ANAEBOM AGWU IHEJIRIKA v. PEACE UZOMA IHEJIRIKA & ORS
(2013)LCN/6269(CA)
In The Court of Appeal of Nigeria
On Friday, the 7th day of June, 2013
CA/PH/444/2008
JUSTICES
UWANI M. ABBA AJI Justice of The Court of Appeal of Nigeria
JOHN INYANG OKORO Justice of The Court of Appeal of Nigeria
PHILOMENA MBUA EKPE Justice of The Court of Appeal of Nigeria
Between
ANAEBOM AGWU IHEJIRIKA Appellant(s)
AND
1. PEACE UZOMA IHEJIRIKA
2. COMRADE AMA AMAOBI GABRIEL IHEJIRIKA
3. MR. OTUTU GABRIEL IHEJIRIKA Respondent(s)
RATIO
WHETHER OR NOT A PLAINTIFF MUST SUCCEED ON THE STRENGHT OF HIS OWN CASE IN AN ACTION FOR DECLARATION OF TITLE TO LAND
In the case of AKINOLA v. OLUWA (1962) 1 ALL NLR 224 at 227 the court held that a plaintiff must succeed on the strength of his own case and not on weakness of the defendant’s case. See section 137 of the Evidence Act which provides thus:
“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.
137(2) If such party adduces evidence which ought reasonably to satisfy a jury that the fact sought to be proved is established, the burden lies on the party against whom judgment would be given if no more evidence were adduced and so on successfully until all the issues pleadings have been dealt with.” (Underlining of emphasis). PER EKPE, J.C.A.
WHETHER OR NOT FAMILY PROPERTY BELONGS TO THE FAMILY AS A WHOLE
“It is a well settled principle of native law and custom that family property belongs to the family as a whole and that all individual members of the family are entitled to enjoy the property. It is also a settled rule of native law and custom that the Head of the family is the “person entitled to look after and manage family properties. Although places of land may be allotted to members of the family, the allottees have only the right to occupy and use the lands which they cannot alienate or part with without the consent of the family. PER EKPE, J.C.A.
THE DUTY OF THE TRIAL COURT TO EVALUATE THE EVIDENCE OF WITNESSES BEFORE IT
Considering the fact that the court went into great detail in assessing the evidence adduced by each witness before him and making pronouncements on every salient detail. It is hereby noted that the trial Judge is in a vantage position to appraise and assess all the witnesses before him and an appellate court should be most reluctant to embark on a re-appraisal of such findings by the court below except when such findings have been known to be perverse. See the case of ATANDA v. AJANI (1989) NWLR (pt. 111) 511 where the Supreme Court held as follows:
“The law is that the duty of appraising and evaluating evidence given at the trial ii pre-eminently within the province of the court of trial which has the singular advantage of seeing and hearing the witnesses testify, although an appellate court may disturb the judgment of the court of trial in strictly limited cases such as when it is satisfied that the decision on the facts is wrong or perverse or not a result of improper use of judicial discretion or that the trial court failed to evaluate the evidence, or generally to take proper advantage of its having seen and heard the witnesses testify.”
See also the case of OJO-OSAGIE v. ADONRI (1994) 6 NWLR (Pt. 349) 131 where the Supreme Court held as follows:
“It is now settled law that if there has been a proper appraisal of evidence by a trial court, a Court of Appeal ought not to embark on a fresh appraisal of the same evidence in order merely to arrive at a different conclusion from that reached by the trial court. Furthermore, it a court of trial unquestionably evaluates the evidence then it is not the business of a Court of Appeal to substitute its own views for the views of the trial court. See FOLORUNSHO v. ADEYEMI (1975) NMLR 128 CAW; A. M. AKINLOYE v. BELLO EYIYOLA & ORS, (1968) NMLR 92 at page 85; BALOGUN v. AGBOOLA (1974) 19 S.C. 111.” PER EKPE, J.C.A.
PHILOMENA MBUA EKPE, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of High Court, Umuahia delivered by A. U. Kalu J. on the 28th day of February 2008. The learned trial Judge found for the defendants and dismissed the plaintiff’s case in its entirety.
Dissatisfied with the judgment, the Plaintiff now the Appellant has appealed to this court and raised 6 grounds of appeal. The Notice of Appeal is dated the 14th day of May 2008 at pages 210-214 of the record of appeal.
