AUGUSTINE EZIBUO & ORS v. IGNATIUS IHEJIOFOR & ORS (2014)

AUGUSTINE EZIBUO & ORS v. IGNATIUS IHEJIOFOR & ORS

(2014)LCN/7655(CA)

In The Court of Appeal of Nigeria

On Monday, the 8th day of December, 2014

CA/E/250/2008

RATIO

EVIDENCE: PROOF OF TITLE TO LAND; WAYS OF PROVING TITLE TO LAND

In the proof of title to land, such as in the instant case, it is imperative that the Plaintiff must succeed on the strength of his own case and not on the weakness of the defence, although he may take advantage of the Defendant’s evidence where it supports his case. See Onwugbufor V Okoye (1996) 1 NWLR (Pt 424) 252, Ibidundu Vs
There are five ways of proving title to land recognized by law, to wit.
(a) by traditional evidence,
(b) by production of documents of title, which are duly authenticated;
(c) by acts of selling, leasing, renting out all or part of the land, or farming on it or on a portion of it,
(d) by acts of long possession and enjoyment of the land, and
(e) by proof of possession of connected or adjacent land in circumstances rendering it probable that the owner of such connected or adjacent land would, in addition, be the owner of the land in dispute,
It has been the decisions of superior courts of record that a Plaintiff is discharged if he establishes any of the five ways or methods. See Idundun Vs Okumagba (1976) 9 – 10 SC.227 and Nkado Vs Obiano (1975) 5 NWLR (Pt.503) 31. per. AMIRU SANUSI, J.C.A.

COURT: GOOD JUDGMENT; WHAT CONSTITUTES A GOOD JUDGEMENT

It is an established principle of law that a good judgment in a civil case is constituted of more or less five distinct parts namely:
(a) the introduction of the issues in controversy between the parties;
(b) the cases of either side to the litigation as revealed on the pleadings;
(c) the evidence called by either side in support of its case;
(d) the resolution of the issues of fact and law put forward by each party; and
(e) the court’s conclusions based on the resolution of the issues and claims before the court. See U.B.A Plc V S.A.F.P.U (2004) 3 NWLR (PT.861) 516 and IDAKWO V.NTGERTAN ARMY (2004) 2 NWLR (PT.857) 249. per. AMIRU SANUSI, J.C.A.

Before Their Lordships

AMIRU SANUSIJustice of The Court of Appeal of Nigeria

EMMANUEL AKOMAYE AGIMJustice of The Court of Appeal of Nigeria

SAIDU TANKO HUSSAINIJustice of The Court of Appeal of Nigeria

Between

1. AUGUSTINE EZIBUO
2, JOHN EZE
3. IGNATIUS IFEANYI
4. PETER ONWUABUSIM
5. CHRISTOPHER ONWUABUSIM
6. FREDRICK UBAKA ONWUABUSIM
7. CHRISTOPHER MGBENWELUAppellant(s)

AND

1. IGNATIUS IHEJIOFOR
2. CYPRAIN MGBENWELU
3. EMMANUEL OJIMADU
4. GODWIN MADUEKWE
5. EDWIN NWABUGWU
(Suing for themselves and as Representing Ezike – Awa family of Umuduru – Uzoakwa, Ihiala Except Christopher Mgbenwelu).Respondent(s)

AMIRU SANUSI, J.C.A. (Delivering The Leading Judgment): This is an appeal against the judgment of High Court of Anambra State (“the Lower Court” for short) delivered by Uzoewelu J. on 26th November 2007 in Suit No.HID/6/1984 in which the respondent herein as plaintiff, took a Writ of Summons against the present appellant who were the defendants thereat. The respondents/plaintiffs also attached to the Writ, a fourteen paragraph original statement of claim dated 14/5/1984 wherein they jointly and severally claimed the underlisted reliefs against the defendants (now appellants). The reliefs sought are as follows:-
“(i) N10,000.00 general damages for trespass on the said land verged green in the plaintiffs, plan No.MEC/1609/84.
(ii) A declaration that the plaintiffs are entitled to a customary right of occupancy over that parcel of land verged pink in the said Survey plan No.MEC/1609/84.
(iii) A declaration that the plaintiffs are entitled to a customary right of occupancy over that area of land verged green in the said Survey plan.
(iv) A declaration that by the native law and custom of IHIALA, a piece of land in Ihiala on pledge can be redeemed at any point in time by the pledgor or his rightful successor (“once a pledge always a pledge”).
(v) A declaration that by the custom of IHIALA, family land cannot be alienated from the family without the consent or concurrence of the important members of the family.
(vi) A declaration that the Plaintiffs are entitled in possession to the land by Ihiala custom on payment of the redemption money or on unequivocal presentation of the same to the pledge whether or not he accepts it.
(vii) A declaration that by the custom of Ihiala, the redemption of the said land by the 7th Defendant in those circumstances amounted to redemption by the Plaintiffs themselves.

