CHIEF GODFREY OSSAI-UGBAH & ORS v. JOSEPH AGOLO
(2014)LCN/6800(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 28th day of January, 2014
CA/B/178/2012
RATIO
WHETHER THE NAMES OF THE FOUNDER HAS TO BE PLEADED TO PROVE THE TRADITIONAL HISTORY OF LAND RELIED UPON AS A ROOT OF TITLE
It is a fundamental principle, that to prove the traditional history of land relied upon as a root of title, a claimant is required to, first and foremost plead the names of founder and those after him on whom the land devolved to the last successor(s). Secondly, the claimant is equally required to lead a credible evidence in support of the pleading thereof without leaving gaps, or creating mysterious linkages which are inexplicable. See UKWUEZE VS. ATASIE (2000) 6 SC (Pt. 1) 214 @ 220; AKINYOLE VS. EYIYOLA (1965) NMLR 92; ALHAJI ELIAS VS. MOGAJI VS. CADBURY NIG. LTD (1985) 2 NWLR (Pt. 7) 393.
Most particularly, in the notorious case of ALHAJI ELIAS VS. OMO-BARE (Supra), the Supreme Court was recorded to have authoritatively held, inter alia, thus:
This court has not spared its breadth of recent and at least in the last 10 years in all appeals on land matters involving a claim for declaration of title to restate the principle that for a plaintiff to succeed in such a claim there must be credible evidence establishing the origin and devolution of the title down to the plaintiff where the evidence is unsatisfactory as to the description and identity of the land or as to the origin and devolution of title as has been the case in this Appeal, the claim must fail.
Thus, invariably, for an evidence of traditional history to be credible or reliable, it must be traceable to ancient times, in the sense that it must have existed for a very long time (immemorial). See ADAWON VS. ASOGBA (2008) 2 FWLR (Pt. 424) 3191 @ 3219; OYEDARE VS. KEYI (2005) 571; OJOH VS. KAMALU (2005) 18 NWLR (Pt. 958) 523. Per IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A.
FACTS TO BE AVERRED TO IN PLEADINGS WHERE TITLE TO THE LAND IN DISPUTE IS CLAIMED TO HAVE DERIVED FROM EITHER INHERITANCE PR GRANT
The law is settled, that where title to land in dispute is claimed to have derived from either inheritance or grant, the pleadings must aver facts relating to the founding of the land (in dispute), the persons who founded the land and exercised original acts of possession, and persons upon whom title in respect of the land has devolved ever since. See NNEJI VS. CHUKWU (1996) SCNJ 388; EWO VS. ANI (2004) 117 LRCN 3608 @ 3619 A.K; PIARO VS. TRENALO (1976) 12 SC 31 @ 34. Per IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A.
ON WHOM LIES THE BURDEN OF PROOF IN CIVIL CASES
It’s trite, that the burden of proof in civil cases, as in the instant case, is on a preponderance of evidence. And the burden is squarely placed on the Plaintiff, who must rely solely on the strength of his case, and not on the weakness of the Respondent’s case. Per IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A.
JUSTICES
HELEN MORONKEJI OGUNWUMIJU Justice of The Court of Appeal of Nigeria
IBRAHIM MOHAMMED MUSA SAULAWA Justice of The Court of Appeal of Nigeria
TOM SHAIBU YAKUBU Justice of The Court of Appeal of Nigeria
Between
1. CHIEF GODFREY OSSAI-UGBAH
2. ANDREW OSSAI-UGBAH
3. CHIEF JOSEPH OSSAI-UGBAH (For themselves and as representing members of Umu-Ojie family or Umutu Appellant(s)
AND
JOSEPH AGOLO Respondent(s)
IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A. (Delivering the Leading Judgment): The instant appeal is against the Judgment of the High Court of Delta State, holden at Obiaruku Judicial Division, which was delivered on March 6, 2012 in Suit No. HOB/6/2009. By the said Judgment, the lower court, coram the Hon. Justice MN Obi, dismissed the Appellant’s claim and granted the Respondent’s counter claim, to the effect that the Respondent was entitled to a customary Right of Occupancy over the parcel of lands known as Nos. 15A and 15B Ikpeteshi Street, Umutu, and perpetual injunction against the Appellants.
By the Writ of Summons and Amended Statement of claim thereof, dated 07/6/10, the Appellants sought against the Respondent the following reliefs –
i. A declaration that the Plaintiffs are under the native laws and custom of Umutu people, entitled to a customary Right of Occupancy over all that parcel of land known as and called No. 15 Ikpeteshi Street, Umutu.
ii. N1, 200,000.00 (One million and two hundred thousand Naira) as special and general damages in that sometime in year 2005, and continuing, the Defendant damaged the soak away of the 2nd Plaintiff as well as the Echibechi Shrine of the Plaintiffs and began to erect structures over the sites without the consent of the Plaintiffs, first had and obtained.
iii. An order of perpetual injunction restraining the Defendant by himself or through servants, agents and/or privies from entering the land and committing further acts of trespass thereon or in any way or manner from interfering with Plaintiffs’ legal rights over the land.
By the Statement of Defence dated 07/7/10, thereof, the Respondent not only denied the (Appellants’) claim, but also counter claimed against the Appellants for the following reliefs:
i. A declaration that the defendant/counterclaimant is entitled to statutory right of occupancy over the parcels of land known as 15A and No 15B, Ikpeteshi Street, Umutu and the adjoining land wherein the defendant has built a new house.
ii. The sum of N5,000 being general damages for trespass into the said land.
iii. An order of perpetual injunction restraining the plaintiffs, agents, privies or howsoever described from further interfering with the defendants-claimants lawful and peaceful possession and enjoyment of the said land.