The facts that culminated in this appeal are as follows: The Appellant’s father one AGWU IHEJIRIKA (deceased) in his lifetime married three wives and each wife had a male child, namely STEVEN IHEJIRIKA by his first wife, GABRIEL IHEJIRIKA by the second wife and ANAEBOM AGWU IHEJIRIKA the Appellant, by the 3rd wife. The son of the first wife STEVEN AGWU IHEJIRIKA (alias A. U. IHEJIRIKA) became the head of the IHEJIRIKA family after the death of their father, the patriarch, AGWU IHEJIRIKA. The second son, Gabriel Ihejirika then married their father’s third wife and mother of the Appellant and together bore the original three 1st to 3rd respondents. The 1st Respondent died and was substituted on the order of this court by his wife PEACE UZOMA IHEJIRIKA now the 1st Respondent herein. Thus the Respondents are the half brothers of the Appellant and the grand children of the patriarch – Agwu Ihejirika. The Appellant is therefore the son of the patriarch, and both the elder brother and uncle of the Respondents whose father is Gabriel Ihejirika, the 2nd son of the patriarch, AGWU IHEJIRIKA.
The case of the Appellant is that he is the owner and in possession of the land in dispute having inherited same from his father by virtue of a partition in 1985 – 1986 of his late father’s estate. The Appellant alleged that before the partition, he had built a bungalow on a small portion of the land in dispute and allowed the 1st to 3rd Respondents including his mother to live therein pending when they would build their own houses.
The appellant contended that the 1st Respondent had assisted in the building by providing flush doors and louver blades. That the land in dispute was never allotted to the Respondents by their family head, Steven Agwu Ihejirika who while alive had sworn to Exhibit F stating that the said land belonged to the Appellant. The Appellant also alleged that he had built a second house on part of the same land in dispute.
The Respondents claimed that they are owners of the said land in dispute which was allotted to them by the then family head A. U. Stephen Ihejirika when they asked for land to build their residence. That the 1st Respondents now deceased, built the house and is occupying all the rooms including the living room except one room occupied by the Appellant. It is also alleged that the 1st Respondents built a store at the entrance of the said building for commercial purposes, which store is being manned by his wife. It is also their claim that the 2nd respondent COMRADE AMAOBI IHEJIRIKA, a Senior Federal Government Staff erected the 2nd residential building as his home. That the Appellant could not have erected those buildings as he was merely a retired plant operator on grade level 6 from National Root Crops Research Institute, Umudike and his wife, a cleaner in Michael Okpara University of Agriculture Umudike.
The Appellants counsel, A. C. Okoroafor raised 5 issues for determination as follows:
“1. Whether the learned Trial Judge was right to hold that the partitioning of the land in dispute to the Plaintiff/Appellant was null and void on the ground that between 1980 – 1982, the land in dispute had been allotted to the defendant by the head of Agwu Ihejirika Family and therefore was not available for partitioning as at 1985 – 1986 when the estate of Agwu Ihejirika was partitioned, (Grounds 1 & 2 of the Appeal)
2. Whether the lower court was right in holding that Exhibit F, which was tendered by the appellant to show that the land in dispute was never allotted to the defendants, did not refer with any particular exactitude to the land in dispute and that the survey plan referred to in paragraph 5 therein was not tendered. (Ground 5 of the Appeal).
3. Whether the Appellant established that he built the buildings on the land in dispute (Ground 3 of the Notice of Appeal).
4. Whether the learned trial Judge was right by failing to consider the plaintiffs claim for trespass. (Ground 4 of the Appeal).
5. Whether the judgment is against the weight of evidence. (Ground 6 of the Appeal).”
The Respondent’s counsel, Nwabueze Ajaegbu, on the other hand formulated his own three issues for determination as follows:
“1. Whether the Appellant established that he erected the building on the land in dispute.
2. Was the land in dispute still available to be shared by Uke-Ato in 1985 after being given to the Defendants for residential purposes in 1980 by U. A. Stephen Ihejirika the indubitable head of Agwu Ihejirika’s family.
3. Whether the judgment is against the weight of evidence.
I have carefully perused all the issues raised by both counsel in this appeal and I have come to the conclusion that all, the issues are saying one and the same thing which is: ownership of the land in dispute and the properties therein, even though they are couched differently by both counsel. I shall however merge all the issues into three main issues as Appellant’s issues 2, 3 & 4 shall be all subsumed into one main issue as Issue No. 2. Both parties are ad idem on Issue No. 5, which shall be Issue No. 3 in the course of this judgment.
On Issue No. 1, learned counsel for the appellant argued that based on the findings of the learned trial Judge at pg. 203 lines 15-21 of the record that:
“In my humbly view and based on the evidence before me I seem to accept the evidence of the plaintiff on this issue. I am satisfied that during the process of partitioning of the estate of Agwu Ihejurika among his sons who are Stephen Agwu Ihejirika, Gabriel Agwu Ihejirika and the plaintiff, that the land in dispute was allotted or given to the plaintiff.”
He owned the land in dispute.
That the above would have been sufficient to declare the in favour of the Plaintiff/Appellant. That since both parties have traced their root of title to their patriarch Agwu Ihejirika, the plaintiff/Appellant then has the onus to prove how the said land devolved on him, and thereafter the burden shifts to the defendant who is disputing the title. He then cited the following cases:
AWOMILU v. SALAMI & ORS. 1973 SC 105, ASHIRU v. OLUKOYA 2006 11 NWLR (pt. 990) 1, 33 D – E.