Upon filing of the Writ by the plaintiffs/respondents, the Lower Court ordered parties to file and exchange their pleadings and with the leave of the Lower Court, the plaintiffs/respondents amended their original statement of claim and later further amended their statement of claims, Sequel to that, the defendants/appellants also amended their statement of defence. Trial thereupon commenced in earnest on 21/7/1999. In the course of the trial the 1st plaintiff was with leave of the Lower Court substituted his late father and he testified at the trial as PW1 and he called another witness for the plaintiffs’ case. The defendants on the other hand, called five witnesses for the defence and tendered some documentary exhibits. At the end of the trial, the parties learned counsel filed written addresses, while the defendants’ counsel filed Reply to the plaintiffs’ written address. After the adoption of written addresses and Reply by the learned counsel, the Lower Court delivered its judgment on 26/11/2007 in favour of the plaintiff/respondent and granted some of the reliefs of plaintiffs when it held thus:

“It is hereby declared that the plaintiffs are jointly and severally entitled to a statutory right of occupancy over the land in dispute verged pink and also over the area verged green in the plaintiffs’ claim.
(ii) Reliefs Nos (iv) and (v) are known principles of law and need no further declaration.
(iii) Reliefs Nos (vi) and (vii) are already taken care of in the judgment and cannot be enforced by declaration but by evidence.”

The Lower Court went further to award N30,000 (thirty thousand Naira damages for trespass and injunction even though same were not specifically asked for.

Piqued by the decision of the Lower Court, the defendants now appellant appealed to this court vide a Notice of Appeal dated 20th December 2007.

The grounds of appeal in the said Notice of Appeal are hereunder reproduced :-
“Grounds of Appeal
(1) The Judgment is against the weight of evidence
(2) Error of Law – The court below was in error when it transferred the onus of proof by the plaintiffs, of their case to the Defendants against the known stipulation of the Law as laid down in Kodilinye V Odu 2 WACA 336; – that the Plaintiff shall succeed on the strength of his case made out on credible evidence, and not on the weakness of that of the Defendants.
(3) The learned trial judge failed to make a dispassionate appraisal and evaluation of the evidence before her, made wrong assessments and findings, wrong conclusions which resulted in a miscarriage of justice.
(4) The appellants will file more grounds of appeal on receipt of the copy of the record of proceedings.”

In accordance with the rules of Court of Appeal, the parties through their legal representatives duly filed, exchanged and adopted their Briefs of Argument in support of their contentions and positions in the appeal. The Appellants’ Brief of Argument dated 8th October 2008 and filed on 9th October, 2008 was settled by CHIEF A. O. MOGBOH, SAN. The Respondents’ Brief of Argument dated 18th November, 2009 and filed on 8th December, 2009 was settled by IKENNA C. EJINKONYE ESQ, while the undated Appellants’ Reply Brief of Argument filed on 18th May, 2011 was settled by I. C. UZOEFUNA. The Appeal was taken on 22nd Sept, 2014 and judgment was reserved.

The learned Senior Advocate for the Appellants formulated five (5) Issues for determination of the appeal. The Appellants, Issues for determination read thus:
1. Whether the further Amended Statement of Claim purportedly filed by the plaintiffs and the reply were properly filed and served, as it appears that no filing fees were paid for them.
2. Whether the plaintiffs pleaded and gave evidence of the ingredients that will enable a court to grant declaration of title.
3. Whether the learned trial judge was right in considering the defence and demolished same before considering the case of the plaintiffs.
4. Whether items (ii) and (iii) of the judgment amounted to any judgment at all in the circumstances of this case.
5. Whether the 3rd Defendant did not re-purchase the land in dispute when he paid the Plaintiffs the sum of N17,500.00 (Seventeen thousand, five hundred Naira) for the matter to be settled.

In the Respondents’ Brief of Argument, their learned counsel raised a Preliminary Objection as to whether the Appellants can raise in their Issue for determination that which is a new issue on non-payment of filing fee in respect of Further Amended Statement of Claim and the Reply by the Respondents, without first obtaining the necessary leave of court to argue the point.

