the defendant who were said in personal capacities did not testify but called 3 witnesses.

At the close of evidence the court ruled thus inter alia –

“I am not minded to accept the assertion by the learned counsel for plaintiff that the defence use of exhibit B, was to operate as res judicata, to the suit. Rather what I can discuss is that evidence adduced in exhibit B were relevant to the issue before the court as to ownership of the land in dispute, and the plaintiff having willingly submitted himself to the arbitration panel, he could not now deny a …… from the verdict.”

Prior to this the trial court had recorded thus –
“l can discern that the land in dispute was Rumuihunwo family land. The said land with a larger position was pledged to the plaintiff by the Rumuwele family for 20 pounds in 1951; and the 1st plaintiff has been in possession since 1951 for 41 years. The land in dispute was wrongly allotted to the 1st plaintiff by Handry Okamkpa, as he had no customary right to do so.”

The court concluded the case should have been better filed in the customary court and ruled –
“The plaintiff has failed to prove his case on a balance of convenience. I have no option but to dismiss this suit accordingly. There shall be no costs.”

The plaintiffs are dissatisfied with the decision of the court, and being aggrieved has filed five grounds of appeal, with copious particulars. The appellants formulated the following issues for determination of the appeal –
(i) Was exhibit B binding on the appellant’s ground 2
(ii) Were the plaintiffs/appellants or at least the 1st plaintiff not entitled to judgment based on the preponderance of evidence”

In their respondent’s brief, the following two issues were formulated also for determination of the said appeal. They are-
(i) was the land in dispute the property of the Wele family which they gave to the plaintiff
(ii) Was exhibit B the judgment of the native arbitration tribunal binding on the parties OR what was the exhibit B on the parties? Did the learned trial judge make a proper valuation of the evidence of the parties in this case?”

In his brief, the appellant’s counsel submitted that exhibit B is not binding on them for the following reasons-
(a) The plaintiff had withdrawn from the proceedings of the arbitral tribunal and was not present before the conclusion and judgment of the tribunal. The reason why the appellant withdrew was because and announced that his life and that of his son was unsafe, his son for instance was stabbed at the proceedings. He was not allowed with his witnesses to freely testify at the proceedings. Consequently he had no confidence in the tribunal and he withdrew his consent to appear before the tribunal because it was clear to him that the tribunal would give him no opportunity to state his case, and there would be no fair hearing. Of more importance is that the decision of the arbitral tribunal would create no estoppel in a court of law and it was a waste of valuable time. The tribunal is not a creation of statute consequently its decision has only a moral, not legal effect. see Inyang v. Essien 1957 SCNLR 113

In so far as the plaintiff had withdrawn his consent to the arbitration, and as the appellant before judgment had rejected the judgment before it was delivered and evidence so exists, the judgment Exhibit B, the appellant is not bound by exhibit B.

Furthermore, the decision in exhibit B is not the precise judgment of the local arbitration since to the knowledge of the plaintiff, when he did appear proceedings at the arbitration was recorded in a local language; the publication in exhibit B is shown to be expressed in the English language and it contains no certificate of its authenticated interpreter; the document exhibit B, is therefore made in difficulty of all known units of evidence for admissibility in a court of law; particularly as the document exhibit B was not tendered as a document with the ability to raise an issue of res judicata. Exhibit B has therefore no binding effect at law.

I resolve the said issue in favour of the appellant.

Issues 1, 2 of the appellant and issues (a) and (c) of the respondents can conveniently be considered together. They are the questions asked by the plaintiffs/appellants or at least the 1st plaintiff, whether the plaintiffs were not at least entitled to judgment on the preponderance of evidence. This issue puts into consideration the entire facts and probative evidence tendered in the court below and whether on the evaluation of the entire evidence before the court the preponderance of evidence should not be ascribed to the plaintiffs in the court below, when the entire evidence is placed on an imaginary scale.

