DESMOND UCHECHI NWOGU & ORS. V. ONUOHA NWOKOROBIA(2002)

DESMOND UCHECHI NWOGU & ORS. V. ONUOHA NWOKOROBIA

2002)LCN/1235(CA)

In The Court of Appeal of Nigeria

On Thursday, the 13th day of June, 2002

CA/PH/56/96

 

JUSTICES

JAMES OGENYI OGEBE   Justice of The Court of Appeal of Nigeria

MICHAEL EYARUOMA AKPIROROH   Justice of The Court of Appeal of Nigeria

ABOYI JOHN IKONGBEH   Justice of The Court of Appeal of Nigeria

Between

 

  1. DESMOND UCHECHI NWOGU
    2. MAMES NWAZIEAMA
    3. MATHIAS AHAMBA Appellant(s)

AND

ONUOHA NWOKOROBIA Respondent(s)

JAMES OGENYI OGEBE, J.C.A: (Delivering the Leading Judgment); The respondent sued the appellants in the High Court of Aboh Mbaise in Imo State presided over by Mbachu, J., claiming as per paragraph 26 of the statement of claim as follows:-
“26. Wherefore the Plaintiff claims as follows:
(a)   An order of Court commanding the defendants to surrender to the plaintiff all that piece or parcel of land which is part of ‘ODONKWU NWOKOROBIA’, and situate in Umualim Ikenga Eziudo in Aboh Mbaise, which piece or parcel of land has been in the possession of the defendants, and which the defendants have refused to surrender despite repeated demands.
(b) An injunction perpetually restraining the defendants, servants and or their privies from further entry into the lands so surrendered.”
The appellants filed a statement of defence denying the claim and stating their own version of the traditional history of the land.
The respondent’s case from the pleadings and evidence was that the disputed land originally belonged to his grandfather Nwoko and it passed on to him through inheritance. Part of the land was pledged to the appellants’ family by his father. He and his brother redeemed the land but the appellants refused to give it up.
The appellants, on the other hand, claimed that their ancestor, Ogide originally owned the land and it devolved on them by inheritance.
The trial judge, after listening to the evidence of both parties and addresses by their counsel gave judgment in favour of the respondent and granted him all the reliefs sought.
The appellants were dissatisfied with the decision of the trial court and appealed to this court. Learned counsel for the appellants filed a brief of argument and identified five issues for determination as follows:
“1. Whether the identity of the land in dispute had been established in evidence to warrant judgment for the Plaintiff.
2. Whether the trail judge was right to prefer the plaintiff’s version of the traditional history of the land to that of the defence having regard to the pleadings and evidence thereon.
3. Whether in the circumstances ad on the facts, section 46 of the Evidence Act, 1990 is available to the Plaintiff to the detriment of the defendants.
4. Whether the conduct of the Plaintiff in testifying for the 1st defendant in an earlier arbitration against a third party (DW2) did not amount to an admission against interest and/or estoppel by conduct.
5. Whether in the balance of probabilities the plaintiff proved his case against the Defendants and in particular having regard to S.146 of the Evidence Act. 1990.”
The respondent also filed a brief of argument in which the following issues were distilled for determination:
“1. Whether the identity of the land in dispute had been established to warrant judgment for the plaintiff.
2. Whether the learned trial judge rightly preferred the plaintiff’s version of the traditional history of the land to that of the defence having regard to the pleadings and evidence thereon.
3. Whether the court below rightly applied the provisions of S.46 of the Evidence Act, 1990 in favour of the plaintiff/respondent.
4. Whether, having regard to the evidence before the Trial Court, the rule of “Admission against interest” can be properly invoked against the plaintiff/respondent.”
The main issue in this appeal is whether or not the respondent proved his claim before the trial court by credible evidence. All the issues formulated by both sides are covered by this single issue.
On the appellants’ issue 1, the learned counsel submitted that the respondent failed to establish the quantum and identify of the land in dispute and was therefore not entitled to judgment. He relied on the case of Ezeudu v. Obiagwu (1986) 2 NWLR (Pt.21) 208.
The learned counsel for the respondent submitted that both parties to the case in the court below knew the identity of the land and therefore identity of the land was not in issue.
The first duty of any claimant to a piece of land is to establish the identity of the disputed land with certainty. See the cases of Adomba & Ors. v. Odieze & Ors. (1990) 1 NWLR (Pt.125) 165 and Udeze v. Chidede (1990) 1 WLR (Pt.125) 141.From the facts of the present case, while the respondent called the disputed land “Odonkwu Nwokorobia”, the appellants called it “Ukpabi”. Both sides filed survey plans but none of the surveyors who drew the plans was called to testify.
The appellants put the identity of the land in issue when they averred in paragraph 4(b) of the statement of defence as follows:
“The plaintiff’s plan No. VEN/D 234/97 annexed to the Statement of Claim does not fully represent the land in dispute. The Defendants at the trial shall tender and rely on Survey Plan No. ASA/IMD 208/89 as a true representation of the land in dispute and its features.”
At pages 58 – 59 of the record the respondent testified on the boundaries of the disputed land as follows:
