ANTHONY OSUJI v. OGBONNA OSUJI & ANOR
(2014)LCN/7376(CA)
In The Court of Appeal of Nigeria
On Thursday, the 10th day of July, 2014
CA/OW/354/2012
RATIO
EVIDENCE: BURDEN OF PROOF IN A SUIT FOR THE DECLARATION OF TITLE TO LAND; WHICH OF THE PARTIES HAS THE PRIMARY AND INITIAL BURDEN OF PROVING CLEARLY AND UNEQUIVOCALLY THE PRECISE AREA TO WHICH THE CLAIM RELATES
This being a suit for the declaration of title to land, the Plaintiff usually has the primary and initial burden of proving clearly and unequivocally the precise area to which the claim relates. This, I did not see the 1st and 2nd Respondents do this as Plaintiffs in this case. It is simply not enough to say that because the parties are conversant with the identity of the land in dispute, then efforts must not be made to establish that which ought to be established. The Appellant has not said that he is not conversant with the land in dispute, but what he considers to be the attributes, dimensions and features of the parcel of land are diametrically at variance with those of the Respondents. In the words of MUSDAPHER, JSC (as he then was) in the case of OGUN VS. AKINYELU & ORS (2004) LPELR – 2319 (sc), the Supreme Court said:
“…The law is settled that Plaintiff seeking a declaration of title to land has the initial and primary burden of proving clearly and unequivocally the precise area to which the claim relates. But this burden will not exist where the identity of the land in dispute was never a question in issue. The question of the identity of the land as an issue will only arise where the Defendant raises it in his Statement of Defense or in his testimony.” per. FREDERICK O. OHO,J.C.A.
LAND LAW: DECLARATION OF TITLE TO LAND; THE DUTY OF THE PLAINTIFF WHO HAS TO ESTABLISH WITH CERTAINTY THE IDENTITY OF THE LAND HE CLAIMS IN ORDER TO SUCCEED, TO FILE A COMPOSITE PLAN TO SHOW THE RELATIVE POSITIONS OF THE AREAS CLAIMED BY EITHER SIDE
In the case of BANKOLE VS. DADA (2002) LPELR – 10209 (CA), ONALAJA, JCA (as he then was) had this to say on the issue:
…”It is trite law that a plaintiff who seeks declaration of title has the burden to identify the land in dispute with definitive certainty. In the instant case where survey plans exhibits B and G were tendered the Respondent to establish the disputed land, with definitive certainty has the burden to relate the two disputed survey plans to show with certainty whether the disputed land covers the same piece or parcel of land in dispute; the desirability of filing composite plan was considered by the Supreme Court in JOHN BANKOLE & ORS. VS. MOJIDI PELU & ORS (1991) 8 NWLR (PT. 211) 523, where NNAEMEKA AGU, JSC at 550 said: “I need scarcely comment on who should have filed a composite plan, the plaintiffs or Defendants? It is a recognized principle in these land cases that, deriving from the fact that the onus of proof is not only on the Plaintiff but also is quite high, a well known stratagem by and weapon for the defense is to cause confusion. When as in this case, upon a view of the cases put up by both sides a confusion occurs, it is still the duty of the Plaintiff who has to establish with certainty the identity of the land he claims in order to succeed, to file a composite plan to show the relative positions of the areas claimed by either side…” per. FREDERICK O. OHO,J.C.A.
JUSTICES
ITA GEORGE MBABA Justice of The Court of Appeal of Nigeria
PETER OLABISI IGE Justice of The Court of Appeal of Nigeria
FREDERICK O. OHO Justice of The Court of Appeal of Nigeria
Between
ANTHONY OSUJI Appellant(s)
AND
1. OGBONNA OSUJI
2. JOHN KENNEDY OSUJI Respondent(s)
FREDERICK O. OHO,J.C.A. (Delivering the Leading Judgment): Before the High court of Imo State sitting at Owerri, Ogbonna Osuji and John Kennedy Osuji brought an action against Anthony Osuji claiming as follows:
1.A Declaration that according to the custom of Umudee Orji People, ALA MGBALA of a deceased belongs to her last son.
2. A Declaration that the land in dispute is the ALA MGBALA OF MRS. GRACE OSUJI, deceased and Grand Mother of the parties and the bonafide property of the Plaintiff.
