DENNIS EZERIOHA & ORS v. SUNDAY MGBEAJULU & ORS
(2018)LCN/12371(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 20th day of February, 2018
CA/OW/422/2014
RATIO
LAND LAW: WAYS TO PROVE TITLE TO LAND
“The five (5) known ways of establishing claims and title to land are well known, namely: (i) By traditional history/evidence; (ii) By production of title documents to the land; (iii) By acts of ownership numerous and positive, extending over sufficient length of time to warrant the inference that the person is the true owner; (iv) By acts of long enjoyment of possession; (v) By proof of possession of adjacent lands in circumstances which render it probable that the owner of such adjacent lands would in addition, be the owner of the disputed land. See the case of Idundun & Ors Vs Okumagba (1976) LPELR 1431 SC; (1976) SC; Atanda Vs Ajani & Ors (1989) NWLR (Pt.111) 511; Orlu Vs Gogo Abite (2010) 8 NWLR (Pt.1196) 307; Ayorinde & Ors Vs Sogunro & Ors (2012) LPELR 7808 SC; Okorieocha & Anor Vs Emereni & Ors (2016) LPELR 40043 CA.” PER ITA GEORGE MBABA, J.C.A.
LAND LAW: WHERE A CLAIMANT CLAIMS HE HAS ACQUIRED TITLE BY SETTLEMENT
“Now the question 1 earlier raised will be answered by reference and placing reliance on the authority of Dauda Vs Iba (Supra) where the Court of appeal, per Nzeako JCA, held: “Thus a Claimant who has produced evidence that he acquired his title by settlement cannot be accused of not proving how he acquired his title or asked whom the original owners of the land where (sic). See Kode Vs Yusuf (2001) 14 WRN 153. Thus, by the Claimants’ root of title as asserted in this case, the need for them to prove the founder and mode of founding of the land is unnecessary and immaterial. On the devolution of the land in dispute, CW1 clearly gave evidence of same…” (See pages 217 and 218 of the Records)” PER ITA GEORGE MBABA, J.C.A.
LAND LAW: WHERE A CLAIM SEEKS DECLARATION THAT THE DEFENDANT TO BE A CUSTOMARY TENANT
“In the case of Dada & Ors Vs Bankole & Ors (2008) LPELR 907 SC (2008) 5 NWLR (Pt.1079) 26, the Supreme Court said: ‘It is settled principle of law that a Claim which seeks a declaration that defendants are customary tenants of the Plaintiff and other consequential reliefs emanating therefrom, postulates that the Defendants are in exclusive possession of the land in dispute. And by operation of Section 146 of the Evidence Act Cap E14 of the Laws of the Federation, there is presumption that the Defendants in such exclusive possession are the owners of land in dispute until the contrary is proved to rebut the presumption. The only way to rebut the presumption is by strict proof of the alleged customary tenancy.’ See Udeze & Ors Vs Chidebe & Ors (1990) 1 NWLR (Pt.125) 141 at 160 – 161.'” PER ITA GEORGE MBABA, J.C.A.
JUSTICES
RAPHAEL CHIKWE AGBO Justice of The Court of Appeal of Nigeria
AYOBODE OLUJIMI LOKULO-SODIPE Justice of The Court of Appeal of Nigeria
ITA GEORGE MBABA Justice of The Court of Appeal of Nigeria
Between
1. DENNIS EZERIOHA
2. JOHNSON NWACHUKWU
3. PAUL IREGBULEM
(For themselves and on behalf of Umuonwaga/Umuonyenachi Kindred, Ugbele, Mgbidi)
4. GABRIEL ANABRAONYE
5. UCHENNA OHANONU
6. NDENUJU ARIWUOZO
7. LAWRENCE IZULOBI
8. BEN MBADINUJU
9. FELIX OKWARA
(For themselves and on behalf of Umuochie Kindred, Ugbele, Mgbidi)
10. GABRIEL MBADINUJU
11. ANTHONY NNAJI
(For themselves and on behalf of Umuehusiere Kindred, Ugbele, Mgbidi) Appellant(s)
AND
1. SUNDAY MGBEAJULU
2. AUGUSTINE IKEGWUOHA
3. PAULINUS AKUKWE
4. SYLVANUS IREOZOR
5. EDWIN NWOWU
6. PETER ONYE
(For themselves and on behalf of Umuokanume Kindred of Ugbele, Mgbidi) Respondent(s)
ITA GEORGE MBABA, J.C.A. (Delivering the Leading Judgment):
Appellants filed this appeal against the judgment of Imo State High Court in Suit No. HOU/120/95, delivered on 24/6/2014 by Hon. Justice K.A. Ojiako, who held for the Claimants, that they had proved their ownership of the land in dispute, and made declarations for the Claimants (now Respondents).