In adopting the Appellants’ five Issues for determination, the learned counsel for the Respondent made an alternative argument against the Appellants’ Issue No. 1, should his Preliminary Objection fail.

I will now proceed to consider the merit or otherwise of this appeal based on the Issues distilled by the Appellants.

The Appellants’ Issues for determination had earlier been reproduced in five paragraphs of this judgment. It is therefore needless reproducing same again. Since the preliminary objection has been raised in issue No.1 in the Appellants’ brief, I will address it when treating that issue.

ISSUE No. 1
It is the case of the Appellants that the Respondents’ Further Amended Statement of Claim and the Respondents’ Reply to the Appellants’ Amended Statement of Defence were incompetent and not proper before the trial court as it appears the necessary filing fees were not paid. The learned Senior Advocate for the Appellants referred the court to pages 62, 63 and 97 of the record of appeal.

The learned counsel for the Respondents in his argument in support of his Preliminary Objection contends that the issue now raised on appeal is a new Issue as the same was neither raised nor adverted to by the Lower Court. Relying on the authority of A. N. Mohammed Pet Ltd V Afribank Nig Plc (2006) 17 NWLR (Pt.1007) 131 ratio 2 at 155 paras E/H, the Respondents’ counsel submitted that before a new Issue could be allowed the cardinal principles are whether the Issue involved substantial Point of Law and no further evidence needs to be adduced which would affect the decision on the matter. However, the learned counsel debunked the assertion of the learned senior Advocate for the Appellants over the alleged nonpayment of process fees. He referred the court to pages 63 and 94 of the record of appeal for clarification.

In his Reply to the Respondents’ Brief of Argument I. C. UZOEFUNA of counsel for the Appellants argued that the Respondents submission that the Respondents’ Preliminary Objection is incompetent as it offends Order 10 Rule 1 of Court of Appeal Rules, 2007. He argued further that the Preliminary Objection should be by way of Notice and the requirement for notice under the rule is mandatory on a respondent who intends to raise a Preliminary Objection. He referred to Order 10 Rule 3, Court of Appeal Rules, 2007 and DINGYADI V. INEC (2010) 18 NWLR (Pt.1224) 1 (ratio 2).

It is the further contention of the Appellants that a Preliminary Objection can only be raised against the hearing of an appeal and not for an Issue. He referred to the case of MAIYEGUN V. GOV., LAGOS STATE.

I have carefully perused the argument of the learned counsel for the parties over the Appellants ‘Issue No. 1 and the Respondents’ Preliminary objection thereto. I have also perused the Rules of the Court of Appeal as it affects the filing of Preliminary Objection. The Respondents, Brief of Argument on record was deemed filed on 19/1/2010 while the appeal was taken on 22/9/2014. A Notice of Preliminary Objection can be filed separately or incorporated in the Respondents’ Brief of Argument. In the instant appeal, I must say that the Respondents’ Preliminary Objection as contained in their joint Brief of Argument is competent before this court, contrary to the submission of the learned counsel for the Appellant. The purpose of preliminary objection is to avoid taking him by surprises. Since it was shown that Notice of Preliminary Objection was in the Respondent’s brief, then the Appellants were not taken by surprise. It is therefore competent. See Williams Vs Williams (2008) 10 NWLR (Pt.1095) 364.

In considering the argument of counsel for the Respondent on his Preliminary Objection, I have rummaged through the Record of proceedings at the trial court. I found out that the Issue of non-payment of process filing fees was not raised at all before the trial court. In the instant case the learned senior Advocate for the Appellants with due respect, in his brief raised the question of regularity or otherwise of the Respondents, Further Amended Statement of claim and Reply to the Amended statement of defence as it appears that no filing fees were paid for them. There is no doubt that the fresh point being raised now by the appellants was neither canvassed nor contested in the trial court. It is common ground that an appeal court will not ordinarily entertain Issues that are fresh and not brought before and decided by the Lower Court. See Niger Progress Ltd V. North East line Corporation (1989) 3 NWLR (Pt. 107) 68 at 100. In this court, no such fresh issue or point shall be entertained without the leave of the court having been had and obtained. The attitude of this court on raising fresh points on appeal has been expressed in the cases of Akpene V Barclays Banks of Nigeria (1977) 1 SC 471, Abinabina V Enyinadu (1953) 12 WACA 171, Djukpan V. Orovuyovbe (1967) 1 All NLR 134 at 137 – 138, Oniah V. Onyia (1989) 1 NWLR (Pt.99) 514, Makanjuola V. Balogun (1989) 3 NWLR (Pt.108) 192.