3. AN Order of Court perpetually restraining the Defendants, his agents, privies, servants etc from further acts of trespass into and or claiming the Ala Mgbala of the Plaintiffs.
The learned trial Judge after hearing evidence and listening to the addresses of counsel, in a well considered judgment entered judgment for the Plaintiff in respect of the 2nd and 3rd items of the claim. The Defendant (herein after called: “the Appellant”) appealed against the said judgment. The Plaintiffs case, (who are hereinafter called; “the Respondents”) is that both the Respondents and the Appellant are all grandchildren of the Late Daniel and Grace Osuji. The Appellant’s father called Louis is the first son, while the Respondents’ father called Kelvin is the second and last son.
The parcel of land which is the subject matter of this suit is the MGBALA of the parties’ Grandmother Grace Osuji. The Respondents’ case is that they are entitled to the MGBALA by virtue of customary inheritance. The Appellant on the other hand is holding on to a section of the compound and has refused to relinquish it on the ground that where he presently is belongs to his Father by customary inheritance, who is elder Brother of the Respondents’ deceased Father. The Appellant has consistently maintained that the Ala Mgbala as it is in the con of this dispute, is not restricted to their Grand Mother Grace Osuji’s Kitchen alone, but forms part of the compound of the Late Daniel Osuji which included both what comprises the Ala Mgbala and the portion where the Grandfather of the parties, Daniel Osuji lived, died and was buried. That the Ala Mgbala also comprise the room where the Grandmother of the parties lived and died, the room where the female children of the parties grand parents lived before they got married, the kitchen, bathroom situate at the back of the two rooms.
According to the Appellant, under the Custom of Umudee Orji People, the Appellant is entitled to one of the three (3) room house where their grandfather, Daniel Osuji, lived,while the Respondents, had their father survived his parents, would have been entitled by inheritance to the room where their grandmother, Grace Osuji lived and died.
Appellant disclosed that in spite of the fact that Respondent’s father predeceased his parents, the Appellant’s father still apportioned to the Respondents the portion they are entitled to, which consists of the room of their grandmother, bathroom and a small portion of land located behind their grandmother’s room as well as the room of the parties, aunties, collectively known and called the ALA MGBALA in the circumstances of this case. Appellant further disclosed that the Respondents are in possession of the ALA MGBALA but have laid claims to the room where their grandfather Louis Osuji lived, which according to custom is the inheritance of the Appellant’s father and where Appellant’s father had been buried.
In appealing against the lower court’s judgment of the 30th day of July, 2012 only three Grounds of Appeal were filed, which without their particulars, are reproduced as follows:
GROUNDS OF APPEAL
i. The judgment is against the weight of evidence.
ii. ERROR IN LAW:
The court erred in law when it held that the Claimants are entitled to the land in dispute known as and called “ALA MGBALA” when the court earlier found that the Claimants did not prove the custom of his people regarding the inheritance of the “MGBALA”.
iii. ERROR IN LAW:
The court erred in law when it found that the pleading of the Claimants to the effect that “the boundary as shown by the elders and the Eze and Cabinet is well known to both parties. The boundary is not in dispute but when walling his land, the Defendant trespassed into this land and walled same off” was not denied or rebutted by the Defendant in the Amended Statement of Defense and as such the Claimants proved the land in dispute.
iv. ERROR IN LAW:
The court erred in law when it held that the Claimants are entitled to the land in dispute when the evidential burden of proving the ownership of the land in dispute has not shifted from the Claimants to the Defendants when the Claimants did not prove the custom of his people Umudee Orji, Imo State as found by the court on which his claim is based,
Parties in this appeal filed and exchanged their briefs of argument. The Appellant’s brief is dated and filed 1st day of March, 2013 and settled by (Nze) J.I. Ogamba. A total of two (2) issues were distilled for court’s determination as follows:
(1) Whether on a proper evaluation of the evidence on record as well as the dispute plans of the parties the lower court was right in declaring that the entire land as shown to be in dispute in the Claimants dispute/survey plan is the ALA MGBALA and that it belongs to the Claimants.
