CHIEF ROGERS AKARANTA & ANOR. v. NTIOMA BEBE & ORS.
(2011)LCN/4276(CA)
In The Court of Appeal of Nigeria
On Friday, the 4th day of February, 2011
CA/PH/370/2006
RATIO
DECLARATION OF TITLE TO LAND: WHETHER A PLAINTIFF MUST RELY ON ON THE STRENGTH OF HIS OWN CASE IN A CLAIM FOR IN DECLARATION OF TITLE TO LAND
…in a claim for declaration of title to land a plaintiff floats or sinks on the strength of his own case and not on any weaknesses in the defendant’s case. See e.g Onisaodu vs. Elewuju (2006) 13 NWLR (Pt. 998) 517 SC, Dike vs. Okoloedo (1999) 10 NWLR (Pt. 623) 359 SC, Madubuonwu vs. Nnalue (1999) 11 NWLR (Pt. 628) 673 SC. PER MOJEED ADEKUNLE OWOADE, J.C.A.
PROOF OF TITLE TO LAND: BURDEN PLACED ON A PARTY SEEKING TO RELY ON EVIDENCE OF TRADITIONAL HISTORY
It is trite that a party relying on evidence of traditional history must plead his root of title. Not only that, he must show in his pleadings who those ancestors of his were and how they came to own and possess the land and eventually pass it to him, otherwise his claim will fail. Ibikunle vs. Lawani (2007) 3 NWLR (pt. 1022) 580 CA, Okoko vs. Dakoro (2006) 14 NWLR (Pt. 1000) 401 SC. PER MOJEED ADEKUNLE OWOADE, J.C.A.
EVIDENCE OF TRADITIONAL HISTORY: DUTY OF A TRIAL COURT WHERE WITNESSES OF ONE PARTY CONTRADICT EACH OTHER ON THE TRADITIONAL HISTORY RELIED ON AND WHERE THE EVIDENCE ADDUCED BY ONE SIDE IS SUPPORTIVE OF THE TRADITIONAL HISTORY RELIED ON BY THE OTHER SIDE
Where as in the instant case, the witnesses of one party contradict each other on the traditional history relied on, the trial court will be right to reject the traditional history relied on. similarly, where there is evidence adduced by one side supportive of the traditional history relied on by the other side, the trial court will be right in accepting the latter traditional history. Obioha vs. Duru (1994) 1 NWLR (pt.365) 631, Biariko vs. Edeh – Ogwuile (2001) 12 NWLR (pt.726) 235. PER MOJEED ADEKUNLE OWOADE, J.C.A.
IDENTIFICATION OF THE LAND IN DISPUTE: EFFECT OF THE FAILURE OF A PLAINTIFF TO GIVE THE EXACT EXTENT AND IDENTITY OF THE LAND HE IS CLAIMING
Where, as in this case, a plaintiff claims a declaration of title to land and fails to give the exact extent and identity of the land he is claiming his action should be dismissed. Baruwa vs. Ogunsola (1938) 4 WACA 159, Odesanya vs. Ewedemi (1962) 2 SCNLR 32, Olawi vs. Eniola (1967) NMLR 339, Orusanmi vs. Oshasona (1992) 6 NWLR (pt.245)22, Auta vs. Ibe (2003) 13 NWLR (pt. 837)247, Erias vs. Omo Bare (1982) 5 SC 25, Arabe vs. Asanlu (1980) 5 – 7 SC 78 and Dada vs. Dosunmu (2006) 18 NWLR (pt.1010) 134. PER MOJEED ADEKUNLE OWOADE, J.C.A.
JUSTICES
ABUBAKAR JEGA ABDUL-KADIR Justice of The Court of Appeal of Nigeria
HELEN MORONKEJI OGUNWUMIJU Justice of The Court of Appeal of Nigeria
MOJEED ADEKUNLE OWOADE Justice of The Court of Appeal of Nigeria
Between
1. CHIEF ROGERS AKARANTA & ANOR.
(for himself and as representing the AKARANTA FAMILY of Umunwuhani, Umuibe village, Ndoki, Ukwa East L.G. A)
2. CHIDIKE BEBE Appellant(s)
AND
1. NTIOMA BEBE & ORS.
2. OGUCHI BEBE
(for themselves and as representing BEBE FAMILY of Umunwubani, Umuibe village Ndoki, Ukwa East L.G.A.)