At the Lower Court, by further amended statement of claim filed on 27/10/2006, Respondents had claimed as follows:
(a) A declaration that the Plaintiffs are entitled to the Statutory Right of Occupancy of that piece or parcel of land known as and called ‘ISI – NKWU’ situate and lying at Umuokanum, Ugbele, Mgbidi within this jurisdiction. Annual value of N20.00.
(b) N300,000.00 general damages for trespass into the land in or around March 1993, the Defendants jointly and severally destroying thousands of economic trees, including oil bean, Icheku, Ube, Young Palm trees Bread Fruit and Indian Bamboo trees on the land.
(c) Perpetual injunction restraining the Defendants their agents, servants, privies or any person claiming through or under them howsoever, from entering into the said land or committing wasters thereon. (Page 13 of the Records).
After hearing the case, and considering the evidence adduced and addresses of Counsel, the trial Court held:
“On the whole, I hold based on the forgoing that the claimants have clearly proven their ownership of the land in dispute as against the defendants. I prefer and accept the Claimant traditional history which alone should entitle them to judgment. Further, by the finding of fact that claimants are in possession of the land, exercising numerous and positive acts therein like farming, building on the land, burying their dead on the land are all presumption consistent with their ownership of the land. I prefer their traditional history to the Defendants traditional history. The Claimants are therefore entitled to judgment…” (Page 220 – 221 of the Records of Appeal)
The trial Court made the following awards for the Respondents:
(1) It is hereby declared that the Claimants are entitled to the statutory right of occupancy of that piece or parcel of land known as and called ‘Isi Nkwu’ situate and lying at Umokanume Ugbele Mgbidi within this jurisdiction with an annual value of N20,000.
(2) The defendants shall pay the claimants the sum of N100,000.00 as general damages for trespass into the land in that in or around March 1993, the defendants jointly and severally destroyed economic trees on the land.
(3) The defendants by themselves, their agents, servants, privies or any person claiming through or under them howsoever are hereby perpetually restrained from entering into the land or committing wasters on land.
Defendants shall pay cost of this trial fixed at N100,000.00. See page 221 of the Records of Appeal.
That is the decision Appellants (who were the Defendants) appealed against. They filed Amended Notice of Appeal on 2/11/15, disclosing 7 grounds of appeal. They filed their brief of arguments on 27/6/2016 and a Reply Brief on 5/4/17, which was deemed duly filed on 18/1/18, when this appeal was heard.
Appellants adopted two (2) Issues for the determination of the Appeal, as follows:
(1) Whether the trial Court did not misdirect itself on the land in dispute and came to a wrong conclusion that the Respondents proved root of title to the land in dispute by settlement (Grounds 1, 2 and 5).
(2) Whether in the light of the pleadings and evidence before the Court, including the admission of the Respondents that Appellants granted a portion of the land in dispute to a member of their family, the trial Court was not wrong in holding that the respondents discharged the burden on them in proving their ownership of the land in dispute. (Grounds 3 and 4).
The Respondents filed their brief on 28/7/16 and also distilled two (2) Issues for the determination of the appeal, namely:
”(1) Whether, considering the pleadings and evidence tendered at the trial, the Lower Court was right to hold that the Respondents proved their entitlement to the land in dispute. (Grounds 1, 2 and 5).
(2) Whether the Lower Court was right to hold that the Appellants having pleaded and tendered evidence that the Respondents were their tenants, that the onus lies on them to rebut the presumption of ownership in favour of the Respondents.”
It can be seen that Appellants did not formulate any Issue from the grounds 6 and 7 of the appeal. They are therefore, deemed abandoned and struck out, accordingly. This is because, a ground of appeal on which no issue for determination of the appeal is raised, stands struck out. See Eyo & Anor Vs Jackson & Ors (2012) LPELR 19702 (CA); Obasi Vs Onwuka (1987) 7 SCNJ 84; WAEC Vs Anyanwu (2008) 6 MJSC 1 and Onitilo Vs State (2017) LPELR 42576 SC.
Arguing the appeal, Appellant?s Counsel, Eze S.O. Eze Esq., who settled the brief, on Issue 1, referred us to page 25 of the judgment of the trial Court (page 217 of the Records of Appeal), where it held that:
“Both parties admit that the land in dispute was founded/acquired by settlement when their respective ancesstors, who are their blood brothers migrated from Eziali to Ugbele.”
He argued to the effect that the pleading and evidence of settlement by their ancesstor, Okanume, led by the Respondents, related to the Amankwu Land, not ISI NKWU land in dispute; that there was no pleading or evidence at the trial that Respondents ancestor, Okanume, settled on ISI – NKWU land, when he migrated from Eziali to Ugbele, neither was there any pleading or evidence before the trial Court that the Amankwu land on which the said Respondents’ ancestor settled when he migrated from Eziali to Ugbele, is the same land or is also called ISI NKWU. Nevertheless, Counsel said the aforesaid paragraph 10 of the Respondent’s further amended pleading and the deposition of CW1, which listed both Amankwu and ISI NKWU as two of the five lands of their ancestor, clearly showed that they were separate distinct and different parcels of land.
