EBERE EGWIN v. NKECHINYERE ONUOHA
(2019)LCN/13915(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 11th day of June, 2019
CA/OW/123/2014
Before Their Lordships
RITA NOSAKHARE PEMUJustice of The Court of Appeal of Nigeria
ITA GEORGE MBABAJustice of The Court of Appeal of Nigeria
IBRAHIM ALI ANDENYANGTSOJustice of The Court of Appeal of Nigeria
Between
EBERE EGWIN Appellant(s)
AND
NKECHINYERE ONUOHA Respondent(s)
RATIO
STANDARD OF PROOF IN CIVIL ACTIONS
It is trite that in a civil action, the Court has a duty to weigh the cases of the respective parties on an imaginary scale, and decide on a preponderance of evidence who should win. PER PEMU, J.C.A.
EFFECT OF A PARTY NOT BEING CROSS-EXAMINED ON A SET OF FACTS
The Court below was in my view right when it observed that when a witness is not cross examined on a set of facts contained in the testimony of his adversary, the testimony becomes unchallenged and uncontroverted. The facts need no further proof and the Courts are bound to accept those uncontroverted facts. ASAFA FOODS LTD v. ALRAINE NIG LTD (2002) 52 WRN 1 AT 17; DAGGASH v. BULAMA (2004) ALL FWLR PT. 212 1666 at 1745. PER PEMU, J.C.A.
CONDITIONS FOR PROVING DECLARATION OF TITLE
One of the conditions for proving declaration of title is for the area in dispute to be as curtained. Exhibit B is vague it does not relate to any particular land, the land in dispute citing ATE KWADZO v. ROBORT KWESI ADJEY (1944) 102 WACA. (Page 9 of the judgment.Page 248 of the Record of Appeal). PER PEMU, J.C.A.
RITA NOSAKHARE PEMU, J.C.A. (Delivering the Leading Judgment): This is an appeal against the decision of the Imo State High Court holden at Mbano, in Suit No. HME/64/2003, delivered on the 7th day of June, 2013, in which the Court below dismissed the Appellant?s reliefs in its entirety, and granted the Reliefs of the Respondent ? Pages 240 ? 253 of the Record of Appeal.
SYNOPSIS OF FACTS
The Claimant had claimed against the Defendant in the Court below the following reliefs viz:-
a. A declaration that he is entitled to the customary right of occupancy over the piece or parcel of land known as ?Ala Mbata? that situate at Umuduauyi Umunezeala Ofor, Ehime Mbano Local Government Area within the jurisdiction of the Court.
b. A declaration that by converting a mud house to a cement building without the consent of the Plaintiff and by denying the Plaintiff?s title over the said land the Defendant is bound to forfeit the said land to the Plaintiff.
c. Respondent injunction restraining the Defendant by herself, servant, agent and privies from trespassing into the land.”
1
?Counter claiming, the Defendant seeks
a. A declaration that the Defendant is entitled to the Customary Right of Occupancy of the piece of land known as Moaraezi Onuoha situate at Umudurueze, Umunezeala Oguara in Ehime Mbano Local Government Area within jurisdiction.
b. N5,500,000.00 (Five Million Five Hundred Thousand Naira) being special and general damages for trespass on the land on or about 21/3/2001.
c. Pertinent injunction restraining the Plaintiff, his agents and privies form any act whatsoever which are inconsistent with the Defendant?s.
The original Claimant MR. IGNATUS EGRU died and was substituted by the present Claimant MR. EBERE EGWIN.
At the end of trial, the claim of the Claimant was dismissed and the Defendant was entitled to the counter claim in judgment.
?The case of the Claimant in the Court below is that their family is the original owners of the land in dispute by customary inheritance, but that the father of the late Ignatus Egurim agreed with the father of the Defendant for an exchange of land but that while Defendant?s father took this land now in dispute, he never gave the Plaintiff?s father any other land in exchange as agreed.
The Claimant alleged that he swore to an oath over the land for one Benjamin Emesiobi, in the presence of the Defendant?s stepmother, to the effect that the land in dispute is part of the land to be included.
The Claimant tendered an oath taking receipt allegedly issued him on the date of the oath taking. But in evidence, the receipt had no nexus with the land in dispute named ALA MBARA as stated by the Claimant, and ALA MBARAEZI ONUOHA as stated by the Defendant.
