ADIM & ORS v. ONUNKWO & ORS
(2022)LCN/16062(CA)
In The Court Of Appeal
(AWKA JUDICIAL DIVISION)
On Thursday, June 02, 2022
CA/AW/395/2014
Before Our Lordships:
Chioma Egondu Nwosu-Iheme Justice of the Court of Appeal
Frederick Oziakpono Oho Justice of the Court of Appeal
Patricia Ajuma Mahmoud Justice of the Court of Appeal
Between
1. MR. BETRAND NWANKWO ADIM 2. MR. KENNETH CHIGBO ADIM 3. MR. NICHOLAS NNAGBO ADIM APPELANT(S)
And
1. DR. ANIWETA ONUNKWO 2. MR. FELIX NWOYE ADIM 3. MR. OBINNA ONUNKWO RESPONDENT(S)
RATIO
THE PRINCIPLE OF HE WHO ASSERTS MUST PROVE
The settled position of the law is that he who asserts has the burden to prove what he has asserted. See Section 135 of the EVIDENCE ACT, 2011. This principle has received judicial pronouncement in a number of decided cases. See the case of AKANDE vs. ADISA & ANOR (2012) LPELR-7807 where the Apex Court per MUHAMMAD, JSC had this to say on the subject:
“l think my spring board in starting the consideration of this appeal is to have recourse to the provisions of Sections 135-137 of the Evidence Act, Cap 112 LFN, 1990 (Now Cap E14 LFN, 2004). 135(1) whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist. 136. The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side. 137(1) In civil cases the burden of first proving the existence or non-existence of a fact lies on the party against whom the judgment of the Court would be given if no evidence were produced on either side, regard being had to any presumption that may arise on the pleadings.” By the above provisions therefore, it is the requirement of the law that he who asserts, must prove. In all civil matters, the proof rests squarely on the person who approaches the Court (plaintiff) praying that his legal right, which he claims from somebody (defendant) should be restored to him.”
See also the case of OJOH vs. KAMALU (2003) 18 NWLR (PT. 958) AT 560 cited by learned Respondents’ Counsel. PER OHO, J.C.A.
FACTOR TO BE CONSIDERED TO SUCCEED IN A CLAIM FOR A DECLARATION OF TITLE TO LAND
In short, the position is that to succeed in a claim for a declaration of title to land, the Court must be satisfied as to a number of factors. The first of these is the precise nature of the title claimed that is to say, whether it is title by virtue of original ownership, customary grant, conveyance, sale under customary law, long possession or otherwise and; the second, is evidence establishing title of the nature claimed. See EMEGWARA vs. NWAIMO & ORS 14 W.A.C.A. 347. However, the underlining factor is that a Plaintiff claiming a declaration of title to land must succeed on the strength of his own case and not on the weakness of the defendant’s case. If this onus is not discharged, the weakness of the defendant’s case will not help him and the proper judgment will be for the defendant. The rationale behind this principle is that the Plaintiff, having sought relief from the Court but failed to establish his entitlement thereto, ought to have his claim rejected. See COBBLAH vs. GBEKE 12 W.A.C.A. 294; KODILINYE vs. MBANEFO ODU 2 W.A.C.A. 236 AT 337; NANPONG II vs. NANA BREMPONG II (1952) 14 W.A.C.A. 13. However, this broad general principle of law does not naturally apply where the defendant’s case itself lends support to that of the plaintiff and contains evidence on which the plaintiff is entitled to rely. See JOSIAH AKINOLA and ANOTHER vs. FATOYINBO OLUWO and ORS (1962) 1 ALL N.L.R. (PT. 2) 224 AT 225; FREDERICK ODUARAN and ORS vs. CHIEF JOHN ASARAH and ORS (1972) 1 ALL N.L.R. (PT. 2) 137. PER OHO, J.C.A.
WHETHER OR NOT THE BURDEN OF PROOF SHIFTS IN CIVIL ACTIONS
Although in civil proceedings, the burden of proof does not remain static but moves from side to side, it is also settled law, however, that where a Plaintiff claims a declaratory relief, he has the burden to prove such relief even if the Defendant did not deny that fact or failed to defend the claim. In the instant case, the Appellants claimed for declaratory reliefs herein and have the bounding duty to prove that they are entitled to those reliefs before they can be entitled to same. See the case of NWOKIDU vs. OKANU (2010) 3 NWLR (PT.1181) 362 AT P. 390, PARAS. E-G, cited by learned Counsel to the Respondents.
By therefore seeking declarative reliefs before the Court below, the Appellants are bound to fulfil the requirements of the law for the grant of a declaratory relief. In other words, the Appellants had the duty to bring before the Court below credible and sufficient evidence upon which the Court can rely to grant them such reliefs. See the case of OKEREOCHA vs. MINISTRY OF COMMERCE AND TOURISM (2000) FWLR (PT. 25) 1729 AT 1742, on the issue cited by learned Respondents’ Counsel. PER OHO, J.C.A.
FREDERICK OZIAKPONO OHO, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of the High Court of Anambra State, sitting at Otuocha (hereinafter called; “the Court below”) delivered on the 18th day of December, 2012 Coram: J. I. NWEZE, J wherein the Court below dismissed the claim of the Appellants as completely lacking in merit. By a Writ of Summons dated the 11th day of June, 2010 the Appellants commenced a civil proceeding against the Respondents and in which they sought three (3) reliefs.