Counsel referred us to paragraphs 9 and 10 of the Respondents’ pleadings, where they avered that Okanume (Respondents’ Ancestor) settled at Amankwu land on migrating from Eziali to Ugbele, Mgbidi; he said that the land in dispute, ISI – NKWU, is separate and different from Amankwu land. Rather, that Appellants called the said land in dispute ‘OWORO NWAGA’ and ‘ABOH OCHIE’; that the settlement land of the Appellants, when they migrated from Eziali to Ugbele, was ‘Ochie Eke Obana’ and their ancestor were Nwaga and Ochie. He submitted that the pleading and evidence of settlement by Respondents’ ancestor, Okanume, related to Amankwu land, not ISI-NKWU land; he said that there was no pleading that Respondents’ ancestor, Okanume, settled Isi-Nkwu. He argued that there was no evidence on how the Respondents’ ancestor found/acquire or become the owner of Isi-Nkwu land, to justify the finding of the trial Court, that ‘both parties admit that the land in dispute was founded/acquired by settlement when their respective ancestors… migrated from Eziali to Ugbele.’
Counsel said that had the trial Court properly directed its mind, that the ‘founding/acquisition by settlement’ it referred to related to Amankwu land not Isi-Nkwu land, the true and correct finding could have been that there was no pleading and evidence of the root of title to Isi-Nkwu, the land in dispute by the Respondents. He said that the finding was perverse and had occasioned miscarriage of justice and should be reversed. He relied on Haruna Vs A.G. Fed. (2012) ALL FWLR (Pt.633) 1617; Oguanuhu Vs Chiegboka (2013) ALL FWLR (Pt.703) 1925; Matanmi & Ors Vs Dada & Anor (2013) ALL FLWR (Pt.682) 1638; Ukeje Vs Ukeje (2014) ALL FWLR (Pt.730) 1323.
On Issue 2, Appellant said the Respondents did not discharge the burden of proof placed on them; that they were to succeed on the strength of their case, not on the weakness of the defence, except where the defence case supported the Plaintiffs’ case. He relied on Nruamah & Ors Vs Ebuzoeme & Ors (2013) ALL FWLR (Pt.681) 1426 at 1442; Matanmi & Ors Vs Dada & Ors (Supra). Counsel said that having not Counter-claimed, the Appellants had no duty to prove their title to the said land; that for the Respondents to be held to have discharged the burden of proof, they had to establish, upon pleading:
(1) Who founded the land in dispute called ISI-NKWU;
(2) How the person founded the said land;
(3) The particulars of the intervening owners of the said land through whom they (Respondents) claimed. He relied on Oyekan Vs Oyewole (2012) ALL FWLR (Pt.623) 1991.
Counsel acknowledged that paragraphs 4 and 7 of the Respondent’s pleadings, pleaded the ISI-NKWU as belonging to them as radicial owners by customary inheritance; that they and their fore-fathers had been in undisturbed and uninterrupted possession of the land, but they did not state how the said land was founded, or how Okanume (their ancestor) founded the Isi-Nkwu land. He argued that the mere mention of only names of the alleged intervening owners was not enough or sufficient proof of the devolution of the land; that the law required names and particulars of those through whom the land had devolved to be pleaded and proved. Alli & Ors Vs Alesinloye & Ors (2000) 6 NWLR (Pt.660) 177 at 203; Nkoko & Ors Vs Akpaka & Ors (2000) 7 NWLR (Pt.664) 225; Addah Vs Ubandawaki (2015) ALL FWLR (Pt.775) 200.
Counsel referred us to the evidence of CW1, under cross examination, on page 59 of the Records, to say that the Respondents admitted that Appellants owned the land named in Exhibit B as lands of Umuodie Kindred, Umuehusiere Kindred and Umunwaga Kindred; that that admission of ownership presupposes acts of possession and enjoyment of the said lands by Appellants, which are so situated/connected with the parcel of land verged blue in the said exhibit B by locality/similarity, that what is true to them is likely to be true of the land in dispute. He relied on Section 35 of the Evidence Act, 2011.
Counsel specifically referred us to the evidence of CW1, under cross examination, who he said admitted that “It was the Umuodi Kindred that granted a portion of this land in dispute to the widow of Soribe, through the help of Umuezuruike.”
Counsel said the above admission raised a very crucial question on whether the admitted grant was consistent with the Respondents’ claim of ownership of the land in dispute. He argued that the said soribe whose the widow was granted the land was uncle of CW1, Sylvanus Ireozor (4th Respondent) and thus a member of the Respondents’ Umuokanume Kindred. Counsel said the said grant of a portion of the land in dispute to a member of the Respondents family by Appellants was inconsistent with Respondents’ claim of ownership of the land in dispute.