Pleadings were filed and duly served by the respective parties. The suit eventually proceeded to trial. At the end of the trial, the lower court delivered the vexed Judgment in question on 06/3/12, to the conclusive effect, thus:
All in all, the claimant’s claim fails and it is dismissed. The counter claim of the Defendant succeeds. Judgment is hereby entered for the Defendant as follows:
a. It is hereby declared that the Defendant is entitled to customary Right of occupancy over the parcels of land known as No. 15A and No. 15B, Ikpeteshi Street, Umutu and the adjoining and wherein the Defendant has built a new house.
b. Perpetual injunction restraining the claimants, their servants, agents and/or such other persons acting or claiming through and under them from further trespassing on the land in dispute is hereby ordered.
c. N50,000.00 (Fifty thousand Naira) is hereby awarded as general damages in favour of the Defendant for trespass.
These shall be the orders of the court.
Dissatisfied with the vexed Judgment in question, the Appellants filed their notice of appeal in the court below on 22/5/12. The notice of appeal is predicated upon a total of 8 grounds.
The Record of Appeal having been compiled and transmitted to this court, the learned counsel filed their respective briefs of argument. Most particularly, the Appellants’ brief was filed by S.O. Agbede Esq. on 08/8/12 by Eugene K. Ossai Esq. The Respondent’s brief was filed on 27/12/12, but deemed properly filed on 15/5/13. The Appellants’ reply brief was equally filed on 30/5/13.
On 05/11/13, when the appeal last came up for hearing, the learned counsel argued the appeal, thus resulting in reserving Judgment for delivery. At page 8 of the said brief thereof, the Appellants have raised four issues for determination, viz:
3.1 Whether the learned trial Judge was right in refusing to grant a declaration of title to Customary RIGHT OF Occupancy of the land in dispute to the Claimant/Appellants despite proving their claim of ownership of the land by Traditional History.
3.2 Whether the learned trial Judge was right in his finding that that the failure of the Appellants to worship the Echibechi juju shrine established on the land in dispute, amounted to a break in the chain of the Appellants’ Traditional History of ownership of the land.
3.3 Whether the learned trial Judge was right in granting the Respondent the reliefs sought in his counter claim when the grant to his mother (the basis of his claim to ownership of the land in dispute) was not proved and whether in the circumstances his claim for trespass was not wrongly granted.
3.4 Whether the Judgment of the lower court was not perverse having regard to the reliance placed by the learned trial Judge on speculation, facts not pleaded, facts contradicting the evidence on the printed records and facts that were patently false, in arriving at the said Judgment.
Both issues 1 & 2 were argued together at pages 9 – 17 of the Appellants’ brief. In a very nutshell, the Appellants submitted on both Issues 1 & 2, that it’s trite there are 5 ways by which a party may prove ownership or title to land. And that any of such ways is sufficient. See IDUNDUN VS. OKUMAGBA (1976) 9 – 10 SC 227 @ 244 – 250 , et al.
Further submitted, that in the instant case, the lower court found that from the pleadings, that the parties predicated their claims of ownership of the land on inheritance. The lower court thus held that a case predicated on inheritance is synonymous with evidence of traditional history. See NDUKUBA VS. IZUNDU (2007) 1 NWLR (Pt. 1016) 432.
The Appellants urged on the court to hold that the Appellants, whose witnesses were unshaken even under cross examination, have proved their ownership of, and title to, the land in dispute by traditional history or evidence, as prescribed by the law in the authorities cited and relied upon. The court is thus urged upon to resolve issues 1 & 2 in the negative, and hold that the lower court was wrong to have refused to grant a declaration of title in favour of the Appellants.
Regarding Issue No. 3, it was submitted, inter alia, that issues were joined by the respective parties thereon. That, the onus of proving the counter claim rested on the Respondent, as if he were the Plaintiff. See ADESINA VS. OBALA (1999) 2 SC 22 @ 37. However, the lower court allegedly failed to pass the counter claim of the Respondent through the crucibles set by itself and existing conditionalities. See UKWEZE VS. ATASIE. Thus, leading to a grave miscarriage of justice.
It was contended, that the Judgment given in favour of Respondent based on inheritance was not in accordance with Respondent’s pleading at the lower court. That, the Respondent failed to prove title to the land in dispute, therefore, certainly not a better title than that proved by the Appellants. That, the evidence of the Respondent given under cross examination was never pleaded, and Appellants given a chance to react to them. Thus, the said acts of trespass, having not been pleaded go to no issue, and should be disregarded. The court is urged to hold, that the Respondent was not entitled to the (counter) claim for trespass granted thereto by the lower court.
The submission on issue No. 4 is contained at pages 32 – 41 of the Appellants’ brief. It was submitted in the main, that in the instant case, the reliance placed by the lower court on facts/findings contradicting the evidence in the printed records on speculation, on evidence not pleaded, and on totally and evidently false evidence, has amounted to persistent errors that gravely occasioned a miscarriage of justice. Various instances were adduced at pages 33 – 41 of the Appellants’ brief of persistent errors that gravely occasioned a miscarriage of justices. Thus, the court has been urged to set aside the Judgment entered in favour of the Respondent regarding the counter claim thereof, same being perverse. On the whole, the court is accordingly urged upon to allow the appeal.
On the other hand, the Respondent’s brief spans a total of 22 pages. At pages 6 – 7 of the said brief thereof, the Respondent has couched three issues for determination of the appeal, viz:
a. WHETHER THE LEARNED TRIAL JUDGE WAS RIGHT IN REFUSING TO GRANT THE RELIEF SOUGHT BY CLAIMANT/APPELLANT.
b. WHETHER THE TRIAL JUDGE HAVING REGARDS TO THE EVIDENCE LED AT THE TRIAL WAS RIGHT IN HIS JUDGMENT IN FAVOUR OF DEFENDANT/RESPONDENT
c. WHETHER THE JUDGMENT OF THE LOWER COURT IS PERVERSE HAVING REGARDS TO THE TOTALITY OF EVIDENCE BEFORE THE LOWER COURT.