Counsel further argued that the Appellant had proved to the satisfaction of the court that there had been a partition of the land in dispute to the Appellant. That the learned trial Judge made out a different case for the Respondents from their pleadings, by holding that as at 1985 – 1986 when the “UKE ATO” ISINGWU partitioned the said land to the Appellant, that particular piece of land was no longer available for partitioning, it having been earlier in 1980 allotted to the Respondents by the then family head. Stephen Agwu Ihejirika.
Learned counsel further submitted that the land in dispute was never allotted to the Respondents as both the 1st and the 2nd buildings on the land were put up by him. That the 1st Respondents merely assisted him by providing flush doors for the house and further stated that the reason for partitioning the said land to him by UKE ATO ISINGWU was because he had already built on part of the land which is the only residential land he received from the sharing of his father’s estate. He further tendered Exhibit F which is a sworn deposition of the then family head STEPHEN AGWU IHEJIRIKA wherein he completely supported the statement of the Appellant and that of PW2 in the lower court who was the secretary of UKE ATO that partitioned the land in dispute (see pages 113 – 116 of the record) where it was thus stated:
“Outside being a son of Agwu Ihejirika, Uke Ato gave the Plaintiff this land as plaintiff had already built a house on a part of this land. Stephen Ihejirika told us that plaintiff built this house and was confirmed by Gabriel, the second son. 1st defendant wrote to Uke Ato concerning this house on this land…. Plaintiff’s counsel seeks to tender the document dated 8th day of March 1986 without objection. In exhibit K 1st defendant was claiming that he built the house on the land. This was contrary to what Stephen and Gabriel Ihejirika said that Plaintiff built the house.”
That it was against the above stated unchallenged evidence that the Appellant has found the holding of the learned trial Judge that the said partitioning of the land in dispute was a nullity quite bizarre and unacceptable. Learned counsel went further to refer to Exhibit K where the 1st Respondent pleaded with UKE ATO to grant him a portion of the land in dispute as part of his father’s (Gabriel) own share of their father’s estate. He then reproduced exhibit K as follows:
“I am aware that you have settled Agwu’s liability and what is left are the assets. I am aware, that the sharing of assets will be on paternal rather than maternal basis…. I will be grateful if Uke Ato would grant me the use and ownership of the land as part of my father’s (Gabriel) own share”.
That since Exhibit K was made, at the partitioning of the estate, and no suit was then anticipated, the claim of the 1st defendant that the land in dispute was allotted to their prior to the partitioning was merely on after thought, and without any evidential value, particularly in the face of Exhibits F and K and the evidence of PW2. That having found as aforesaid that the land in dispute had been rightly partitioned to the Appellant, the lower court no longer had the competence to go into the question of whether or not the partitioning was a nullity, that not being an issue in the court which had raised it suo motu without giving any of the parties an opportunity of raising arguments on it. He then cited the cases of OKAFOR v. NWUDE 1997 7 SC (pt. 1) 106, 128, LAHAN v. LAJOYETAN 1972 6 SC 190, KUTE v. JIBONU 1972 1 SC 147, OLUSANYA v. OLUSANYA 1983 1 SC NWLR 134 OLURUNTOMI v. ASHO 1999 NWLR (Pt. 585) 1 ADEBANJO v. BROWN 1990 3 NWLR (Pt. 141) 661.
Learned counsel also referred to the case of OLANGUNO v. OGUNSANYA (1970) 1 ALL NLR 223 where the court held as follows:
“It is common practice for family land to be allotted to individual members of the family for their use but it remains family land.”
Learned counsel concluded on that issue that until the partitioning of the land by UKE ATO ISINGWU, the defendants had nothing more than a usufruct of the property and urged the court to resolve this issue in favour of the Appellant.
On the second issue as formulated herein, learned counsel for the appellant commenced his argument by reproducing some of the findings of the lower court which he considered relevant to his case. He referred particularly to pages 204 – 206 lines 250 of the record where the trial court found as follows:
“It is therefore my very strong view based on the evidence that whether right or wrong the head of the family of the parties between 1980 – 1982 had allowed the defendants particularly the 1st defendant use of the land in dispute as defendants’ land.
Of course, I am not unmindful of the Exhibit F which is entitled Affidavit in support of ownership allegedly deposed to by the same Stephen Agwu Ihejirika on 6/12/1993.
It was tendered by the plaintiff to support his claim that the said Stephen Agwu Ihejirika did not give the land in dispute to the defendants in 1980 or any other time and that in fact the said Stephen Agwu Ihejirika confirmed by the affidavit that the land in dispute belonged to the plaintiff.