3. CHIEF WILLIE ONYEKWERE Respondent(s)
MOJEED ADEKUNLE OWOADE, J.C.A. (Delivering the Leading Judgment): This is an appeal from the judgment of S. N. Imo, J, dated 29th July 2005 delivered at the High Court of Abia State sitting at Obehie.
On 14/1/87, the appellants as plaintiffs before the lower court took out a Writ of Summons against the respondents and claimed as follows.
1. A declaration that the plaintiffs are entitled to the Customary Rights of Occupancy of that parcel of land known as and called ‘NTAMOKU’ being and situate along Umunwaubani lands in Umuibe village, Ndoki, Ukwa Local Government Area and of an annual value of twenty Naira (20.00).
2. One thousand Naira (N1,000.00) General Damages in that in the month of January, 1987 the defendants by themselves, their servants and or agents and without leave or license of the plaintiffs unlawfully broke and entered into the said plaintiffs land ‘NTAMOKU’ which is in the actual possession of the plaintiffs, cleared the same, uprooted their plantain stems and destroyed their cassava plantation.
3. An injunction permanently restraining the defendants, their servants and or their agents from any further acts of trespass to or interference whatsoever with the said plaintiffs land.
The appellants filed a statement of claim on 11/5/87 and later an Amended statement of claim on 6/4/88. Finally, in relation to this case, the appellants filed another Amended Statement of Claim dated 27/1/2003 on 31/1/2003.
The respondents, on the other hand relied on their Amended Statement of Defence dated 6/3/2003, amended pursuant to order of court made on 26/6/2002 and filed on 7/3/2003.
The facts of the case are that both the appellants and the respondents are descendants of a common ancestor known as Nwubani. The appellants claimed to have inherited the land, subject of this appeal from Dick Okereocho, who they claimed held from their family or lineage (Nwogunta) that it was Okereocho who deforested the land in dispute and upon his death, his son Dick Okereocho inherited the land. Upon the death of Dick Okereocho, the appellants inherited the land. This inheritance, according to appellants occurred because Dick Okereocho died without an issue and they the appellants family buried him and according to the appellants, in Ndoki custom when one has no issue and dies, his relation who buried him inherits his properties.
The respondents on the other hand claimed that the land in dispute belong to the Bebe family of the 1st and 2nd respondents. Also, that the land in dispute was deforested by their ancestor Bebe. Okereocho, according to the respondents does not hail from Umuibe village, Ndoki but hails from Nigboji Ndoki, Oyigbo Local Government Area, of Rivers state. Okereocho, by the respondents’ version, lived as a stranger element in Bebe’s House and was granted the land in dispute for farming purposes only. Okereocho never participated in deforesting the land in dispute. Upon Okereocho’s death, his son Dick Okereocho farmed upon the land and or used same. That, when Dick Okereocho died the entire Umunwubani comprising both the appellants, 1st and 2nd respondents families contributed money used for his burial in Rivers state. And, that, upon the death of Dick Okereocho who died without an issue, the land in dispute reverted back to the Bebe family in accordance with the custom of Umuibe, Ndoki.
At the trial, the appellants as plaintiffs called three (3) witnesses as follows
1 . PW1 – Sir Rogers Akaranta, of the appellants Akaranta family.
2. PW2 – Chief Emmanuel Kanu, a one time lessee of Dick Okoreocho on the land in dispute.
3. PW3 – Chidike Bebe, the 2nd plaintiff – a member of the respondents family who joined the plaintiffs suit as co-plaintiff.