Both the first and second issues were argued together at pages 7 – 15 of the Respondent’s brief. It was submitted, inter alia, that at the trial, both the pleading and evidence of the Appellants did not state the successive head of family or ancestors through whom they claim. That, the Appellants’ pleadings and evidence fell short of the requirement of the law as stated in EWO VS. ANI (2004) 117 LRN 3608 @ 3619 paragraphs A – K; & NNEJI VS. CHUKWU (1996) SCNJ 388.
On the other hand, however, the traditional history pleaded by Respondent was in line with the requirement of the law. That, both parties pleaded and gave evidence that they buried their persons/relatives on the land. The case of ELEGUSI VS. OSENI (2006) LRCN 133; 263 @ 267 – 275, was cited as regards a situation where both parties gave a conflicting traditional history, as in the instant case.
Further contended, that from the record, it’s not in doubt that the Respondent was in possession of the land in dispute. He lives in the house his mother built on the land. He equally has under construction on the land, a seven bedroom bungalow. Contrariwise, no evidence of acts of ownership or possession was placed before the lower court by the Appellant. Also, no evidence by Appellants of when the ECHIBECHI Shrine on the land was last served; or who served after the death of their father Ossai-Ugbah in 1982.
The court has been urged upon to accordingly disregard the evidence of Respondent in the Respondent’s brief of argument. See AYANWALE VS. OGUNSIAMI (Supra) @ 212 F – P. Thus, it’s obvious that Respondent’s evidence is more cogent and believable. He deserved Judgment given in his favour. The court is urged to so hold.
On Issue No. 3, it was submitted that the finding of the court below is not perverse. See paragraphs 17, 19 & 24 of the Amended Statement of Defence of Respondent and evidence adduced thereon. There is nothing legally wrong with the evaluation of the evidence given by the Respondent under cross examination. See page 218 of the Record.
The court has been urged upon to accordingly dismiss the appeal.
In response to the Respondent’s argument, the Appellants deemed it expedient to file the reply brief thereof, which spans a total of 8 pages.
On the main, the Appellants submitted that the Respondent has totally misconceived the law when he argued that Exhibit C3 is a document that ought not to have been admitted.
On the issue of representative capacity, it was contended that the lower court had indeed considered that issue vis-a-vis paragraph 1 of the Amended Statement of Claim and paragraph 5 of 1st Claimant’s written statement on oath. That, as no cross-appeal has been filed against the finding of the lower court, on the issue, the court is urged to discountenance Respondent’s submission thereon.
It was also contended, that the Appellants did give the names of all persons to whom the land devolved since it was founded. The court has been urged to allow the appeal, set aside the Judgment of the lower court, and enter Judgment in favour of the Appellants in terms of the claim thereof.
I have accorded an ample regard upon the submissions of the learned counsel, contained in the respective briefs thereof vis-a-vis the records of appeal, as a whole. I am appreciative of the fact that the issues raised in the respective briefs of the learned counsel are not mutually exclusive. Thus, I have deemed it appropriate to adopt the four issues formulated by the Appellants in the brief thereof for determination of the appeal.
ISSUES 1 & 2
As alluded to above, the Issue No. 1 raises the vexed question of whether the lower court was right in refusing to grant a declaration of title to customary right of occupancy of the land in dispute to the Appellants, despite proving their claim of ownership of the land by traditional history. The Issue No. 2 on the other hand raises the question of whether or not the lower court was right in finding that the failure of the Appellants to worship the Echibechi juju shrine established on the land in dispute, amounted to a break in the chain of the Appellants’ traditional history of ownership of the land.
At this material point in time, I have deemed it apt to stress that the principle has long been settled, that there are at least five ways in which ownership of land may be proved or established. Firstly ownership of land may be proved by traditional evidence. Secondly, ownership of land may be proved by production of documents of title which, of course, ought to be duly authenticated. That’s to say, the due execution of the documents of title must be proved. Thirdly, acts of the person(s) claiming the land such as selling, leasing or renting out or part of the land or farming thereon, equally constitute evidence of ownership. Fourthly, acts of long possession and enjoyment of the land may also be prima facie evidence of ownership of the particular piece or quantity of land with regard to which such acts are done. Fifthly, proof of possession of connected or adjacent land, in circumstances rendering it probable that the owner thereof, would in addition, be the owner of the land in dispute, may also rank as a means of proving ownership of land in dispute. See IDUNDUN VS. OKUMAGBA (1976) 9 – 10 SC 227 @ 244 – 250; AWARA VS. ALALIBO (2003) MJSC 3 page 157 @ 189 – 190.At the trial of the case, a total of four witnesses testified for the Appellants, to wit – (i) Chief Godfrey Ossai Ugbah CW1; (ii) John Onyeme Okolo, CW2; (iii) High Chief George Ezebor, CW3; and (iv) Chief Patrick Onyeme, CW4. On the part thereof, the Respondent testified in the defence thereof. One Chief John Ogene Eqwutu equally testified for the defence as DW1.
In the course of the vexed Judgment (at page 230, last paragraph of the Record of Appeal), the lower court found, inter alia, thus:
Looking at the pleadings of the claimants and Defendant, they predicated their claim of ownership of the land in dispute on inheritance from their ancestors who founded the land from time immemorial. Counsel to the Claimants’ submission that the claims of both parties in this suit are neither stricto senso based on traditional history nor are the traditional history relied upon by both parties conflicting or inconclusive in any way is without basis. It is trite that a case predicated on inheritance from time immemorial is synonymous with evidence of traditional history as a way of proving ownership of land.