I am not however persuaded by the interpretation given to the said Exhibit F by the plaintiff…
The first point that immediately comes to ones mind is that Exhibit F did not with any level of exactitude pinpoint the very land that is in dispute as its subject matter. This point becomes germane when it is appreciated that there is evidence that it is the whole of the area about the land in dispute that is known as “Okpulor Umuokwerenta”. Also paragraph 5 mentioned survey plan No. VEN/M335/89 as defining the area that Exhibit F was dealing with. The said survey plan was not tendered for the court to know whether the area now in dispute is the same area that Exhibit F purported to claim belonged to the plaintiff.”
He submitted that survey plan No. VEN/M3353/89 mentioned in Exhibit F was tendered by the Appellant without objection as proof of his ownership of the land in dispute and that the said land was never allotted to the defendants by Stephen Agwu Ihejirika as in Exhibit F tendered in the rower court. Also the Appellant, as PW1 was quoted as having showed the surveyor the boundary and other features of the land as in Exhibit D, which was never challenged. He further stated that the learned trial court erroneously failed to take cognizance of the evidence in Exhibit D which was never controverted by the Respondents. Also that exhibit F showed that the land in dispute was never allotted to the Respondents and that the said Exhibit F referred with particular exactitude to the land in dispute.
On the issue of whether the Appellant established that the fact that he erected the buildings on the land in dispute, learned counsel referred copiously to his own evidence as PW1 in the court below where he thus stated:
“Outside being the son of my father, was given this land because I had already built a bungalow on part of this land. When I was building the bungalow, I was assisted by the 1st defendant by giving me flush doors and louver blades. My uncle called Nwachi also helped in roofing. When the building was finished, I let each of the defendants to reside therein by giving each a room. I warned each defendant to vacate once each builds his own house. In 1991, I started building another house on another part of this land to accommodate my grown up children.”
That the Appellant tendered a building plan while PW3 also adduced evidence to the effect that the Appellant erected his first building on the land in dispute in 1980, corroborated by the evidence of PW3 and 4 with no rebuttal by the Respondents. That the claim of a prior allotment by 1st Respondent was a mere ipse dixit even though Exhibit K was made by the 1st Respondent even when no suit was anticipated. Counsel concluded on that point that the appellant having adduced such strong and convincing evidence, the onus now shifted to the Respondents to disprove that assertion.
That surprisingly the trial court still went off tangent to hold as follows:
“Even the Exhibit A tendered by the plaintiff as being the building plan for one of the structures he allegedly built on the land in dispute is completely unhelpful as there was nothing tying Exhibit A to any of the buildings on the disputed land in his evidence in chief, the PW1 said that he started building a second house on the land in dispute in 1991 but Exhibit A, which I had already described as useless of the plaintiff not being tied to any structure on the land in dispute, has a June 1989 date and the plaintiff did not call as witness the person who drew Exhibit A, at least to confirm that the Exhibit A he produced was drawn to be built on the land in dispute…”
That since the building plan (Exhibit A) and the evidence of PW3 and PW4 at the lower court was undisputed, the burden of proof shifted to the Respondents to prove the issue of who erected the structures on the land in dispute to the satisfaction of the court. Learned counsel then cited S.137(1) and 137(2) of the Evidence Act which states thus: and concluded with the maxim Quic Quic plantatur solo solo cedit, urging the court to hold that both land and buildings belonged to the Appellant.
On the issue of the Appellants claim for trespass, learned counsel argued that the Appellant can still claim for trespass even if the claim for title has failed and referred to a plethora of legal authorities as follows: See AJERO v. UGORJI (1999) 7 SC (pt. 1) 58, 68-70; CLOWOLAGBA v. BAKARE (1998) 3 NWLR (Pt. 545) 528, 534, PARA H; ADEGBITE v. OGUNTOLA (1990) 4 NWLR (pt. 140) 578; OJIKA v. OJIBA (1991) 5 NWLR (Pt. 296); AKPAKPUNA v. NZEKA 11 (1983) 7 SC; NNACHI v. OKORO (1989) 1 NWLR (Pt. 535) 573; BURYAN v. UGOJI (1999) 7 NWLR (Pt. 609) 31; OYEHINJI v. AKANI (1986) 5 NWLR (pt. 42) 467; ENANG v. ADU (1981) 11-12 SC 75; OKOLO v. UZOKA (1928) 4 SC 77.
That since the claim for trespass was not considered by the lower court, he was invoking. S. 15 of the court of Appeal Act to consider the claim as all materials were available before the lower court to adjudge the defendants liable for trespass. That where there are competing claims to possession, the law attributes possession to the one who can show a better title. See AMAKOR v. OBIEFUNA (1974) 3 SC 67, 75; OJOMO v. IBRAHIM (1999) 12 NWLR (Pt. 621) 415, 123.