The subject matter of the suit being the ownership of a plot of land on which the Appellants were said to have paid the mandatory money for its allocation thereof to them with a firm promise from the 2nd Respondent that he was not interested in the allocation and that the 1st Appellant should pay and take possession and ownership of the land. In proof of their case, the Appellants called four witnesses who testified as PW1-PW4 and tendered Exhibit P1 (Survey Plan No. FC/ANMISC.005/2009) dated the 12th day of January, 2009. The 1st and 3rd Respondents called two witnesses; DW1-DW2 and tendered Exhibits D1 (letter dated 10/5/2010) and Exhibit D2 (official receipt) while the 2nd Respondent called three witnesses namely DW3-DW5 but tendered no Exhibits.
Upon the conclusion of their respective cases, Counsel addressed the Court and the matter proceeded to judgment. In its judgment delivered on the 18th day of December, 2012 the Court below after a proper evaluation of the respective cases of the parties as pleaded vis-a-vis the evidence led, dismissed the case of the Appellants in its entirety. In dismissing the case of the Appellants, the Court below held at pages 279-280 of the record as follows:
“The inconsistencies and contradictions in the Plaintiffs’ case is such that no Court should ascribe credibility to the evidence adduced by the Plaintiffs. See EZEMBA vs. IBENEME (2004) 14 NWLR (PT.884) 617; AYANWALE vs. ATANDA. (1988) 1 NWLR (PT.68) 22.”
“I do not believe the Plaintiffs that the 2nd Defendant at any time asked the 1st Plaintiff to pay for and take ownership of the land allocated to the 2nd Defendant by the Umuefigbo family”.
“In a claim for the declaration of title of land, the Plaintiff succeeds on the strength of his own case and not on the weakness of the Defence. See KODILINYE vs. ODU (1935)2 WACA 336; AYANWALE vs. ODUSANMI (2011)18 NWLR (PT. 1278) 328”.
“In the instant case, on the facts as presented by the Plaintiffs and without regard to the evidence led by the Defendants; the plaintiffs have woefully failed to prove their case as pleaded”.
The Appellants being dissatisfied with the above findings and decision of the Court below has appealed to this Court vide a Notice of Appeal dated 25th day of February, 2013 and filed on the 26th day of February, 2013. The Appellants filed their Appellants’ Brief of Argument dated the 7th day of April, 2016 and filed on the 11th day of April, 2016. On the 11th day of November, 2020, the Appellants moved their Motion on Notice dated the 14th day of September, 2020 and filed on the 15th day of September, 2020. The motion among other things, prayed for leave to raise fresh issues, to amend the Appellants’ Notice and Grounds of Appeal, to file an Amended Brief of Argument and to deem the Appellants’ Amended Notice and Grounds of Appeal as well as their Amended Brief of Argument. That motion was granted in part by the Court who thereafter directed the Appellants to file a clean copy of their Amended Notice of Appeal as none was filed before the Court.
ISSUES FOR DETERMINATION:
The Appellants’ in their amended Brief of Argument nominated a sole issue for the determination of this appeal, thus;
“Whether, based on the pleadings and the credible evidence on record, the learned trial Judge was justified in dismissing the suit of the appellants’ when he held that the appellants’ did not discharge the onus placed on them in respect of the subject of this suit?” (Grounds, 1, 2, 3 & 4)
The Respondents adopted substantially the above singular issue formulated by the Appellants save the use of the term: “credible” in the Appellants’ description of the evidence on record. Consequently, it is the Respondents’ submission that the single issue calling for an effective and proper determination of this appeal is;
“Whether, based on the pleadings and the evidence on record, the learned trial Judge was justified in dismissing the suit of the Appellants in its entirety?”<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”></br<>
A careful perusal of the issues nominated by both sides of the divide shall show clearly that the issues nominated are identical, except for minor issues of semantics. For this reason, the issue nominated by the Appellants shall form the basis for the determination of this appeal.
SUBMISSIONS OF COUNSEL:
APPELLANT:
SOLE ISSUE:
Whether, based on the pleadings and the credible evidence on record, the learned trial Judge was justified in dismissing the suit of the appellants when he held that the appellants did not discharge the onus placed on them in respect of the subject of this suit?
The argument of learned Appellant’s Counsel is that in a claim for declaration of title to land, the plaintiff must succeed on the strength of his own case and not on the weakness of the defence. The above principle notwithstanding, Counsel further argued that where there are facts and factors in the defendants’ case which supports the plaintiff’s case, the plaintiff is entitled to rely on same. See the cases of MULIMA vs. USMAN (2014) NWLR (PT. 1432) 160; MOGAJI vs. CADBURY NIG. LTD (1985) 2 NWLR (PT. 739) 3; OBAWOLE vs. WILLIAM (1996) 10 NWLR (PT. 477) 146. Counsel drew attention to the Court’s observation at page 279 thus;
“On the state of the pleadings, the onus is on the plaintiffs to prove that the 2nd Defendant had transferred his interest in the land to the 1st plaintiff”, Counsel contended that on the strength of the appellant case the onus of proof was discharged. Counsel referred this Court to paragraph 10 of Amended Statement of Claim at page 160 of the Records…”
“It was further agreed by Umuefigbo extended family that all the members of Umuefigbo family must first of all, in order to be eligible to be granted plot of land within Owelle Umunna Land, pays the sum of N5000.00 per plot to Umuefigbo extended family. In addition, each member granted a plot of land was duty bound to deliver two cartons of beer and one crate of soft drinks to Umuefigbo extended family. Alternatively, instead of delivery of two cartons of beer and one crate of soft drink to Umuefigbo extended family, the applicant for land may pay N1000.00 instead.”