It is a fundamental principle, that to prove the traditional history of land relied upon as a root of title, a claimant is required to, first and foremost plead the names of founder and those after him on whom the land devolved to the last successor(s). Secondly, the claimant is equally required to lead a credible evidence in support of the pleading thereof without leaving gaps, or creating mysterious linkages which are inexplicable. See UKWUEZE VS. ATASIE (2000) 6 SC (Pt. 1) 214 @ 220; AKINYOLE VS. EYIYOLA (1965) NMLR 92; ALHAJI ELIAS VS. MOGAJI VS. CADBURY NIG. LTD (1985) 2 NWLR (Pt. 7) 393.
Most particularly, in the notorious case of ALHAJI ELIAS VS. OMO-BARE (Supra), the Supreme Court was recorded to have authoritatively held, inter alia, thus:
This court has not spared its breadth of recent and at least in the last 10 years in all appeals on land matters involving a claim for declaration of title to restate the principle that for a plaintiff to succeed in such a claim there must be credible evidence establishing the origin and devolution of the title down to the plaintiff where the evidence is unsatisfactory as to the description and identity of the land or as to the origin and devolution of title as has been the case in this Appeal, the claim must fail.
Thus, invariably, for an evidence of traditional history to be credible or reliable, it must be traceable to ancient times, in the sense that it must have existed for a very long time (immemorial). See ADAWON VS. ASOGBA (2008) 2 FWLR (Pt. 424) 3191 @ 3219; OYEDARE VS. KEYI (2005) 571; OJOH VS. KAMALU (2005) 18 NWLR (Pt. 958) 523.By the pleading and evidence thereof, the Appellants (Plaintiffs) claimed that the land in dispute was founded by one DIOKPALA, who allegedly begat Nwasodi, Ossai Ugbah and Ezoba. See, most especially, paragraph 6 of the Amended Statement of the Appellants’ statement of claim to the effect, thus:
6. Many years the memory of man, Diokpala aforesaid founded the land now thrown into dispute by the defendant. The said Diokpala lived on the land, died there and was interned thereupon. Dioakpala aforesaid begat Ossai-Ugba (deceased) who is the father of the plaintiffs.
7. …
8. Ossai-Ugbah, the father of the plaintiffs erected a mud house on the land in dispute and lived there…
… the plaintiffs also resided with their father on the land in dispute… when Nwosodi died, he like his father, Diokpala, was buried on the land. His younger brother, Ossai-Ugbah thereafter took the priesthood of the Echibechi Shrine and continued to live at No. 15 Ikpeteshi Street until his death in 1982.
Contrariwise, by the pleading and evidence thereof, the Respondent’s case was that the land in dispute was founded by Enegide, who begat Isakpa (m), Ozege (f) alias Etene, and Ossai (f) i.e. the Respondent’s mother. See most particularly, paragraphs 5 & 6 of the Amended Statement of Defence and counterclaim, viz:
4. The defendant avers that the land in dispute was founded by late Enegide the great of Umutu who deforested same and settled therein.
5. Enegiede begat Isakpa (m), Ozege (f), Enebeli (m) alias Etene and Ossai (f). Ossai was the mother of the defendant. The defendant therefore states that his maternal grandfather founded the said land
The law is settled, that where title to land in dispute is claimed to have derived from either inheritance or grant, the pleadings must aver facts relating to the founding of the land (in dispute), the persons who founded the land and exercised original acts of possession, and persons upon whom title in respect of the land has devolved ever since. See NNEJI VS. CHUKWU (1996) SCNJ 388; EWO VS. ANI (2004) 117 LRCN 3608 @ 3619 A.K; PIARO VS. TRENALO (1976) 12 SC 31 @ 34.In the instant case, by virtue of paragraphs 8, 9 & 10 of the Statement of Defence and counter claim, the Respondent’s case averred that the land in dispute was “granted” to his mother (Madam Ossai) by Enegide. However, the fact that the said Enegide allegedly inherited the land from his forefathers, the claim of the Respondent is predicated upon inheritance. What’s more, the Respondent’s title to the land in dispute is squarely predicated upon his claim to the inheritance of the estate, of Madam Ossai’s estate. Undoubtedly, by the pleading and evidence thereof, the Respondent has claimed to be the sole survivor of his mother – Madam Ossai. Thus, there is a cogent reason for me to hold that the lower court was right in finding at page 230, last paragraph of the Record, to the effect, inter alia, that –
Looking at the pleadings of the claimants and Defendant, they predicated their claim of ownership of the land in dispute on inheritance from their ancestors who founded the land from time immemorial.
In any event, as alluded to above, the law is well settled, that where title to land in dispute is claimed to have been derived from (either) inheritance or grant, as in the instant case, the pleadings must contain facts relating to (i) the founding of the land in dispute; (ii) the actual persons who founded the land; and (iii) the persons upon whom title regarding the land has been devolved. Thus, a plaintiff who pleads and relies upon root of title must prove his derivative title. See NNEJI VS. CHUKWU (Supra) 397; OJO VS. ADEJOBI (1978) 3 SC 65; MARO VS. TENALO (1976) 12 SC 31 @ 34.Both parties not only pleaded, but equally led evidence, thereby predicating their respective claims upon traditional history. Thus, as aptly postulated by the lower court at page 231 of the Record, in resolving the conflicting versions of the traditional evidence adduced by the respective parties, it behoves the court to evaluate the said evidence, and test the veracity thereof by reference to recent facts in order to determine which is more probable and applicable.
It’s trite, that the burden of proof in civil cases, as in the instant case, is on a preponderance of evidence. And the burden is squarely placed on the Plaintiff, who must rely solely on the strength of his case, and not on the weakness of the Respondent’s case. At pages 14 and 17 of the brief thereof, the Appellants’ learned counsel has urged upon the court –
to hold that the Appellants’ witness (sic) were unshaken even under cross-examination, have proved their ownership of and title to the land in dispute by traditional history or evidence as prescribed by the law…
… and… that the learned trial Judge was wrong to have refused to grant a declaration of title in favour of the Appellants.
