ADIBE IGBOJIONU & ORS v. NWACHUKWU UKO & ORS
(2018)LCN/12084(CA)
In The Court of Appeal of Nigeria
On Friday, the 26th day of October, 2018
CA/OW/301/2013
RATIO
APPEAL: WHETHER AN APPEAL CAN BE FOUNDED ON THE RATIO DECIDENDI
“The law is trite, that an appeal can only be founded on the ratio decidendi, not obita dicter, of a judgment! See Wagbatsoma Vs FRN (2018) LPELR 43722 (SC); Omisore and Anor Vs Aregbesola & Ors (2015) LPELR ? 24803 (SC); Atiba Iyalamu Savings & Loans Ltd Vs Suberu & Anor (2018) LPELR 44069 (SC); University Press Ltd Vs Martins (Nig.) Ltd (2000) LPELR 3421 (SC); SPDC (Nig.) Ltd Vs Registrar of Business Premises, Abia State (2015) LPELR 24285 (CA). ” PER ITA GEORGE MBABA, J.C.A.
EVIDENCE: WAYS TO PROOF TITLE TO LAND
“It is quite obvious that this case is one in which the parties claimed title by reliance on historical evidence, which is one of the five ways of proving title to land. See the case of Idundun Vs Okumagba (1976) LPELR 1431 SC; Atanda Vs Ajani & Ors (1989) NWLR (Pt. 111) 511; Orlu Vs Gogo-Abite (2010) 8 NWLR (Pt. 1698) 307; Ayorinde & Ors Vs Sogunro & Ors (2012) LPELR 7808 (SC); Okorieocha & Anor Vs Emereni & Ors (2016) LPELR 40043 (CA).
In the above cases, the five known and recognized ways of establishing title to land are enumerated, namely:
(1) By traditional evidence;
(2) By production of title documents to the land;
(3) By acts of ownership numerous and positive, extending over sufficient length of time to warrant the inference that the person is the true owner;
(4) By acts of long enjoyment of possession;
(5) By proof of possession of adjacent lands in circumstances which render it probable that the owner of such adjacent lands would, in addition, be the owner of the disputed land. See Ezerioha & Ors Vs Mgbeajulu & Ors (2018) LPELR 43811 (CA); Nwabuoku & Ors Vs Onwordi & Ors (2006) LPELR 2082 (SC).” PER ITA GEORGE MBABA, J.C.A.
COURT AND PROCEDURE: WHERE FINDING OF COURT IS NOT CHALLENGED
“The law is also trite, that a finding or holding of Court not challenged or appeal against, remains binding and conclusive. See Nmanumeihe Vs Njemanze (2016) LPELR 40212 CA; Ebemighe Vs Chi (2011) 14 NWLR (Pt. 1268) 530; CPC Vs INEC (2011) 18 NWLR (Pt. 1279) 493. Appellants did not raise any appeal against the said findings of the trial Court, which exposed that devastating/contradictory stand of the DW2 to the evidence of the defence in this case, and which made nonsense, the denial by the Appellants of the claims of the Plaintiffs.” PER ITA GEORGE MBABA, J.C.A.
JUSTICES
THERESA NGOLIKA ORJI-ABADUA Justice of The Court of Appeal of Nigeria
AYOBODE OLUJIMI LOKULO-SODIPE Justice of The Court of Appeal of Nigeria
ITA GEORGE MBABA Justice of The Court of Appeal of Nigeria
Between
1. ADIBE IGBOJIONU
2. OKORIE EMESIE
3. NWANEZI ONUOHA
4. REV. FRIDAY MGBOJI Appellant(s)
AND
1. NWACHUKWU UKO
2. EKEOMA KANU
3. OKECHUKWU IGBOJIONU
4. NDUBUISI IGBOJIONU
5. UZOR ANGELINA (For themselves and as representing Ndi Uko Ekeoma of Amaoghoro Ngodo/Akoli Imenyi) Respondent(s)
ITA GEORGE MBABA, J.C.A. (Delivering the Leading Judgment):
This appeal is against the judgment of Abia State High Court in Suit No. HUZ/8/2007, delivered on 17/2/2011 by Hon. Justice J.E. Adiele, wherein the learned trial Judge held for the Plaintiff, awarding him title to the lands in dispute, damages and injunction. Appellants herein were the Defendants at the Lower Court.
At the trial Court, the Plaintiffs (now Respondents) had claimed as follows:
(1) A Declaration that the Plaintiffs are entitled to statutory or Customary rights of occupancy of the following pieces of land:
(i) Uhuochie Amaoghoro
(ii) Ala-Uhu Amaoghoro
(iii) Mpirim
(iv) Dibia Okai
(v) Korokoro
(vi) Nchi
(vii) Aboh Uhuochie
(viii) Iyiochaelu
(ix) Iyi-Una
(x) Ala Enne all in Akoli Imenyi within the jurisdiction of this Court.
(2) TEN MILLION NAIRA being general damages for trespass.
(3) Perpetual injunction restraining the Defendants, their servants, agents, privies and representatives from further acts of trespass.
At the end of the trial and after considering the addresses by Counsel on both sides and the evidence adduced, the trial Court held, as follows:
This Court made the appropriate order it should have made in the circumstance of the testimony of the 1st Defendant. That the Defendants in their pleadings and evidence in Court as well as the submission of Counsel on their behalf stating that the letter the 1st Defendant brought to the Court in Exhibit ‘A’ merely asked for the withdrawal of the case for the parties to settle at home and not for the dismissed of same is rather surprising and disheartening. Exhibit ‘A’ therefore is a consent judgment of this Court? entered pursuant to an agreement between the parties. This agreement could be made out of Court and the terms are brought before the Court to pronounce if (sic) Judgment of the Court. A consent judgment is therefore a finale Judgment of the Court and is appealable with the leave of the Court. See Afegbai Vs A.G. Edo State (2001) 33 WRN 29. And such a judgment may be set aside by the same Court that gave it for fraud or any other reason like misrepresentation.