He said that by law, admitted evidence needs no further proof. Section 122(2) of the Evidence Act; Oguanuhu Vs Chiegboka (2013) ALL FWLR (Pt.703) 1925; Geneva Vs Afribank Nig. Plc (2013) ALL FWLR (Pt.702) 1652. He added that, in the circumstance of the admission that some members of the Respondents lived on the land in dispute by reason of the grant by Appellants, punctured the claim/presumption exclusive of ownership of the land in dispute that can entitle the Respondents to judgment. He relied on Oyadare Vs Keji (2005) ALL FWLR (Pt.247) 1583.
Counsel also founded on the evidence of CW1 on page 60 of the Records of Appeal, when under cross examination also said:
“Umuokanume Kindred has 4 lands, while two have been shared, two are yet to be shared.”
Counsel said that evidence was at variance and inconsistent with the pleadings of the Respondent in paragraph 10 of their pleadings and with the evidence in chief of the said Cw1; he said that the trial Court should have disgarded the evidence of CW1, being unreliable. Akpapuna Vs Nzeka (1983) 2 SCNLR 1.
Counsel also referred us to the evidence of CW3, Daniel Chukwunyerenwa, who admitted, under cross examination, that he had a pending Suit No. HOG/102/94 in which he was claiming ownership of the land in dispute against Appellants. Counsel wondered how CW3 could have a pending Suit in which he claimed ownership of the same land and dispute against Appellants, and at the same time testified that the same land was that of the Respondents! He said that evidence could not be credible. He relied on Yusuf Vs Adegoke (2007) ALL FWLR (Pt.385) 384.
He urged us to resolve the issues for the Appellants and allow the appeal.
The Respondents’ Counsel, Ken C.O. Njemanze, SAN, (who settled the brief), on Issue one, referred us to the five ways of establishing ownership of land, relying on the case of Idundun Vs Okumagba (1976) 9 – 10 SC, 277; Fasoro Vs Beyioku & Ors (1988) 2 NWLR (Pt.76) 263. He said that any of the said five ways of proving ownership of land would suffice to prove ownership; He relied on Ojoh Vs Kamalu (2006) ALL FWLR (Pt.297) 978; Ezeoke Vs Nwagbo (1988) 1 NWLR (Pt.72) 616. Counsel said that possession per se may not be proof of ownership, but must be such that the length of time, which is always determined by the facts and circumstances of each case, should be numerous and positive enough to warrant the inference of true ownerhip. Salami Vs Lawal (2008) ALL FWLR (Pt.438) 200.
Counsel said the trial Court had found that Respondents’ ancestor settled on the land in dispute (page 217 of the Records); that this finding accorded with the pleadings of the Respondents, that their ancestor, Okanume, had five lands Amankwu, Egwe-Isiofo, Egwe Isi-Nkwu, Egwe Okakuru and Egwe Ureogwo (page 10 of the Records).
He argued that Appellants’ Counsel made a heavy weather in trying to define what land was settled upon by Respondents’ ancestor, Okanume. He said Respondents had pleaded that Okanume had five lands, when he arrived Ugbele from Eziali, which included Isi-Nkwu (paragraph 10 of the pleadings); that in paragraph 11 of the pleading, Respondents they pleaded that the children of Okanume left Amankuru and settled at Isi-Ofo and subsequently some members moved to Isi-Nkwu land in dispute to settle and live thereon; that in the dispute Plan, various graves of members of Respondents peers who lived, died and were buried in the land in dispute. He relied on the evidence of the CW1, which he said was not challenged.
Counsel said the identity of the land in dispute, Isi-Ukwu, was never in dispute; he said that the duty to prove, clearly, the identity of the land in dispute, does not arise, if the Defendant does not dispute the identity of the land in dispute or its location; that when parties are ad idem, there could be no room for a finding that identity of the land in dispute is uncertain or uncertainable. He relied on Auta Vs Ibe (2003) 13 NWLR (Pt.837) 247.
Counsel said the case before the Court was, who owned Isi-Nkwu land; he said that Amankwu land, where Okanume first settled, was never in dispute; that the said Isi-Nkwu was called Oworo Nwaga and Aboh Ochie by Appellants; that the Court can only try issues raised and joined by the parties. He said that the Respondents, by their pleadings and evidence on traditional history, the basis of their claim, proved that the land in dispute was one of the lands founded by Okanume; that the evidence on that was not challenged.
Counsel said the trial Court was right, when it held that both parties admitted of acquisition of the land by settlement; that settlement in this case means aquisition. He said that by the evidence of the Appellants and Respondents, it was clear the issue of acts of possession was resolved in favour of the Respondents, vide admission of Appellants which included allegation that Respondents were in possession by virtue of customary tenancy, which was not proved.