It should be reiterated, at this point in time, that it behoves a trial court to consider the totality of the evidence adduced at trial in order to determine the weight of the cases of the respective parties. Thus, the trial court has a duty to evaluate the evidence placed before it by the respective parties, and make findings thereupon. By so doing, the court ought to start ordinarily with the plaintiffs’ evidence. Then proceed to consider the evidence led by the defendant(s). And where the plaintiffs’ evidence is so patently unsatisfactory, or unreliable, the court does not have to consider the defendant’s case at all. Otherwise, the pieces of evidence adduced by both parties shall be put on the imaginary scale, weighed and determined upon the preponderance of credible evidence so as to determine which has more weight. This trite doctrine has long been established by the Supreme Court and religiously applied by the Court of Appeal in a plethora of authorities. See WOLUCHEM VS. GUDI (1981) 5 SC 291 @ 294 – 295; MOGAJI VS. ODOFIN (1978) 4 SC; 91 @ 93 – 94; NNEJI VS. CHUKWU (1996) 12 SCNJ 388 @ 395 paragraphs 15 – 25; ISUOJI VS. AJAKWARA (1998) 1 NWLR (Pt. 533) 255; IROLO VS. UKA (2002) 14 NWLR (Pt. 786) 195; BALOGUN VS. AIBANJI (2005) 10 NWLR (Pt. 934) 394, et al.In proof of the pleading thereof, the Appellants led evidence to the effect that Diokpala, their grandfather founded the land in dispute. According to the evidence of the 1st Appellant:
10. The land in dispute was founded many years beyond my memory by Diokpala, the grandfather of the plaintiffs.
11. Diokpala aforesaid built three mud houses and a hut for his “Echebechi” juju on the land. Diokpala lived on the land until his death and was buried thereon.
The 1st Appellant has alluded to the land in dispute as being “7. Situate at No. 15 Ikpeteshi Street, Umutu and measures 112 feet by 56 feet. It is the land in dispute referred to in the Appellants’ Amended Statement of Claim, especially in paragraphs 1, 7, 8, 9, 10, 11, 13 & 18 thereof.
In the Amended Statement of Defence and Counterclaim thereof, the Respondent, pleaded, inter alia, that (i) it was in 1961 that Enebeli, the surviving son of Enegide, openly granted the land in dispute known as No. 15 Ikpeteshi Street, Umutu to Madam Ossai (Respondent’s mother); (ii) That upon the grant, Madam Ossai took immediate possession of the said land in dispute; (iii) that in 1963, Madam Ossai built a block house on a part of the said land known as No. 15 Ikpeteshi Street. And as at that time, there was no No. 15A or 15B Ikpeteshi Street.
Now, the fact that the Appellants, by their pleadings and evidence have admitted to the fact that the land in dispute (known and called as No. 15 Ikpeteshi Street, Umutu) was granted by Enebeli to Madam Ossai is not in doubt at all. However, the claim of the Appellants, by their pleadings and evidence, is that the land in dispute was granted to Madam Ossai (Respondent’s mother) for life sometime in 1975. And that –
10. … under the native laws and custom of Umutu a female though lawfully married, who attains the status of the eldest female in the family, may be granted land for her life by her family in preparation for her attainment of the title of Ada of Umutu. The land so granted is not heritable by her children, but reverts to the family upon her death. Under the native laws and custom of Umutu, land is inherited through the male line. The defendants only connection with the Umu-Ojie family is through his mother – Ossaigabor. The defendant is a native of Abbi.
Under cross-examination, the CW1, Chief Godfrey Ossai Ugbah, (the 1st Appellant) testified at page 212 of the Record, inter alia, thus:
The Defendant’s mother is from Ojugbeli unit and I am from Umu Sodi. When a man dies, under Umutu customary law the children are entitled to inherit his property. The children inherit the property of a deceased not from under Umutu custom.
The CW3, High Chief George Ezebor, equally testified under cross-examination (page 214 Record) that:
“…children can inherit the property of their mother on death.”
The CW3 also testified that the house No. 15 Ikpeteshi Street Umutu belongs to the Defendant’s mother.
Regarding the CW4, Chief Patrick Onyeme, the following scenario ensued during cross-examination:
Question: Do you know where Sunday Enwelikwu lives.
Answer: Yes I do, and I know that the house he lives was built by his mother.
Question: What land where Sunday Enwelikwu’s mother built the house was given to her by her family.
Answer: yes, the land on which Sunday Enwelikwu mother built the house was given to her by her family.
Question: Do you know John Egwutu’s house on Ikpeteshi Street.
Answer: That house is his mother’s house.
Question: Egwutu’s mother built that house on family.
Answer: The family built the house for Egwutu’s mother on family land. Egwutu is using the house on negotiation.
Question: Who inherits a man house if he dies under Umutu Native Law and Custom.
Answer: The children would inherit the man owns the land and build on it his children same.
Question: Is it against your custom for Sunday Enwelikwu to live in the house which built and which was given to the mother by her family.
Answer: It is not against the Custom for Sunday Enwelikwu to state (sic) in the said house.
On the part thereof, the DW1 John Ogene Egwutu testified under cross examination to the effect, inter alia, thus:
Question: Are you aware that the mother of the Defendant came back to Umutu.
Answer: Yes she built a house on Ikpeteshi Street and lived therefore the house was her personal house though built in her father’s compound.
Question: When she came back she met the father of the claimant
Answer: she did not.
The Respondent testified as DW2. He denied knowledge of a shrine called Echikpechi. He told the court that his father died in 1989 and was buried at Abbi and not at Umutu. That both Abbi and Umutu are his ancestral homes. He said that the land in dispute belongs to his mother, and which fact was acknowledged by even the PW1. And that
“No. 15B Ikpeteshi Street, Umutu was a mud build with permission of my mother by the carefully Ossai Ugbah Diokpala.”
