CHIEF PATRICK S. OKOYE & ORS V. EDEANI NWAVU & ORS.
(2003)LCN/1382(CA)
In The Court of Appeal of Nigeria
On Monday, the 14th day of April, 2003
CA/E/19/97
RATIO
CUSTOMARY LAW: A PRODUCT OF NRACHI CUSTOM
“Thereafter, I shall be done. A product of Nrachi Custom or a child born out of wedlock whose custody follows that of the mother in the absence of any person claiming his custody on the basis of being his natural father should not be subjected to any disability or deprivation. They can quietly employ the provisions of the Constitution as a shield. Refer to Muojekwu v. Ejikeme (2000) 5 NWLR (Pt.657) 413 at 439. They must, however, know their level so as not to be called names. I strongly feel that the stated section of the 1979 Constitution was wrongly applied by the trial Judge.” PER IGNATIUS CHUKWUDI PATS-ACHOLONU, J.C.A.
EVIDENCE: THE BURDEN OF PROOF
“The onus of proof was heaped on the Appellants who as defendants, at the trial court, did not counter-claim. It must be noted that generally, the burden of proof in a suit lies on that party who would fail if no evidence at all were given on either side. Refer to section 135 of the Evidence Act, 1990. See the case of Are V. Adisa & Ors. (1967) NWLR 304. The burden of proof of any issue before evidence is adduced rests on the party asserting the affirmative of same. See the case of Okechukwu & Ors. v. Ndah (1967) NWLR 368. Generally, it is on the plaintiff seeking a decree of declaration of title that the onus of proof usually rests. See Onobruchere v. Esegine (1986) 1 NWLR (Pt.19) 799; Kuma v. Kuma (1934) 2 WACA 336.” PER IGNATIUS CHUKWUDI PATS-ACHOLONU, J.C.A.
JUSTICES
IGNATIUS CHUKWUDI PATS-ACHOLONU Justice of The Court of Appeal of Nigeria
JOHN AFOLABI FABIYI Justice of The Court of Appeal of Nigeria
CLARA BATA OGUNBIYI Justice of The Court of Appeal of Nigeria
Between
CHIEF PATRICK S. OKOYE & ORS Appellant(s)
AND
EDEANI NWAVU & ORS. Respondent(s)
IGNATIUS CHUKWUDI PATS-ACHOLONU, J.C.A. (Delivering the Leading Judgment):
The case started on a seemingly happy note in that the Plaintiffs who are now the Respondents are not laying exclusive claim to the land the subject matter of the dispute but are saying that the land is a jointly and communally owned property of the two parties and they, in their statement of claim asked the Court to declare that this is so with the consequential Order of perpetual injunction which would restrain the defendants, their heirs, agents and others claiming from them from any interference of the Plaintiffs right of enjoyment of the use of the land jointly and communally owned.
The Respondents, who brought the action on behalf of themselves and representing their community known as Akpawfu excepting the Appellants, averred that the land in dispute is a joint property of the parties who inherited same from their communal ancestor Oyiwo Ode who as a hunter founded the land. The ancestor while alive warned or advised his children never to share his land on his death but to allocate portions purely on age basis. The parties because of their relationship have two burial grounds – Otutu Aja and Ogoani. They have 2 shrines Agba Ubia and Achi Uga which they all worship.
However in 1987, the defendants and those who support them i.e. their privies went into the land and started destroying the economic trees particularly the Plaintiffs’ crops and with law enforcement agents to intimidate them to an extent that they prevented them i.e. the Plaintiffs from farming and enjoying and reaping their economic trees on the land.
The defendant/Appellants debunked the assertion that the land is communally owned by both parties pointing out that the land is the exclusive property of the defendant from time immemorial and that the Respondents ancestors were migrants who did not originate from one ancestor. For this, the Respondents pay tributes and rents to the overlords – the Appellants. Just as the Respondents narrated the genealogy of their community, so too the Appellants sought to do so in their Statements of Defence. They too traced their origin from Oyiwo Ode whom they claimed was not the ancestor of the Respondents.