In the instant case, the Appellants’ counsel did not obtain any leave of this court to raise the Appellants’ Issue No. 1 and no leave was granted to him to do so. The Appellant Issue No.1 cannot therefore be considered in this appeal. It is accordingly discountenanced and consequently struck out.

Now that the Appellants’ Issue No. 1 is discountenanced on grounds of incompetence, the Appellants, surviving issues for determination are to be considered.

I will consider the Appellants’ Issues No. 2 and 3 together as they border on the evidence of the parties before the trial court. For purpose of clarity, I will here-below reproduce the Appellants’ Issue Nos 2 and 3 as follows:
“Appellants’ Issue No. 2
Whether the Plaintiffs pleaded and gave evidence of the ingredients that will enable the court to grant declaration of title.
Appellants’ Issue No. 3
Whether the learned trial judge was right in considering the defence and demolished same before considering the case of the Plaintiff.”

The Learned senior Advocate for the Appellants submitted that the Respondents did not sufficiently prove and plead how the land in dispute was originally acquired whether by conquest or discovery as a virgin land. He referred to the cases of NZEAMA Vs EBYZOEME (2006) 9 NWLR (PT.985) 217 and AIGBOBAHI V. AIFUWA (2006) 6 NWLR (PT.975) 270 AT 275 – 277.

It was the further contention of the Appellants’ Counsel that the learned trial judge did not consider Exhibit G tendered by the Appellants at the trial. Rather the learned trial judge held that the 2nd and 3rd Plaintiffs (now Respondents who were alleged to have written the Defendants dissociating themselves from the Suit were never called by the Defendants (now Appellants) to corroborate the contents of their said letter Exhibit G. The learned Senior Advocate argued that the Appellants have no business to call the 2nd and 3rd Respondents. He further contended that the Respondents at the trial court were not able to establish by way of pleadings any of the five statutory ways through which title or ownership of land in Nigeria can be granted. He cited the following decided authorities in aid:- AIGHOBAHI V. AIFUWA (supra) (2006) 6 NWLR (PT.976) 270 at 275 – 277, OKEGBEMI Vs AKINTOLA (2008) 4 NWLR (PT.1076) 53 at 56 58 and NZEAMA Vs. EBUZOEME (supra)

Replying to the argument of the learned Silk for the Appellants, the learned counsel for the Respondents stated that an averment in a pleading is not and does not amount to evidence and it must therefore be established by satisfactory evidence. He referred to the authority of CRUSH ROCK IND. LTD Vs UBUBA (2002) 8 NWLR (PT.770) pg 522 and LAWSON v. AFANI CONT. CO. LTD (2002) 2 NWLR (PT.752) page 585 ratio 19 pages 624/625 para FC. The learned counsel cited and relied on the authorities cited by the learned counsel for the Appellants, but had to state emphatically that going through the said authorities, the Respondents have proved their case. He further contended that AIGOBAHI’s case and the other authorities cited by the Appellants’ counsel are not applicable to the instant case.

It is obvious that the contention of the learned Senior Counsel for the Appellants is anchored on his presumption of the incompetence of the Appellants’ Amended Statement of Claim based on his assumption that necessary fees were not paid at the trial to put the process proper before the court. I agree with the authorities cited by the learned Silk in support of his argument, but unfortunately, this contention has been dealt with in the Appellants’ Issue No. 1 which has been discountenanced for being incompetent.

At this juncture, I have to take a critical look at the Appellants’ Issue No. 3 which has to do with the weight of evidence adduced by both parties before the trial court.
It is an established principle of law that an appellate court does not interfere with the exercise of discretion by the Lower Court and it seldom does, but where it appears that the result of the exercise of discretion by the Lower Court is to defeat the rights of the parties, altogether, that is, if it will occasion injustice to one or the other of the two parties, then the appellate court will review the order made to ensure that there is no miscarriage of justice. This position has been demonstrated in a lot of judicial authorities few of which include Amasike V Registrar – General, CAC (2006) 3 NWLR (Pt.968) 462, Ogar Vs James (2001). 10 NWLR (Pt.722) 521, Ejowhomu V Edok – Eter Ltd (1986) 5 NWLR (Pt. 39) page 1 and University of Lagos Vs Aigoro (1985) 1 NWLR (Pt. 1) page 143.