Counsel further referred this Court to paragraph 5 of Statement of Defence at page 87 of the Records.
“In answer to paragraph 10 of the statement of claim, the 1st and 3rd defendants state that for a person to be eligible to be allocated land in Owelle Umunna Land, such a person must be a member of Umuefigbo family and must attain the age bracket stipulated by the family. The stipulated age bracket at the material time was for persons who had attained the age of about 49 years. Payment of N5,000.00 and/or other sundry expenses is only a token receivable by the family upon allocating a piece of land to a member and the value of the piece of land at the material time is far above N6,000.00 (Six Thousand).”
Again, Counsel contended that there was evidence that payment of total of N6,000.00 which was admitted by the Respondents was a condition precedent to the allocation of the plot to any qualified member. It is the law that facts admitted need no further proof. Counsel argued that there are many evidence and/or witnesses of both parties that support the claims of the appellants’ especially on the issue of payment of the mandatory allocation fee and non-payment will cause the forfeiture of their allocation. Counsel reproduced the testimony of PW2. See page 244 of the Records.
“I told the 2nd defendant that my father said that he should bring money to pay for the land being shared by the Umunna. He told me that he was not interested in the Umuefigbo family land. He said that he has a land in Lagos and a house in the village. He further said that my father should pay for the land if he is interested as my father has children”.
PW3 under cross-examination at page 246 of the Records said;
“The 2nd defendant is very close to me. I used to stay in his house and that is when I sleep. I had no problem with him. The 1st plaintiff also has a good relationship with me. My children also go to see the defendant and stay with him. I told the 2nd defendant about the land when I went to his house Chinwoke was still alive at that time. She had complained to me that the 2nd defendant said he was not interested in the land. He also told me the same thing even, after all my efforts to persuade him to pay for the land”.
The 2nd appellant under cross-examination answered the following at page 253;
Q. Which year did the 2nd defendant tell you that he is not interested in the land?
Ans. “I do not recall the exact year but it is more than 20 years ago. He first told my younger sister that before he said to me because there was dispute I did not call the 2nd defendant and our sister together. My sister had testified earlier in this suit. Davidson Chike and Daniel Onuorah forfeited their land for non-payment. They did not pay for the land and no member of the family paid for the land so it was forfeited to Umuefigbo family”.
Learned Counsel submitted that in the instant case, the immediate younger brother MR. ROBINSON ADIM to the 2nd Respondent was a member of the Umuefigbo family, assuming that the 1st appellant was hiding the allocation, his younger brother must have told him about the allocation and he would have asked him to pay for him, this was not done. Counsel argued the law is that the plaintiff can rely on the credible evidence of the defendant which supports his case. Counsel further reproduced the following credible statement from the respondent and his witness which supports the case of the plaintiff- DW1 said on 30th day of May, 2012 at page 257 of the Records;
“His elder brother the 1st Plaintiff paid for both his own and that of the 2nd defendant. The payments were made before the land was shown to the allottee”.
It is the submission of Counsel that all the witnesses of the defendant admitted that payment of N5,000.00 and N1,000.00 was made before the allocation. DW1 said inter alia under cross-examination at page 259 of the Records;
“If there was no payment whatsoever, the family will repossess the land and allocate it to some other person”.
DW4 Hon. Godwin Madubueze Modebe in his evidence said under cross-examination at pages 269–270 of Records:
“The resolution of the family is that when any person does not want to take the land, the land reverts back to the family. That was the case of Onuorah Abagwo and Davidson Chike”.
“It is true that anybody who fails to pay for his own portion of the land forfeits it to the Umuefigbo family”.
DW5 2nd Respondent at pages 272–273 of the Records said;
“I did not pay N5,000.00 and the ancillary expenses to the Umuefigbo family because my elder brother the 1st plaintiff concealed that fact from me instead asked his son to bring the money”.
“It is true that Bertrand (1st appellant) asked me to give him N5,000.00 so he can recover the land in dispute to me. I did not give him the money”.
“I became aware of the sale in 1997. I went to the chairman of the Umuefigbo family and in the company of Robinson Adim, my half-brother, they showed me that land physically, the land was measured in the absence of the plaintiff, this was in 2008.”
Counsel further contended that the argument that the 1st Appellant concealed the allocation to the 2nd Respondent does not hold water and an afterthought by him. Counsel disclosed to this Court that there is evidence from his own witnesses that he goes to the village 2-3 times a year. It was further contended that there is also evidence that Robinson Adim, his brother had access to phone while the 2nd Respondent had access to phone. There is evidence from him that he became aware of the allocation in 1997 but did not do anything; he brought his brother Robinson Adim to show him the land in 2008 and he sold same. Also, there is evidence from him that 1st Appellant asked him to give him money for the payment of the land in dispute. Counsel argued that there is overwhelming credible evidence that payment of N5,000.00 and N1,000.00 for the allocation was a condition precedent to the allocation and also in evidence that the said sum was paid by 1st appellant.
Counsel argued that from his evidence, it means that if 1st plaintiff did not pay the amount involved, the allocation of 2nd Respondent would have reverted to the family and his own allocation forfeited. So he paid based on the promise of the 2nd Respondent that he was not interested in the land and empowered the 1st Appellant to pay for the land for his children. Counsel argued that despite all this credible evidence in favour of the appellants, the Court below did not evaluate nor weigh the evidence before the Court before dismissing the claim of the Appellant thereby occasioning miscarriage of justice.