The respondents also called 3 (three) witnesses as follows:
1. DW1 – Christian Ntioma Bebe.
2. DW2 – Nnaukwu Odoemela.
3. DW3 – Lucky Okereocho, (this witness did not turn up for cross-examination).
At the end of the trial, the learned trial Judge dismissed the appellants case and held at pages 120 – 121 as follows:
“….In the instant case, the plaintiffs pleadings are plainly defective. They are lacking in all material particulars. This is more so in the instant case where the plaintiffs and defendants disagree as to identity of the said Okereocho to whom the plaintiff trace their root of title. It behoves the plaintiffs to trace the line of succession from Ubani to Okereocho, showing how they are entitled to succeed him. It is not enough to say; Okereocho deforested the Ntamoku land; Okereocho is from our lineage. I am afraid the plaintiffs have woefully failed to meet this requirement….
where the plaintiff failed to prove his root or title satisfactorily, in a claim for declaration of title to land, the defendant who did not counter claim would not need to answer the claim upon such defective evidence…………as the plaintiffs as it were failed to make out a Prima facie case in their favour……… the claim of the plaintiffs failed in its entirely…….”
Dissatisfied with this judgment, the appellants filed a Notice of Appeal in this court on 28th October, 2005.
Appellants’ brief of argument dated 19/4/07 was filed on the same day but deemed filed on 01/11/07. Respondents brief of argument is dated and filed on 19/5/2010.
The appellants nominated two issues for determination:
“1. Whether the Honourable Court was right in holding that the plaintiffs did not prove title to the land in dispute both in their pleadings and evidence.
2. Whether the learned trial Judge dispassionately analyzed and reviewed the case of the appellants before dismissing the suit.”
Learned counsel for the respondents adopts Appellants’ lssue No. 1 as the sole issue for determination in the appeal.
I have gone through the records and the briefs of argument filed by the parties to this appeal. I think appellants’ issue No. I would suffice for the determination of the appeal.
In arguing the sole issue for determination, learned counsel for the appellants reiterated the case of the appellants and said that the appellants pleaded and proved the fact that though all the parties are of the Umubani ancestry, the 1st appellant and Okereocho, the original owner of the land in dispute are of the nuclear family of Nwogunta whilst the respondents are of Akatajita lineage. That, it was not disputed that on the death of Okereocho, his son, Dick Okereocho inherited the land in dispute. And, that during his lifetime, Dick Okereocho leased part of the land in dispute to third parties, Clement Egbu and Jeremiah Kanu for soap industry without any let or hindrance either from the respondents or any other party. Also, that there was a native arbitration between one Onyeme Bebe of respondents family and Dick Okereocho in respect of the boundary of the land in dispute which was purportedly given to Okereocho by the respondents. From the foregoing, appellants submitted that they have fulfilled the requirements of the law that a party who seeks title to land and relies on traditional evidence, as in this case, must in order to succeed, plead the root of his title and the names and history of his ancestors and lead evidence to show the root of his title and before him, that of his ancestors.
On this, counsel referred to the supreme court decision in Linus Okereke & Ors. vs. Chinyere Nwankwo & Ors. (2003) FWLR (pt. 1SB,) 1246 at 1251.
Appellants’ counsel submitted that the law is clear that a customary tenant as Okereocho was referred to by the respondents, is a tenant from year to year, liable under customary law to pay rents or tribute to the landlord for the use of the land and barred from alienating the land or disputing the title of the landlord without consent. Counsel relied on the case of Abioye vs. Yakubu (1991) 5 NWLR (pt. 190) 130 at 152 and submitted that such a tenant can not be in possession if the landlord is out of possession. The possession he enjoys is that given by the landlord. And, if any of the foregoing acts happens then the tenant automatically forfeits his tenancy.
Counsel submitted, that the respondents having admitted that the land in dispute was in the possession of Okereocho but that he was a customary tenant to the Respondents, the onus is on the respondents to prove that Okereocho was a customary tenant in line with the principles enunciated in the case of Abioye vs. Yakubu. This, said counsel, the respondents neglected to do in their pleadings and evidence.
It is trite, said appellants’ counsel that in a case of competing titles, once a plaintiff succeeds in tracing his title to a person whose title to ownership has been established, then the onus shifts upon the defendant to show that his own possession is of such a nature as to oust that of an original owner.