In Mogaji v. Odofin (1974) 4 SC Fatai Williams JSC, (as he then was) prescribed the method of assessing the facts in a case, and urged the trial court to place the facts on an imaginary scale. What are the facts in this case? The appellants in the court below testified that the land in dispute after the conquest of the land from Iriebe people was in the possession and ownership of the Wele family. Along with Chinda and Woherele, Wele fought and took possession of the land.

At the time Handry as Josiah Akamkpa gave the land to the 1st plaintiff to clear and keep, Handry Akamkpa was the head of the family which included Ihunwo. At no time was the land originally in possession of Wele divided or partitioned. The record shows that the 1st plaintiff had been in possession of the land for over 41 years and in the period, 1st plaintiff planted there economic crops of various description which the defendant admitted they destroyed.

By that admission the defendant’s are in trespass of the land in possession of the 1st defendant sued every unauthorised entry into the land of another constitutes trespass. See Benigbade v. Balogun (1994) 1 NWLR (Pt 730); (ii) Oyadeji v. Adenle (1993) 1 NWLR (Pt 316; (iii) Oshiyomi v. Ahinte (1995) 2 NWLR (Pt 379) p. 559.

Against the unchallenged evidence of the plaintiff related above, the 1st- 4th defendant who did not testify prescribed 3 witnesses, whose testimonies were largely contradictory to each other. For example after DW1 had deposed that the land was partitioned to Ihunwo family subsequently was in the family or over lordship of Wele. The conclusion derivable from the above contradiction is that the land recovered from Iriebe people by conquest was never partitioned. That answers issue (a) formulated by the respondent.

Furthermore the DW1 who had testified that the land in dispute was left fallow in cross-examination said there were crops on the land. This makes the evidence of DW1 marchable and unacceptable as against the clear testimony of the plaintiffs evidence. There is in fact nothing in court against the testimony of the 1st plaintiff and his four witnesses except the pleading where the defendant averred contradictory statement to the pleadings in the plaintiffs statement of claim.

It is however not sufficient to make allegation in pleading, this must be proved by credible evidence as pleading do not constitute evidence, and go to no issue. See (i) Nkamu v. Adiyenu (1993) 7 NWLR (Pt.24) (ii) Bello v. Mrs. Maria Babalola (1986) 3 NWLR (Pt 27) at 67; (iii) UDL v. Ladipo (1971) 1 NWLR 102 at 108. Since parties are bound by their pleadings, any evidence given at variance with the pleadings go to no issue; consequently when the learned trial court having ruled that he found that the 1st plaintiff had been in possession of the land in dispute for upwards of 41 years, land and concluded dispute thus that the 1st plaintiff has failed to prove a claim for declaration of statutory right of occupancy. The conclusion failed to reflect the flow of evidence, which in effect, makes such a conclusion to be perverse.

There is no disagreement among the contestants as to the identity of the land in dispute. The land is known to both parties. See Arabe v. Asenlu (1980) 5- 7 SC 78. Though the parties have filed and tendered plans exhibits A and D in the proceedings, there is no area of disagreement on the plan on the land in dispute, except the name given to the land.

Possession of land raises a rebuttable presumption of ownership; which in this case has not been rebutted; see Atanda v. Nijani (1989) 3 NWLR p. 547 (Pt 111) paras. E & F, and it is settled law, that long possession of a parcel of land is a defence even on equitable title. The defendants have not challenged in any way the equitable ownership of the said land by the 1st plaintiff; and if I may add, a possession of land for 41 years, “nec vi, noe clam noc preparo” “with let or hindrance or violence entitles the possession to a claim for a declaration sought.

In the event, though the issues considered are of facts, an appellate court is in a position also to assess the facts on the record to see if the conclusion of the trial court follows the sequence of evidence. See Ohorongho v. Imo State Education Board (1989) 5 NWLR (Pt.121) 295 at 306.