(2) Whether the evidence on record supports the judgment of the lower court that the land shown to be in dispute in the Claimant’s survey/dispute plan is the ALA MGBALA and belongs to the Claimants.
The 1st and 2nd Respondents brief of argument is dated the 20th November, 2013 but filed on 9th of December 2013; the said brief was settled by Victor Opara, Esq. who also filed a Notice of Preliminary Objection to this Appeal which he incorporated in his brief.
The Notice of Objection is predicated on four (4) Grounds of Objection thus:
(1) The issues for determination submitted by the Appellant are not distilled from any Ground of Appeal.
(2) The Ground or Grounds of Appeal from which no issue for determination is formulated is or are deemed abandoned.
(3) Where all the Grounds of Appeal are deemed abandoned, as in the instant case, the Notice of Appeal will of necessity become in competent.
(4) There is no valid Notice of Appeal upon which this appeal can be heard.
Learned 1st and 2nd Respondents’ Counsel adopted the issues formulated by learned Appellant’s counsel in this Appeal. Appellant’s counsel on the 16th day of January, 2014 filed a reply brief in response to the 1st and 2nd Respondents’ brief and the issues raised under the notice to preliminary objection. At the hearing of this Appeal on 10/6/2014 the parties adopted their respective briefs. The Appellant’s Counsel adopted the Appellant’s brief and Reply Briefs and prayed this Honourable Court to allow the Appeal and set aside the judgment of the trial court, while counsel to the 1st and 2nd Respondents adopted their briefs and the preliminary objection and urge this court to up-hold the preliminary objection and dismiss the Appeal. I shall first consider the Preliminary Objection raised by the 1st and 2nd Respondents as it is expected of this court.
DETERMINATION OF THE PRELIMINARY OBJECTION:
The 1st and 2nd Respondent’s grouse against this appeal is not against the hearing of the Appeal but with the Grounds of Appeal. As far as the Respondents are concerned, the grounds are incompetent and worse of all that the issues distilled for the Courts determination, in their conjuncture have not been so distilled from the grounds in this appeal. Having carefully read the Grounds and the issues in this Appeal, even though they have been largely inelegantly drafted, can it truly be said that there is not one or more of the Grounds by which this Appeal can be sustained? In the case of GENERAL ELECTRIC CO. VS. HARRY AKANDE (2011) 4 NSCQR P.611, the Supreme Court had this to say on the issue:
“….where as in this appeal the preliminary objection was filed against some grounds of appeal and there are other grounds of appeal that can sustain the appeal, a preliminary objection was inappropriate. The Respondent ought to have filed a motion on notice since the preliminary objection if successful would not have terminated the hearing of the Appeal as there were other Grounds of Appeal to sustain the appeal. Preliminary Objections are only filed against the hearing of an appeal and not against one or more grounds of Appeal which cannot stop the court from hearing the appeal…”
On the strength of this, I shall discountenance the Notice of Preliminary Objection raised in this appeal and deal with the substantive appeal on its merit. The notice of preliminary objection is accordingly struck out.
ISSUE 1:
WHETHER ON A PROPER EVALUATION OF THE EVIDENCE ON RECORD AS WEIL AS THE DISPUTE PLANS OF THE PARTIES, THE LOWER COURT WAS RIGHT IN DECLARING THAT THE ENTIRE LAND AS SHOWN TO BE IN DISPUTE IN CLAIMANTS’ DISPUTE/SURVEY PLAN IS THE “ALA MGBALA” AND THAT IT BELONGS TO THE CLAIMANTS.
Learned Appellant’s counsel referred this court to the State of the pleadings in this case as well as the evidence of the parties and their witnesses on record. It may be necessary to note at this stage that the 1st Respondent at the trial testified as the PW3 and that his evidence is contained at pages 59 to 63 of the Record of Appeal. He called two other witnesses namely; the surveyor as the PW2 whose evidence is at page 57 to 58 of the Record while his PW1 certain Martin Njere, their Kindred head, but not a member of the family has his evidence at page 54 of the Records of Appeal. It should further be noted that the Appellant testified as the DW1 and that his evidence is at pages 74 to 81 of the Record of Appeal. He called two other witnesses, the DW2 who appeared in court upon the service of a sub-poena and then the DW3. Their testimonies are recorded at pages 83 to 96 of the Records of Appeal. While the DW2, a certain Nze Emmanuel Aribe, is the maternal uncle of the parties, the DW3, Mrs. Bibiana Anyanwu (Nee Osuji) is a sister of same parentage as the fathers of the parties. In other words, she is the aunt of the parties.