They equally averred that the Plaintiffs jointly with the defendants wrote the Chieftaincy Constitution and there is no inter-marriage between the parties. They further state that in all the native tribunals in respect of the disputes between the parties as affecting the land, the Plaintiffs have always lost. The learned trial Judge in her decision found in favour of the Plaintiffs. Wherefore, the defendants peeved by the judgment of that court appealed to this court and distilled 6 issues – however abandoning the last issue:
The rest are as follows:
“(1) Was the court below right in holding that the onus lay on the defendants to prove that the plaintiffs did not own the land communally with them?
(2) At all events, did the plaintiffs, who asserted, prove the primary issue of ownership in common with the defendants to entitle them to judgment?
(3) Did the trial court evaluate the conflicting evidence of the parties as prescribed by law before coming to its findings favourable to the plaintiffs?
(4) Was the trial court right in holding against the defendants that they were estopped by a previous case in the native court (Exhibit A) from asserting that the plaintiffs did not own the land in dispute communally with them?
(5) Was the trial court right in its application of S.39 (1) and (2) of the 1979 Constitution in favour of the Plaintiffs?”
The Respondents on their own filed five issues and they are as set out below to wit:-
“1. Whether the court below was right in finding for estoppel against the defendants and what is the legal effect of such finding (Additional Ground 1).
2. Whether going by the totality of the Judgment, it can rightly be said that the trial Judge misplaced the onus of proof which occasioned a miscarriage of Justice (Ground One).
3. Whether the Plaintiffs proved their case (as required by law) to entitle them to the Courts’ Decree (Ground Two).
4. Whether the learned trial Judge properly or correctly treated the Defence Case vis-‘E0-vis the issue of the Plaintiffs being strangers (Ground Three).
5. Whether the Court below had the Jurisdiction to hear this case. (Additional Ground Five).”
The appellants argued issue 1, 2 and 3 as they are inter-related, being on the Onus of proof. In his judgment the learned trial Judge held as follows in respect of whom the onus of the land vests,
“In the case at hand the defendants could not prove exclusive ownership since such numerous acts are performed jointly by Plaintiffs and defendants. I am further not assured as to the precise nature of title in respect of which a declaration is sought exclusively by the defendants. There is no conclusive evidence adduced by the defendants by whom the court is satisfied that a title of this nature claimed by the defendants has been established…”
Further down she continues as follows:
“The onus of proof is on the party claiming family land to prove that he is in fact entitled to the family land as against all other family members See Ahuanya v. Onyejekwe & Anor. (1974 – 75) Vol. 9 NSCC P.89. And that being so, the Onus of proof in this case rested not on the plaintiffs but on the defendants. In the case of J.M. Kodilinye v. M. Odu (1935) 1 – 3 WACA 336, cited by Learned Counsel for the defendants, it was held that in a declaration of title to land, the plaintiff must rely on the strength of his own case and not on the weakness of the defence. In this instant case, since the onus which is on the defendant is not discharged the weakness of the Plaintiffs case will not help the defendants.”
I must candidly confess that to say that I am flabbergasted by this attempt to rewrite the law by the learned trial Judge is to put it mildly. Her pronouncement seeks to base this obtuse and greatly erroneous interpretation of the law on the premise that either the defendant – now Appellants were the Plaintiffs or that they counter-claimed. This attempt to give a new meaning to the age long accepted principle of law on where the onus of proof lies is like standing the law on its head and metaphorically carved out or caricatured to look like the hedious medussa with a quizically ugly and sickening head.
In this case, it is a fact that the Appellants did not counter-claim for reasons best known to them but the onus of proof that the land is jointly owned property is that of the Plaintiff/Respondents and not the Appellants. In the matter of civil cases generally and particularly in a land matter the onus is heavy on the proponent of the action to prove his case on the balance of probability and the weakness of the defendants’ case will not avail him. In other words, the defendant can fold his hands and dares the Plaintiff to prove his case if he can.