The Respondent also maintained under cross-examination that the graves of the parents were not on the land in dispute. And that –
“the only graves there are the that of my mother and her brother. See page 218 of the Record.
From the pleadings and pieces of evidence adduced by the respective parties, as borne out by the Record, it’s obvious that the lower court was right in rejecting the evidence of the Appellants for failing to establish their claim to the customary title to the land in dispute (No. 15 Ikpeteshi Street, Umutu). The court was right in coming to the conclusion, as it did in the vexed Judgment to the effect, inter alia, that –
I am minded to disbelieve the evidence of the claimants and believe the story put up by the defendant as more tenable and true as it appear (sic) cogent and credible and consistent with their pleadings.
Interestingly, the DW1, Chief John Ogene Egwutu, was tauted by the Appellants to be a former palace secretary. At page 215 of the Record, the CW4, Chief Patrick Onyeme answered in the affirmative, under cross-examination, that he knew one John Ogene Egwutu (DW1) to be – “a one time palace secretary.”
Thus, the above piece of evidence lends so much credence to the evidence on oath of the DW1 to the effect, inter alia, thus:
5. That it is not the custom of Umutu people on land tenureship, that a woman cannot own land neither is it right that a man cannot build a house on the land situate in his maternal family’s land area.
6. That the tradition of Umutu is that a father can during his life time, grant his own land to his female child as a gift in perpetuity.
8. That I built my house on the land given to my mother, late Ngbo Otume Ogene by her father, which house is at No. 20, Ikpeteshi Street, Umutu, just a stone throw from the land in dispute, both situate within Umutu Ejieh family land.
9. That instances abound in Umutu of men who built house on the land belonging to their maternal families as Chief George Odumasu Ezebor, a member of Umu Ejieh family, has built a house on his maternal family’s land of Umu-Ogirnye in Umutu.
10. That I am also the incumbent palace secretary of Umutu community by virtue of which I am also conversant with daily affairs at the palace of Onotu-Uku of Umutu being that I am also a member of Onotu-Uku in council.
11. That sometimes in or around 2005, the defendant reported Chief George Ezebor and the plaintiffs to the Onotu in council of Umutu over the harassment the plaintiffs were meting to him over her (sic) mothers land, the land now in dispute.
12. That it was unanimously resolved that the defendant has the full right under Umutu custom to built (sic) a house on his mother’s land at Umutu-Ejieh family land and the plaintiffs thereafter agreed to withdraw and stop further harassment of the defendant.
13. And I, Chief John Ogene Egwutu depose to this oath in good faith, believing the content to be true and to the best of my knowledge .
As alluded to above, the lower court was right in disbelieving the Appellants’ evidence, and thereby believing the “story put up” by the Respondent, which is so obviously cogent and rather unassailable.
In the light of the above postulations, therefore, the answers to above issues 1 & 2 ought to be in the affirmative, and they are both hereby resolved against the Appellants. And I so hold.
ISSUE NO. 3
The third issue raises the vexed question of whether the lower court was right in granting the Respondent the reliefs sought in the counterclaim thereof, when the grant to his mother, the basis of his claim to ownership of the land in dispute was not proved; and whether in the circumstances, the claim for trespass was not wrongly granted. The 3rd issue relates to the Respondent’s counter claim which was granted by the lower court against the Appellants.
The Respondent’s counterclaim was vehemently contested by the Appellants. Thus, issues have been joined by the respective parties on the counterclaim. The term counterclaim, invariably denotes a claim for relief asserted against an opposing party after an original claim has been made; especially a defendant’s claim in opposition to, or as a setoff against the plaintiffs’ claim. Also termed counteraction, counter suit, cross demand, cross action, et al. See BLACK’S LAW DICTIONARY, 9th Edition, 2009 @ 402. Simply put, a counterclaim is characteristically a cross action, whereby the plaintiff becomes the defendant, and vice versa. See ADESINA VS. AIYEGBAJU (1999) 2 SC 22 @ 37.
Thus, in essence, the counterclaimant shoulders the burden of proving the reliefs sought in the counterclaim thereof, for a declaration of title to the land in dispute.It was the submission of the Appellants, at pages 19 – 20 of the brief thereof, that the lower court has failed to pass the Respondent’s counterclaim through the crucibles and conditionalities set in the cases of IDUNDUN VS. OKUMAGBA (Supra); UKWU EZE VS. ALASIE (Supra); and ELIAS VS. OMO-BARE (Supra), regarding onus of proof in a claim for declaration of title based on traditional history. That, if it has done so, the lower court would have come to the conclusion that the Respondent failed to discharge the onus placed thereon as a plaintiff.
Most particularly, paragraph 8 of the Respondent’s Amended Statement of Defence and paragraph 10 of the Respondent’s statement on oath are (both) to the effect, thus:
In furtherance to the averment above, Etene called Madam Ossai and her husband around 1961 and openly granted her, out-rightly, that piece of land known as No. 15 Ikpeteshi Street, Umutu. This, he did in the presence of Opia Oduegwu and Chief Otunyo Osakum, both now late, and some other persons. The defendant therefore states that his mother became the owner the land in dispute through grant and not inheritance.
According to the Appellants, despite the above very clear state of the Respondent’s pleading, the lower court proceeded upon a wrong assumption at page 230 of the Records that –
“The parties (including the Defendant) predicated their claim of ownership of the land in dispute on inheritance.”
And that the above finding has led to a miscarriage of justice, as it prevented the lower court from considering the incidents of a Customary Grant of Land. See AKINLOYE VS. EYINLOLA (Supra); EZE VS. ATASIE (Supra).