On this, counsel referred again to the case of Linus Okereke & ors. vs. Chinyere Nwankwo (supra). He submitted that the learned trial Judge erred when he held that “plaintiffs pleadings are plainly defective, and lacking in all material particulars. This is more so in the instant case where the plaintiffs and defendants disagree as to the identity of the said Okereocho to whom the plaintiffs traced their root of title…”
Counsel submitted that the learned trial Judge did not in any form state the areas in which the pleadings of the appellants were purportedly defective. Beside, it was unchallenged that on the death of Okereocho, his son Dick inherited the piece of land and exercised exclusive ownership against the respondents and everybody.
Counsel submitted that assuming without conceding that the identity of Okereccho was in dispute, it is the duty of the learned trial Judge to evaluate the evidence of the parties and come to a conclusion.
Counsel referred to the case of Chief N. T. Okoko vs. Mark Dakolo (2006) 14 NWLR (Pt. 1000) 401 at 407 and submitted that where there is a conflict in the traditional history as to the identity of Okereocho in respect of the land in dispute, it is the adjectival duty of the trial court to examine the evidence of the parties and come to the conclusion which is more probable in the circumstances of the case.
Appellants’ counsel referred again to the case of Chief N. T. Okoko vs. Mark Dakolo (supra) at 407 and reiterated that the appellants in proof of their case gave evidence through PW1 and tendered in evidence the certified true copy of the previous statement of Elder Franklin Akara who testified earlier in the case before it was transferred for a de-novo trial. That the previous statement was admitted as Exhibit ‘B’. And, that Elder Franklin Akara in his evidence stated as follows:
“(i) He is the oldest man in the compound or family and that he knows all the parties in the suit. They all live in the same compound in Umuwabani in Umuibe.
(ii) That he knows the land in dispute known as “Ntam-Oku” situate at Umuibe. It was owned by Okereocho. That Dick Okereocho inherited the land and farmed on it. On the death of Dick Okereocho, his brothers – Rogers Akaranta and John Akaranta inherited the land and also farmed it.
(iii) That the plaintiffs inherited the land because Dick Okereocho was their brother and Dick never had any son. He was buried by the 1st plaintiff and his brothers.
(iv) That under their custom, if a person dies without a surviving son, his relations who buried him inherit his property
(v) That about 14 years ago, the defendants and their people went into the land in dispute, himself and one Josiah Akaranta drove them out and they went out. But they later went back to the land.”
Counsel submitted that the learned trial Judge in his judgment did not make any pronouncement on either the testimonies or the exhibits tendered by the parties neither did he evaluate any before he came to his decision. He submitted that before a Judge before whom evidence is adduced by the parties before him in a civil case, comes to a decision as to which evidence he believes or accepts and which evidence he rejects, he should first of all put totality of the evidence adduced by both parties on an imaginary scale, he will put the evidence the evidence adduced by the plaintiff on one side of the scale and that of the defendant on the other side and weigh them together. Counsel referred to the case of A. R. Mogaji & ors. vs. Madam Rabiatu Odofin (1978) 4 SC. 91 and submitted that the failure of the learned trial Judge to weigh the evidence of the parties in this case is fatal to the judgment so delivered. Also, relying on the cases of Bulama Bukar Maida & 4 ors. vs. Bulama Modu & 4 ors. (2000) 4 NWLR (pt. 651) 99 at 103 and Mogaji Lasisi Atanda & ors. vs. salami Ajani & ors. (1989) 3 NWLR (pt.111) 511 at 514, appellants, counsel submitted further that the failure on the part of the learned trial Judge to resolve the conflicting evidence in respect of the identity of Okereocho when he held that the plaintiffs and defendants disagree as to the identity of the said Okereocho to whom the plaintiffs trace their root of title, is also fatal when the identity of Okereocho is the “life wire” of plaintiffs root of title.
Counsel submitted that the plaintiffs root of title was basically hinged on the original title of Okereocho, whereas the defendants rebuttal was also based on the fact that Okereocho was indeed in possession of the land in dispute but he was not an indigene of Umuibe and that he was only allotted the said land by the Bebees.