The dismissal of Plaintiffs’ case in a land matter does not mean a decree of the ownership of the land in favour of the defendant who does not counterclaim.
In this sort of case where the Respondents lay claim that the land the subject of the dispute is a communal property jointly owned by both parties and the Appellants repudiate this claim stressing all along that there is no joint ownership and drawing attention of the Court that the Respondents do not have their origin from Oyiwo Ode, the Court generally goofed to push the onus to the appellants. Another gaffe committed by the learned trial Judge is when she said in her judgment-
“I am further not assured as to the precise nature of title in respect of which a declaration is sought exclusively by the defendants. There is conclusive evidence adduced by the defendants by which the court is satisfied that a title of this nature claimed by the defendants has not been established.”
The Appellants as defendants never laid any claim to any land. It is therefore with greatest respect to the learned trial Judge that it is apostasy to continue to harp erroneously and insistently that it is the Appellants who are claiming the title to the land.
In their Statement of Defence paragraph 31, they averred as follows:
“In answer to paragraph 33 of the amended Statement of Claim the defendants state that the Plaintiffs are not entitled to the Claim and do not and cannot represent Akpawfu town and that the Claim ought to be dismissed as frivolous, speculative, vexatious an abuse of Court process of court and an exercise in gold digging.”
It is difficult to understand how the simple denials and urging that the matter be dismissed can be coverted to mean that the Defendants suddenly metamorphosed into the Plaintiffs. In considering the issues canvassed and agitated before the learned trial Judge mounted confusion upon confusion, I am reminded of the word of Shakespeare in Macbeth wherein he said; “Confusion has made its master piece.”
I consider this part of the Judgment a diatribe which seeks to emasculate the law and render Justice – a Goddess according to the Romans, a bent goddess that might cry out “foul; foul: I am straight. I am not bent or truncated”
On another point the court below sought to make bones about the two parties formerly fighting a case to which they were made defendants together and by so doing the appellants are estopped from denying the joint ownership claimed.
Following the confusion introduced by the court below, on who are the claimants, it is difficult to know who it was referring to.
When people contribute money or subscription to defend a cause i.e. a Suit of which they are jointly and severally sued, does that mean that they have no individual interest to protect even amongst themselves. The learned counsel for the Respondent submits that the two parties having fought a suit being on one side together and at no time raised up the issue of Amadis and Awbias i.e. (original owner and stanger elements) they cannot now turn round to say that they are not related to the Plaintiffs. It is most unfortunate that throughout the judgment of the lower court unnecessary burdens had been placed on the Appellants. “Head, they lose; Tail the other side wins.” So, they are in no win situation.
Is this what Justice is all about, one may be tempted to ask? The learned counsel for the Respondent stated that the Respondents rely on these facts to demonstrate or allow joint ownership of the land in dispute viz;-
(i) Joint farming and building
(ii) Joint presentation of land for primary school and maternity project.
(iii) Burial ground
(iv) 1943 Inter-tribal boundary dispute and related antecedents leading up to the case of the West African Court of Appeal.
The Appellants’ counsel in his brief submitted that the plaintiffs in Exhibit “A” sued for a declaration of title in an earlier case but it turned out in the course of trial that they were seeking to upset a boundary earlier fixed under the Inter-tribal boundaries Ordinance between Obuno Akpugo and Akpawfu.
He further urged this court to hold that the Respondents could not in law have pleaded estoppel by representation against the appellants and it was not competent for the trial court to raise the said issue and to purport to rely on facts of which there was no evidence. The premise for the holding by the Court below that people who fought a case together, donated a land for building hospital and schools cannot at any time dispute respective lands within that community amongst them is wrong. I say this because there is nothing to show that families in the group do not own individual lands within the community.