When the Plaintiff wanted to convert her mud house into a cement/block house, that was when the Defendant challenged his title to ALA MBARA. He however conceded to the burial of the Defendant?s step mother on the same land. The Defendant stated that her relative including her father, mother and step mother were all buried in the land in dispute.
The Plaintiff did not deny nor dispute this fact. Neither did he join issues with the Defendant regarding her burying her relatives on the land in dispute.
?
The father of the Defendant has been in possession of this land before the civil war. Mr. Ignatus Egwim stated that his father died
3
before the civil war. Ignatus Egwim did say that he was the person that redeemed the land from Mrs. Rosanna Duru.
It is the case of the Respondent that her father is the owner of the land in dispute by customary inheritance. She and all her siblings were all born and have been living on the land all their lives. They had been in occupation of the land for over sixty years now without challenge to their title. Her father, mother, step mother and some deceased relatives were all buried on the land.
That the Plaintiff never took oath with respect to this land, rather it was with respect to the place where the Plaintiff resides which share common boundary with this land in dispute.
The Court below visited the locus in quo, where the Defendant showed the Court the natural boundary marks, and her fence which was pulled down.
?
The Court below after taking evidence delivered its judgment on the 7th of June, 2016, dismissing the Appellant?s reliefs, but granted the reliefs sought by the Respondent.
The Appellant is dissatisfied with the judgment and has appealed it.
He filed a Notice of Appeal on the 14th of August, 2013.
4
The Appellant filed his brief of argument on the 19th of February, 2018. It is settled by B. N. ONUOHA ESQ.
The Respondent filed his brief of argument on the 28th of June 2018. It is settled by J. C. OKEJI ESQ.
The Appellant distilled three (3) issues for determination from the Grounds of Appeal. They are:-
1. WHETHER FAILURE (OR ALLEGED FAILURE) TO CROSS EXAMINE THE DEFENDANT (NOW RESPONDENT) ON HER COUNTER-CLAIM AUTOMATICALLY ENTITLED HER TO JUDGMENT ON HER COUNTER-CLAIM?
2. WHETHER THE DEFENDANT (NOW RESPONDENT) PROVED HER CASE AT HIGH COURT MBANO-ETITI JUDICIAL DIVISION, IMO STATE BASED ON EVIDENCE ON PREPONDERANCE OF EVIDENCE?
3. WHETHER THE TRIAL JUDGE WAS RIGHT IN TREATING EXHIBIT B TENDERED IN THE COURSE OF TRIAL AS AN INSTRUMENT OF TITLE AND IN HOLDING THAT THE APPELLANT DID NOT PROVE HIS CASE ON PREPONDERANCE OF EVIDENCE?
The Respondent distilled a sole issue for determination. It is:-
?WHETHER THE HON. TRIAL COURT WAS RIGHT IN DISMISSING THE CASE OF THE APPELLANT HEREIN AND WHETHER THE RESPONDENT AS DEFENDANT AT THE TRIAL COURT PROVED HER CASE BY THE PREPONDERANCE OF EVIDENCE?
?The Respondent?s
5
sole issue for determination can be properly termed an adoption of the issues proffered by the Appellant. I shall therefore consider this appeal based on the issues proffered by the Appellant.
ISSUE NO 1.
The Appellant submits that a counter claim, being a separate claim, must be proved by evidence, just as the main claim. That the law which is trite that a Plaintiff must succeed on the strength of his own case, also applies to counter claimant.
Submits that DW1, DW2 DW3 DW4 and DW5 were extensively cross examined on the counter claim of the Respondent.
Submits that the Respondent counter claimed for the following:-
a. A declaration that the Defendant is entitled to the Customary Rught of Occupancy of the piece of land known as Mbaraezi Onuoha situate at Umuduruze Umunezeala-Ofor Umuezeala-Ogwara in Ehime Mbano Local Government Area within jurisdiction.
b. N5,500,000.00 (Five Million, Five Hundred Thousand Naira) being special and general damages for trespass on the land on or about 21/3/2001.
c. Perpetual injunction restraining the Plaintiff his agents and privies from any acts whatsoever which are inconstant with the right
6
of the Defendant.
Submits that the cross-examination of the Respondent touches on issue raised in his Counter claim. That a careful study of the Appellant?s cross examination reveal that it touches on the counter claim of the Respondent.