The first defendant who was the 1st Plaintiff in the Suit? did not appeal against the said judgment in Exhibit ‘A’ neither did he bring any application. Failing to do any of these means that the judgment in Exhibit ‘A’ is still subsisting and should, in fact, operate as estoppels against the defendants in this action. But since the Plaintiffs did not emphatically make Exhibit ‘A’ an issue in this present Suit, so as to estop the defendant from denying what they had earlier on asserted, and since the defendants, on their own part, are denying the facts that led to Exhibit ‘A’ and both parties have gone on to fight this case to conclusion, this Court will now, based on the facts and evidence before it, make its pronouncements on issues raised’ This Court will further rely on this Exhibit ‘A’ to hold that the Defendants in this present action, especially the 1st, is not a witness of truth? The testimony of the Plaintiffs are more reliable and a preferred account. The assertion by the Defendants that the Plaintiffs are foreigners or strangers on those lands were not proved.
Having held the Plaintiffs not to be strangers but owners of the lands in dispute, the action of the defendants is therefore seen as trespass unto those lands (See pages 104 – 106 of the Records of Appeal)
That is the decision the Appellants are appealing against, as per the Amended Notice of Appeal, filed on 16/5/2016 and deemed duly filed on 19/10/2016, disclosing 4 grounds of Appeal. Appellants filed their brief of arguments on 16/5/16 and a Reply brief on 15/5/18. They distilled three Issues for the determination of the Appeal, namely:
(1) Whether the Claimants discharged the burden of (sic) onus of proof placed on them by law to be entitled to the reliefs sought before the Court – Grounds 1 and 3.
(2) Whether Exhibit ‘A’, Certified True Copy of Proceedings in HUZ/15/2004, is a subsisting Court judgment that can operate as an estoppels against the Appellants in this Suit – Ground 2.
(3) Whether the fact that the Defendants did not field in their ancestors to prove a historical fact of how the Plaintiffs ancestor settled at Ndioze compound in 1938 can be held against the Defendants by application of Section 149(d) of the Evidence Act, Laws of the Federation 1990 – Ground 4.
The Respondents filed their Brief on 27/4/18, with the leave of this Court, granted on 2/5/18. Their three Issues, donated for the determination of the appeal, were:
(1) Whether the trial Court was wrong in law to have entered judgment in favour of the Plaintiffs/Respondents Grounds 1 and 3.
(2) Whether the trial Court found Exhibit ‘A’ to constitute estoppels and applied the doctrine against the Appellants’ Ground 2.
(3) Whether the Defendants/Appellants were required by law to prove their assertion that the Plaintiffs/Respondents are strangers – Ground 4
Arguing the Appeal, on 11/10/2018, Learned Counsel for the Appellants G.O. Nwaokeogu Esq, (who settled the Brief), on Issue 1, said that the Respondents did not discharge the burden of proof placed on them by law, to be awarded the reliefs they sought P namely declaration, damages and injunction; he said that the action bordered, in the main, on declaration of title, and that the Respondents, to succeed, must succeed on the strength of their own case, not on the weakness of the defence. He relied on Temile Vs Awani (2001) 3 WRN 1 at 6; Kodilenye Vs Odu (1935) WACA 226, saying that Claimants have the onus of proof, to establish their title, before the Court can make a declaratory order in their favour; that it does not matter that the Defendants did not proffer any defence, and in the face of that, the Claimant must establish his claim on the strength of his case; that evidence led by the Respondents fell short of the standard of proof. Rather, that the traditional evidence led by the Appellants was more reliable and probable. He argued that since traditional history is one of the five ways of establishing title to land, the Court should have held for the Appellants, as per their more reliable traditional history. He relied on the case of Idundun Vs Okumagba (2002) 20 WRN 127 at 129; Okpala Ezeokonkwo & Ors Vs Nwafor Okeke & Ors (2002) 5 SC 44 at 54.
Counsel asserted that from the yardstick enunciated in Okpala Ezeokonkwo’s Case (supra), the Defendants/Appellants presented a better and more reliable traditional history, and submitted that the facts stated by the defence was more plausible and probable, and at the same time, had direct and recent acts of possession. He relied on Ogun Vs Akinyelu (2005) WRN 41 at 49. He added that the traditional history by the Respondents was sketchy and not supported by credible facts and should not have been relied upon. He urged us to resolve the Issue for Appellants.
On Issue 2, whether the Certified True Copy of the Proceedings in HUZ/15/2004 (Exhibit ‘A’) was a subsisting Court judgment that can operate as estoppels against Appellants, Counsel answered in the negative, saying that Exhibit ‘A’ was not a consent judgment as held by the Lower Court, capable of operating as estoppels against the Appellants.
Counsel said there was a serious miscarriage of justice when the trial Court held that the Defendant, especially 1st Defendant, was not a witness of truth and refused to believe their account of traditional history of ownership of the land in dispute. Counsel said that the Exhibit ‘A’ was never, and cannot, be treated as a consent judgment; that it contained no terms of settlement; that the 1st Appellant, who was 1st Plaintiff in that Case (HUZ/15/2004) merely informed the Court that the Defendants were all summoned before the Ama-ala, and the Defendants and Plaintiffs both agreed to Settle, and this was discussed and reduced into writing; that the letter which the DW1 tendered in the witness box, in the Certified True Copy of the Proceedings (Exhibit ‘A’), basis on which his action was dismissed, was a letter written by the larger members of Ngodo Community, who intervened to settle the case out of Court; that the said letter was an application for withdrawal of the case, for out of Court settlement and never a terms of settlement. Thus, he said, Exhibit ‘A’ cannot constitute an estoppels; moreover, that the document cannot be raised by the Respondents as a sword, as it can only operate as a shield. He added that the plea of estoppels was not available to the Plaintiffs, as by it, the Plaintiffs would be impugning the jurisdiction of the Court to which they presented the Suit! Counsel relied on the case of Mojeed S. Yusuf Vs Madam Idiatu Adegoke & Anor (2008) 40 WRN 1 at 17.