Furthermore, in that same judgment, the learned trial Court did everything conceivably possible to heap the responsibility of onus of proof on the Appellants. In so doing the court below traduced all known indices in the administration of justice thereby giving a lie to the principle of placing the case of parties’ in equable balance of an imagining scale.
The court below so fixated its mind on the belief that the two parties are like twins and therefore inseparable made reference to Section 39(1) and (2) of the 1979 Constitution – (the primary law then in Vogue when the judgment was given). This section spoke then of discrimination on the grounds of place of origin, sex, religion or political opinions held.
It sought to use this law to back up its attitude to the issue of the parties living together and came to the conclusion by insinuating that the Appellants were trying to weave discriminatory practices forbidden by section 39 of the 1979 Constitution into the case.
Once again it has to be stated that the Appellants were not the complainants and therefore not the Plaintiffs. To concentrate the adjudication of this matter by trying to pick holes in the case of the Appellants is to inflict unnecessary burden on them. The approach of the court below in the rendition of the judgment is fundamentally flawed right from the word go.
In my view the case, was badly handled by the learned trial Judge in the Court below. That being so, I see merit in the Appeal and it is allowed. The judgment of the High Court is hereby set aside. The Suit itself is hereby dismissed. There shall be cost to the Appellant assessed at N5, 000.00.
JOHN AFOLABI FABIYI, J.C.A.: I had a preview of the judgment just delivered by my learned brother Pats-Acholonu, JCA. I agree with his reasons leading to the conclusion that the appeal is meritorious and should be allowed.
I wish to chip in a few words of mine in support of the reasons adumbrated by my learned brother. I must also say that I was taken aback by certain pronouncements by the learned trial Judge on settled points of law. With due respect, she goofed in many instances. The onus of proof was heaped on the Appellants who as defendants, at the trial court, did not counter-claim. It must be noted that generally, the burden of proof in a suit lies on that party who would fail if no evidence at all were given on either side. Refer to section 135 of the Evidence Act, 1990. See the case of Are V. Adisa & Ors. (1967) NWLR 304. The burden of proof of any issue before evidence is adduced rests on the party asserting the affirmative of same. See the case of Okechukwu & Ors. v. Ndah (1967) NWLR 368. Generally, it is on the plaintiff seeking a decree of declaration of title that the onus of proof usually rests. See Onobruchere v. Esegine (1986) 1 NWLR (Pt.19) 799; Kuma v. Kuma (1934) 2 WACA 336.
I should also point it out that where there is no counterclaim by a defendant, as in this appeal generally, the entire burden of proof never shifts. The Plaintiff should succeed on the strength of his case. Refer to Piaro v. Tenalo (1976) 12 SC 31; Kodilinye v. Odu (1835) 2 WACA 336.
In this matter, it is clear that an issue was made out by the parties on communal ownership of the parcels of land in dispute. The defendants put in issue the claim of the Plaintiffs that they were descendants of Oyiwo Ode, the undisputed founder of the land. It was not common ground that the land in dispute was ever communally owned by the parties. With due diffidence to the trial Judge, the case of Atuanya v. Onyejekwe & Anor. (1975) 3 SC. 161 was misapplied by her. In the case, it was common ground that the land in dispute therein was the inheritance of the members of the Udemba Atuanya Family. A member thereof when sued claimed exclusive title by purchase in one breath and by gift in another breath. Dan Ibekwe JSC, of blessed memory, maintained that the onus of proof was on him to prove same and since he failed, his claim ‘fell to the ground’.
I have tried to show that the onus of proof in this matter rested on the Respondents who attempted to prop the idea that the land in dispute was communally owned. It was clearly wrong to shift the onus of proof on the Appellants in the prevailing circumstance of the whole gamut of the matter. The case of Chukwueke v. Nwankwo (1985) 6 SC. 189 at 196 cited by the Senior Counsel for the Appellants is directly in point here. It is of moment.