Finally, appellants’ counsel referred to the case of Alhaji Alaru A. Salako & ors. vs. Chief Olatunji Dosunmu (1997) 8 NWLR (pt.517) 371 at 376 and submitted that where the trial court fails to appraise and evaluate evidence adduced before it oral and documentary in the determination of any dispute, the appellate court has a duty to do so, in order to come to a just decision, even if it is different from that of the trial court.
In presenting their brief on argument, the respondents noted that in a futile attempt to establish their non existent title to the land relied on traditional history. Counsel to the respondent then referred to the case of Mogaji vs. Cadbury (Nig.) Ltd. (1995) 2 NWLR (Pt. 7) 393 and submitted that a plaintiff whose claim is founded on traditional history in proof of a claim for declaration of title to land must plead and establish such facts as (a) who founded the land. (b) how he founded the land. (c) the particulars of the intervening owners through whom he claims. And, that where therefore, the line of succession is not satisfactorily traced, and that line of succession has gaps and serious leakages or nexus which are not established, then such line of succession would be rejected.
The appellants, said respondents’ counsel, maintained the suit in a dual capacity, namely 1st appellant in a representative capacity for himself and as representing the Akaranta family of Umunwubani, Umuibe Village, Ndoki Ukwa. While 2nd appellant maintained the suit in his individual capacity. That, the appellants filed a joint Amended statement of claim, claiming jointly against the respondents. But, that, the 2nd appellant is from Bebe family, that is the family of the 1st and 2nd respondents. And, yet, both appellants jointly prosecuted the suit relying on the same traditional history both in their pleading and in their evidence.
Respondents’ counsel submitted that the appellants failed to establish by their pleading the nexus, connection or line of succession from the purported original owner of the land in dispute (Okereocho) without gap or leakage as required by law.
Respondents’ counsel submitted that the only averment on the appellants connection to Okereocho is as shown in paragraph 5 of the Amended statement of claim as follows:
“5. Both plaintiffs family and defendants family descend from one common ancestor known as and called NWUBANI, NWUBANI had 3 sons namely: Nwogunta, Nkpukpodedeagwu and Akatajite. Okereocho, Akaranta became the father of Umuakaranta, the plaintiffs family. Nwutaranta became the father of Nwamighinna. Okereocho became the father of Dick Okereocho.”
And that in paragraph 6 of the said Amended statement of claim, the appellants pleaded as follows:
“6. Nkpukpodedeogwu begot 2 sons – Akara and Nwankwo. Akara was the father of Frankline Akara and his family and Nwankwo was the father of Titus Nwankwo family. From Akatajite descended the family of Bebe which is the family of the defendants.”
Respondents’ counsel submitted that they (respondents) debunked the claim of the appellants in paragraph 5 of their Amended statement of Defence as follows:
“5. Paragraph 5 of the Statement of Claim is admitted only to the extent that both plaintiff and the defendants are descendants of Nwubani who begot 3 sons namely Nwogunta, Akatajite and Nkpukudedeogu. The rest of the averments in the said paragraph 5 of the Statement of Claim are false and are denied by the defendants.”
In further answer to the said paragraph 5 the defendants aver as follows:
“(a) Nwogunta had three sons namely, Akara Nwogunta, Nwankwo Nwogunta, and Akaranta.
(b) Okereocho was not the son of Nwogunta, rather he, Okereocho was a native of Ngboji, Otelga in Rivers State who came and settled in Umuibe village and lived with the family of Bebe.
(c) Okereocho in turn was survived by a son named Dick Okereocho who died without an issue.
(d) When Okereocho and his wife Mgbanu died their corpses were carried to their home town Mgboji where they were buried.,
Respondents’ counsel reviewed the evidence of traditional history offered by PW1 and PW3 as follows:
PW1 – “we own common ancestor with the defendants named Ubani. Ubani begot three sons, Nwaogunta, Nkpukpudedeogwu, Akatajite, Ubani is also known as Nwaubani………………………… I am from Akaranta lineage. We are Umu-Ubani family. I knew Dick Okereocho he hailed from our lineage Nwogunta. The defendants are of Akatajite ……., the land in dispute was deforested by Okereocho, the son of Nwogunta. Nwogunta begot Okereocho and Akaranta.”