On Issue 3, whether for the fact that the Defendants did not field in their ancestors, to prove a historical fact of how the Plaintiffs ancestors settled at Ndioze compound in 1936, can be held against the Defendants by application of Section 149(d) of the Evidence Act 1990, Counsel answered in the negative. He said that the Plaintiffs were seeking discretionary relief of declaration of title to the land in dispute; that the burden rested on the Plaintiffs to establish their claim, relying on the strength of their case; that the Plaintiffs failed to do so and cannot therefore rely on the weakness of the defence to help them. He relied again on Yusuf Vs Adegoke & Anor (2008) 40 WRN 1 at 22. He added that the presumption of the Court that failure of the Defendants to call, at least, one of the Elders who was said to be alive and witnessed the arrival and settlement of the Plaintiffs ancestors a Ndioze compound, to testify was against the case of the defence, was misguided and improper. Counsel said it would have been proper to ascertain the state of health and stability of their said ancestors at the point of giving evidence; that a man who witnessed the migration of the Plaintiffs as at 1936 to the time of this case 2007 – 2011, would be over 87 years, assuming he was at least 12 years before 1936; that the Court would have ascertained the true position of the intending witness mentioned by the Defendant, why he was not called.
He urged us to resolved the issues for Appellants and allow the appeal.
The Counsel for the Respondents, Dr. C.O. Chijioke, on Issue one, whether the trial Court was wrong to have entered judgment in favour of the Respondents, answered in the affirmative. He submitted that Appellants misconceived the law and misrepresented, in their brief, what really transpired. He said that both parties had relied on evidence of traditional history; he agreed that the Plaintiffs had the onus to prove their title to the lands upon preponderance of evidence or on the balance of probabilities. He acknowledged that the claimant has to succeed on the strength of his own case and not on the weakness of the defence, except the defendants? case supports the Plaintiffs’ case. He relied on Owoeye Vs Oyinlola (2012) 15 NWLR (Pt. 1322) 84; Onwugbufor Vs Okoye (1996) 1 NWLR (Pt. 424) 252; Adesanya Vs Aderonmu (2000) 9 NWLR (Pt. 672) 370.
Counsel submitted that the case presented by the Respondents satisfied the law; that they presented a more credible and cogent traditional history than the Appellants, proving who founded the lands, the manner the lands were founded (deforestation) and the names and particulars of successive owners, though whom they (Respondents) claimed. He referred us to pages 85 to 90 of the Records of Appeal.
Counsel said that the trial Court also found that conflict existed in the traditional histories presented by the Appellants and resolved same in accordance with the law. He relied on the case of Umeobi Vs Otukoya (1978) 4 SC 33; Owoeye Vs Oyinlola (supra). He added that it was wrong for Appellants to expect the trial Court to go straight and apply the rule in Kojo II Vs Bonsie (1957) 1 WLR 1223; he said that the conflict was to be resolved, first. He relied onObioha Vs Duru (1994) 8 NWLR (Pt. 365) 631 and Okoko Vs Dakolo (2006) 14 NWLR (Pt. 1000) 401 to say that, where witnesses of one party contradict each other on the traditional history relied on the trial Court will be right to reject the traditional history. He said that the trial Court was right to apply that principle in this case. He referred us to pages 102 – 103 of the Records of appeal, where the trial Court said:
“The part of the evidence of the defendants that lent support to the evidence of the Plaintiffs is in the cross examination of the DW2, Uwakwe Ojukwu. His evidence was in fact a twist, striking and a deviation, completely, from the evidence of DW1.”
Thus, Counsel said the trial Court was right to reject the evidence of traditional history presented by the Appellants, holding them to be unreliable.
On the contention that the Respondents failed to describe the lands in dispute, with certainty, having failed to file survey plan or call evidence of boundary neighbors, Counsel said the contention was misconceived, and relied on the case of Oshodi Vs Eyifunmi (2000) 13 NWLR (Pt. 684) 298 at 334, where it was held that it is not in all cases that a survey plan of a piece or parcel of land in dispute is necessary or mandatory; that where a piece of land is known to both parties, or is clearly ascertained by pleadings and evidence, the identity of the land in dispute ceases to be an issue.
On Issue 2, whether the trial Court found Exhibit ‘A’ to constitute estoppels and applied the doctrine against the Appellants, Counsel answered in the negative. He submitted that the allusion by the Appellants that the trial Court considered Exhibit ‘A’ as a consent judgment, and as such made it to operate as estoppels against Appellants, was a misconception and mischievously made. He said that what was certain was that Exhibit ‘A’ was a judgment, dismissing Suit No. HUZ/15/2004 and still subsisted, as such, since the same was never appealed against. But then, Counsel said, the trial Court did not rely on it (Exhibit ‘A’), to invoke the doctrine of estoppels, or at all. He referred us to page 105 of the Records, to show the views of the trial Court on the Exhibit ‘A’. He maintained that the trial Court did not hold that Exhibit ‘A’ operated as estoppels against the Appellants.