The submission of Counsel thereafter is that it is the duty of the trial Court to consider the totality of the evidence led by each of the parties, while evaluating the evidence adduced before the Court. He posited in addition that evaluation of evidence by trial Court should necessarily involve a reasoned belief of the evidence of the other or reasoned preference of one version to the other. Counsel cited the cases of ADESINA vs. OJO (2012) 10 NWLR 552; LAGGA vs. SARHUNA (2008) 16 NWLR (PT. 1114) 427. According to Counsel in the instant case, there was no evaluation by the Court before arriving at his finding and judgment. There was no reason why the Court preferred the evidence of Respondents before the Court and therefore made a wrong finding of fact. See A. R. MOGAJI & ORS vs. ODOFIN & ORS (1978) 4 SC 91. Counsel further posited that the Court is not obliged to believe the evidence of witness of same party who contradicts each other on material particulars as the Court cannot pick and choose who to believe. However, a discrepancy in evidence is different from contradiction in evidence. See NJOKU vs. JONATHAN (2012) 8 NWLR 13; OKOKO vs. DAKOLO (2006) 14 NWLR (PT. 1000) 401.
It is the submission of Counsel that it is not every discrepancy that gives rise to a question of the credibility of witnesses. It must be substantial and material enough to amount to contradiction, which would make their evidence irreconcilable. They are immaterial unless contradictions affect live issues in the suit. See the cases of NJOKU vs. JONATHAN (Supra); USIOBAIFO vs. USIOBAIFO (2005) 3 NWLR (PT. 913) 665.
Counsel further argued that in the instant case, there was no discrepancy or contraction on who paid the mandatory money and the reason for the payment. Counsel drew the attention of Court to the fact that there is evidence that the appellants are in possession of the land since the time of the allocation from 1996 till the matter went to Court and that the wife of the 1st Appellant has cultivated on the land for at least 10 years. It is instructive to note that DW2, Dr. Onunkwo admitted this when he said;
Que: For over 10 years, the 1st plaintiff’s wife has been cultivating on the land in dispute?
Ans: For over 10 years, the 1st plaintiff’s wife has been cultivating the land. I have never seen the 2nd defendant cultivating the land in dispute for the past 10 years.
Yet, according to Counsel, Dr. Onunkwo never asked about the status of the land from the 1st appellant before paying for the land. On the issues of concealment as alleged, Counsel further reproduced the testimony of DW3 Mr. Robinson Odikpo Adim under cross-examination at page 266 of the Records;
“I do not know what transpired between the 1st plaintiff and the 2nd respondent before the sum of N5000.00 was paid for the disputed land. I do not know who brought the money”.
“In 1996, I had access to telephone. The 2nd defendant also had access to a phone. The 2nd defendant was not present when the land was shared”.
Counsel submitted that DW3 was a member of Umuefigbo. He got his own share of the land and was present in the meeting when the decision to plot and allocate land was decided and being blood brothers to the 2nd Respondent he must have informed the 2nd Respondent about the allocation and the monetary involvement of every allocation.
On the area of the land, Counsel submitted that by the attached plan of the land done by the Surveyor F. C. Eze, the figure is 200ft by 120ft and the uncontroverted survey was admitted in evidence as Exhibit P1. DW1 said the following:
Que: Godwin Modebe in his deposition said that each plot of land measures 60ft by 100ft.
Ans: If you calculate the area of all the land it will give you the same area of 60ft by 100ft.
Que: The land which Felix sold to Mr. Onunkwo measures 70ft by 100ft.
Ans: That is true.
Yet, according to Counsel, the Court below held at page 280 of the Records;
“There is this issue that came up during trial. That is, whether 2nd defendant sold the land allocated to the 1st plaintiff or part of it? This is having regard to the size of the land which was sold which suggests that it is more than what was allocated to the 2nd defendant. Unfortunately, the parties did not join issues on that. The plaintiff did not as a result lead evidence to prove that the land sold by the 2nd defendant was the portion allocated to the 1st plaintiff or included a part of it”.
Counsel submitted that Dr. Onunkwo DW2 also said that the land which he bought from the 2nd plaintiff measures 70ft by 100ft. DW4 also agreed that the size of the plot is 60ft by 100ft, yet the 2nd defendant sold 70ft by 100ft. Counsel contended that on the principle of the legal maxim Nemo dat quod non habet, if this judgment is not set aside, it means that the 1st Appellants’ will be deprived of part of the allocation to him, which does not allocate to the 2nd Respondent. Counsel further contended that there are more than 5 witnesses who testified that the 2nd Respondent empowered and mandated the 1st Appellant to pay for the allocation and for his own personal use. Yet the Honourable Court said in his judgment at page 279:
“The Plaintiffs have suggested that only the 1st Plaintiff and the 2nd Defendant knew exactly what they agreed on. I am however not persuaded that the 1st Plaintiff’s recollection of any such agreement is reliable. He testified in one breath that there was no witness when the 2nd Defendant asked him to pay for the land. He recanted the very next day and said that the 2nd Defendant did not instruct him to pay for the land. What is more, the time frame given by the 1st Plaintiff of 1990/1991 is way off the mark. The land had not been allocated by those years and in fact not allocated until about 5 years later in 1996”.
Still on the inconsistencies;
“PW3 said that it was 1st Plaintiff that first told me that the 2nd Defendant had no interest in the land. The 1st Plaintiff stated that the 2nd Defendant had told the PW3 about it before speaking to him”.