In his submissions before court, learned Appellant’s counsel could not understand how the trial court could have arrived at the conclusion it did at page 133 of the record when the court said:
“…Both parties know the identity and boundaries of the land in dispute. The case of the parties is not a boundary dispute but ownership relinquishing of possession of the Mgbala by the Defendant to the Plaintiffs. The two issues are resolved in favour of the Claimants…”
Learned Appellant’s counsel referred copiously to the printed evidence on record of the parties and further contended that when the witnesses of the Appellant as Defendant before the lower court testified, they succeeded in giving unchallenged and un-contradicted evidence both in chief and under Cross Examination that the Mgbala, subject matter in dispute in this case is made up of:
(a) The room where their Grandmother lived and died.
(b) The Grandmother’s kitchen including:
(i) The Bathroom of the compound located far behind.
(ii) The room where the female children of their Grandmother lived.
(iii) The portion of land behind the room of their Grandmother which has been given to the Respondent.
According to learned counsel, by the state of the pleadings and evidence of the Appellant and its witnesses at the lower court, the actual meaning of “MGBALA” as defined by the Appellants was proved before the lower court who completely ignored same. Counsel further contended that in seeking to establish the exact location, dimensions and portions of the Mgbala, both sides filed survey plans before the court below. That while the Respondents filed the Exhibit “A” the Appellant filed the Exhibit “B”. It was counsel’s further contention that the exact location of the Mgbala was made known by the evidence of both the PW3 and the PW1 at pages 61, 62 and 63 of the Record of Appeal respectively. The said PW3 and PW1’s pieces of evidence, counsel further contends, supports the Appellant’s side of the story which is contained at page 76 of the Record of Appeal at line 19.
Counsel said that while for obvious deliberate reasons the Respondent’s survey plan in Exhibit “A” failed to delineate the compound in dispute so as to bring out the salient features involved, that the Appellant’s survey plan, on the other hand, did the opposite, showing clearly all the necessary features in the compound including the two rooms of their Grandmother, the kitchen, the general bathroom of the compound and the small piece of land adjourning the kitchen, and which counsel said is collectively called the ‘ALA MGBALA”.
Learned counsel further explained that from the Exhibit “B”, it is very clear that it is the room of the parties’, grandfather and not the Ala Mgbala that is in dispute. He further said that the Respondents’ erroneous definition of ALA MGBALA is the room of the parties’ grandfather where he lived and was buried and not the Ala Mgbala of their grandmother which is already in the Respondents’ possession. Learned counsel contended that the Appellant only put up the wall to demarcate his proved inheritance (i.e. the room where their grandfather lived and died and in which his father was buried) from the “ALA MGBALA’. Learned counsel concluded that the Appellant through his pleading and the evidence led in support showed the location of the “ALA MGBALA” subject matter of this action.
Learned Appellant’s counsel further contented that the evidence of the PW3 at pages 61 and 62 of the Record of Appeal amounts to an admission against interest as it resolved the issues of who is in current possession of the “ALA MGBALA”. Learned counsel referred to the case of NBCI VS. INTEGRATED GAs LTD (2005) 3 MJSC 40 AT 63; OWIE VS. IGHIWI (2005) 3 MJSC 82 AT 99.
Learned counsel finally urged the court to resolve the issue one in favour of the Appellant.
On the part of the 1st and 2nd Respondent, learned counsel contended that since the identity of the parcel of land in dispute was not in issue there was therefore, no burden on the Respondents to prove the identity of the land in dispute. According to counsel, the issue of the identity of the land only becomes one in issue, where the Defendant in the course of trial raises it in his Statement of Defense or makes it an issue by contending in his Statement of Defense that he disputes specifically either the area or the size or the location or features shown on the Plaintiffs plan. Counsel also said that the Defendant can also raise the issue in his evidence or during Cross Examination and cited the authority of the case of OSANYIMBI VS. SOKENU (2001) 3 NWLR (PT.699) 176 AT 181 in support and also the case of ALABI VS. OLOYA (2003) 6 NWLR (PT.14) 708.