Besides, Counsel said, the observation of the trial Court, complained of, was obita dictum, which cannot be appealed against. Counsel added that the trial Court merely relied on the Exhibit ‘A’ to establish its impression that 1st Defendant was not a witness of truth. And the Court (Counsel said) was entitled to observe the demeanor of witnesses and to act upon evidence before him to reach conclusions, which it rightly did.
On Issue 3, whether the Appellants were required to prove their assertion that the Respondents were strangers, Counsel answered in the affirmative, following the legal principle that he who asserts or alleges the existence or non-existence of a fact, has the onus to prove same. He relied on Co-operative Dev. Bank Plc Vs Joe Golday Co. Ltd (2000) 14 NWLR (Pt. 688) 506; West African Offshore Ltd Vs Ariri (2015) 18 NWLR (Pt. 1490) 177.
Counsel said that, in this case, the mere ipsi dixit of DW1, that the Respondents were strangers who were allowed to settle in Ndioze compound was not enough to discharge the burden placed on the defendants/Appellants, by law; that that burden was different from the one placed on the Plaintiffs, to establish their claims; that the Appellants ought to have taken a further step from mere assertion of that allegation; that they ought to have adduced direct evidence of witnesses who saw when the Plaintiffs’ great grandfather came to settle at Ndoize compound, and that was the point the trial Court made.
He relied on Kayode Vs State (2012) 11 NWLR (Pt. 1312) 523; Zenith Bank Plc Vs Ekereuwem (2012) 4 NWLR (Pt. 1290) 207 to say that a party has a duty to produce or call material witness(es) to prove his case or asserted fact(s). Counsel said that DW1 had stated that some of the elders who witnessed the arrival and settlement of the Plaintiffs’ ancestors in Ndioze compound were still alive (page 91 of the Records). Thus, such elders should have been called to state the direct facts of same and be cross examined; that failure to call such evidence activated the presumption in Section 149(d) of the Evidence Act, 1990, and so the trial Court was right to invoke it.
Counsel further argued that, even if the trial Court did not invoke that presumption, that evidence still abound that the Appellants did not establish that Respondents were strangers who settled in Ndioze compound. He said that the evidence of DW2, substantially, contradicted that of DW1, on fundamental issues, rendering the case of Appellants unreliable. He said that the law was trite that, where witnesses called by a party contradict each other, the trial Court cannot pick and chose which of the witnesses to believe and which one to disbelieve. Ariolu Vs Ariolu (2011) NWLR (Pt. 1258) 288; Mogaji Vs Cadbury (Nig.) Ltd (1985) 2 NWLR (Pt. 7) 393.
Counsel pointed out that DW2 had denied that Plaintiffs’ father migrated from Okposi as alleged by DW1 (pages 96 – 97 of the Records); that DW2’s position on the migration, agreed with the evidence of the Respondents, who emphatically denied that their father migrated from Okposi to settle in Ndioze Compound. Thus, Counsel said the Appellants must be held to have failed to challenge that evidence by the Respondents, and the trial Court was right to hold so; he added that the case of the defendants having supported and strengthened the case of the Plaintiffs, was properly resolved for the Respondents by the trial Court.
Counsel urged us to resolve the issues against Appellants and to dismiss the appeal.
RESOLUTION OF ISSUES
In their Reply Brief, Appellants asserted that the case of the parties did not rest, squarely, on traditional history, as postulated by Respondents. They made further arguments, which, in my view, amounted to re-enforcement or repetition of their arguments in the main brief, which is not what a Reply brief is meant to do. See Ojiogu Vs Ojiogu & Anor (2010) LPELR 2377 SC; Iheka Vs Njoku (2017) LPELR 42002 CA; and Ecobank Plc Vs Honeywell Flour Mills Plc (2018) 45124 SC, where my lord, Okoro JSC, held:
“I need to emphasize that the function of a Reply Brief is to answer the arguments in the Respondent?s brief, which were not taken in the Appellants’ brief. It is not meant to be a repetition of the arguments in the Appellants? brief. It is not an opportunity to re-emphasize the arguments in the Appellants’ brief.”
I shall adopt the 3 Issues, as distilled by the Appellants, for the determination of this appeal. Of course, the 3 Issues by the Respondents are similar to those of the Appellants, in substance. But I shall take the Issues together, as they appear to be related, touching on evaluation of evidence to reach the conclusion made by the trial Court.
Did the Respondents discharge the burden of proof placed on them, to be entitled to the reliefs sought, and was Exhibit ‘A’ (proceeding in HUZ/15/2004) considered as estoppels by the trial Court in reaching its conclusion in the case. Did the Appellants’ case support the claims of the Respondents, particularly, with regards to failure to call material witness, and conflicts in the evidence of the DW1 and DW2′
It is quite obvious that this case is one in which the parties claimed title by reliance on historical evidence, which is one of the five ways of proving title to land. See the case of Idundun Vs Okumagba (1976) LPELR 1431 SC; Atanda Vs Ajani & Ors (1989) NWLR (Pt. 111) 511; Orlu Vs Gogo-Abite (2010) 8 NWLR (Pt. 1698) 307; Ayorinde & Ors Vs Sogunro & Ors (2012) LPELR 7808 (SC); Okorieocha & Anor Vs Emereni & Ors (2016) LPELR 40043 (CA).
In the above cases, the five known and recognized ways of establishing title to land are enumerated, namely:
(1) By traditional evidence;
(2) By production of title documents to the land;
(3) By acts of ownership numerous and positive, extending over sufficient length of time to warrant the inference that the person is the true owner;
(4) By acts of long enjoyment of possession;
(5) By proof of possession of adjacent lands in circumstances which render it probable that the owner of such adjacent lands would, in addition, be the owner of the disputed land. See Ezerioha & Ors Vs Mgbeajulu & Ors (2018) LPELR ? 43811 (CA); Nwabuoku & Ors Vs Onwordi & Ors (2006) LPELR 2082 (SC).