Counsel accepted that the Plaintiff in a declaratory relief has to succeed on the strength of his own case, not on the weakness of the case of the defence, except where the defendant’s case supports that of the Plaintiff. Counsel relied on Balogun Vs Akanji (1988) 1 NWLR (Pt.70) 301, to say that a party claiming title to land is not bound to plead and prove more than one root of title to succeed; that if he relies on more than one root of title, that is merely to make assurance doubly sure. He argued that where a party pleads traditional history and also acts of possession and ownership, the party can rely on the latter to prove his case. He cited Ekpo Vs Ita (1932) 11 NLR 68; Anyafulu Vs Meka (2014) ALL FWLR (Pt.731) 1510. He added that both parties relied on evidence of traditional history and the trial Court granted title to the Respondents, having found that they established their title. He relied on Adole Vs Gwar (2008) ALL FWLR (Pt.423) 1217; Tanko Vs Echendu (2010) 18 NWLR (Pt.1224) 253.
On Issue 2, Counsel said that, by the Appellant?s pleading and evidence, they admitted the possession of Respondents over the land in dispute, despite their spurious claims that they granted members of the Respondents portions of the land to live in, which of course, their witnesses gave conflicting testimonies about. See DW1, DW2 and DW3 positions in the Records. Counsel referred us to Section 143 of the Evidence Act, 2011
“When the question is whether any person is the owner of anything of which he is shown to be in possession, the burden of proving that he is not the owner is on the person who affirms that he is not the owner.”
Counsel said the instant case and the grounds of the contention are in tandem with the above provision. He relied on Ekwubiri Vs Onyekaonwu (1966) 1 ANLR; Raphael Udeze & Ors Vs Paul Chidebe 7 Ors (1990) 1 NWLR (Pt.125) 141.
On the allegation of customary tenancy by Appellants, Respondents’ Counsel relied on the case of Dada Vs Bankole (2008) ALL FWLR (Pt.403) 1209, which held:
“It is a settled principle of law that a claim which seeks a declaration that the defendants are customary tenants of the Plaintiff and other consequential relief emanating therefrom postulates that the defendants are in exclusive possession of the land in disputes. And by the operation of Section 146 of the Evidence Act… there is presumption that the defendants in such exclusive possession are the owners of the land in dispute until the contrary is proved to rebut that presumption. The only way to rebut that presumption is by strict proof of the alleged customary tenancy. That is the danger of a plea founded on the allegation of customary tenancy.”
Counsel said from the above decision, it was easy to see that what the Appellants put forward, in proof of their assertion was that, having put the Respondents in possession of the land as customary tenants, they were Appellant’s tenants; that that remained mere assertion, not established. Rather, the presumption was in favour of the Respondent, whom Appellants admitted to be in possession.
Counsel urged us to uphold the findings of the trial Court; saying that the same were proper, not perverse. He relied on A.G. Federation Vs Abubakar (2007) 10 NWLR (Pt.1041) 50; Atolagbe Vs Shorun (1985) 1 NWLR (Pt.2) 514.
He urged to resolve the issues against the Appellant and to dismiss the appeal.
The Reply brief, filed on 5/4/17 and deemed duly filed on 18/1/18, had questioned the competence of the Respondents’ brief, that it was filed out of time.
That cannot be correct, as Respondents’ brief, on the face of it, was filed on 28/7/16, following the filing of Appellant’s brief on 27/6/2016. Appellants did not state when they served their brief on the Respondents, but, even if it was served on the same date it was filed, 27/6/16, the Respondents were permitted 30 days to file their Brief, starting from 1st July 2016. They, therefore, filed the process, properly, on 28/7/16. See Order 19 Rule 4 (1) of the Court of Appeal Rules, 2016, which allows the Respondents 30 days to file Brief, on receipt of the Appellant?s brief.
Appellants had also alleged that Respondents admitted that the judgment appealed against was perverse, but contended that the irregularities were not sufficient to upturn the judgment.
I did not see any such admission in the Respondents? Brief, paragraphs E7 and E8, as alleged. Appellants were, therefore, not honest in making that submission. Appellants? Counsel is hereby rebuked and reproved, for resorting to such unprofessional practice, meant, to mislead the Appellate Court. He must refrain from such, unsalutory, practice!
RESOLUTION OF ISSUES
I shall consider this appeal on the two Issues distilled by the Appellants, which are the same as the two Issues by the Respondents, except for semantics. I shall consider the two Issues, together.
Was the trial Court correct in saying that the Appellants proved their root of title in the case, going by the trend of the evidence in Court, relating to the evidence of traditional hostories by the two sides and admission of possession?
The five (5) known ways of establishing claims and title to land are well known, namely:
(i) By traditional history/evidence;
(ii) By production of title documents to the land;
(iii) By acts of ownership numerous and positive, extending over sufficient length of time to warrant the inference that the person is the true owner;
(iv) By acts of long enjoyment of possession;
(v) By proof of possession of adjacent lands in circumstances which render it probable that the owner of such adjacent lands would in addition, be the owner of the disputed land.