Having carefully examined the printed record, it is noted by me that the evidence of the parties in connection with the ownership of the land in dispute are in tandem. The Respondents called two (2) witnesses at the trial while the Appellants called five (5) witnesses.

In the instant case the parties through their respective evidence at the trial established that the land in dispute belongs to the Ezikeawa family. However the Appellants through their pleading made an assertion that the said family land of Ezikeawa family has been partitioned into various portions which gave the father of the 7th Defendant to acquire the land in dispute as his own share of the family land. The Respondents in their reply to the Amended Statement of Defence debunked the assertion of the Appellants that the Ezikeawa family land had even been partitioned into various portions and shared among the family members. See page 97 of the record.

On perusing the evidence of the parties at the trial and the reasoning of the learned trial judge in his judgment, I am in entire agreement with the learned trial judge that family land remains family land until partitioned and it could be allotted to any member of the family, but it remains family land irrespective of the allotment(s).

I also hold the view that the Appellants could at the trial not discharge the evidential proof on the asserted partitioning of the family land as to have given title of the land in dispute to the 7th Defendant. On this note I disagree with the submission of the learned Senior Advocate for the Appellants that the trial judge demolished the case of the defence before even considering the Respondents’ case. In the light of the foregoing, I resolve the appellants’ Issues Nos 2 and 3 against the Appellants in favour of the Respondents.

APPELLANTS’ ISSUE NO.4
Whether item (ii) and (iii) of the judgment amounted to any judgment at all in the circumstances of this case.

It is the contention of the learned Senior Advocate for the Appellants, that the learned trial judge abandoned her responsibility to give judgment or make any orders in respect of the claims contained in the Respondents’ pleadings. He submitted that the judgment of the Lower Court is not binding on anybody and consequently, it cannot be enforced. He refers to the authorities of CARDOSO Vs DANIEL (1986) 2 NWLR (PT.20) P. 45, KURUBO Vs ZACH – MOTISON (NIG) LTD. (1992) 5 NWLR (PT. 239) 102; ZAKHEN CONST. (NIG) LTD Vs NNEJI (2002) 5 NWLR (PT.759) 63, ODOFIN Vs AYODE (1984) 11 SC 72 and ANMADI Vs NWOSU (1992) 5 NWLR (PT.24) 273 AT 280. The learned silk further submits that where the trial judge failed to make a proper use of seeing, hearing and observing the witnesses at the trial to exercise his discretion properly, the appellate court will be at liberty to intervene and make the necessary and appropriate findings from such evidence. He cited the authorities of IKE V. UGBOAJA (1993) 6 NWLR (PT.30) 2391 and CHIEF FRANK EVA Vs OGODO (1984) 4 SC 84 AT 90 – 91.

Reacting to the argument of the Appellants’ counsel, the learned counsel for the Respondents contended that reliefs (iv) and (v) of the Respondents’ claim are renowned principles of law while reliefs (vii) had been addressed in the judgment. He argued that there is nothing wrong with the method adopted by the trial judge in the pronouncement of her verdict. He cited the authorities of AKINYANJU V UNILORIN (2005) 7 NWLR (PT.923) 111. Relying further on the authority of USIOBAIFO V USIOBAIFO (2005) 3 NWLR (PT 913) 665, the Respondents’ counsel argued that there is not constitutional requirement as to a particular format in writing of judgments. He also cited the authorities of OGOTO V OGOTO (2006) 5 NWLR (PT.972) 163, USTOBATFO V USIOBAIFO (2005) 3 NWLR (PT.913) 665, AMAYO V ERINMWINGBOVO (2006) 11 NWLR (PT.992) 669.

The learned counsel for the Respondents contended further that even though the grant of reliefs i – vii are merely declaratory, the order of Perpetual Injunction restraining the Appellants and award of the sum of N30,000.00 as damages are indeed executory and therefore enforceable against the Appellants. He commended the authorities cited by the Appellants learned counsel as good law, though misconceived in
connection with the instant case as they were not applicable to the case at hand. The counsel further argued that the ratio decidendi of the case is that the Plaintiffs/Respondents are entitled to a statutory right of occupancy over the land in dispute verged pink and also over the one verged green in the Plaintiffs/Respondents’ claim. He cited the authorities of OREDOYIM V. OROWOLO (1989) 4 NWIR (PT.114) P.172 ratio 15 at page 211 para G, GARBA V. JANFAN (1999) I NWLR (Pt.614) page 257 ratio 8 at page 265 and IKENE V EDJERODE (2001) 18 NWIR (w.745) page 446 (Ratio 22 at page 482.