In relation to the evidence of PW1, respondents’ counsel quickly pointed out that there was no time that the appellants pleaded that Nwogunta begot Okereocho.
Respondents’ counsel added that pw3 (the 2nd appellant) who is from the respondents Bebe family testified on the issue of traditional history as follows:
“The land is owned by us. We inherited the land from Dick Okereocho. Dick Okereocho was brother to the 1st plaintiff.”
On these, respondents’ counsel submitted that the learned trial Judge was right when he held that “plaintiffs pleadings are plainly defective. They are lacking in all material particulars. This is more so in the instant case where the plaintiffs and defendants disagree as to the identity of the said Okereocho to whom the plaintiff trace their root of title. It behoves the plaintiffs to trace the line of succession from Ubani to Okereocho, showing how they are entitled to succeed him.”
In contrast to the evidence of traditional history offered by the appellants, learned counsel for the respondents reviewed their own evidence of traditional history as follows:
DW1 – “Nwaubani begot three sons, Nwogunta, Akatajite, Nkpukpudedeogwu. The Bebe’s hail from jite; whereas the plaintiffs (Akaranta) and Nwankwo hail from Nwogunta. Nwogunta had 3 sons Akara, Akaranta and Nwankwo. I have heard the name Okereocho. He is not an indigene of Umu-Nwaubani. He is an indigene of Mgboji in Rivers State. He lived in my fathers compound, Bebe’s compound. He is late. He had one son by name Dick Okereocho. Dick is also late. Dick had no issue.”
DW2 – “I knew Dick Okereocho, he hailed from Mgboji in Rivers State ….I also knew his father …. He hailed from Mgbohi, Mgboji people buried Okereocho at Mgboji. The land in dispute is owned by Bebe.”
Respondents’ counsel submitted that the 2nd appellant as pw3 supported the traditional history as presented by the respondents when he stated under cross-examination “…it is true that it was Bebe who deforested Ntamoku land…”
Learned counsel for the respondents also sought to point out discrepancies and inconsistencies in the appellants evidence on their claim that they buried Dick Okereocho.
On this, respondents’ counsel referred to portions of paras. 8 and 9 of the appellants Amended Statement of Claim where they pleaded thus:
“…..When Dick Okereocho died he had no issue. He was buried by the 1st plaintiffs family in 1st plaintiffs compound. Nwamighinna the descendant of Nnanwutaranta also died without issue. By Ndoki native law and custom the property of Dick Okereocho including land in dispute was inherited by the plaintiffs family of Akaranta…”
Respondents’ counsel submitted that the appellants failed in their attempt to establish the above pleaded fact. That, the 1st appellant testifying in chief as PW1 stated as follows on the issue:
“When Dick died, Umu-Akaranta buried him. In Ndoki custom, who buried him inherits his properties. We did so in respect of Dick including the land in dispute.”
That, under cross-examination, 1st appellant contradicted his earlier testimony when he stated as follows: – “I knew Dick Okereocho. I buried him.”
Further, “I claim the land not because I buried Okereocho but because he is my brother. I am to bury him, l am also to inherit his estate. I and members of my family buried him. It is false that the entire Umu-Nwaubani family (Male and Female) contributed money to bury him”.
Learned counsel to the respondents’ submitted that in contrast to the appellants testimony on the issue of the burial of Dick Okereocho, that the testimony of the respondents witnesses was corroborated by Exhibit B, which shows that in a previous trial, one Franklin Akara admitted in evidence that it was the entire Umunwaubani including 1st and 2nd respondents family who contributed money and buried the said Dick Okereocho.