See the case of Idundun & Ors Vs Okumagba (1976) LPELR 1431 SC; (1976) SC; Atanda Vs Ajani & Ors (1989) NWLR (Pt.111) 511; Orlu Vs Gogo Abite (2010) 8 NWLR (Pt.1196) 307; Ayorinde & Ors Vs Sogunro & Ors (2012) LPELR 7808 SC; Okorieocha & Anor Vs Emereni & Ors (2016) LPELR 40043 CA.
This case is founded on claims of title by means of traditional evidence and by plea of acts of long possession and exercise of acts of ownership. By law, any proof of one of the five modes of proof of ownership, suffices, but sometimes one mode of proof of ownership may overlap or collapse into another. See Nwabuoku 7 Ors Vs Onwordi & Ors (2006) LPELR 2082 (SC); and Oyerinde Vs Bamigbegbin & Anor (2017) LPELR 42378 CA, where Tsamnani JCA said:
“The party who claims for declaration of title to land, either customary or statutory need not plead more than one of the presribed ways of claiming title to land. Where he is able to plead and prove one of the five ways, it would suffice, and the pleading of an additional way may be to strengthen his claim of title to the land. See Yusuf Vs Adegoke (2008) 40 WRN 1 at 28 – 29; Lawson Vs Manuel (2006) 10 NWLR (Pt.989) 569.”
There is however a warning that a Plaintiff who relies on a particular mode or source of proof of title but fails to prove that mode or source, cannot rely on long possession or acts of ownership to prove/establish title:
“where a party’s root of title is pleaded, as for example a grant, a sale, or conquest, etc, that root of title has to be established first, any consequential acts, following thereon can then properly qualify as acts of ownership. Where the title pleaded has not been proved, then it will be unnecessary to consider acts of possession for the acts then become no longer acts of possession but acts of trespass.”
See Registered Trustees of Diocess of Aba Vs Nkwme (2002) FWLR (Pt.90) 1270. See also Accelerated Educational Services Ltd & Anor Vs Ekpo & Anor (2012) LPELR 19693 CA; Ibenye Vs Agwu (1988) 11 NWLR (Pt.574) 372; Balogun Vs Akanji (1988) 1 NWLR (Pt.79) 301; Fasoro Vs Beyioku (1988) 2 NWLR (Pt.76) 263.
The Respondents’ (as Plaintiffs) had pleaded that the parties were of common ancestry – Odimma, who had a very large family and they all Iived in Eziali, Mgbidi; that one of the sons of Odimma, called Mmereoha, invited Okanume (his brother) to come over to Ugbele and live with him; Mmereoha set up his home at a place called Ochie Eke-Obana in Ugbele. Okanume put up his home at Amankwu, very close to Mmereoha; that while Mmereoha and Okanume were living at Ugbele, Ochie joined them and followed by Ehusiere and Nwaga. All these brothers lived in their various lands without any interference, disturbance or challenge; that Okanume, the forefather of the Plaintiffs had five farming areas – Egwes, namely:
(1) Amankwu (where he first put up and farmed)
(2) Egwe Isi-Ofo
(3) Egwe Isi-Nkwu (also referred as Isi-Ukwu by parties)
(4) Egwe Okwa Kuru and
(5) Egwe Ureogwo
Respondents said that these parcels of lands are upto date, in the bonafide possession of the Plaintiffs, without any let or hinderance from any person; that the Plaintiffs, their ancestor and fore-fathers who exercised maximum acts of ownership over the land in dispute were in the main, Okanume (who found the land), Ozurumba, Elu, Nwasiri, etc, down to the Plaintiffs. See paragraphs 9, 10, 11 and 12 of the pleadings on page 10 of the Records, particularly, paragraph 11, which stated how the dispute arose, as a boundary problem over Isi-Nkwu land, between Okanume sons (while staying at Isi-ofo) and Omuma people. Paragraph 12 pleaded the lineage of the Plaintiffs – from Okanume to the Plaintiffs, on records. The evidence led by the Plaintiffs (now Respondents) was in line with the said pleadings.
The Appellants (as Defendants) had admitted some aspects of paragraphs 9, 10 and 11 of the statement of claim (pleadings) by the Plaintiffs touching on their common ancestry, migration to Ugbele, ownership of the farm lands (Egwes) by Okanume, but denied issues touching on the disputed land, Isi-Nkwu and boundary problems that brought about the claims in Isi-Nkwu. See paragraphs 15 to 18 of the Further Amended Statement of Defence (page 25 of the Records), where in Appellants said:
”(15) Paragraph 9 of the Statement of claim is admitted except that Okanume arrived Ugbele before Ochie and Nwaga. The defendants aver that the lands in dispute were originally founded and deforested by Ochie and Nwaga, when they migrated from their ancestral homestead in Eziali Ugbele Mgbidi.