I have carefully examined the judgment of the Lower Court contained on pages 186 to 192 of the record of appeal. I am satisfied that the contents of the said judgment met the essential ingredients of a valid judgment as elucidated in the cases U.B.A. Plc V. S.A.F.P.U and IDAKWO V. NIGERIAN ARMY (supra). I will however add that method of writing judgments differs among judges and there is no uniform method to be adopted by judges.

It is a known principle of jurisprudence that a Judge is the master of his court, and so long as there is no miscarriage of justice against any of the parties, a court can make such orders as are necessary to bring the matter to a just conclusion within the confines of the rules of court and according to law. To my mind, the method adopted by the trial judge is faultless. See the case of DAPIANLONG V. DARIYE (2007) 8 NWLR (PT.1036) 239.

My critical evaluation of the arguments of learned counsel for the parties on this particular issue navigates my mind to a conclusion that the pronouncement of the learned trial judge vide items (ii) and (iii) on his judgment (as being contested by the Appellants) cannot be faulted/held to vitiate the validity of the said judgment.

For instance, at page 189 of the record of appeal, the learned trial judge stated as follows:
“I will now deal with the issue for determination. It is apparent from the pleadings of the parties and the evidence adduced that the entire Mgbaogwugwu land including the portions in dispute part of the Mgbaogwugwu land was pledged to Ejezie Ekweano by the then head of their family, Ihejiofor and two other senior member of their family, Mgbenwelu and Okomo – that the family delegated the 7th Defendant and Maduekwe Obi to redeem the land for the family, 7th Defendant instead redeemed the land with his own money with the aid of Maduekwe Obi and claimed the said land to be his own by inheritance from his father, Ihejiofor. He sold the land to the 3d Defendant.
On the other hand, the Defendants gave evidence in line with their pleading that the Ezikeawa family land had been partitioned. D.W. 4, Emmanuel Ejezie from Mbarakpaka village, Ihiala confirmed that the land in dispute was pledged to his parental grandfather Ejezie Ekwealor by Mgbenwelu, the father of the 7th Defendant, but that the said land was redeemed by the 7th Defendant in 1948. It can be seen that in effect both the Plaintiffs and the Defendants are saying the same thing – that the land in dispute was in fact pledged by the 7th Defendant’s father, the then head of the family and redeemed by his son, the 7th Defendant.
The only point of difference is that the Plaintiffs are claiming that the 7th Defendant redeemed the land on behalf of the Ezikeawa family while the Defendants are saying the 7th Defendant redeemed it for his own father’s branch of the Ezikeawa family – being part of their own share of the Ezikeawa Mbaogwugwu family land.
It is trite and the presumption is that family land remains family land until partitioned – It could be allotted to any member of the family, but it remains family land irrespective of the allotment.
See the case of AGONEJI V. BAKARE (1998) 61 LRCN P.4746.”

The learned trial judge went further to state at page 191 of the record as follows:
“It is important to point out that having held that the land in dispute is still the Ezikeawa family land and does not belong to the 7th Defendant or his own branch of the family, it follows that the sale of the land in dispute to the 3rd Defendant by the 7th Defendant is void ab initio – the 7th Defendant not being the head of Ezikeawa family and having not obtained the consent of the then head of the family and that of the other principal members of the family for he cannot sell what he has not got.

In the result and for all that I have said above, I hold that the land in dispute is still part of Mbaogwugwu family land of the Ezikeawa. Accordingly it is my firm view that the Plaintiffs have proved their case on the balance of probabilities and are therefore entitled to judgment against the Defendants.”

In view of all that have been posited above, I tend to disagree with the submission of the learned senior counsel for the Appellants that the conclusions reached by the learned trial judge in her judgment are not judgments at all and such order cannot be enforced. In this regard, I also resolve this issue in favour of the Respondents.

APPELLANTS’ ISSUE NO. 5
“Whether the 3rd Defendant did not re-purchase the land in dispute when he paid the Plaintiffs the sum of N17,500 (Seventeen thousand five hundred Naira for the matter to be settled.”