As earlier stated in this judgment, this Case is founded on claims of title by means of traditional evidence, that the pieces or parcels land listed in the writ of Summons, devolved on the Plaintiffs (Respondents herein) from their ancestors, who deforested the said lands, and took possession of same and handed them (lands) over to them (Respondents); the Respondents said that since they came into possession of the said lands, they have been cultivating same (for many years) without any interruption from any quarters, until the year 2000, when the Defendants (Appellants herein) trespassed into the said lands, alleging that the Plaintiffs were/are not the rightful owners, but were/are strangers, who came from Okposi to settle in Amaoghoro Ngodo Akoli Imenyi (See paragraphs 5 to 11 of the statement of claim on page 5 of the Records).
The Appellants on their part (as defendants) also asserted that the lands belonged to them and that the Respondents were strangers; that, beginning from the day the Respondents were settled by Amaoghoro, they (Appellants) had always apportioned land to them (Respondents) for building and annual farming, and, in return, the Plaintiffs (Respondents) had always performed free labour known as Oru Orie as a tribute to their customary landlords (Appellants). See paragraphs 5 – 6 of the Records.
Of course, by law, where the two sides rely on traditional evidence to prove their claims to the land, the party that filed the Suit has burden to establish its root of title, by leading cogent and credible evidence on how the land was acquired by his ancestors/founder and how it devolved, down the line of the succeeding ancestors/beneficiaries, until the turn of the Plaintiff(s), without breaking the chain of succession; that is, the Plaintiff (or the defendant, where the defendant also asserts traditional history) has to trace the family tree or genealogical devolution of the land, from the common founder or ancestor, to the current generation, laying claims to the land.
See Airtel Network Ltd Vs Agwalemere (2018) LPELR 44814 CA and Isiohia & Ors Vs Elechi (2018) LPELR 44988 CA, where it was held:
one who places reliance on traditional evidence in the bid to establish their title to the land in dispute, has the onus to plead the root of title and names and history of his ancestors and lead evidence to establish same, without any missing link. The law is that, where the evidence of traditional history adduced by a party to establish title to land, fails, his other claim of possession or/and acts of ownership on the land rather becomes evidence of trespass on the land.
See Oyadare Vs Keji (2005) 1 SC (Pt. 1) 19 at 25; Enyinnaya Vs Otikpo (2015) LPELR ? 2559 CA? Where a Plaintiff relies on traditional evidence to prove his root of title to the land but fails to establish his claims by that means, he cannot resort to the fact that he is in possession or that he has exercised various acts of ownership? as his said acts of ownership/possession would simply evident trespass to the land. See also Eze & Ors Vs Atasie & Ors (2000) LPELR ? 1190 SC.
It is also the law, that a Plaintiff, in a declaratory relief, particularly in land matters, must succeed on the strength of his own case, not on the weakness of the case of the defence, though he can take benefit of admission(s) by the defence that supports his (Plaintiff’s) case. See the case of Dongari & Ors Vs Sa’anun (2013) LPELR 22084 CA; Anyanru Vs Mandilas Ltd(2007) 4 SC (Pt.111) 58; Dumaz (Nig.) Ltd Vs Nwakhoba (2008) 18 NWLR (Pt. 119) 361; Ozomgbachi Vs Amadi & Ors (2018) LPELR 45152 (SC).
Where both parties lay claims to the same land, tracing their claims to a common ancestor(s), the law would ascribe possession to the party that proves better title to the land in dispute. See Umeobi Vs Otukoya (1978) 4 SC 33; Olowolagba & Ors Vs Bakare & Ors (1998) LPELR 8056 (SC); Buka & Ors Vs Lawan (2017) LPELR 43315 (CA).
In this case, at hand, the trial Court had noted that both parties had relied on their evidence of traditional histories, to lay claims to the pieces or parcels of land in contention, but noted, too, that the burden was on the Plaintiffs (Respondents) to satisfy the Court, to succeed (since the Appellants did not counter claim).
See pages 101 – 102 of the Records, where the trial Court said as follows:
The Plaintiffs in their evidence before the Court as well as their pleadings traced their root of title to one Okorie who begat Ekeoma. That this Ekeoma begat others who included Uko, the father of Nwachukwu Uko, the 1st Plaintiff. And that they have lived in this land.
The defendants, who disputed this history, traced their root of title to one Njoku who begat Adibe Ukwu, Mgbeoji Ukwu Okoroyo Igbojiohu and Nwaegbe. That these son’s begat others which included the defendants. The defendants were emphatic that they have been in possession of these lands and have exercised various acts of ownership, which included giving out lands, pledging same to the Plaintiffs. With the above conflicting claims to ownership and possession of these lands by both parties, the law comes in to ascribe possession to the person that can prove better title to the land in dispute?
In as much as the law is that the Plaintiff has to rely on the strength of his case and not on the weakness of that of the defendant, but where the weakness in the evidence of the defendants tends to support the case of the Plaintiff, (the Plaintiff) can rely on same. The part of the evidence of the defendants that lent support to the evidence of the Plaintiffs in (sic) the cross-examination of the DW2, Ukwake Ojukwu. His evidence was in fact a twist, striking and a deviation completely from the evidence of DW1. Part of the cross examination of DW2 ran thus:
That his grandfathers name is Uwakwe Ojukwu is the father of Uwakwe while Ekeoma is the father of Ojukwu and the father of Ekeoma, Uko. That Uko Ekeoma is the grandfather of the 1st Plaintiff and that it is not clear to him that this Uko Ekeoma is the one that came from Okposi as alleged by DW1 in 1936. That he the PW2 does not agree that his grandfather come from Okposi as alleged by DW1. DW2 further said that if the gong is sounded today for the great grandchildren of Uko Ekeoma to come out, that he will come out. That there was no time they carried anything to pay homage to the owners of the land before farming, likewise the Plaintiffs, as they owned the land.