Let me briefly comment on the application of section 39(1) and (2) of the 1979 Constitution of the Federal Republic of Nigeria. This provision of our ground norm, then in vogue, is against discrimination on grounds of place of origin, sex, religion or political opinion held. Section 39(2) which is more in point here reads thus:
“39(2) No citizen of Nigeria shall be subjected to any disability or deprivation merely by reason of the circumstances of his birth”.
I should restate it here once more that the makers of our Constitutions have very large hearts. They are very accommodating. They know the peculiarities of our Polity. In the same vein, in interpreting same, a judge should have a large heart. He should be accommodating since he equally knows the peculiarities of our polity. It must be realised that the provisions of the Constitution should be employed by a person who is discriminated against as a shield; not as a sword as the learned trial Judge attempted to do.
If a stranger element in a society acquires a legal right and there is an attempt to dislodge him of same, he can take umbrage under the above provision of the Constitution. Since title by prescription is unknown to customary law, a stranger who attempts to hide under the canopy of the stated section of the Constitution to lay claim to land would be told his real cognomen just like the Respondents were reminded that they are Umu Odenigbo and not Umu Oyiwode. As stated by the Senior Counsel for the Appellant, Section 39 of the 1979 Constitution did not establish a reign of robbing Peter to pay Paul. If a person was not entitled to inherit property and he lays claim to it, a defence that he was not so entitled has not deprived him of any right to the patrimony.
Let me give two instances in which the provision of section 39 of the 1979 Constitution can be employed as a shield.
Thereafter, I shall be done. A product of Nrachi Custom or a child born out of wedlock whose custody follows that of the mother in the absence of any person claiming his custody on the basis of being his natural father should not be subjected to any disability or deprivation.
They can quietly employ the provisions of the Constitution as a shield. Refer to Muojekwu v. Ejikeme (2000) 5 NWLR (Pt.657) 413 at 439. They must, however, know their level so as not to be called names. I strongly feel that the stated section of the 1979 Constitution was wrongly applied by the trial Judge.
For the above reasons and the fuller ones contained in the lead judgment, I, too hereby allow the appeal and endorse all the consequential orders including that relating to costs.
CLARA BATA OGUNBIYI, J.C.A.: I have read in draft the judgment just delivered by my learned brother Pats Acholonu, JCA. I agree entirely with the reasoning and conclusions reached by him.
I would however, further wish to refer to paragraph 6 of the pleadings of the plaintiffs and Defendants respectively where it was not a common ground that the land in dispute was ever communally owned by the parties or their fore-fathers.
For instance on the one hand the said paragraph 6 of the plaintiffs’ amended statement of claim at page 55 of the record states thus:
“The land in dispute is communally owned by the plaintiffs and the defendants who inherited same from a common ancestor called OYIWO ODE and have been exercising diverse acts of ownership thereon from time immemorial.”
On the other hand the defendants at page 111 of the record and at paragraph 6 of the further amended statement of defence also had this to say:
“6. The defendants deny paragraph 6 of the Amended Statement of Claim and state further that the said lands in dispute have never been communally owned by the plaintiffs and the Defendants instead the defendants had from time immemorial owned the lands in dispute and some other lands exclusively.
The defendants only gave part of their communal lands to the Akpawfu Community for development purposes in the areas south of the land in dispute – Aputi land. Further the plaintiffs are not descendants of Oyiwode of Akpawfu instead the plaintiffs who are called Umu Odenigbo migrated to Akpawfu from diverse places and do not have one ancestor by any name.”
At paragraph 7 of their said defence, the defendants went further to give the names of the plaintiffs’ respective forebears and the places from which they migrated to Akpawfu.