On this issue the learned Senior Advocate for the Appellants contended that the DW3 repurchased the land in dispute vide Exhibits D, E and El duly tendered at the trial. He stated that the 1st Plaintiff never denied or challenged at the trial that he received the sum of Seventeen thousand one hundred and fifty Naira (N17,150.00) from the 3rd Defendant. He refers to the cases of ADEGBITE Vs OGUNFAOLU (1990) 9 NWLR (PT.146) 578, OMIBORIOWO VS AJASIN (1984) 1 SC 200 at 207, OWOADE VS OMITOLA (1988) 2 NWLR (PT.77) AT 422 and UDENGWU Vs UZUEGBU (2003) 13 NWLR (P.836) 136.

Responding to the above submission of the Appellants counsel, the learned counsel for the Respondents contended that the alleged sum of Seventeen thousand one hundred and fifty Naira (N17,150.00) paid by the DW3 to the 1st Respondent was bribe and not a purchase sum for the land in dispute. He refers the court to the evidence of the DW3 at page 148 and 149 of the record. He submitted that the said sum was given by the DW3 in the guise of settlement out of court wherein, he was allegedly issued with Exhibits E and E1. He further described the transaction as an illegal contract which is void and cannot be the foundation of any legal right. He refers to the authority of AJAOKUTA STEEL CO. LTD V CORP. INS. LTD (2004) 16 NWLR (Pt.899) P. 369 (ratios 7 & 12 P. 399, Paras E – G).

The learned counsel for the Respondents disclosed that there was negotiation between the DW3 and the Respondents between 1985 and 1986 to settle the land disputes between the parties. He stated that the Respondents charged the DW3 a total sum of Seventy five thousand Naira (N75,000.00) for 5 plots of land at N15000.00 per plot. According to the learned counsel, the DW3 deposited N10,000.00, upon a promise to make it up when he returns from his American trip but contrarily as the DW3 returned from America, he refuted the ongoing negotiation and filed a Statement of Defence.

It was the further submission of the learned counsel that there are three requirements for a valid sale of land under customary law to wit:
(a) payment of the purchase price;
(b) purchaser is let into possession; and
(c) in the presence of witnesses.
He cited the authority of ODUSOGA V RICHETTS (1997) 9 SCNJ 135 and MANYA IDRIS (2001) 8 NWLR (PT.716) p. 627.

Relying further on the cases of ODUSOGA V, RICHETTS and MANYA V IDRIS (supra) the learned counsel contended that if a purchaser makes an advance payment to a vendor and the said purchaser agreed with the vendor for payment of balance of purchase price on a certain date, but fails to do so, the “vendor” is free to sell the land or property to another party altogether.

I have weighed the arguments of both learned counsel for the parties on the issue of re-purchase of the land in dispute. From the bottom of page 148 through to page 149 of the record, the DW3 led evidence as follows:
“Before the court allowed the parties to go and settle the matter, there had been several attempts to settle the matter which failed. The Plaintiffs demanded what they called expenses incurred by them in the course of this case which they claimed was N7,150.00 and that if paid the case would be withdrawn from court for us to settle amicably. I paid the money in two installments of N4,000.00 on 6/9/84 & N3,150.00 on 28/9/84.
In the course of settlement the 1st Plaintiff demanded another N10,00.00 which I paid but there was no settlement I was not issued with any receipt”.

I have painstankingly examined Exhibits E and E1 tendered by the DW3 in proof of his claim that he parted with some cash to the Respondents as payment for the land in dispute. For ease of clarity in this matter, I deem it apt to reproduce the contents of Exhibits E and El in this judgment as follows:
“Exhibit E
The sum of N4000.00 (four thousand Naira) was received from Mr. Ignatius Ifeanyi (one of the Defendants) by Mr. Simon Ihejiofor on behalf of Ezikeawa family. Being payment of out of pocket expenses incurred by Ezikeawa family in Suit No.HN6/84. This case will not be withdrawn until final settlement is reached.
sgd.
Simon Ihejiofor
On behalf of the family
Exhibit E1
The sum of N3,150.10 was received by Mr. Simon Ihejiofor (Okpara of Ezikeawa) from Mr. Ignatius Ifeanyi one of the Defendants in Suit NN/6/84. This is last instalment of the out of pocket expenses incurred by Ezikeawa family. The case will be settled out of court as soon as peaceful settlement is reached.”

It is glaring on the face of the two Exhibits under reference that the purpose upon which the DW3 parted with some cash to the Respondents was for settlement over the land in dispute. It is pertinent to observe the concluding sentence of Exhibit E which reads thus:
The case will not be withdrawn until final settlement is reached.”

The concluding sentence of Exhibit E1 also reads thus:
“This case will be settled out of court as soon as peaceful settlement is reached”.