Counsel further argued that by the Respondents’ Statement of Claim at paragraph L7, the Respondents did not mince words about the fact that, “the boundary as shown by the Elders and Cabinet is well known to both parties.” And that the: “Boundary is not in dispute but when walling his land, the Defendant trespassed into this land and walled same off…” According to learned Respondents’ counsel, this averment was not denied by Appellant even in his Amended Statement of Defense. Counsel further said that to make matters worse, in his evidence in Chief Appellant made no issue of the identity of the land and that even during Cross Examination of the Respondents and their witnesses, no such issue was also made of the identity of the land.
It is the submission of Respondent’s counsel that it would be too late in the day, for the Appellant to suddenly wake up from his slumber to begin to argue that the identity of the land is in dispute and urged this court to so hold.
On the challenge posed to the Respondents, Exhibit “A”, which is the Respondents’ dispute survey plan tendered at the lower court, on the ground that the said Exhibit “A” is not accurate and has not shown the definite features and boundaries of the land in dispute, learned Respondents’ counsel, submitted that the Appellant was wrong as the valid way or procedure to challenge the accuracy of the Respondents’ dispute plan at the stage of Appeal would be for the Appellant to comply with the prescriptions handed down in the case of NWABUOKO VS. ONWORDI (2002) 3 NWLR (PT.755) 558 AT 582 paragraph F to O.
Appellant having admitted and having not joined issue with the Respondents on the issue of the identity of the land in dispute at the court below, Respondent’s counsel said, that it would be too late in the day to raise that as an issue on appeal, more so when the Appellant’s witnesses at the lower court were ‘ad idem’ that the Respondents are entitled to the “Ala Mgbala” land in dispute. On behalf of Respondents, learned counsel denied completely that there was ever an admission against interest in the evidence of the PW3 herein who testified thus: at page 62 lines 3 – 4:
“It is not true to say that Louis Osuji gave us the place where Grace Osuji lived and died. Louis Osuji was buried in his mother’s Mgbala.”
In urging court to hold that PW3 gave no evidence which became an admission against interest, learned Respondent’s counsel urged this court to resolve the issue 1 in favour of the 1st and 2nd Respondents.
I have carefully considered the submissions of learned counsel for the parties alongside the pleadings and evidence given before the lower court. It is pertinent, perhaps to begin by asking whether the issue of the identity of the parcel of land was never brought into focus at the lower court between the parties? In pondering over this matter, pleadings and evidence of the parties, alongside their submissions, it is all too glaring from the printed Records that while the Appellant seem to be shouting himself hoarse over the true identity of the land in dispute, the 1st and 2nd Respondents on the other land seem complacent and indeed comfortable and satisfied by the learned trial court’s finding on the issue when the court said at page 132 to 133 of the Record of Appeal as follows:
“…the Plaintiff in paragraph 17 of the Statement of Claim stated as follows: “The boundary as shown by the Elders and the Eze and his Cabinet is well known to both parties, The boundary is not in dispute but when walling his land, the Defendant trespassed into this land and walled off same. The Defendant did not specifically deny this averment. Both parties know the identity and boundaries of the land in dispute …”
But the relevant question and perhaps the perennial question that refuses to be suppressed in this case as one reads through the facts, is: whether a proper delineation of the land in dispute was ever raised or made an issue in both the pleadings of the Appellant as Defendant and through the evidence of the witnesses who testified for him? In paragraphs 4 and 5(a) to (e) of the Appellants Amended Statement of Claim, the following averments at pages 48 to 49 of the printed record can be found;
“(4) The land the subject matter of the suit is more particularly shown and described on the Defendant’s plan no. PON/IM/002n/2004 filed with this Statement of Defense and thereon verged red.
(5) The land in dispute is bounded as follows:
(a) On the North by the House of the Defendant and his brothers inherited from their father Late Louis Osuji.
(b) On the North East by the House of Late Chikezi Osuji, step brother to Late Pa Daniel Osuji.
(c) On the North West by the House of the Plaintiffs inherited from their Late father, Kevin Osuji.