On the other hand, Respondent postulated, inter alia, at page 15 of the brief thereof, that:
It is obvious that the evidence of the Defendants at the lower court is more cogent and believable he gave evidence of traditional history that is complete and compliance with the requirements of the law, he gave evidence of act of ownership and or possession in recent trial in trial in relation to the land in dispute. Thus, we are of the humble view that he deserved the Judgment given in his favour by the trial Judge.
It is so obvious from the pleading of the Respondent, vide the Amended Statement of Defence/Counterclaim thereof, that the Respondent’s (counter) claim is predicated upon inheritance. Throughout the 28 paragraphs of the averments contained in the Respondent’s Amended Statement of Defence/Counterclaim, there’s no where it’s stated that the Respondent’s relief (claim) is predicated upon grant of the land in dispute. copiously alluded to above, paragraph 8 of the Amended Statement of Defence (which is the same as paragraph 10 of the Respondent’s statement on oath) is to the effect, inter alia, that:
“…The defendant therefore states that he became the owner the land in dispute through grant and not inheritance.”
Considering the entirety of the 28 paragraphs of the Respondent’s Amended Statement of Defence/Counterclaim, it’s obvious that the Respondent pleaded, inter alia, that (i) his maternal grandfather, ENEGIDE, deforested the land and settled therein; (ii) Enegide begat Isakpa, Ozege, Etene and Ossai (the mother of Respondent); (iii) that at Enegide’s death, the land in dispute devolved on his eldest surviving son, Isakpa; (iv) that Isakpa was childless, thus upon his death, the land devolved on Efene, who equally did not bear any child; (v) that at old age, Efene practically relied upon Madam Ossai (Respondent’s mother) for food and medicament; (vi) that in 1961 Efene openly granted Madam Ossai the land in dispute, known as No. 15 Ikpeteshi Street, Umutu.
What’s more, under paragraph 16 of the said Amended Statement of Defence/Counterclaim thereof, the Respondent clearly and unequivocally averred, that –
“16. The defendant states that under the native law and customs of Umutu people, he is entitled to inherit her (sic) mother’s property, both movable and immovable being the only surviving child.”
Thus, in view of the foregoing clear and unequivocal averments of the Respondent, as contained in the pleadings thereof, nothing could be farther from the truth than the Appellants’ preposterous assertion to the effect that –
It is therefore submitted that the learned trial Judge was wrong in entering for the Respondent on the basis of a claim to ownership based on inheritance when the Respondent did not rely on inheritance either in his pleading or testimony. See page 21, lines 16 – 20 of Appellants’ brief.
The Appellants equally raised the vexed question of the Respondent’s failure to call the witnesses that witnessed the granting of the land in dispute by Enete to Madam Ossai in 1961. That, as issues were joined thereon, the onus was on the Respondent to prove the purported grant. That, neither the Respondent nor the DW1 was present during the grant or handover of the land in dispute to Respondent’s mother. See AJADU v. OLAREWAJU (1991) 1 ANLR 382. Thus, the failure to call the witnesses in question was fatal to the Respondent’s counterclaim.
Instructively, the fact that the land in dispute, known as No. 15 Ikpeteshi Street, Umutu, had been granted to the Respondent’s mother, Ossai, is not at all in doubt. Parties were ad idem on this issue. The Appellants themselves have duly acknowledged that fact both in the pleadings and evidence thereof on record. Most particularly, paragraph 10 of the Appellants’ Amended Statement of Claim; is to the effect, inter alia, thus:
10 … Defendant’s mother Ossaigabor aforesaid was advancing in age and was poised for the socially significant title of Ada of Umutu Ossai-Ugbah granted her a portion of No. 15 Ikpeteshi Street, for life in 1975 …
…the land so granted is not heritable by her children, but reverts to the family upon her death. Under the native laws and custom of Umutu land is inherited through the male line…
Curiously, the Appellants unlike the Respondent, failed to name any person that witnessed the granting of the said land by Ossai-Ugbah in 1975 to the Respondent’s mother. The DW1, Chief John Ogene Egwutu, testified to the effect, inter alia, thus –
5. That it is not the custom of Umutu people on land tenureship, that a woman cannot own land and neither is it right that a man cannot build a house on the land situate in his maternal family’s land area.
6. That the tradition of Umutu is that a father can, during his life time, grant his own land to his female child as a gift in perpetuity.
7. That such piece to a female child, will belong to the named female child and her offspring in perpetuity.
8. That built my house on the land given to my mother late Madam Ngbo Otume Ogene by her father which house is No. 20, Ikpeteshi Street, Umutu, just a stone throw from the land in dispute, both situate in Umutu Ejieh family land.
9. That instances abound in Umutu of men who built house on the land belonging to their maternal families as Chief George Odumusu Ezebor, a member of Umu- Ejieh Family has built a house on his maternal family’s land of Umu-Oginye in Umutu.
By the clear, unequivocal, uncontradicted, and rather unassailable testimony of the DW1, it’s become obvious that under the Native Law and Custom of Umutu people (i) a woman has the right, as much as a man, to own and/or inherit a property both movable and immovable, perpetually; (ii) that a man can inherit his mother’s property, movable and immovable. The validity and existence of such a custom is exemplified in no other person than the DW1 himself and some others very well known (even if not related) to the Appellants themselves. As credibly asserted by the DW1 in the statement on oath thereof (copiously alluded to above, (i) he built his own house on the land given to his mother (Late Ngbo Otume) by her father which house is No. 20 Ikpeteshi Street, Umutu, just a stone throw to the very land in dispute; and (ii) that –
Instances abound in Umutu of men who built houses on the land belonging to their maternal families as Chief George Odumasu Ezebor, a member of Umu Ejieh family, has built a house on his maternal family’s land of Umu ogiruye in Umutu. See paragraphs 8 & 9 of the DW1’s Statement on oath copiously alluded to above.