That since allotment does not confer title, the latter partitioning all other rights and interests by way of usufruct by the Respondents had been extinguished leaving the Appellant with title and possession of the disputed land. That Exhibit K written by the 1st defendant to the secretary of UKA ATO in quest to land is also an eloquent admission that the Respondents were aware of the partition of the land which had conferred title to the beneficiary of such partition. He then referred to Exhibit K reproduced as follows:
“I am aware that you have settled Agwu’s liability and what is left are the assets. I am aware, that the sharing of assets will be on paternal rather than maternal basis… I will be grateful if Uke Ato would grant me the use and ownership of the land as part of my father’s (Gabriel) own share.”
He then urged the court to resolve this issue in favour of the appellant.
On the final issue which is whether the judgment was against the weight of the evidence, learned counsel argued that if there is proper evaluation of evidence by the trial court, the appellate court will not embark on a reappraisal of the evidence in order to arrive at a different conclusion except where the findings’ and conclusions are not supported by the totality of evidence on record. That the earlier allotment as claimed by the Respondents was not supported by evidence particularly in the face of Exhibit F tendered by the Appellant. Also the fact that the houses were built by the Appellant was supported by the evidence of PWs 3 and 4 in Exhibit F. He concluded that having evaluated the evidence of acts of possession, the trial court ought to have concluded that the property not only belonged to the appellant but that he had exercised possessory rights over them. He then urged the court to set aside the order for dismissal entered by the trial court.
In reply to all the arguments of the Appellant, learned counsel for the Respondent based his own arguments on the issues formulated by him which though they tally with those raised by Appellant’s counsel have been couched differently by counsel for the Respondents. The issues are as follows:
“1. Whether the Appellant established that he erected the building on the land in dispute.
2. Was the land in dispute still available to be shared by Uke-Ato in 1985 after being given to the Defendants for residential purposes in 1980 by U. A. Stephen Ihejirika the indubitable head of Agwu Ihejirika’s family.
3. Whether the judgment is against the weight of evidence.
On issue one which also tally’s with the Appellants issue no one, learned counsel for the Respondents submitted that the wife of the Appellant at the lower court who had testified as PW3 admitted that the electric meter and all the electricity bills of the 1st building on the land in dispute which was erected in 1980 were supervised and paid for by the 1st Respondent. He further stated that the said 1st building, as bedroom bungalow was erected in 1980 with the electric meter in the name of Nnaemeka Ihejirika, the 1st Respondent who was also a staff of an Oil Company. In a further submission by learned counsel for the Respondents, it was stated that PW3 Elizabeth Anaebom Agwu Ihejirika admitted at the lower court that the late 1st Defendant Respondent occupied the living room of the house built in 1980 and owned all the electronic equipment therein. That the 1st Respondent also denies the fact that the Respondents ever employed brute force to chase the Appellant from their home.
Learned counsel for the Respondents further stated that the Appellant lives in his wife’s home in Ikwuano Local Government Area even though his wife stated at the lower court that they were both chased away with firearms. That PW3 also admitted that the 1st had been in control of the store in front of his house since 1980 when the building was erected and had been renting it out to tenants to use for commercial purposes. That the area in dispute has on it two residential buildings and a lock up store. He further stated that the 1st Respondent owned the store and the 1st house built in 1980 while the 2nd Respondent, a civil servant on grade level 14 in Abuja had erected and occupied the second residential building.
To further buttress his argument, learned counsel stated that no member of the Ihejirika family testified at the lower court on behalf of the appellant while the appellants witnesses were members of his immediate family and a certain Hebert Onyeoziri from another community. That the appellant did not erect any of the buildings on the land and did not own the lock-up store at the front.
Counsel further submitted that the judgment of the traditional Ruler of Isingwu Autonomous community clearly stated that the 1st building was put up by the 1st Respondent Nnaemeka Ihejirika with the help of Sir Alex Awachi, their maternal uncle and the 2nd Respondent and that no mention was made of the appellant. On the Respondents issue two, learned counsel submitted that since the land in dispute had been allotted to the respondents to build on by the then family head, Agwu Ihejirika in 1980, the said land was no longer available for sharing in 1985 by the UKE ATO. He referred to the Igbo custom which allows any man of age and means to take permission from their family head to erect a house of his own, but that if the said land has already been shared, then it becomes the duty of the father to allot his own land to his son to build on when he comes of age. That the Respondents followed this Igbo custom and sought the permission of the then family head in 1980 to erect their home, and that that permission was rightfully given by Stephen Ihejirika in 1980.
Learned counsel reiterated the fact that the Respondents are not aliens on the said land in dispute but grandchildren of the patriarch Agwu Ihejirika who are entitled to build their own homes on their family land. That the said homes of the Respondents were erected in 1980 before the UKE ATO purported to partition the land giving the area in dispute to the Appellant and that any custom that seeks to include a previous allotted area to a particular family member to erect a home to the exclusion of that member is repugnant to natural justice, equity and good conscience and ought to be labeled barbaric. Learned counsel posited that the learned trial Judge was right in holding that the said land was no more available for sharing having been previously allotted to the respondents to build permanent homes of their own. He further stressed on the fact that the Respondents being the descendants of Agwu Ihejirika, were entitled to build their homes on the land that had been allotted to them and that it would amount to a travesty of justice to hand over the Respondents’ home to the appellant. See MOJEKWU v. MOJEKWU (1997) 7 NWLR (Pt. 512).