(d) On the East by the House of Paul Osuji build by Pa Daniel Osuji and house of Chiekezi Osuji, step brother to Late Pa Daniel Osuji.
(e) On the West by the Ala Mgbala of Mama Grace Osuji given to Plaintiffs by Late Louis Osuji (Father of Defendant), Kitchen of Late Mama given to the Plaintiffs by late Louis Osuji, House built by Pa Daniel Osuji where Mama Grace Osuji lived before she died but now given to the Plaintiffs by Late Louis Osuji, Father of the Defendant; further West by House build by Late Kevin Osuji, Father of the Plaintiffs and the Osuji’s general bathroom before the death of Daniel Osuji now in possession of the Plaintiffs.”
It is interesting to note that the Respondents herein, upon being served with the Appellant’s Amended Statement of Claim of the 24th day of June, 2004, responded with the filing of a Reply to Statement of Defense where at page 35 of the Records of Appeal and at paragraph 2 merely denied the Appellant’s paragraph 5 in the following few words:
(2) The Plaintiffs deny paragraph 5 of the Statement of Defense and shall lead evidence to show the inaccuracy of the said paragraph.”
From this averment in paragraph 2 made by Respondents in their Reply to the Amended Statement of Defense in answer to the Appellant’s paragraph 5, there seem to be a further question that requires to be answered here, thus: Whether 1st and 2nd Respondents apart from denying the Appellant’s paragraph 5 of his Amended Statement of Defense did keep their words in leading evidence to show the inaccuracies of the said paragraph 5 as they said they would?
The answer to this question is of course can only be rendered in the negative arising from the showing of the Respondents themselves in this case. The PW1 at the court below, a Farmer of 78 years of age gave evidence in support of the 1st and 2nd Respondents. His evidence is contained at pages 53 to 56 of the printed Record. He gave no evidence touching on the description of the parcel of land in dispute. The PW2 in the matter is one Surveyor Mark Esogwa Iwuchukwu. He merely tendered in Evidence as the Exhibit “A”, the survey plan he was commissioned by the Respondents to produce. His evidence is at pages 57 to 58 of the Records of Appeal. No descriptions were made by him or any descriptions given in evidence as to the features of the parcel of land in dispute between the parties, apart from tendering the Exhibit “A”. The argument could be rife, that by tendering the Exhibit “A” herein, that sufficiently takes care of the need to delineate properly the parcel of land in dispute showing the boundaries/demarcations of the compound and the present stead of the parties. That in truth might be a cogent and compelling argument on the part of the Respondents, but in the situation where there is a second survey plan and in which the features of the parcel of land in dispute are shown to be at variance with the survey plan already tendered, then that argument may no longer suffice and indeed becomes useless. I shall be coming back to further develop this argument in the course of this judgment at the appropriate stage.
In the case of the 1st and 2nd Respondents’ PW3, his evidence is at pages 59 to 62 of the Record of Appeal. Once again, no descriptions concerning the demarcations of the parcel of land, its features and its boundaries were made. Consequently, the 1st and 2nd Respondents at the court below as Plaintiffs either through their pleadings or evidence led by them or through their witnesses in court failed in describing the parcel of land upon which they had invited the intervention of the court to make positive orders in their behalf.
This being a suit for the declaration of title to land, the Plaintiff usually has the primary and initial burden of proving clearly and unequivocally the precise area to which the claim relates. This, I did not see the 1st and 2nd Respondents do this as Plaintiffs in this case. It is simply not enough to say that because the parties are conversant with the identity of the land in dispute, then efforts must not be made to establish that which ought to be established. The Appellant has not said that he is not conversant with the land in dispute, but what he considers to be the attributes, dimensions and features of the parcel of land are diametrically at variance with those of the Respondents. In the words of MUSDAPHER, JSC (as he then was) in the case of OGUN VS. AKINYELU & ORS (2004) LPELR – 2319 (sc), the Supreme Court said:
“…The law is settled that Plaintiff seeking a declaration of title to land has the initial and primary burden of proving clearly and unequivocally the precise area to which the claim relates. But this burden will not exist where the identity of the land in dispute was never a question in issue. The question of the identity of the land as an issue will only arise where the Defendant raises it in his Statement of Defense or in his testimony.”