In this case, having read the printed record, I find that the conclusion of the learned trial court from the facts before him is perverse, and has occasioned a miscarriage of justice. See Cekay Traders Ltd v. General Motors Ltd (1992) 2 NWLR (Pt.222) 123. I hereby reverse same; and rule that the plaintiff now appellant has proved on a preponderance of evidence that he is entitled to the declaration of certificate of occupancy in his service as prayed. With the admission in evidence by the defendants that they have entered the land in dispute with a view to reallocating same to others; there is no further need for the plaintiff to prove their trespass to his land as the entry is wrongful. The plaintiffs testimony on trespass becomes unchallenged. See Ihuomola v. Olaniyan (1990) 4 NWLR (Pt 146) 617; (ii) Omoreghe v. Lawani (1980) 3-4 SC 108.

In my judgment, the plaintiff in the court below has proved by preponderance of evidence that he is entitled as claimed, he is therefore entitled to an order of injunction to restrain the defendants, their agents, servants from further trespass to the land. The plaintiff/appellant claimed in the court below for damages for trespass and for special damages. Besides, the itemisation of the economic crops, there is no specific item of claim, and of quantum of loss of the economic crops. A claim in special damages must be specifically and specially and strictly proved. Such a proof it has been ruled should be credible not beyond doubt. See Audu v. okeke (1998) 5 NWLR (Pt 542) 373. The court below had it properly evaluated the evidence should have awarded general damages in favour of the plaintiff. However the court below has failed to do so.

This court in observation of Section 16 of the Court of Appeal Act is empowered to do what the court should have done. See Iyay v. Eyvybege (1987) 3 NWLR (Pt 616) 353 under which provision I assess the award of general damages to the plaintiff in the sum of N12, 000.00.

In sum there is merit in the appeal, it is allowed. The judgment of the court below delivered in suit No PHC/493/93 on 8th July 1993 is hereby set aside. Considering that the 1st defendant is the uterine elder brother to the 1st plaintiff I will make no order for costs.

PIUS OLAYIWOLA ADEREMI, J.C.A.: I have been privileged with a preview of the judgment delivered by my learned brother, Omage, JCA. I agree with his reasoning and conclusion that the appeal is meritorious.

There is that unchallenged and indeed uncontroverted evidence that the head of the family one Josiah Akamkpa gave the land in dispute to the 1st plaintiff/appellant to clear and keep and that the said 1st plaintiff/appellant had remained in possession of same for a period spanning over 41 years during which he (1st plaintiff/appellant) planted economic crops thereon. In land law, acts of the person claiming the land such as selling, leasing or renting out all or part of the land or farming on it or a portion thereof are indeed evidence of ownership, provided those acts extend over a sufficient length of time and are numerous and positive enough as to warrant the inference that the person is the true owner See (1) EKPO v ITA 11 NLR 68 and (2) KEHINDE v IRAWO (1973) 3 S.C. 29. 41 years is quite a long period of time; and for the 1st appellant to have remained on the land for that length of time carrying on his farming activities is sufficiently an act of long possession and enjoyment of the land until he was disturbed. That, at least, is a prima facie evidence of ownership of that land against the whole world except the true owner. See Section 46 of the Evidence Act Cap 112 Laws of the Federation of Nigeria 1990.

I have made this last assertion advisedly realising, as I must do that, in law, such acts of long possession, in a claim for declaration of title (as distinct from a claim for possession), are really a weapon more of defence than of offence; moreover, by virtue of Section 146 of the Evidence Act while possession may raise a presumption of ownership, it does not do more and cannot stand when another person proves a better title. See (1) DA COSTA v IKOMI [1968] 1 ALL NLR 394 and (2) IDUNDUN & ORS v OKUMAGBA & ORS (1976) 9 – 10 SC 227. However, in the instant case, no evidence of better title has been proffered by the defendants/respondents. Rather, there is that clear admission from the defendants/respondents that they destroyed the appellants’ economic crops on the land. That is a clear case of trespass which is actionable at the instance of a person in possession of the land, in the instant case, the 1st appellant. See AMAKOR V. OBIEFUNA (1974) 1 ALL NLR (pt.1) 119.

For this little contribution but most especially for the detailed reasoning in the leading judgment; I also allow the appeal and hereby set aside the judgment of the Court below delivered on the 8th of July 1993. I abide by all other orders contained in the leading judgment including the order relating to cost.