By the provision of section 137 of the Evidence Act relating to burden of proof in civil cases same reproduced states as follows at subsection (1):
“137(1) In civil cases the burden of first proving the existence or non-existence of a fact lies on the party against whom the judgment of the court would be given if no evidence were produced on either side, regard being had to any presumption that may arise on the pleadings.”
In applying the above provision and in the light of the pleadings of the parties in particular, their respective paragraph 6, if no evidence is adduced on either side, the casualty, from all indications would certainly fall on the plaintiffs. This is so because they are the ones alleging the joint and communal ownership. They were therefore expected to first prove the existence of such claim in the absence of any existing presumption reverting such onus away from them.
In other words, the burden was on the plaintiffs, who asserted, to prove that they were descended from ancestor Oyiwo Ode who, they admitted, founded the land and was also the ancestor of the defendants. It is trite law that the plaintiff ought to succeed on the strength of his own case and not to rely on the weakness of that of the defence. This is well expounded in the Supreme Court’s decision of Chukwueke v. Nwankwo (1985) 6 SC 189 at 196 – 197.
Their Lordships in the said case among others held that the trial judge correctly reasoned and founded that the plaintiffs had failed to prove their case. That the Court of Appeal therefore erred in law in reversing the onus of proof and making findings in favour of the plaintiffs on that account. At page 197 their Lordships held and said:
“The Court of Appeal also committed a very serious error by applying the principle of inconvertibility of communal land tenure to personal tenure as stated in Adenle v. Oyegbade, Eze v. Giliegbe … and by over looking the overwhelming evidence that personal ownership of land is permitted by the relevant native law and custom. That court appears to over – look the decision of this court in Ofogbolu v. Okeluwa (1981) 6 – 7 SC. 99 at 137 to the effect that the general principle of communal ownership as pronounced in Amodu Tijani v. Secretary, Southern Nigeria (1921) 2 A.C. 404 would not apply where it is established by evidence that the native law and custom in any particular area differs from the general principle.”
The citations for the authorities of Adenle v. Oyegbade, and Eze v. Giliegbe (supra) are (1967) NMLR 136, and 14 WACA 61 respectively.
In the Supreme Court’s case of Chukwueke v. Nwankwo under reference supra, the issues joined on the pleadings were challenging the existence of communal ownership and consequent to which there was no room for presumption that the land in dispute was ever communal as pleaded by the plaintiffs. The same therefore still needed to be proved. For traditional history to pass the test of acceptability it must show the mode of original acquisition and the devolution of the title down to the party claiming the land. The failure to so do would be fatal to the claim. The authority of Total (Nigeria) Ltd. v. Nwako (1978) 5 SC. 1 is in point.
In that case, one of the claims before the trial court was a declaration that the plaintiffs were the absolute owners in possession free from encumbrances of the parcel of land in question. The issue before the court was as to the ownership of the land in dispute on which the 2nd defendant also pleaded that his families have from time immemorial exercised maximum acts of ownership.
In the course of hearing, both parties led evidence to establish the same or serious acts of ownership but each side claiming its exercise.
In his judgment, the learned trial judge while summarizing the pleadings observed and came to the conclusion that the plaintiffs’ pleadings from the traditional point of view reveals that their forebears are of the same ancestry of the 2nd defendant. Such a conclusion was not however averred to in the said pleadings.
Their Lordships of the Supreme Court at page 19 of the judgment in allowing the appeal on a number of grounds held on this particular issue as follows:
“The unanswered questions of the truth of the claims of the respondents to the same ancestral origin as the appellant and related issues of devolution of title … have persuaded us to the view that the judgment of the learned trial judge must not be allowed to stand.”
I would again at this point want to refer to the learned trial judge where at page 178 lines 10 – 15 of the record, he said:
“Since both sides rely on one common ancestor who died centuries ago, it becomes difficult to accept which traditional history that will be acceptable to the court. I find the plaintiffs and defendants properly settled on the land, as there is little to choose between the rival traditional stories; therefore both parties own the land communally.”