It is of course clear from the foregoing that the onus in the instant suit is on the 1st and 2nd Respondents to establish with certainly the identity of the “ALA MGBALA” to which they lay their claims. This of course they can do in one of two ways, viz; by oral evidence describing with such degree of accuracy the said “ALA MGBALA” in a manner that will guide in producing a survey plan of the said land. See the case of BARUWA VS. OGUNSOLA (1938) 4 WACA 159. Another way of doing this will be by the filing of a survey plan reflecting all the features of the “ALA MGBALA” and showing clearly its boundaries. See the case AWOTE VS. OWODUNNI (NO. 2) (1987) 2 NWLR (PT. 57) 366. By way of a slight digression, one cannot stop wondering how the trial court arrived at the finding that “the boundary is not in dispute” when there is abundance of evidence on the Record that the “ALA MGBALA” claimed by the Respondents as shown in the dispute plan in Exhibit “A” is materially at variance with the “ALA MGBALA” shown in the Appellants plan in Exhibit “B”. The only suggestion here, perhaps, is that the learned trial judge must have rested his judgment on a wrong evaluation of the evidence. In the case at hand both sides tendered survey plans of the parcel of Land in dispute. The Appellant tendered the Exhibit “B” while the 1st and 2nd Respondents tendered the Exhibit “A”. The Survey Plans tendered by both sides have been shown to be at variance with the parties, each claiming to having produced a better survey plan.
I cannot in all sincerity say in the instant suit, that the Respondents did all that was expected of them to establish their claims as set out in this case. Learned Respondents’ counsel had made submissions back and forth and had claimed that the Respondents’ evidence before the lower court concerning the issue of the identity and location of Land in dispute was not challenged by the Appellant at the Lower Court. But I sincerely have great course to disagree with this submission as the mere act of the Appellant tendering its own survey plan, effectively constitutes a form of challenge to the position taken and presented by the Respondents on the issue, What was therefore expected of the Respondents rather basking in some false euphoria by which they were convinced that the Exhibit “A” was to say the least unassailable, was for them to have produced a composite survey plan which they did not do.
In the case of BANKOLE VS. DADA (2002) LPELR – 10209 (CA), ONALAJA, JCA (as he then was) had this to say on the issue:
…”It is trite law that a plaintiff who seeks declaration of title has the burden to identify the land in dispute with definitive certainty. In the instant case where survey plans exhibits B and G were tendered the Respondent to establish the disputed land, with definitive certainty has the burden to relate the two disputed survey plans to show with certainty whether the disputed land covers the same piece or parcel of land in dispute; the desirability of filing composite plan was considered by the Supreme Court in JOHN BANKOLE & ORS. VS. MOJIDI PELU & ORS (1991) 8 NWLR (PT. 211) 523, where NNAEMEKA AGU, JSC at 550 said: “I need scarcely comment on who should have filed a composite plan, the plaintiffs or Defendants? It is a recognized principle in these land cases that, deriving from the fact that the onus of proof is not only on the Plaintiff but also is quite high, a well known stratagem by and weapon for the defense is to cause confusion. When as in this case, upon a view of the cases put up by both sides a confusion occurs, it is still the duty of the Plaintiff who has to establish with certainty the identity of the land he claims in order to succeed, to file a composite plan to show the relative positions of the areas claimed by either side…”
This of course, the Respondents also failed to do in this case. Against this background, and especially where 1st and 2nd Respondents could not establish the exact situs of the “ALA MGBALA’, I am unable to find any plausible reasons why the lower court had cause to disbelieve the evidence of the Appellant’s DW2 and DW3 on the issue, or the PW1 under Cross-Examination and the PW3 also on the issue. The DW2, who is maternal uncle to both sides at page 81 paragraphs 16 of the Records testified thus:
“…That the Claimants in their conscience know that the Mgbala has already been apportioned to them by the previous sharing by the head of the family (Louis Osuji) and the later settlement by me…”
Under Cross Examination, the DW2 at page 92 last sentence also stated thus:
“… The Mgbala belongs to the Plaintiffs and has been given to them.”
On the part of the PW1, under Cross Examination he said at page 55 of the record, thus:
“…The grandfather of the Plaintiff and the Defendant built two rooms house for Grace which is regarded as the Mgbala.”