From the cross-examination of DW2, it revealed that both the Plaintiffs and the defendants are descendants of one ancestor. That these lands belong to their original ancestor or progenitor and that the ones in dispute belong to the Plaintiffs. That this progenitor of theirs is not a stranger (Pages 102 – 103 of the Records)
(Of course, the evidence of DW2, which the trial Court referred, were earlier summarized on pages 96 to 97 of the Records).
The Appellants did not raise any objection or appeal against the said Court findings or summary of the said evidence of the DW2 (under cross examination) which completely knocked off the evidence given by DW1, and compromised the case presented by the defence. The DW2, therefore, aligned with the Respondents and admitted the claims of the Respondents! The Respondents, in my opinion, were entitled to take the benefits of such gratuitous gesture by the defence, which clearly supported the claims of the Respondents. See Ikeokafor Vs Obodoeze (2018) LPELR 45068 CA; Anyanru Vs Mandilas Ltd (2007) 4 SCNJ 288; Chukwumah Vs SPDC (Nig.) Ltd (1993) LPELR 864 SC; Owoeye Vs Oyinlola (2012) 15 NWLR (Pt. 322) 84; Onwugbufor Vs Okoye (1996) NWLR (Pt. 424) 252; Uwahianri & Anor Vs Onyemaizu & Anor (2017) LPELR 41672 (CA).
The law is also trite, that a finding or holding of Court not challenged or appeal against, remains binding and conclusive. See Nmanumeihe Vs Njemanze (2016) LPELR 40212 CA; Ebemighe Vs Chi (2011) 14 NWLR (Pt. 1268) 530; CPC Vs INEC (2011) 18 NWLR (Pt. 1279) 493. Appellants did not raise any appeal against the said findings of the trial Court, which exposed that devastating/contradictory stand of the DW2 to the evidence of the defence in this case, and which made nonsense, the denial by the Appellants of the claims of the Plaintiffs.
It is obvious that the reasoning and expressions of the learned trial Judge, whether or not the proceedings in HUZ/15/2004 (Exhibit ‘A’) was a consent judgment, were obita dicter, on which no appeal can attach or be founded on. It can also be seen that the trial Court did not hold that the Exhibit A was applicable to this case as a consent judgment and/or operated as estoppels against the Appellants. The trial Court had expressly stated, on page 105 of the Records:
“The 1st Defendant was the 1st Plaintiff in the Suit that was dismissed, did not appeal against the said judgment in Exhibit ‘A’, neither did he bring any application for same to be set aside for fraud or misrepresentation. Failing to do any of these means that the judgment in Exhibit ‘A’ is still subsisting and should, in fact, operate as an estoppels against the defendants in this action. But since the Plaintiffs did not make Exhibit ‘A’ an issue in this present suit so as to estop the defendants from denying what they had earlier asserted, this Court will now based on the facts and evidence before it, make it pronouncement on Issues raised.” (Underlining mine).
The above (particularly the underlined portion) shows that the trial Court did not factor the observation (whether or not Exhibit A was consent judgment operating as estoppels) into the decision and the conclusion it made in this case. The trial Court, rather, relied on the Exhibit ‘A’, to form its impression of the 1st Defendant (DW1) as not being a witness of truth, an observation/opinion which the trial Court was entitled to make.
The law is trite, that an appeal can only be founded on the ratio decidendi, not obita dicter, of a judgment! See Wagbatsoma Vs FRN (2018) LPELR 43722 (SC); Omisore and Anor Vs Aregbesola & Ors (2015) LPELR ? 24803 (SC); Atiba Iyalamu Savings & Loans Ltd Vs Suberu & Anor (2018) LPELR 44069 (SC); University Press Ltd Vs Martins (Nig.) Ltd (2000) LPELR 3421 (SC); SPDC (Nig.) Ltd Vs Registrar of Business Premises, Abia State (2015) LPELR ? 24285 (CA).
Appellants had quarreled that the trial Court presumed Section 149(d) of the Evidence Act, 1990 against them for failure to produce a witness to support their claims that the plaintiffs were strangers; that they had claimed that some elders (who were still alive) had witnessed the arrival and settlement of the Plaintiffs’ ancestors at Ndioze compound, but failed to produce any of the elders to give evidence. Thus, such failure be presumed against the Appellants with-holding evidence.
I agree that the trial Court was wrong to invoke that presumption, in the circumstances of this case. But also think the fireworks by Counsel, from both sides, on this issue were clearly unnecessary, as the said presumption of Section 149(d) of the Evidence Act, 1990 (now 167(d) of the Evidence Act 2011) did not reduce, and could not have discounted the overwhelming evidence that entitled Respondents to judgment, on the preponderance of evidence. That means, as argued by Respondents, even if the trial Court did not make that error of invoking the presumption, the available evidence was enough to lead to the same conclusion, that the Respondents had proved their claims and were entitled to judgment.
I have already said that the learned trial Judge, in my opinion, was wrong to resort to the presumption of the Section 149(d) of the Evidence Act, 1990, against the Appellants in the circumstances of this case (pages 105 – 106 of the Records). The reason for this is obvious, that Appellants (as Defendants) did not have any case to prove, being defendants in the Suit, having not filed any counter claim. The burden of proof, in the case, resided with the Respondents, who took out the Suit, and they had a duty to prove their claims, and on the strength of their evidence, not on the weakness of the defence. A.G. Cross River Vs A.G. Fed. (2012) LPELR 9335 (SC); Nduul Vs Wayo & Ors (2018) LPELR 45151 (SC).