MONICA BOLNA’AN DONGBAN-MENSEM J.C.A.: The Defendants/Respondents averred in their paragraphs 10 and 30 of the statement of Defence (pg 24 & 26 of the Records of this appeal) that the Plaintiff/Appellant was summoned to the Native Arbitration panel headed by Elder Francis Okocha which report was reduced into writing. To my understanding, being summoned before an arbitration panel is one thing and participating in the proceedings of the panel is an entirely different issue. The DW2 Ambrose Ihunwo in his evidence as recorded at pg 52, the DW1 Ambrose Ihunwo stated that the 1st Plaintiff “summoned us before the juju at Etche – the Amala juju. I was working at that time, I don’t know if the other members went” Emphasis mine. Thus being summoned is not synonymous with parcipating in arbitration proceedings to which one is summoned let alone to be bound by its judgment.

The Plaintiff averred and testified to the effect that he was summoned by the panel but that he withdrew from the proceedings of the panel due to the violence which marred the proceedings; his son was stabbed.

Further, the Plaintiff testified that the proceedings were recorded in the vernacular not in English. DW2, Chief Godwin Nwanwa (M), who served the Native Arbitration Panel as its secretary and who should know the facts better, confirmed that indeed, the proceedings were conducted and recorded in the Ikwerre vernacular and not in English. Exh. B, the Judgment of the Panel however, came into English. Exh. B is a document which the Respondent relied heavily on and upon which the learned trial Judge also learned heavily.

Who translated the said proceedings into the English language is a fact that has been left to the imagination of whoever cares to know. The Defendants did not testify and could not therefore be cross-examined as to how proceedings recorded in the vernacular in Ikwerre language, transmuted into English. DW2, the Secretary to the panel did not explain how the Exh. made in Ikwerre language metamorphosed into English. There is no evidence what so ever to the circumstances under which Exh. B was produced, how it was translated, what are the qualifications of the translator and what are his/her interest, are all shrouded in secrecy. With these missing links, Exh. B is clearly suspect.

In his testimony, particularly at pg 56 of the records, the DW2 (Secretary of the panel) said he gave the original copies of the Judgment to Chief Francis Okocha.

Under cross examination, the witness said he gave all the copies of the Judgment to Chief Francis Okocha. He did not state how Exh. B was created, were it surfaced from the uncertainty about the origin of Exh. B certainly makes it a document to be avoided. It’s admission into evidence and in particular, its usage must be with utmost caution. It hardly deserves the ascription of any probative value and cannot therefore be relied upon to ancur the Judgment of a superior Court of record as was done by the learned trial Judge.

In the circumstance, a Court of law cannot reasonably hold that the Plaintiff is bound by the contents of Exh. B.

Accordingly, I agree with the lead Judgment that the Plaintiff cannot be held bound by the said judgment of the Native Arbitration Panel, assuming Exh. B were indeed the Judgment of the said Panel.

My learned brother Omage JCA has fully recounted the facts in this appeal and has addressed the issues for determination; I need not belabour the issues. With the few words I have added to the fuller reasons contained in the lead Judgment, I too hereby allow the appeal.

In effect, the claim of the Appellant as Plaintiff at the trial Court, to wit:
“(a) Declaration that the Plaintiff’s are entitled to the statutory right of occupancy in respect of the piece of laird in dispute situate at Rumuwele family in Obio/Akpor local Government Area of Rivers State;

“(b) As against the Defendants jointly and severally the sum of N450, 000.00 being special and general damages caused to the said Plaintiff s land.

“(c) A perpetual injunction restraining the Defendants their agents, servants and or privies from further acts of trespass and acting in any manner inconsistent with the Plaintiff’s statutory right over the land; here by succeed in part. Relief’s A & C of the claim are hereby so ordered.

The Plaintiff adduced no compelling evidence as to the claim for special damages:

Claims of special damages do not succeed merely on the asking. Such must be strictly established by credible and compelling evidence. No such evidence was adduced by the Appellant at the trial.
Accordingly, no order is made as to special damages.

I adopt all other consequential orders made in the lead judgment.

Appearances