The PW3 also under Cross Examination admitted at page 62 that:
“…Daniel Osuji built another house by the side of his own house which he built for his wife, Grace Osuji…”
The DW3, Aunt to the parties in her evidence at page 86 of the Records of Appeal stated thus:
“…That the Claimants in their conscience know that what they are claiming is not their own,”
Under cross examination, she further said:
“…The place my mother used as her Mgbala is located behind her kitchen. The additional place or space given to the Claimant is also behind my mother’s kitchen,”
To conclude on the Appeal, the issue 2 is struck out as it is repetitive or has the tendency of becoming so upon its full analysis. It is my view however that the Appeal succeeds. The Judgment of the lower court is therefore hereby set aside. In its place, is entered an order dismissing the claims of the 1st and 2nd Respondents, the Plaintiffs in the court below.
Parties to bear their respective costs
ITA GEORGE MBABA, J.C.A.: I was privileged to read the draft of the lead judgment just delivered, by my Learned brother, F.O. Oho JCA and I agree with his reasoning and conclusion, that the appeal is meritorious.
From the evidence of the DW2 (maternal uncle of the parties):
“… The Claimants in their conscience know that the Mgbala has already been apportioned to them by the previous sharing by the head of the family (Louis Osuji) and the later settlement by me…) (Page 81 of the Records)
Under Cross examination, he said:
“… The Mgbala belongs to the Plaintiffs and has been given to the…”
The above agreed with the evidence of DW3, an Aunt of the parties, who said:
“… The Appellants in their conscience know that what they are claiming is not their own’ And she added under Cross examination:
“….The place my mother used as her Mgbala is located behind, her Kitchen. The additional place or space given to the Claimant is also behind my mother’s kitchen”
The Plaintiffs’ witnesses, particularly, PW1 (78 year old kindred head of the parties) had earlier testified that, culturally the Mgbala – place/rooms of abode used by the grandmother of the Claimants, belonged to them since their father was the last born of his own father. PW1 said:
“The last born of a father owns the Mgbala, He is Kevin Osuji. He is the father of the plaintiff Kevin Osuji is dead. The 1st son of Kevin is the person entitled to inherit his property. Under the Custom of Umukehi, it is the last son of a woman that inherits Mgbala…We looked into this Mgbala dispute and decided that it belonged to Kevin and Louis accepted our decision. Louis is now late. The Eze of Orji also looked into the matter. He requested us to show him the land … He advised the said Louis to accept our decision… Louis told us that he would hand over the Mgbala to Ogbonna, the son of Kevin, but he did not do so…,, page 53 of the Records.
Under cross examination PW1 said:
“… The Mgbala is ordinarily owned by a married woman. If a woman dies before the children, the last son inherits the Mgbala. I know the custom of our people very well. I know the land in dispute. I am the kindred head of the parties in this case, None of them is more related to me …” (page 54 of the Records)
I think there was agreement that the Mgbata belonged to the Claimants. What was rather in dispute appeared to be the specific fands or locations that fell within the Mgbala. That was where the claimants’ survey plan and the Defendant’s plan differed with regards to the very lands or portion in the two plans that fell within the agreed Mgbala. Of course, the claimants had a duty to establish the same, clearly, which they failed, implying that what the Appellants asserted in their plan as constituting the Mgbala, was wrong. I think regards has to be given to the evidence of the maternal uncle and Aunt of the parties, who said that the lands given to the Claimants remained the Mgbala!
I think it is more safe to keep the matter at that. See Bankole & Ors. Vs. Pelu & Ors. (1991) 8 NWLR (Pt.211) 523; Bankole vs. Dada (2002) LPELR – 10209 (CA), on the burden placed on the Plaintiff to prove accurately the land he claims.
With this and fuller reasons in the lead judgment, I too allow the appeal and abide by the consequential orders in the lead judgment.
PETER OLABISI IGE, J.C.A.: I have read in advance the judgment just delivered by my Lord OHO JCA, and I agree entirely with the said judgment.
Appearances
(NZE) J. I. Ogamba:For Appellant
AND
I. I. Otukwula, Esq,: counsel for the 1st and 2nd RespondentsFor Respondent