In further reference and at page 180 lines 29 – 32 to page 181 lines 1 – 5 the learned trial judge again went on and said:
“Summing up the case it is beyond question that the plaintiff whether they are from Umu Oyiwode or not whether they are Awbias or strangers definitely own the land in dispute in this case jointly with the defendants. I find as a fact that the plaintiffs and the defendants are members of Oyiwode family although they might belong to a different section of that family. I also find as a fact that the parties communally own the land in dispute.”
From all indications and on the record before us, it is apparent that traditional history proved unhelpful to enable the court decide one way or the other in view of the claim by both sides. Despite the situation in which the court found itself, the duty still laid squarely on the said trial court to unravel this difficulty by the evaluation of evidence. The question that is appropriate in view of the findings of fact on the court’s judgment reproduced supra is this:
By what reason or means did the court come to the conclusion giving rise to the findings of fact as he did? This question is paramount, especially having regard to the evidence adduced before the trial court. Two witnesses testified for the plaintiffs. The 1st plaintiff as PW.1 at pages 85 and 86 of the record testified to the joint acts of common use by both parties who also appointed a joint committee for the benefit of the Community for purpose of looking after the cassava farm, a section of the land in dispute. Patrick Ogerenyi testified as PW.2 and in his evidence in chief he said that the defendant destroyed the plaintiff’s crops on the land in dispute because they, the plaintiffs, did not pay rent to the defendants. Under cross-examination the witness also contradicted the evidence of PW.1 and said, “We have no caretaker or committee looking after the land.”
At page 170 lines 9 – 19 at the findings of the trial court on his judgment, reference was made to the joint Committee, which was in dire conflict. There was no basis or ground of the said findings by the trial court. It is also on record that the defendants did not counter claim for title. In my view and having regard to that before the lower court, there was a bundle of confusion, which certainly was not sufficient to ground a judgment for a declaration of title to land.
In the authority of Ededem Archibong v. Ntoe Asim Ita & 2 Ors 14 W.A.C.A. 520 it was enunciated that when title is based on acts of ownership and possession, such acts must extend over a sufficient length of time, numerous and positive enough to warrant an inference that the plaintiff is indeed the owner of the land claimed by him. Furthermore, in Bello Isiba & Ors v. J. T. Hanson & Ors. (1968) N.M.L.R. 76, the Supreme Court emphasized that the mere fact of possession by the tenant without any other overt acts on his part unequivocally pointing to the assertion of absolute ownership to the knowledge of the grantor was not sufficient to divert the grantor of his radical ownership of the land.
Further still and in the case of Kodilinye v. Mbanefo Odu 2 WACA 336 at 338 the West African Court of Appeal held that on the findings of the trial court, that there was little to choose between the rival traditional stories as told by both sides the proper judgment was one of dismissal.
On the deductions of the deliberations supra, it is my humble opinion that it is more probable that the imaginary scale is that which ought to have tilted in favour of the defendants/respondents having regard to the pleadings and the evidence before the trial court. In other words, the mere fact that the parties collectively contributed money to fight a previous joint communal suit as it was in the matter at hand should not operate as an estoppel to preclude the subsequent protection of an individual interest. An estoppel has been defined by Black’s Law Dictionary at P.494 where it states:
“Estoppel arises when one is concluded and forbidden by law to speak against his own act or deed.”
The act or deed by the defendants in the previous suit or series of disputes was to participate in a joint communal defence affecting general interest. Communal interest therefore, does not prevent an individual interest as spelt out by the Supreme Court Lords in the case of Chukwueke v. Nwankwo (supra).
In the result and having regard to the appeal before us and more particularly to the fuller reasons given on the lead judgment, I also allow the appeal and set aside the judgment of the High Court. The suit is hereby dismissed and I abide by the order as to costs.
Appearances
A.N. Anyamene SAN
M.M. EyutchaFor Appellant
AND
Emeka OffodileFor Respondent