Counsel argued that the year of allocation has nothing to do with whether or not the payment was made by 1st Appellant with the instruction of 2nd Respondent. Counsel further argued that the question of who told who first does not derogate from the fact that the 2nd Respondent said he was not interested in the matter. Again, Counsel said that there was no inconsistency that the 2nd Respondent said that he was not interested in the parcel of land in dispute. Counsel also posited that it is wrong in law for the Respondents to fraudulently, knowingly and deliberately stood by and allowed the Appellants to alter their possession and many years thereafter come back to approbate and reprobate at same time. Counsel urged this Court to hold that the Appellants have proved their case and reverse the judgment of the lower Court and enter judgment in favour of the Appellants.
RESPONDENT:
SOLE ISSUE:
Whether based on the pleadings and the evidence on record, the learned trial Judge was justified in dismissing the suit of the Appellants in its entirety?
In arguing this issue, Learned Counsel submitted that it is the settled principle of law that he who asserts has the burden to prove what he has asserted. See Section 135 of the EVIDENCE ACT, 2011. He argued that this principle of law received judicial pronouncement in the case of OJOH vs. KAMALU (2005) 18 NWLR (PT. 958) AT 560.
Learned Counsel stated that as rightly submitted by the Appellants, in a claim for declaration of title to land, the plaintiff must succeed on the strength of his own case and not on the weakness of the defence. Counsel agrees with Appellants’ submissions in their Brief that “where there are facts and factors in the defendants’ case which supports the plaintiff’s case, the plaintiff is entitled to rely on same”. Counsel contended that they rather find it quite strange and incongruous when the Appellants argued that they discharged the onus placed on them by law yet they never bothered to show this Court how such onus has been discharged.
Counsel further submitted that it was the Appellants who alleged that the 2nd Respondent (Mr. Felix Nwoye Adim) had transferred his interest in the land in dispute to the 1st Appellant by stating that he was not interested in the said land. On his part, the 2nd Respondent totally denied this allegation and asserted that the 1st Respondent hid the issue of the family allocation of land from him. This fact formed the basis of the Court’s below assertion at page 279 of the Records that the onus was on the Plaintiffs to prove that the 2nd Defendant had transferred his interest in the land to the 1st Plaintiff. According to Counsel, instead of showing how this onus placed on the Appellants had been discharged, the Appellants rather went into a different matter by unnecessarily expending ink as to the payment of the sum of N5,000.00 to the parties Umuefigbo family by the 1st Plaintiff. Counsel disclosed that it was agreed by the parties that the payment of the said sum of N5,000.00 was made by the 1st Appellant (then 1st Plaintiff) and as such the fact of the payment of the sum of N5,000.00 was never an issue joined by the parties.
Counsel further submitted that although in civil proceedings the burden of proof does not remain static but moves from side to side, it is also settled law that where a Plaintiff claims a declaratory relief, he has the burden to prove such relief even if the Defendant did not deny that fact or failed to defend the claim. In the instant case, the Appellants claimed for declaratory reliefs herein and have the bounding duty to prove that they are entitled to those reliefs before they can be entitled to same.
Learned Counsel cited the case of NWOKIDU vs. OKANU (2010) 3 NWLR (PT.1181) 362 AT P. 390, PARAS. E-G, wherein the apex Court described the nature of a declaratory relief claimed in Court. The further argument of Counsel is that by seeking a declarative relief before the Court below, the Appellants are bound to fulfill the requirements of the law for the grant of a declaratory relief. In other words, the Appellants had the duty to bring before the Court below the credible and sufficient evidence upon which the Court can rely to grant them such a relief. Again, Counsel cited the case of OKEREOCHA vs. MINISTRY OF COMMERCE AND TOURISM (2000) FWLR (PT. 25) 1729 AT 1742, on the issue.
Counsel also posited that from the above, even if the Respondents admitted the facts being alleged by the Appellants, the Appellants still had the burden to prove their case. In the same way, even where the defence of the Respondents is weak, it will not be of any help to the Appellants as to discharge them of this onus until they have established their case as required by law.
It was therefore submitted by Counsel that in the instant case, the burden of proving that the 2nd Respondent has transferred his interest in the land in dispute to the 1st Appellant as alleged lay squarely on the Appellants to establish. Consequently, for the Appellants to succeed in their reliefs before the trial Court, it was not just enough for them to assert that they are entitled to their claims rather, they were bound to bring proof to substantiate such claims. What then is proof, one may ask?
Counsel espoused the definition of this Court in the case of ADUN vs. AMEN OSUNDE & ORS (2003) 16 NWLR (PT. 847) 643 AT 668, PARAS G-H per AUGIE, JCA (as he then was) when this Court had this to say:
“Proof is the logically sufficient reasons for asserting to the truth of a proposition advanced. In its juridical sense, proof will include and comprehend everything that may be adduced at the trial, within legal rules for the purpose of producing conviction in the mind of the Judge or jury. See also the case of OTEKI vs. AG, BENDEL STATE (1986) 2 NWLR (PT. 24) 648.”
Counsel further submitted that such proof can only be found in evidence demonstrated at the trial upon pleaded facts and evidence led. Without the production of hard cold facts, the mere assertions of the Plaintiff may just end up in the region of speculation, which is not within the realm of a Court of law. SeeABALAKA vs. MIN. OF HEALTH (2006) 2 NWLR (PT. 963) 105 AT 129, PARAS. A–C.