Respondents’ Issue No. 3 which is on all fours with the Appellants Issue No. 5 which is whether the judgment is against the weight of evidence.
Learned counsel argued that the lower court was at right in dismissing the claim of the appellant in suit No. HU/162/2001 on the 28th day of February 2008. That although PW1, the Appellant named his boundary neighbours in his testimony at the trial court, none of them was called by him to testify on his behalf. That even the right of way through the land in dispute was given by the Respondents to the father of PW1, Paul Emekaonwu and no member of the Ihejirika’s family was called to testify on behalf of the Appellant. Learned counsel then concluded that the appellant did not discharge the burden on him to prove title to the land in dispute and for trespass and injunction, facts which are based on the preponderance of evidence. He then cited the case of ONWUAMA v. EZEOKOLI (2002) L.R.C.N. vol. 94 pg. 248 and 249 and urged the court to uphold the judgment of the lower court and find for the respondents.
Before I delve into the nitty gritty of this appeal, I wish to make it clear that this fight is indeed among blood brothers of the same mother. The Appellant herein is the elder brother of the three Respondents, all born of the same mother. I have considered all the issues raised in this appeal and I have come to the conclusion that all the salient points centre around a prior allotment and subsequent partitioning of family land which has become the casus bell in this appeal.
On issue one, the learned trial Judge had at page 204 of the record found as follows:
“It is therefore my very strong view based on the evidence that whether right or wrong the head of the family of the parties between 1980-1982 had allowed the defendants particularly the 1st defendant use of the land in dispute as defendants’ land.”
As a follow up to the above assertion, the court also found that since the then head of the family of Ihejirika by name Stephen Agwu Ihejirika had allotted the land in dispute to the defendants to build their home as requested by them in 1980, the said land was by 1985 no more available for sharing or partitioning by the OKE ATO ISINGWU. This is indeed the crux of the matter before this court. The question now is: was the land in dispute allotted to the Respondents by the family head Stephen Agwu Ihejirika in 1980? The Respondents claim that in 1990 the 1st Respondent Nnaemeka Ihejirika asked the family head Stephen Ihejirika to show him and his brothers where to build their own houses and they were shown the land in dispute. The 1st Respondent contends that he built the 1st house in which he now lives with his family except one room occupied by the Appellant. The contention of the 2nd Respondent is that he erected the 2nd house on the area in dispute and occupies it alone. The Appellant on the other hand claims that he is the owner of the two houses within the land in dispute. The first claim of the Plaintiff/Appellant in the lower court is thus:
“A declaration that the plaintiff is entitled to the statutory right of occupancy of the land known as and called “OKPALOR UMUOKWERENTA” situate and lying at Isingwu Okpulata, Ohuhu in the Umuahia North Local Government Area of Abia State of Nigeria within the jurisdiction of this Honourable Court, whose annual rental value is N10.00
In other words, the plaintiff/Appellant in the lower court is claiming the entire land on which the two contested houses were built. In the case of AKINOLA v. OLUWA (1962) 1 ALL NLR 224 at 227 the court held that a plaintiff must succeed on the strength of his own case and not on weakness of the defendant’s case. See section 137 of the Evidence Act which provides thus:
“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.
137(2) If such party adduces evidence which ought reasonably to satisfy a jury that the fact sought to be proved is established, the burden lies on the party against whom judgment would be given if no more evidence were adduced and so on successfully until all the issues pleadings have been dealt with.” (Underlining of emphasis)
The starting point here is at the year 1980 when the Respondents claimed that the land in dispute was allotted to them to build their homes and the Appellant said that he built the 1st house also in 1980. It is therefore clear that as at 1980 the land in dispute had not been supposedly partitioned and was still family land, hence the permission to build on it by the family head. Exhibit “P” was tendered by the Defendants/Respondents in the lower court and it was a hand written letter addressed to 1st defendant dated 7th day of December 1982 where Stephen Ihejirika, the family head allotted the land in dispute to the 1st Defendants/Respondents in a period before that date. The learned trial Judge must have been swayed by Exhibit ‘P’ when he held thus in his findings at page 204 of the record:
“It is therefore my very strong view based on the evidence that whether right or wrong the head of the family of the parties between 1980 – 1982 had allowed the defendants particularly the 1st defendant use of the land in dispute as defendants’ land.”