(16) In further answer to paragraph 9… The defendants aver that the next sons of Odimma who immediately followed Mmereoha in the migration were Ochie and Nwaga, while Okanume was the last to arrive, long time later. Accordingly, Mmereoha, Ochie and Nwaga, who arrived earlier, settled at the place called Ochie Eke -Obana where their descendants own and possess parcels of land presently, being their histoical/traditional homestead, while Okanume who arrived later settled at Amankwu, because Ochie Eke-Obana area had been occupied, hence his descendants (the Plaintiffs) do not own and possess any parcel of land at Ochie Eke-Obana.
(17) Paragraph 10 of the Statement of Claim is denied so far as the land in dispute is concerned; the Defendants are not in position to admit or deny the other averments of the said paragraphs but shall at the trial put the Plaintiffs to the strictest proof thereof.
(18) Paragraph 11 of the Statement of Claim is denied in so far as the land in dispute is concerned, and in so far as boundary dispute with Omuma people is concerned.
(19) Paragraph 12 of the Statement of Claim is denied, Except that Christopher Alaeme is the eldest living members (sic) of Umuokanume kindred.
Of course, Appellant did not Counter-claim, and so, by law, did not and could not stake any claim over the land in dispute in this case. Their evidence, therefore, went to the issue of denial of Respondents’ claim only, with no risk of losing any right/claim. But the trial Court believed the Respondents, and, rightly, in my view, held:
The Claimants by the evidence before me have asserted that they are in possession of the land. That members of their family lived on the portions of the land in dispute buried their dead on the land and farm on the land in dispute in their rights as owners of the land. The defendants on their part admitted that some members of the claimants lived on portions of the land in dispute (Aboh Ochie portion as they called it, but on part of the land being claimed by the Claimant). That they lived there by virtue of a customary grant/tenancy to them by Umuochie Kindred, for residential purposes. Further they have since vacated the land and the defendants re-possessed the land, in accordance with their native law and custom.
By the above evidence of the defendant, the burden now shifts to the defendant to prove the said customary grant of the land to the said members of the claimants family and that they have re-possessed the said land by virtue of their native law and custom… the defendant by the above admit that the members of the claimants family were sometime in the past in possession of the said portions of the land and presently the defendants have re-possessed the portions Dada Vs Sodike (1976) 6 SC 1… It is therefore for the defendants to show that they granted the said members of the claimant’s family the said portions of the land in dispute. Oduaran Vs Asarah (1972) 2 SC at 272. (See pages 208 – 209 of the Records).
On page 217, the trial Court held:
“Both parties admit that the land in dispute was founded/acquired by settlement, when their respective ancestors, who are (sic) blood brothers, migrated from Eziali to Ugbele. Another point of divergence is who amongst the ancestors settled on the land in dispute. Claimants assert it is their ancestor, Okanume, while defendants, it is their ancestor, Nwaga and Ochie. I am by the forgoing of the humble view that the root of title as asserted by both parties are, substantially, the same. Thus, the said root of title relied upon by the claimant is that the land in dispute was acquired/founded by settlement on the said land by their ancestor, Okanume, when he migrated from Eziali to Ugbele. It is trite that title to land, historically, should be acquired by settlement. In such a case there can be no further question of how the settler became owner. For the settler, they undoubtedly become the original owner and title to the land commences from him. Once accepted by the Court, title to land can be declared based on such evidence of tradition. See Dauda Vs Iba (2007) 2 NWLR (Pt.1018) 355; Alli Vs Alesinloye (2000) 6 NWLR (Pt.660) 177.”
The trial Court continued:
Further acquisition of land by settlement means more than first occupation or original settlement on the land for whatever purpose. See Ige Vs Fagbohun (2011) 10 NWLR (Pt.721) 487. Again the nature of settlement as a means of acquisition of land under traditional evidence are:
(1) Settlement does not recognize a previous title holder or original owners
(2) Exercise of domininion on the land by acts of possession of and settlement on the land must be shown by the Claimant to the satisfaction of the Court. See Dokubo Vs Omoni (1999) 8 NWLR (Pt.616) 647.
Now the question 1 earlier raised will be answered by reference and placing reliance on the authority of Dauda Vs Iba (Supra) where the Court of appeal, per Nzeako JCA, held:
“Thus a Claimant who has produced evidence that he acquired his title by settlement cannot be accused of not proving how he acquired his title or asked whom the original owners of the land where (sic). See Kode Vs Yusuf (2001) 14 WRN 153.