Counsel further contended that by the averment in paragraph 13 of their Statement of Claim, the Appellants readily showed that the same size of land claimed by the Appellants in paragraph 40 of their Statement of Claim is the same as the two plots, which they in paragraph 13 admitted were given by the Umuefigbo kindred to the 1st Appellant (Mr. Bertrand Nwankwo Adim) and the 2nd Respondent (Mr. Felix Nwoye Adim) respectively. According to Counsel, by the above pleading, the Appellants admitted; that one of the plots of the parcel of land given by the Umuefigbo kindred, two of which measures 1255.358 square metres, was in fact allocated to the 2nd Respondent by their Umuefigbo family and as such belongs to the 2nd Respondent.
Again, Counsel referred to paragraphs 16, 17 and 18 of the Appellants’ Statement of Claim whilst arguing that the only ground for claiming the ownership of the plot of land in dispute can be found in those paragraphs which the 2nd Respondent vehemently denied. Counsel further argued that in the instant case and having regard to the admission of the original title of the 2nd Respondent over one of the two plots of land by the Appellants, it becomes clear, therefore, that the burden was placed heavily on the Appellants to show that the 2nd Respondent had divested his interest over the land in favour of the 1st Appellant. Counsel cited the cases of BELLO ISIBA & ORS vs. J. T. HANSON & ANOR (1967) 1 ALL NLR 8 AT 110; MOSALEWATHOMES J. C. vs. PRESTON HOLDER (1946) 12 WACA 78.
Learned Counsel further submitted that the Appellants in their attempt to prove that the 2nd Respondent has given up his interest over the property in dispute, led evidence through PW2, PW3 and PW4. But a look at the evidence of PW1-PW4 clearly showed material contradictions which in fact made the trial Court to reject them as being unreliable. Counsel stated that the inconsistencies being referred to by the Court below in his judgment can be seen well displayed in pages 247, 251 and 254 of the Records. Therefore, the Court below was not speculating when he made the finding that the inconsistencies and contradictions in the Plaintiffs’ case is such that no Court should ascribe credibility to the evidence, the plaintiffs have woefully failed to prove their case as pleaded.
Learned Counsel also averted the Court’s attention to the fact that apart from the observed inconsistencies in the case of the Appellants, the Respondents on their part tendered Exhibit D1, which is a letter from the Umuefigbo kindred to the 1st Respondent dated 10th day of May, 2010. The said letter confirmed that the land in dispute belongs to the 2nd Respondent and not the 1st Appellant as alleged. Exhibit D1 was tendered by DW1 who testified on behalf of the Umuefigbo kindred. In his evidence in chief, among other things, that if Mr. Bertrand Adim had disclosed to the family that he was picking the plot for his son Chigbata, the Umuefigbo family would have barred him because at the time Chigbata his son was not qualified to pick as he fell below three (3) list of Age grade allowed to pick in the allocation. That Mr. Bertrand Adim could not have picked the plot meant for Felix Adim for himself as no one was allowed to pick more than one plot as the basis for the sharing is one man one plot.
Counsel further drew the attention of this Court to the fact that the evidence of DW1 was neither challenged nor contradicted during his cross-examination and as such the evidence remains valid, cogent and credible worthy to be acted on by this Court. Counsel humbly urged this Court to so hold. In conclusion, Counsel submitted that it is on record that apart from Exhibit P1 being the Survey Plan tendered by the Appellants, there was no other document tendered by the Appellants during the trial. According to Counsel the Appellants in this matter, in the words of the Court below, “woefully failed to establish their case as pleaded”. In the circumstance, therefore, Learned Counsel urged this Court to resolve this singular issue in favour of the Respondents and against the Appellants.
RESOLUTION OF APPEAL
In its judgment delivered on the 18th day of December, 2012 the Court below after a proper evaluation of the evidence adduced by the parties as pleaded the Court below dismissed the case of the Appellants in its entirety. Whilst doing so, the Court held at pages 279-280 of the record as follows:
“The inconsistencies and contradictions in the Plaintiffs’ case is such that no Court should ascribe credibility to the evidence adduced by the Plaintiffs. See EZEMBA vs. IBENEME (2004) 14 NWLR (PT.884) 617; AYANWALE vs. ATANDA. (1988) 1 NWLR (PT.68) 22.”
“I do not believe the Plaintiffs that the 2nd Defendant at any time asked the 1st Plaintiff to pay for and take ownership of the land allocated to the 2nd Defendant by the Umuefigbo family”.
“In a claim for the declaration of title of land, the Plaintiff succeeds on the strength of his own case and not on the weakness of the Defence. See KODILINYE vs. ODU (1935) 2 WACA 336; AYANWALE vs. ODUSANMI (2011)18 NWLR (PT. 1278) 328”.
“In the instant case, on the facts as presented by the Plaintiffs and without regard to the evidence led by the Defendants; the plaintiffs have woefully failed to prove their case as pleaded”.