Also exhibit ‘F’ which is titled “Affidavit in support of ownership” was allegedly deposed to by the same Stephen Ihejirika relevant paragraphs of the said affidavit read thus:
“1. That I am in my own right the senior brother of Anaebom Agwu Ihejirika.
2. That Anaebom Agwu Ihejirika is my brother.
3. That the said Anaebom Agwu Ihejirika is a civil servant and who is domicile at home and inherited a portion of land from our father as Isingwu Custom.
4. That the portion of land so inherited which is not disputed nor encumbered in any form whatsoever is situated at Okpulor Umuokwerenta Isingwu in Umuahia local government Area of Abia State of Nigeria and is called Okpulor.
5. That the said Okpulor Umuokwerenta land described in Survey Plan No.VEN/M3359/99.
6. I have no objection whatsoever and do hereby give my consent to any use he or depose to put the land.
7. This affidavit is made in good faith and to enable my said brother procure from the appropriate Government Agency or other competent authorities any statutory document or certificate on the land to suit his purposes and desires.
The learned trial Judge found that it is the entire land that is known as OKPULOR UMUOKWERENTA and not just the land in dispute. Particular attention was drawn by the court below to para. 7 of the said affidavit where the Appellant was seeking a certificate of occupancy for the entire land of Okpulor Umuokwerenta. It can therefore be safely concluded here that various activities had commenced on the Ihejirika family land and particularly the land in dispute as at 1980 before the partitioning of the said land. Thereafter the second building was also erected on the land and the plaintiff at the trial court admitted in various pieces of evidence that the Defendant/Respondents supplied the roof and flush doors for the house No. 1 and also that they had spent Christmas in the two buildings which they were then in the process of fencing round. In conclusion, the learned trial Judge, who had painstakingly rehashed the evidence of all the witnesses and gone over them with a fine tooth comb, in the end adjudged that as at 1995 – 1996 the said land in dispute had already been occupied by the defendants and was no longer available for sharing by the body known as UKE ATO ISINGWU in his words he held as follows:
“Having said all the above, it is my very strongly held view that as at 1985 – 1996 when the ‘Uke Ato’ Isingwu purported to have partitioned to the plaintiff the land now in dispute, the said land was no more available for sharing, the head of Agwu Ihejirika family; Steven Agwu Ihejirika, having before that time allotted the land in dispute to the defendants, whether Steven Agwu Ihejirika was right to do so is not an issue before me to decide.”
I also throw my weight behind the reasoning of the learned trial Judge and in that regard I therefore resolve issue one in favour of the Respondents. I had earlier stated that all other issues will be argued and resolved together except issue No. 5 which I shall take separately.
The next salient point to be considered is the effect of an earlier allotment of family land vis-Ã -vis a later partitioning of the same land. The Defendants/Respondent claim that the said land had been allotted to them by their family head, Stephen Ihejirika in 1980 and that they had erected two buildings thereon. The plaintiff/Appellant admitted that the Respondents lived in both houses thereafter. The Respondents themselves positively stated that as at 1980 and before the purported partitioning of the said land by UKE ATO ISINGWU, in 1985 they had built up the property and were already living in the two houses with their families. Learned counsel for the Appellant cited the case of OLANGUNO v. OGUNSANYA (1970) 1 ALL NLR 223 where the court held as follows:
“It is common practice for family land to be allotted to individual members of the family for their use but it remains family land.”
The above principle must have prayed on the mind of the learned trial Judge when he took into consideration in his decision the fact that the parties were all brothers born of the same mother. Significantly also that the Appellant was both the uncle and elder brother of Respondents who are in turn both his nephews and his younger brothers having been born by his elder brother, Gabriel Ihejirika. Regards should also be had of the fact that the Respondents are also the grand children of the patriarch Agwu Ihejirika, the father of their elder brother and Uncle Anaebom Ihejirika, the Appellant. I have taken pains to describe this relationship between the parties which I presume had played on the mind of the trial Judge who aptly described it as a “STRANGE WEB OF RELATIONSHIPS” and decided against the so called partitioning of the land in 1985. Be that as it may, I shall also refer to the authority in the case of SHELLE v. ASAJON (1957) 12 FSC 65 where the Supreme Court held and quote in part:
“It is a well settled principle of native law and custom that family property belongs to the family as a whole and that all individual members of the family are entitled to enjoy the property. It is also a settled rule of native law and custom that the Head of the family is the “person entitled to look after and manage family properties. Although places of land may be allotted to members of the family, the allottees have only the right to occupy and use the lands which they cannot alienate or part with without the consent of the family.