I would want to believe, that such a custom as would deprive a woman the right to own a landed property in perpetuity on ground of gender must be declared by this court to be archaic, contrary to natural justice, equity and good conscience, and unconstitutional, thus null and void. The provisions of the Constitution of the Federal Republic of Nigeria, 1999 as amended, are very much unequivocally emphatic on that point. See most especially Sections 42 and 43 of the 1999 Constitution, thus:
“42. – (1) A citizen of Nigeria of a particular community, ethnic group, place of origin, sex, religion or political opinion shall not, by reason only that he is such a person –
(a) be subjected either expressly by, or in the practical application of, any law in force in Nigeria or any executive or administrative action of the government, to disabilities or restrictions to which citizens of Nigeria of other communities, ethnic groups, places of origin, sex, religions or political opinions are not made subject; or
(b) be accorded either expressly by, or in the practical application of, any law in force in Nigeria or any such executive or administrative action, any privilege or advantage that is not accorded to citizens of Nigeria of other communities, ethnic groups, place of origin, sex, religions or political opinions.
(2) No citizen of Nigeria shall be subjected to any disability or deprivation merely by reason of the circumstances of his birth.
(3) Nothing in subsection (1) of this section shall invalidate any law by reason only that the law imposes restrictions with respect to the appointment of any person to any office under the State or as a member of the armed forces of the Federation or a member of the Nigeria Police Force or to an office in the service of a body corporate established directly by any law in force in Nigeria.
43. Subject to the provisions of this Constitution, every citizen of Nigeria shall have the right to acquire and own immovable property anywhere in Nigeria.
Undoubtedly, as alluded to under issues 1 & 2 above, the evidence of DW1 is cogent, reliable and rather unassailable. Thus, there is every cogent reason for me to hold, that the lower court was right in coming to the most inevitable conclusion, that the Respondent has proved his (counter) claim against the Appellants as per the counterclaim thereof. Resultantly, the answer to issue No. 3 is inevitably in the positive, and same is equally resolved against the Appellants.
ISSUE NO. 4
The fourth and last issue raises the vexed question of whether the Judgment of the lower court was not perverse, having regard to the reliance allegedly placed on speculation, facts not pleaded and contradicting the evidence on the printed records in arriving at the Judgment in question.
Invariably, the term perverse verdict denotes a decision (Judgment, Ruling, et al) of a court (tribunal or jury) that is so manifestly contrary to the evidence on record to the extent that it justifies being set aside and granting of an order of a new trial by an appellate court. See BLACK’S LAW DICTIONARY 9th Edition, 2009 @ 1697.In view of the far-reaching reasoning vis-a-vis the resolution of the three issues against the Appellants, there is every cogent reason for me to hold that the findings of the lower court are neither perverse nor have they occasioned a miscarriage of justice. The said findings of the lower court are indeed unassailable, as they are duly supported by credible evidence on record. Thus, there is no basis whatsoever, for this court to interfere or temper with the unassailable findings and the decision thereby reached by the lower court in the instant appeal. This is so, because the lower court had the privilege to hear, see and examine the demeanour of the witnesses of the respective parties. This court, as an appellate court has not had the opportunity of hearing and seeing the said witnesses, thus must be circumspect in weighing the consequences of interfering with the findings of the lower court. See IBODO v. ENAROFIA (1980) 5 – 7 SC 42; EBBA VS. OGODO (1984) 1 SCNLR 372; POPOOLA v. ADEYEMO (1992) 8 NWLR (Pt. 257) 1; ODUNLAMI v. NIGERIAN NAVY (2013) 12 NWLR (Pt. 1367) 20 @ 56 – 57 paragraphs H, A – B, respectively. Thus, the answer to the said Issue 4 is equally in the positive, and same is hereby resolved against the Appellants.
Hence, having resolved each of the four issues in question against the Appellants, there is no gainsaying the fact that the appeal is grossly unmeritorious. Thus, the appeal is accordingly hereby dismissed by me. The Judgment of the High Court of Delta State, holden at Obiaruku Judicial Division, delivered on 06/03/12 by the Hon. Justice Michael Nduka Obi in Suit No. HOB/6/2009, is hereby affirmed.
The Respondent shall be entitled to N50,000.00 as costs against Appellants.
HELEN MORONKEJI OGUNWUMIJU, J.C.A.: I have read the judgment just delivered by my learned brother, IBRAHIM MOHAMMED MUSA SAULAWA, JCA and I am in complete agreement with his reasoning and conclusion that the appeal is without merit and must be dismissed. There is no doubt that the counter-claim of the Respondent which was granted by the trial court was well founded. There was clear evidence from D.W.1 (a palace secretary) not controverted that under Umutu Native Custom, a man could inherit from his mother and a woman can inherit land from her parents. Parties are ad idem on the fact that the land in dispute known as No. 15, Ikpeteshi Street, Umutu was granted to the Respondent by his mother Ossai.
I am persuaded after reading the evidence on record, and particularly the reasoning of the learned trial judge and the erudite exposition of the law by my learned brother that the judgment delivered by Hon. Justice Michael Nduka Obi in Suit No. HOB/6/2009 should be affirmed. It is hereby affirmed. Appeal dismissed.
I abide by the order as to costs.
Appeal dismissed.
TOM SHAIBU YAKUBU, J.C.A.: I was privileged to have read the draft of the well crafted judgment prepared and just rendered by my learned brother IBRAHIM MOHAMMED MUSA SAULAWA, JCA.
I must say that being in complete agreement with his Lordship’s lucid reasoning which culminated in his conclusion that the appeal is devoid of merits, I have nothing more useful to add to it.
I, too dismiss the appeal and abide by the order as to costs of N50,000.00 awarded to the respondent.
Appearances
E.K. Ossai Esq.For Appellant
AND
S.O. AgbedeFor Respondent