Thus, by the Claimants’ root of title as asserted in this case, the need for them to prove the founder and mode of founding of the land is unnecessary and immaterial. On the devolution of the land in dispute, CW1 clearly gave evidence of same…” (See pages 217 and 218 of the Records)
The Trial Court therefore believed the historical evidence by the Claimants. And on page 197, the trial Court had said:
Sometime in 1993 the defendants trespassed into the portions of the Isi-Nkwu land verged pink in Exhibit B and brushed same, preparatory for farming Emissaries sent to the Defendants reported to the Claimants that defendants claimed ownership of the land. The defendants by their trespassory acts destroyed economic trees and crops of the Claimants in the magnitude of N201,000.00 and up to N250,000.00. The case of the defendants, on the other hand, is that of an outright denial of the claimants ownership of the said land. That the land in dispute involves integral portions of two separate and distinct parcels of land known as and called ‘Aboh Oche’ and ‘Oworo Nawaga’ belonging to Umoche and Umunwaga families respectively.
The Trial Court held on page 219 to 220 of the Records, held as follows:
“He (CW1) traced same (devolution of the land) from Okanume, the original settler through all their other ancestors to the present claimants. Further that each of the said ancestors, in his reign, held the land in trust for the Claimants kindred. I find no unexplained gaps in the said devolution of the land… I accept same as true and correct. Much as the defendants are ad idem with the Claimants on the root of title i.e. settlement, I prefer and accept the Claimants traditional history. This is underscored by the fact of my earlier finding that the claimants have been and are in possession of the land in dispute, as of right, supporting the fact that it was Okanume, their progenitor, who settled on the land in dispute. Again the numerous acts exercised in the land by the Claimant also lend credence to this finding i.e. living on the land, farming thereon and burying their dead on the land, which defendant accepted with respect to Obioha, though they stated that same was with their consent. They did not give satisfactory and convincing evidence of the purported consent.”
I am not aware that Appellants raised appeal against those specific findings of the trial Court, going by the two Issues for determination of the appeal and the grounds 1 to 5, from which the two (2) Issues were distilled. The rule is trite, that findings of a Court not appealed against, remain binding and conclusive. See the case of Ebemighe Vs Chi (2011) 2 NWLR (Pt.1230) 65; CPC Vs INEC (2011) 18 NWLR (Pt.1279) 493; Agodi Vs Anyanwu & Ors (2014) LPELR ? 23746 CA; Nmanumeihe Vs Njemanze (2016) LPELR 40212 CA.
I had earlier held that Appellants did not Counter-Claim in this case, to stake a claim over the land in dispute, though they alleged in paragraph 14 of their pleadings that “some members of the Plaintiffs’ family were granted land on Aboh-Ochie (their name for Isi-Nkwu) to live by the family of 4th to 8th, 10th and 11th Defendants, and when they vacated, the land reverted to Umuochie family…”
That, obviously, amounted to concession, that claimants were legitmately in possession of the land in dispute. The allegation that CW1 admitted a grant of a portion of the land in dispute, by a member of the family of Ochie to the widow of Soribe (CW1’s uncle) did not appear consistent with the evidence of the CW1, both in-chief and under cross examination. It was strange and appeared to relate to a portion earlier bought by a member of the Defendants’ family from the Claimants’ family, as the land was held to be individually owned (not communally). See pages 196 and 210 of the Records of Appeal.
Because, they (Appellants) did not lead evidence to prove that the land in dispute was a grant to Respondents as customary tenants, the trial Court held that the Appellants, who were not claiming the land, had no basis to disturb the occupiers, having conceded possession to the claimants. In the case of Dada & Ors Vs Bankole & Ors (2008) LPELR 907 SC (2008) 5 NWLR (Pt.1079) 26, the Supreme Court said:
‘It is settled principle of law that a Claim which seeks a declaration that defendants are customary tenants of the Plaintiff and other consequential reliefs emanating therefrom, postulates that the Defendants are in exclusive possession of the land in dispute. And by operation of Section 146 of the Evidence Act Cap E14 of the Laws of the Federation, there is presumption that the Defendants in such exclusive possession are the owners of land in dispute until the contrary is proved to rebut the presumption. The only way to rebut the presumption is by strict proof of the alleged customary tenancy.’ See Udeze & Ors Vs Chidebe & Ors (1990) 1 NWLR (Pt.125) 141 at 160 – 161.
I cannot therefore, disturb the decision of the Lower Court in this appeal, and so resolve the issues against the Appellants. I dismiss the Appeal, with cost of Fifty Thousand Naira (N50,000.00) to the Respondents.
RAPHAEL CHIKWE AGBO, J.C.A.: I agree.
AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A.: I have had the privilege of reading in draft the leading judgment prepared by my learned ITA G. MBABA, JCA. I am in complete agreement with the manner in which the issue considered in the appeal were resolved.
Accordingly, I too find the appeal to be lacking in merit and dismiss same. I also abide by the order made in the leading judgment in relation to costs.
Appearances:
EZE S.O. EZE ESQ (who settled the brief) with him, CHUKWUEMEKA OKORO ESQ and IFEANYI EKEZIE ESQFor Appellant(s)
KEN C.O. NJEMANZE SAN (who settled the brief) with him, I.A. NJEMANZE ESQ and C. OZUUALA ESQFor Respondent(s)