“I had the land in dispute surveyed for the purposes of this case. I took the Surveyor to the land and showed him the area in dispute. The Surveyor gave me a copy of the survey plan and it was filed in court for this case. This is the survey plan I filed in this case, tendered, no objection, admitted and marked Exhibit A. I showed the boundaries of the land to the Surveyor before he made Exhibit A. there is a pathway passing through the land between Umuawada and Eziudo Ezinihitte. I started showing the Surveyor the extent of eth land in dispute from the boundary with the land of Onyekwere Nwokorobia; the next boundary neighbour is Maduneme Nwokorobia; after that there is the land of Aligwekwe Nwokorobia; thereafter there is the land of Timothy Njoku of Umuelemaranya Eziudo. Elemaranya and my father Nwokorobia were the sons of one father. After the land of Timothy Njoku the next boundary neighbour is Egbukichi of Umuelemaranya Eziudo. After the land of Egbukichi one finds the land of Ojimadu of Umuozu Eziudo. After the land of Egbukichi one finds the land of Ojimadu of Umuozu Eziudo. After the land of Ojimadu of Umuozu there is the land of Okpuruka of Umuozu. Umuozu is a village in Eziudo. After the land of Okpuruka there is the land of Clement Osuagwu Onuoha of Umuawada Onucha Ezinihitte. Osuagwu Onuoha is the father of Clement Osuagwu Onuoha. After the land of Osuagwu Onuoha there is the land of Olua of Umuawada Onicha. The two boundary neighbours. Olua and Osuagwu got their respective portions through my father Nwokorobia. After the alnds of Olua and Osuagwu of Onicha there is the land of Akwaja Nwokorobia, a brother of mine.”
One can see from the description given that no features are mentioned apart from names of boundary neighbours. There is no certainty whatsoever in the description of the disputed land as testified by the respondent, and the Survey Plan Exhibit A could not do any better since he was the one who showed the surveyor what he drew in Exhibit A. I resolve this issue in favour of the appellants.
On the 2nd issue, the learned counsel submitted that the trial court was wrong in preferring the traditional history of the land offered by the respondent dispute the proof or inadequate pleading on his part and the conflict between the statement of claim and the evidence of the respondent and his witnesses as against the evidence offered by the appellants. He said that the respondent had the burden of bringing his case into one or more of the five ways of proving ownership of land as enunciated in the case of Idundun v. Okumagba (1976) 1 NMLR 200. The respondent chose to rely on traditional history which he failed to plead and prove properly. Counsel submitted that the law is well settled that where evidence of tradition is relied on for proof of declaration of title to land for plaintiff to succeed, he must plead and establish such facts as (1) who founded the land. (2) how he founded the land and (3) the particulars of intervening owners through whom he claim. He relied on the case of Osafile v. Odi (1994) 2 NWLR (Pt.325) 125; also reported in (1994) 2 SCNJ 1. Counsel further argued that the statement of claim is bereft of any averment as to the requisite constituents of traditional history particularly as there is no averment as to who founded the land and how he founded it.
In reply to this the learned counsel for the respondent submitted that the learned trial judge rightly preferred the evidence of traditional history adduced by the respondent to that of the appellants. The learned counsel agreed with the appellants’ counsel on the burden placed on the respondent to bring his case in line with one or more of the five ways of proving ownership of land and the necessity to plead who founded the land and how he founded it but submitted that the respondent had sufficiently and satisfactorily showed his root of title to the land in depute.
I agree with both counsel on the state of the law that a plaintiff to succeed in an action for declaration of title must establish such facts as (1) who founded the land (2) how he founded it and (3) the succession of inheritance up to him. Paragraph 4 of the statement of claim traces the origin of the land. It reads thus:
“(4) The said ‘ODONKWU NWOKOROBIA’ was originally owned by the family of Nwoko of Umualim Ikenga Ezinco. When Nwoko died he left two sons Elemaranya ad Uhuakwukwa who shared his landed property between themselves Nwokorobia was a descendant of Nwoko.”
There is nothing in this paragraphs of the statement of claim to show how the family of Nwoko came about the land was it by deforestation, or by conquest, or by purchase? I agree with the learned counsel for the appellants that the pleading was bereft of the requisite particulars in a claim based on traditional history. To compound the respondent’s case there was clear evidence from even his own witnesses that the disputed land was all along in possession of the appellants who were farming on the land. See for instance the evidence of PW4, Chief Basil Anyanwu Akwaja Nwokorobia under cross-examination on page 71 of the record where he testified as follows:
“I know the land in dispute. I know that the Defendants have been farming on the land in dispute.”
If the trial court had seen the deficiency in the pleadings he would not have given judgment in favour of the respondent. As this issue disposes of the appeal I fee it academic to go into other issues raised in this appeal. I am satisfied that the respondent’s pleadings and evidence did not establish his claim. The trial court was wrong in giving judgment in his favour.
Accordingly, I allow this appeal and set aside the judgment with costs delivered by the trial court. In its place I dismiss the respondents’ a claim before that court. The appellants are entitled to costs of N5,000.00 against the respondent.

MICHAEL EYARUOMA AKPIROROH, J.C.A: I have read in advance the lead judgment just delivered by my learned brother OGEBE, JCA, and I agree with his reasoning and conclusion.
I too allow the appeal and abide by the orders made therein including order as to costs.

ABOYI JOHN IKONGBEH, J.C.A; I have read in advance the lead judgment of my learned brother Ogebe J.C.A just delivered and I agree with his reasoning conclusion reached by him.
There is merit in the appeal and I also allow it and abide by the orders made by him including order as to costs.

 

Appearances

E.O. Agada;For Appellant

 

AND

C.C. Azara;For Respondent

 

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