Again the learned trial Judge held that the survey plan tendered by the Appellant did not exactly relate to the land in dispute and disregarded it in its entirety. He further held as follows:
“Even the Exhibit A tendered by the plaintiff as being the building plan for one of the structures he allegedly built on the land in dispute is completely unhelpful as there was nothing tying Exhibit A to any of the buildings on the disputed land in his evidence in chief, the PW1 said that he started building a second house on the land in dispute in 1991 but Exhibit A, which I had already described as useless to the case of the plaintiff not being tied to any structure on the land in dispute, has a June 1989 date and the plaintiff did not call as witness the person who drew Exhibit A, at least to confirm that the Exhibit A he produced was drawn to be built on the land in dispute…”
I agree with the learned trial Judge that the Appellant ought to have done more than he did no proof of his assertion at least by tendering some receipts of purchase of building materials and other relevant purchases. The Respondents therefore gave more convincing evidence to the fact that they asked for the land, were granted an allotment and they then proceeded to erect permanent structures thereon. I also subscribe to the fact that any custom that seeks to take away land that had been voluntarily handed over to any family member by the family head to build his home is indeed repugnant to natural justice equity and good conscience. This issue is also resolved in favour of the Respondents.
On whether the judgment is against the weight of evidence, learned counsel for the Appellant argued that the learned trial Judge did not properly evaluate the evidence before him and also properly assess the credibility of the witnesses. I have failed to see how the trial court did not assess the evidence of witnesses before it. Considering the fact that the court went into great detail in assessing the evidence adduced by each witness before him and making pronouncements on every salient detail. It is hereby noted that the trial Judge is in a vantage position to appraise and assess all the witnesses before him and an appellate court should be most reluctant to embark on a re-appraisal of such findings by the court below except when such findings have been known to be perverse. See the case of ATANDA v. AJANI (1989) NWLR (pt. 111) 511 where the Supreme Court held as follows:
“The law is that the duty of appraising and evaluating evidence given at the trial ii pre-eminently within the province of the court of trial which has the singular advantage of seeing and hearing the witnesses testify, although an appellate court may disturb the judgment of the court of trial in strictly limited cases such as when it is satisfied that the decision on the facts is wrong or perverse or not a result of improper use of judicial discretion or that the trial court failed to evaluate the evidence, or generally to take proper advantage of its having seen and heard the witnesses testify.”
See also the case of OJO-OSAGIE v. ADONRI (1994) 6 NWLR (Pt. 349) 131 where the Supreme Court held as follows:
“It is now settled law that if there has been a proper appraisal of evidence by a trial court, a Court of Appeal ought not to embark on a fresh appraisal of the same evidence in order merely to arrive at a different conclusion from that reached by the trial court. Furthermore, it a court of trial unquestionably evaluates the evidence then it is not the business of a Court of Appeal to substitute its own views for the views of the trial court. See FOLORUNSHO v. ADEYEMI (1975) NMLR 128 CAW; A. M. AKINLOYE v. BELLO EYIYOLA & ORS, (1968) NMLR 92 at page 85; BALOGUN v. AGBOOLA (1974) 19 S.C. 111.”
The Respondents had also made a counter claim in respect of the said land and properties therein in dispute, which the learned trial Judge properly assessed and dismissed accordingly stating that the Respondent’s counter claim has suffered some defects which the court regarded as fundamental. I also agree with the findings of the court below as regards the counter claim. In the result, I have also arrived at the following conclusions:
(a) That there was indeed a prior allotment of the land in dispute to the Respondents on which they built their permanent homes which warranted the finding of the trial Judge that as at 1985 – 1986 when UKE ATO ISINGWU purported to have partitioned the said land, it was no more available for sharing.
(b) That the Appellant did not adduce enough evidence to show that he actually erected the structures on the land in dispute.
(c) That the Appellant on the whole did not prove a better title to the property than the Defendants/Respondents and thus did not discharge the burden of proof required to get a declaration of title to land or damages for trespass and injunction based on the preponderance of evidence.
On the whole, and from the totality of all of the above, I find that this appeal is lacking in merit and I do dismiss it accordingly. This appeal is hereby dismissed and the Judgment of the trial court is accordingly affirmed. I shall also hasten to add that since this matter is among brothers, nephews, children and grandchildren of the patriarch, one Agwu Ihejirika, in a strange web of relationships, I shall make no order as to costs.
UWANA MUSA ABBA AJI, J.C.A.: I was privileged to read in advance the lead judgment of my learned brother, P. M. Ekpe, JCA just delivered.
The facts were clearly set out in the judgment of my learned I need not re-state them again. All the issues presented to us for the determination of the appeal are very well treated.
I therefore agree with the reasoning and conclusion of brother that the appeal is devoid of any merit. I too dismiss the appeal and endorse the consequential order as to costs.
JOHN INYANG OKORO, J.C.A.: I read before now the judgment of my learned brother, PHILOMENA MBUA EKPE, JCA just delivered and I agree with her that this appeal is devoid of merit at all. For the reasons given by her in the lead judgment which I adopt as mine, I also dismiss this appeal and abide by all the consequential orders made therein, that relating to costs, inclusive.
Appearances
A. C. Okaroafor, Esq.For Appellant
AND
For Respondent