The allegation by the defence that the Respondents were foreigners and strangers on the lands, and that some elders, who were still alive, saw when the Respondents’ ancestors migrated and settled in the Ndioze compound, was clearly unsubstantiated wild speculation by the DW1, who was not, himself, one of the alleged elders, and as none of the said elders was called to corroborate the story! But, I do not think, the Lower Court should have taken the DW1 serious, to the extent of resorting to the presumption, as the allegation was not necessary to be proved, to establish the Plaintiffs case. In the case of Okonkwo & Ors Vs Okonkwo & Ors (2010) LPELR 9357 (SC), the Supreme Court held:
“It is pertinent that in a declaratory action, the Plaintiff must prove his case not minding any admissions or default or pleading by the defendant.” See also Yusuf Vs Akande (2011) LPELR 5114 CA; Odunze Vs Nwosu (2007) 13 NWLR (Pt.1050) 1.
The law is that whether the defendant adduces or does not adduce any evidence at the trial, it remains the fundamental and primary duty cast on a plaintiff to prove his case, with credible evidence. SeeBusari & Anor Vs Adepoju & Ors (2015) LPELR 41704 (CA).
In the case of Folaranmi & Anor Vs Akinyemi & Ors (2018) LPELR 44985 (CA), my Lord Tsammani JCA, said:
“It is also the settled law, that a defendant who has not counter-claimed has no burden to prove anything. In such a situation, the only burden on the Defendant is to adduce evidence which controverts the evidence of the Plaintiff so as to show that the Plaintiffs’ claim is not true or that the evidence adduced by the Plaintiff is not credible or not sufficient to entitle the Plaintiff to the declaration sought.” (Nruamah & Ors Vs Ebuzoeme (2013) 13 NWLR (Pt.1372) 474 (SC) was cited and relied on).
See also Agwuncha Vs Beluchukwu & Ors (2017) LPELR 42791 (CA), where my Lord, Ogunwumiju JCA held that:
“the Defendant bears no burden to adduce any evidence or satisfactory evidence in a declaratory action; that the test is always whether the Plaintiff has been able to show that, by preponderance of evidence, he has a better title than the Defendant.” Adeleke Vs Iyanda (2001) 13 NWLR (Pt. 729) 1.
In the case of Mbonu & Ors Vs Andrew Nwagbara & Ors (2018) LPELR 44711 CA, where the trial Court held that it was satisfied that the defendants had proved their case, with compelling evidence, whereas the Defendants filed no counter-claim, this Court held as follows:
“There was actually, no case set up or canvassed by the Defendants at the trial Court, and so there was none for Respondents (Defendants) to prove, in view of the evidence adduced in the case. The trial Court was, therefore, trying to make a case for the Respondents, which is not permitted.”
Even where there are contradictions in the evidence of the defence witnesses, the contradictions can only be material in the determination of a case of declaratory reliefs, if the Plaintiff has, in the first place, proved his case, otherwise the contradictions will not or cannot help the cause of the Plaintiff. See Duru Vs Duru (2016) LPELR 40444; Obiazikwor Vs Obiazikwor (2017) WRN 100.
I have already stated that, despite the error of the trial Court in presuming Section 149(d) of the Evidence Act against the Appellants, that the trial Court held, correctly, for the Respondents, that their claims were proved, as there were bountiful evidence, even from the DW2, to support the claims of the Plaintiffs (Respondents).
The Respondents, in their arguments, had tried to raise issue about the identity of the pieces of land in dispute, whereas the Appellants, in their amended notice and grounds of appeal and issues for determination, made no complaints about the identity of the lands. The Respondents’ Counsel had misfired. A Respondent can only distill issues for determination of Appeal and argue same, in the con of the grounds of appeal formulated by the Appellants, except where he (Respondents) had filed a cross appeal or Respondent’s Notice, to accommodate the extraneous issue/argument. See the case of Emesonye Vs The State (2016) LPELR 40549 (CA); Onuegbus & Ors Vs Gov. of Imo State & Ors (2015) LPELR ? 25968 (CA); (2015) 8 CAR 224; Anyalenkeya Vs Anya & Ors (2016) LPELR 40218 (CA), and Duru Vs Duru (2016) LPELR ? 40444 CA, where this Court held:
“a Respondent has no room to raise an issue for determination of appeal, outside the grounds of appeal formulated by Appellant, except, of course, he (Respondent) has cross appealed, or raised a Respondents? Notice, on the strange or fresh issue he proposed.”
Of course, where the identity of the land in contention, is not an issue in the case, a party cannot raise it on appeal. See Mbonu & Ors Vs Nwagbara & Ors (supra); Duru Vs Duru (supra).
I resolve the issues (1 and 2) against the Appellants. The Issue 3 which, though resolved in favour of the Appellants, cannot make any difference in the final outcome of the appeal; that the trial Court was wrong to presume Section 149(d) of the Evidence Act 1990 against Appellants, cannot help Appellants, as evidence still abound to justify the decision of the trial Court in favour of the Respondents.
The appeal is accordingly dismissed with cost assessed at Forty Thousand Naira (N40,000.00) only, in favour of Respondents.