Based on the foregoing, can it really be said that the Appellants as Plaintiffs failed to discharge the burden of proof placed on them by law? The settled position of the law is that he who asserts has the burden to prove what he has asserted. See Section 135 of the EVIDENCE ACT, 2011. This principle has received judicial pronouncement in a number of decided cases. See the case of AKANDE vs. ADISA & ANOR (2012) LPELR-7807 where the Apex Court per MUHAMMAD, JSC had this to say on the subject:
“l think my spring board in starting the consideration of this appeal is to have recourse to the provisions of Sections 135-137 of the Evidence Act, Cap 112 LFN, 1990 (Now Cap E14 LFN, 2004). 135(1) whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist. 136. The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side. 137(1) In civil cases the burden of first proving the existence or non-existence of a fact lies on the party against whom the judgment of the Court would be given if no evidence were produced on either side, regard being had to any presumption that may arise on the pleadings.” By the above provisions therefore, it is the requirement of the law that he who asserts, must prove. In all civil matters, the proof rests squarely on the person who approaches the Court (plaintiff) praying that his legal right, which he claims from somebody (defendant) should be restored to him.”
See also the case of OJOH vs. KAMALU (2003) 18 NWLR (PT. 958) AT 560 cited by learned Respondents’ Counsel.
Usually, in a claim for declaration of title to land, the plaintiff must succeed on the strength of his own case and not on the weakness of the defence. But where there are facts and factors in the defendants’ case which supports the plaintiff’s case, the plaintiff is entitled to rely on same. See…
In short, the position is that to succeed in a claim for a declaration of title to land, the Court must be satisfied as to a number of factors. The first of these is the precise nature of the title claimed that is to say, whether it is title by virtue of original ownership, customary grant, conveyance, sale under customary law, long possession or otherwise and; the second, is evidence establishing title of the nature claimed. See EMEGWARA vs. NWAIMO & ORS 14 W.A.C.A. 347. However, the underlining factor is that a Plaintiff claiming a declaration of title to land must succeed on the strength of his own case and not on the weakness of the defendant’s case. If this onus is not discharged, the weakness of the defendant’s case will not help him and the proper judgment will be for the defendant. The rationale behind this principle is that the Plaintiff, having sought relief from the Court but failed to establish his entitlement thereto, ought to have his claim rejected. See COBBLAH vs. GBEKE 12 W.A.C.A. 294; KODILINYE vs. MBANEFO ODU 2 W.A.C.A. 236 AT 337; NANPONG II vs. NANA BREMPONG II (1952) 14 W.A.C.A. 13. However, this broad general principle of law does not naturally apply where the defendant’s case itself lends support to that of the plaintiff and contains evidence on which the plaintiff is entitled to rely. See JOSIAH AKINOLA and ANOTHER vs. FATOYINBO OLUWO and ORS (1962) 1 ALL N.L.R. (PT. 2) 224 AT 225; FREDERICK ODUARAN and ORS vs. CHIEF JOHN ASARAH and ORS (1972) 1 ALL N.L.R. (PT. 2) 137.
The question that must now be asked is whether the Appellants as Plaintiffs satisfied the Court by establishing their claims to the parcel of land in dispute by relying on the strength of their case? The immediate reaction of this Court is that it is rather strange and incongruous to see the Appellants argue that they discharged the onus placed on them by law, yet they never bothered to show this to Court, as to how such onus has been discharged.
Here is a situation in which the Appellants have alleged that the 2nd Respondent (Mr. Felix Nwoye Adim) had transferred his interest in the land in dispute to the 1st Appellant by stating that he was not interested in the said land; whereas, the 2nd Respondent, on his part totally denied this allegation and asserted that the 1st Respondent hid the issue of the family allocation of land from him. This fact formed the basis of the lower Court’s assertion at page 279 of the Records that the onus was on the Plaintiffs to prove that the 2nd Respondent as Defendant had transferred his interest in the land to the 1st Plaintiff.
Instead of showing how the onus placed on the Appellants had been discharged, the Appellants rather went into a different matter by unnecessarily expending ink on the question of the payment of the sum of N5,000.00 to the parties Umuefigbo family by the 1st Plaintiff. As it would be recalled, it is not in dispute that the payment of the said sum of N5,000.00 was made by the 1st Appellant (then 1st Plaintiff) and as such the fact of the payment of the sum of N5,000.00 was never an issue joined between the parties.
Although in civil proceedings, the burden of proof does not remain static but moves from side to side, it is also settled law, however, that where a Plaintiff claims a declaratory relief, he has the burden to prove such relief even if the Defendant did not deny that fact or failed to defend the claim. In the instant case, the Appellants claimed for declaratory reliefs herein and have the bounding duty to prove that they are entitled to those reliefs before they can be entitled to same. See the case of NWOKIDU vs. OKANU (2010) 3 NWLR (PT.1181) 362 AT P. 390, PARAS. E-G, cited by learned Counsel to the Respondents.
By therefore seeking declarative reliefs before the Court below, the Appellants are bound to fulfil the requirements of the law for the grant of a declaratory relief. In other words, the Appellants had the duty to bring before the Court below credible and sufficient evidence upon which the Court can rely to grant them such reliefs. See the case of OKEREOCHA vs. MINISTRY OF COMMERCE AND TOURISM (2000) FWLR (PT. 25) 1729 AT 1742, on the issue cited by learned Respondents’ Counsel.
What this necessarily translates is that if the Respondents admitted the facts being alleged by the Appellants, the Appellants still had the burden to prove their case. In the same way, even where the defence of the Respondents is weak, it will not be of any help to the Appellants as to discharge them of this onus until they have established their case as required by law. Case law is replete on this issue.
Based on the foregoing, it will be important to note that in the instant case, the burden of proving that the 2nd Respondent has transferred his interest in the land in dispute to the 1st Appellant as alleged lay squarely on the Appellants to establish. Consequently, for the Appellants to succeed in their reliefs before the trial Court, it was not just enough for them to assert that they are entitled to their claims rather, they were bound to bring proof to substantiate such claims.