The DW3 led in evidence that he paid Ten thousand Naira (N10,000.00) to the 1st Respondent upon his demand, in the course of the settlement of the dispute. He stated that no receipt was issued to him. See page 148 of the record.

The 1st Respondent led in evidence at page 114 of the record, acknowledging the receipt of N10,000.00 by Simon Ihejiofor from the DW3. He stated a s follows:
“The 3rd defendant was in a haste to meet his flight to America and he deposited N10,000.00 in respect of the land in which the juju was situate. The deposit was made to Simon Ihejiofor, the Okpala. The 3rd Defendant promised that when he comes back he/we would conclude final negotiation.
When 3rd Defendant came back instead of coming for the negotiation, we the Plaintiffs were served with
Statement of Defence from the Defendants. So we continued with our court matter.”

Applying a common sense approach in the examination of the dealings of the DW3 and the Respondents, one would conclude that the said sum alleged to have been paid to the Respondents by the 3rd Appellant was for purpose of settlement arrangement which eventually could not materialize. In my candid opinion, the said sum of Seventeen thousand one hundred and fifty Naira (N17,150.00) paid or deposited by the 3rd Appellant to the Respondents cannot be construed a repurchase sum for the land in dispute.

In the light of the foregoing analysis, this issue is again hereby resolved against the Appellants and in favour of the Respondents.

Now having considered the whole issues, I have to note that generally speaking, there is no doubt that in a civil case, such as the instant matter, the burden is on the Plaintiff before the trial court to prove his case on a preponderance of evidence or balance of probabilities. Even though in doing so, he has to rely on the strength of his own case and not to rely on the weakness or absence of the defence but nothing in law precludes him from relying on or taking advantage of any part of the defendant’s case that supports his case.

In the instant case, it is clear from the Statement of Claim and the evidence in support thereof, that the Respondent relied on acts of ownership and acts of long possession to prove his title to the land in dispute. It has been restated in a plethora of decided cases, that ownership of title to land can be proved by any of the five known methods or ways reproduced earlier. The Supreme Court of Nigeria in widening the concept of proof of title held in the case of ONWUKA & ORS V EDIALA & ANOR (1989) 1 SC (Pt. 11) 1 per Wali JSC that where traditional evidence is found to be inconclusive, then proof of acts of occupation and use of the land over a considerable long period without challenge or disturbance from any other claimant, and, where, even this fails, then proof of exclusive possession without permission can be relied on to prove title.

I have placed the entire evidence adduced at the trial on an imaginary scale and weighed the said evidence adduced and relied on by the parties at the trial court. I formed the view that the weight of the imaginary scale of balance on the altar of justice lies heavier on the side of the Respondents. The learned trial judge was to my mind correct in her finding when she held that the Plaintiffs, now Respondents had proved the claims they made against the Appellants and I therefore find in their favour. Her decision, in my view, cannot be faulted and I accordingly so hold and affirm same. Now having resolved all the Appellants’ surviving four (4) Issues in favour of the Respondents against the Appellants, I am fully convinced that the Respondents are entitled to judgment as rightly found by the Lower Court.

On the whole, I hold that the appeal is devoid of any substance or merit. It therefore fails and is accordingly dismissed. The judgment of the Lower Court delivered on 26th November, 2007 in Suit No. HID/6/1984 is hereby affirmed. The sum of N100,000 cost is hereby awarded against the Appellants jointly and severally and in favour of all the Respondents herein.

EMMANUEL AKOMAYE AGIM, J.C.A.: I had a preview of the judgment just delivered by my Learned brother, AMIRU SANUSI (OFR) JCA. I agree with the reasoning and conclusions therein. I agree that the appeal lacks merit. It is hereby dismissed.
The judgment of the High Court of Anambra State per C. E. K Anigbogu J. delivered on 29-7-2008 in Suit No HIH/62/2005 is hereby affirmed. I also order that the appellants pay cost of N100,000.00 to the respondents.

SAIDU TANKO HUSAINI, J.C.A.: I have had the advantage of reading in draft the Judgment of my learned brother, AMIRU SANUSI, OFR, JCA and I agree with the reasoning and conclusions contained therein affirming the decision or Judgment of the High court of Anambra state delivered on the 26th, November, 2007 in suit No.HID/6/1984. I abide by the consequential order as to cost in the lead judgment.

Appearances

A. O. MogboluFor Appellant

AND

Ikenna EjinkonyeFor Respondent