Submits that the Respondent was adequately cross – examined on his counter-claim. Submits that a Defendant who counter claims is in a position of a Claimant, and succeeds on the strength of his case and not on the weakness of the defence. That the Court below did not base the case on lack of proof on preponderance of evidence, but on the fact that the Appellant failed to cross ? examine the Respondent on her counter claim.
ISSUE NO 2.
The Appellant submits that the Respondent did not prove her counter claim on preponderance of evidence to be entitled to judgment of the Court below. Submits that the quantum of proof appropriate to be attained to, in order to give judgment on the counter claim in favour of the Defendant must be of the type required of the Plaintiff in every civil claim which is proof on a preponderance of evidence.
?
It is the Appellant?s contention that in the instant
7
case, the Court below failed to consider the counter claim in the judgment appealed.
Submits that the Respondent in her counter claim was relying on evidence of traditional history to establish her ownership of the land in dispute.
He submits that the Respondent adduced inconsistent evidence.
That a look at Exhibit ?D? show that none of the witnesses were mentioned as boundary neighbours except Nze Emmanuel Madu. But that a look at the Survey Plan, the person mentioned and indicated as boundary neighbours are only three namely the original Claimant ? Ignatus Egwim (deceased) Oliver Mbachu and Cornelius N. Wagwu.
Exhibit ?D? having been pleaded becomes part of the case. Citing:-
1. JFS INVESTMENT LTD v. BRAWAL LING LTD (2010) 18 NWLR PR (1225) 495
2. OFFODILE v. OFFODILE (2010) 8 NRM 85 @ 98.
3. EKPEMUPOLO v. EDREMODA (2009) 32 WRN 1.
That nowhere did the Respondent in his pleading in his counter claim identify DW1, DW2, DW3, DW4 as boundary neighbours.
?
Submits that the Respondent and her witnesses told lies concerning her boundary neighbours to the land in dispute. Submits that the
8
Respondent must prove her counter claim on the strength of her case and not on the weakness of the Appellant?s case. That the Respondent?s story that her forbear Durueze deforested the land in dispute does not accord with her own evidence that the Umuomiama kindred are the original owners of ALA MBARA, whereas in her statement of Defence ALA MBARA is said to be situated at Umudurueze Umuezeala ? Ofor Umuezeala-Ogurana in Ehime Mbano Local Government Area, while in all the written statements of her witnesses, they said the land is situate at Umuoimama Umuezeala-Ofor Umuezeala-Ogurara in Ehime Mbano Local Government Area of Imo State.
On effect of a party?s evidence which favours his opponent, he cites YAKUBU v. UBA PLC (2012) 25 NRN 113 @ 154.
Submits that the Court below did not show how it arrived at awarding N5.5 million to the Respondent as damages for trespass.
ISSUE NO 3.
The Appellant submits that the Court below was wrong in viewing Exhibit B as asserting title to the land in dispute, thereby declaring that the Appellant did not prove his case on a preponderance of evidence.
?
Submits that the area of land
9
for which exhibits B applies is certain. That one Mr. Benjamin Emesiobo and the original Claimant, Mr Ignatus Egwim who disputed the land were made to show them the identity of the land in dispute, and each one of them included the mud house of the Respondent within the area in dispute.
That nowhere in the counter claim was it averred that the people of Durueze and Ohuama owned Ala Mbara, the evil forest of which the land in dispute forms part.
DW2 was not a witness of truth as to his testimony on boundary neighbours. He had claimed that he and the Appellant come from the same kindred, and that no person from the Appellant?s kindred owns the land where the land in dispute is situated.
Submits that the Appellant proved his case and as being entitled to the land in dispute, on a preponderance of evidence.
RESOLUTION OF ISSUES
In resolving the issues proffered by the Appellant. I shall consider issues 1 and 2 together and take Issue No 3 on its own. This is because it is my view that Issues 1 and 2 of the Appellant?s Issue for determination coalesce
?
It is trite that in a civil action, the Court has a duty to weigh the
10
cases of the respective parties on an imaginary scale, and decide on a preponderance of evidence who should win.
In Paragraph 5 of the Statement of Claim, the Plaintiff had averred that he inherited the land in dispute from his father, late Egwim Nwachukwu, who showed the Defendant?s father part of the land to build a temporary mud house on,