What then is proof, one may be forced to ask? Learned Respondent’s Counsel relied on the definition of this Court proffered by AUGIE, JCA (as he then was) in the case of ADUN vs. AMEN OSUNDE & ORS (2003) 16 NWLR (PT. 847) 643 AT 668, PARAS G-H when this Court had this to say on the subject:
“Proof is the logically sufficient reason for asserting to the truth of a proposition advanced. In its juridical sense, proof will include and comprehend everything that may be adduced at the trial, within legal rules for the purpose of producing conviction in the mind of the Judge or jury. See also the case of OTEKI vs. AG, BENDEL STATE (1986) 2 NWLR (PT. 24) 648.”
This Court agrees that such proof can only be found in evidence demonstrated at the trial upon pleaded facts and evidence led. Without the production of hard cold facts, the mere assertions of the Plaintiff may just end up in the region of speculation, which is not within the realm of a Court of law. See ABALAKA vs. MIN. OF HEALTH (2006) 2 NWLR (PT. 963) 105 AT 129, PARAS. A–C.
By the averment in paragraph 13 of their Statement of Claim, the Appellants readily showed that the same size of land claimed by the Appellants in paragraph 40 of their Statement of Claim is the same as the two plots, which they in paragraph 13 admitted were given by the Umuefigbo kindred to the 1st Appellant (Mr. Bertrand Nwankwo Adim) and the 2nd Respondent (Mr. Felix Nwoye Adim) respectively.
By the said pleading, the Appellants admitted; that one of the plots of the parcel of land given by the Umuefigbo kindred, two of which measures 1255.358 square metres, was in fact allocated to the 2nd Respondent by their Umuefigbo family and as such belongs to the 2nd Respondents.
In addition, paragraphs 16, 17 and 18 of the Appellants’ Statement of Claim whilst arguing that the only ground for claiming the ownership of the plot of land in dispute can be found in those paragraphs, the 2nd Respondent vehemently denied same, but having regard to the admission of the original title of the 2nd Respondent over one of the two plots of land by the Appellants, it becomes clear, therefore, that the burden was placed heavily on the Appellants to show that the 2nd Respondent had divested his interest over the land in favour of the 1st Appellant. See the cases of BELLO ISIBA & ORS vs. J. T. HANSON & ANOR (1967) 1 ALL NLR 8 AT 110; MOSALEWATHOMES J. C. vs. PRESTON HOLDER (1946) 12 WACA 78.
It will also be recalled that in the Appellants’ attempt to prove that the 2nd Respondent has given up his interest over the property in dispute, led evidence through PW2, PW3 and PW4. But a look at the evidence of PW1-PW4 clearly showed material contradictions which in fact made the trial Court to reject them as being unreliable. The inconsistencies being referred to by the Court below in his judgment can be seen well displayed in pages 247, 251 and 254 of the Records. The Court below was therefore right and did not speculate when it made the finding that the inconsistencies and contradictions in the Plaintiffs’ case is such that no Court should ascribe credibility to the evidence; the plaintiffs having failed woefully to prove their case as pleaded.
Apart from the observed inconsistencies in the case of the Appellants, the Respondents on their part tendered Exhibit D1, which is a letter from the Umuefigbo kindred to the 1st Respondent dated 10th day of May, 2010. The said letter confirmed that the land in dispute belongs to the 2nd Respondent and not the 1st Appellant as alleged. Exhibit D1 was tendered by DW1 who testified on behalf of the Umuefigbo kindred. In his evidence in chief, among other things, is that if Mr. Bertrand Adim had disclosed to the family that he was picking the plot for his son Chigbata, Umuefigbo family would have barred him because at the time Chigbata his son was not qualified to pick as he fell below three (3) list of Age grade allowed to pick in the allocation. That Mr. Bertrand Adim could not have picked the plot meant for Felix Adim for himself as no one was allowed to pick more than one plot as the basis for the sharing is one man one plot.
All said and done, an examination of the records shows that the evidence of DW1 was neither challenged nor contradicted during his cross-examination and as such the evidence remains valid, cogent and credible worthy to be acted upon by this Court. This Court finds and so hold. It is also on record that apart from Exhibit P1 being the Survey Plan tendered by the Appellants, there was no other document tendered by the Appellants during the trial. In the final analysis, this Court finds and further holds that the Appellants in this matter, woefully failed to establish their case as pleaded.
This Court therefore resolves the sole issue nominated by the Respondents in favour of the Respondents against the Appellants. This appeal therefore fails and it is accordingly dismissed. There shall be cost of N200,000.00 against the Appellants in favour of the Respondents.
CHIOMA NWOSU-IHEME, J.C.A.: I had a preview of the lead judgment delivered by my learned brother, F. O. OHO, JCA. He satisfactorily dealt with the sole issue in this appeal and it is without any hesitation that I adopt his reasoning and conclusion, which represent my views.
I also dismiss the appeal and abide by the order as to costs made by Oho, JCA in the lead judgment.
PATRICIA AJUMA MAHMOUD, J.C.A.: I have perused in draft form the judgment of my learned brother, FREDERICK OZIAKPONO OHO, JCA just delivered. I agree with his Lordship that this appeal deserves to be dismissed for lacking in merit. Appeal is dismissed. I abide by all the consequential orders including the one as to costs.
Appearances:
OKEY ABAZU, ESQ. For Appellant(s)
M. E. ALITA, ESQ. For Respondent(s)