THERESA NGOLIKA ORJI-ABADUA, J.C.A.: I had read before now the leading judgment of this Court delivered by my learned brother, Mbaba, J.C.A, and I cannot but agree with his resolution of the issues and dismissal of the appeal. I wonder the hue and cry among the Appellants that no survey plan, no evidence was led as to the boundaries of the parcels of land in dispute nor was any of such boundary witnesses called, no evidence was led as to the features that can distinguish each of the parcels of land from the other and for the sake of fully identifying the parcels of land in dispute when the Appellants themselves at paragraph 4 of their Statement of Defence filed on the 24th April, 2008, admitted paragraphs 3 and 4 of the Respondents? Statement of Claim. Paragraph 4 of the Statement of Claim categorically stated that the pieces or parcels of land, the subject matter of the suit are well known to the Defendants. Then in paragraph 7 therein, it was clearly asserted that the said pieces of land in dispute are as follows: (i) Uhuochie Amaoghoro; (ii) Alaughu Amaoghoro; (iii) Mpirim; (iv) Dibia Okai; (v) Korokoro; (vi) Nchi; (vii) Aroh Uhuochie; (viii) Iyiocha Elu; (ix) lyl-una and (x) Ala Enwe Aja.
It is interesting to note that the Appellants did not dispute the names ascribed to the lands by the Respondents. They did not proffer any answer to paragraph 7 in their pleading; therefore, no issue was joined by the parties as to the identities, features, dimensions and locations of the lands being disputed between them. Therefore no evidence needed to be adduced in that respect. What is admitted needs no further proof. The Supreme Court per Kawu, J.S.C., emphatically stated in S. Fatuade vs. F. C Onwoamanam (1990) LPELR-1253(SC) that ?While it is the law that in an action for declaration of title to land, the burden is on the plaintiff to prove the identity of the land to which his claim relates Kwadzo vs. Adjei (1944) 10 W.A.C.A. 274, in this case, in my view, on the facts before the trial Court, the identity of the subject matter in dispute was not in question. The identity of the land would only be in issue if, and only if the defendant in his statement of defence made it one. See Ezeudu v. Oblagwu (1986) 2 N.W.L.R. (Pt. 21) 208 at 210.
Also in Mr. Ignatius Anyanwu & Ors. vs. Mr. Aloysius Uzowuaka & Ors. (2009) LPELR-515(SC), the Supreme Court, per Tabai, J.S.C., relied on the case of Nwobodo Ezeudu & Ors. vs. Isaac Obiagwu (1986) 2 NWLR Part 21 page 208 at 220 where Oputa, J.S.C., stated extensively on the circumstances when an issue of identity of land can appropriately be said to be raised. The Court said: ?The Identity of land in dispute will be in issue, if, and only if, the Defendants in their Statement of Defence made it one ? that is if they disputed specifically either the area or the size or the location or the features shown on the Plaintiffs? plan. When such is the case then the identity of the land becomes an issue.? In the instant appeal, the Appellants did not make identities of the parcels of lands enumerated in the Respondents? pleading an issue, rather they admitted knowing the lands and did not dispute the names ascribed to them by the Respondents.
Then on the traditional history of the land, the Respondents pleaded their traditional history at paragraphs 6, 8, 9 and 10 of the pleading, how the lands were deforested by their first ancestor, Okorie, the intervening owners and how they devolved on them. Okorie handed the land over to Ekeoma his son. Ekeoma then bequeathed the lands to Uko his son and his other children, Uwakwe and Kanu. The lands then passed from Uko to his children and brother’s children, that is the Plaintiffs who have been cultivating the lands for many years without interruption. The picture painted is that the lands devolved on the Plaintiffs directly from Uko. The well established principle of law is that it is not sufficient for a party who relies, for proof of title to land, on tradition, to merely plead that he and his predecessors in title had owned and possessed the land from time immemorial, such a party is bound to plead and prove the following facts, namely:- (1) Who founded the land;
(2) How the founder founded the land; and
(3) The particulars of the Intervening owners through whom he claims. These the Respondents by their pleading and evidence accomplished before the lower Court.
As the trial Court rightly found, the evidence of D.W.2 confirmed that Ekeoma was the father of Uko and that Uko was the grandfather of the 1 Plaintiff, and that he, D.W.2 is a descendant of Uko Ekeoma and there was never a time they, including the Plaintiffs, presented any Items in the guise of paying homage to any land owners before farming on the land as the land is theirs.
This bolstered the Respondents’ pleading and evidence before the lower Court and which they could effectively make use of in line with settled principles of law regarding evidence extracted from the opposite party during cross-examination. See Akomolafe vs. Guardian Press Ltd (2010) 3 NWLR Part 1181 page 338 at 351 where it was held that evidence elicited from a party or his witnesses under cross-examination which goes to support the case of the party cross-examining, constitutes evidence in support of the case or defence of that party though the evidence so elicited must be pleaded by the party in his pleading.
It is evident in page 105 of the record that the Court below did not attribute any value to Exhibit A by distinctly observing that the Plaintiffs clearly did not make the said Exhibit A an issue and that the Defendants on their own part denied the facts that resulted in Exhibit A. As a result, it discarded it and proceeded to evaluate the evidence respectively adduced by the parties. Although it made reference to it when it merely expressed that by Exhibit A, the 1st Defendant is not a witness of truth. That notwithstanding, the Court weighed the evidence of traditional history respectively presented by the parties. The trial Court made an analysis of the testimonies before it at pages 85-97 of the record of appeal and rightly concluded that the Plaintiffs had proved their case as to be entitled to the reliefs sought by them, the suggestions made by Appellants’ Counsel are unfounded. There is obviously no merit in this appeal and I too dismiss the same.
AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A.: I agree
Appearances:
G.O. NWOKEOGU, ESQ. with him, C.A. OKWARA (MRS.)For Appellant(s)
DR. C.O. CHIJIOKE with him, C.A. AZUMA, who held his brief. For Respondent(s)