In determining the sole issue in this appeal, a convenient starting point is a reminder of the age long principle that in a claim for declaration of title to land a plaintiff floats or sinks on the strength of his own case and not on any weaknesses in the defendant’s case. See e.g Onisaodu vs. Elewuju (2006) 13 NWLR (Pt. 998) 517 SC, Dike vs. Okoloedo (1999) 10 NWLR (Pt. 623) 359 SC, Madubuonwu vs. Nnalue (1999) 11 NWLR (Pt. 628) 673 SC. A good summary of the case of the parties could be seen from the judgment of the lower court at page 119 of the record: “The plaintiffs say that the land in dispute which Okereocho held belongs to them, because Okereocho came from their lineage, that he had no surviving issue, and that they buried him and therefore entitled to his Estate including the land in dispute. The defendants agree that the land was in possession of Dick Okereocho until his death. But that Okereocho was a stranger who resided in their place, Umunwaubani as a farmer. That their family, Bebe family, gave him the land in dispute by his father Okereocho, for farming purposes only. That on his death the entire Umunwaubani buried him. That thereafter the land in dispute reverted to them, the original owners of the land.” From the above facts more especially as the respondents have presented Okereocho as a stranger, it was incumbent on the appellants not only to prove the identity of Okereocho, his entitlement to the land in dispute and also the appellants lineage connection with Okereocho which entitled them to inherit the property from him. In fact, the appellants did mention in their pleadings that Okereocho deforested the land in dispute. But who was Okereocho? The only answer to this question as provided by the appellants would be found in paragraphs 5 and 6 of the Amended Statement of Claim thus: “5. Both plaintiffs’ family and defendants’ family descend from one common ancestor known as and called NWUBANI. Nwubani had 3 sons namely: Nwogunta, Nkpukpadedeogwu and Akatajite. Okereocho. Akaranta became the father of Umuakaranta, the plaintiffs family. Nwutaranta became the father of Nwamigbinna. Okereocho became the father of Dick Okereocho. 6. Nkpukpodedeogwu begot 2 sons – Akara and Nwankwo. Akara was the father of Franklin Akara and his family and Nwankwo was the father of Titus Nwankwo family. From Akatajite descended the family of Bebe which is the family of the defendants. ” In the above pleadings, the appellants have not told us who begot Okereocho. Thus, when at page 47 of the record pW1 gave evidence to the effect that: “…The-land in dispute was deforested by Okereocho, the son of Nwogunta. Nwogunta begot Okereocho and Akaranta… ” The undermined piece of evidence was not pleaded by the appellants and goes to no issue. As a result of this gap, there exists a fundamental lacunae in the pleadings and evidence of the appellants on the identity of the said Okereocho whom the respondents have described as a stranger in Umuibe. It is trite that a party relying on evidence of traditional history must plead his root of title. Not only that, he must show in his pleadings who those ancestors of his were and how they came to own and possess the land and eventually pass it to him, otherwise his claim will fail. Ibikunle vs. Lawani (2007) 3 NWLR (pt. 1022) 580 CA, Okoko vs. Dakoro (2006) 14 NWLR (Pt. 1000) 401 SC. Secondly, under cross-examination pw3, a member of the respondents family witnessed for the appellants at page 61 of the record as follows: “I am now the owner of Bebe’s Estate. It is true that it was Bebe who deforested Ntamoku’s land. It is true that part of the land in dispute belongs to me. The part of the land in dispute that belongs to Bebe is my own. I am the 2nd plaintiff in this matter. I cannot read plan (Exhibit A) as to know whether or not it shows any portion of the land in dispute as my own……” Clearly, the evidence of pw3 dealt a final blow into the case of the appellants. The evidence of PW3 contradicts the pleadings and evidence of the appellants. Where as in the instant case, the witnesses of one party contradict each other on the traditional history relied on, the trial court will be right to reject the traditional history relied on. similarly, where there is evidence adduced by one side supportive of the traditional history relied on by the other side, the trial court will be right in accepting the latter traditional history. Obioha vs. Duru (1994) 1 NWLR (pt.365) 631, Biariko vs. Edeh – Ogwuile (2001) 12 NWLR (pt.726) 235. It is also important to note that there was no evidence on record in this case, which demarcated the land of the 1st appellant from the land being claimed by the 2nd appellant. Mean while, the 1st and 2nd appellants who belonged to opposing families relied on the same pleadings, the same survey plan, the same counsel and presented the same case before the lower court without leading evidence demarcating the 1st appellant’s Akaranta’s family’s portion of land from 2nd appellant’s Bebe’s portion of the land in dispute. This is fatal. The reason being that the primary duty placed on plaintiff who comes to court to claim a declaration of title to land is to show the court clearly, the area of land to which his claim relates so that the land can be identified with certainty. In other words, in an action for declaration of title to land, the onus is on the plaintiff to prove title to a defined area to which the declaration can be attached. Where, as in this case, a plaintiff claims a declaration of title to land and fails to give the exact extent and identity of the land he is claiming his action should be dismissed. Baruwa vs. Ogunsola (1938) 4 WACA 159, Odesanya vs. Ewedemi (1962) 2 SCNLR 32, Olawi vs. Eniola (1967) NMLR 339, Orusanmi vs. Oshasona (1992) 6 NWLR (pt.245)22, Auta vs. Ibe (2003) 13 NWLR (pt. 837)247, Erias vs. Omo Bare (1982) 5 SC 25, Arabe vs. Asanlu (1980) 5 – 7 SC 78 and Dada vs. Dosunmu (2006) 18 NWLR (pt.1010) 134. In all of the above circumstances, the learned trial Judge in the instant case could not be said to be wrong when he herd at pages 120 – 121 of the printed record thus: “…In the instant case, the plaintiffs pleadings are plainly defective. They are lacking in all material particulars. This is more so in the instant case where the plaintiffs and defendants disagree as to the identity of the said Okereocho to whom the plaintiffs trace their root of title. It behoves the plaintiffs to trace the line of succession from Ubani to Okereocho, showing how they are entitled to succeed him. It is not enough to say, Okereocho deforested the Ntamoku land. Okereocho is from my lineage.” I am afraid the plaintiffs have woefully failed to meet this requirement.” The learned trial Judge continued: “In Dike vs. Okotoedo (1999) 10 NWLR (Pt.623), 359, the Supreme Court at page 362 stated as follows: “In a claim for declaration of title to land based on inheritance, (as in the instant case) the plaintiffs must plead and establish the names and history of their various ancestors. At page 364 of the same case, the Supreme Court referring to Ajiboye vs. Kolawole (1996) 10 NWLR (Pt.476) stated: “Where the plaintiff failed to prove his root of title satisfactorily, in a claim for declaration of title to land, the defendant who did not counter claim would not need to answer the claim upon such defective evidence”, since the defendants did not counter claim but merely defended the action by presenting their own case and denying…. The defendants have no duty to answer to the plaintiffs defective evidence, as the plaintiffs have as it were failed to make out a Prima facie case in their faovur. Consequently, the claim of the plaintiffs fails in its entirely…” From the facts and circumstances of the instant case, the judgment of the trial court cannot be faulted. The only issue set out for determination is resolved in favour of the respondents. The appeal lacks merit and it is accordingly dismissed. N5,000.00 costs of this appeal is awarded in favour of the respondents. ABUBAKAR JEGA ABDUL-KADIR, J.C.A.: I read in draft the Judgment of my learned brother Owoade, J.C.A. in this appeal. I have nothing useful to add to that Judgment as I entirely agree with his reasoning and conclusion. For the same reasons advanced in the lead Judgment, I also dismiss this appeal and abide by the Order as cost. HELEN MORONKEJI OGUNWUMIJU, J.C.A.: I have read the judgment just delivered by my learned brother MOJEED ADEKUNLE OWOADE, JCA. I completely agree with his reasoning and conclusion that the appeal has no merit and should be dismissed. The Appellants as Plaintiffs at the lower court failed to prove their entitlement to a declaration of title to the land in dispute. The Appellants were unable by either the pleadings or evidence to establish an unbroken chain of succession from the person they claimed to be the original owner of the land. They were also not able to prove on a balance of probabilities how Nwubani their ancestor came into possession of the land. The Appellants were obliged to plead and establish the names and history of their various ancestors. See DIKE v. OKOLOEDO (1989) 10 NWLR Pt. 623 Pg. 359 at 362. In the circumstances, I too dismiss the appeal and abide by all consequential orders.
Appearances
I. C. West Esq.For Appellant
AND
P.J.C. Nnaji, Esq. holding C. O. MgbeahuruFor Respondent
