ERNEST NZEKWU & ORS. V. MADAM CHRISTIANA NZEKWU & ORS.
In The Supreme Court of Nigeria
On Friday, the 10th day of March, 1989
SC.227/1985
JUSTICES
AUGUSTINE NNAMANI Justice of The Supreme Court of Nigeria
ADOLPHUS GODWIN KARIBI-WHYTE Justice of The Supreme Court of Nigeria
ABDUL GANIYU OLATUNJI AGBAJE Justice of The Supreme Court of Nigeria
PHILLIP NNAEMEKA-AGU Justice of The Supreme Court of Nigeria
EBENEZER BABASANYA CRAIG Justice of The Supreme Court of Nigeria
Between
- ERNEST NZEKWU
2. JOSEPH NWOHA
3. CHRISTOPHER OKAFOR Appellant(s)
AND
- MADAM CHRISTIANA NZEKWU
2. JAMES OBIEZE
3. EMMANUEL ACHEBE Respondent(s)
RATIO
THE STANDARD OF PROOF IN CIVIL CASES
After all, civil cases are decided on a preponderance of evidence. See on this Mogaji & Ors. v. Odofin & Ors. (1978) 4 S.C. 91; Bello v. Eweka (1981) 1 S.C. 101. On a proper application of this principle, where it has been shown that the evidence called by the plaintiff is untrue, or without weight, or has been discredited, the court ought to accept that given by the defence unless it has been shown to be of such a quality that no reasonable tribunal should accept it. PER NNAEMEKA-AGU, J.S.C
THE POSITION OF THE COURTS ON LONG POSSESSION
As Obaseki, J.S.C. observed in O.K.O. Mogaji & Ors. v. Cadbury Nigeria Ltd. & Ors. (1985) 7 S.C. 59, at p. 159:
“Long possession is more a weapon of defence on equitable grounds to defeat claims for declaration of title and trespass than of defence against the true owner.”
And he continued:
“Unless the origin of title is valid, the length of possession does not ripen invalid title of a trespasser to valid ownership title.”
Although the above dicta refer to a case of declaration of title, the underlying principle is applicable to his case. PER NNAEMEKA-AGU, J.S.C
NNAMANI, J.S.C. (Delivering the Leading Judgment): In this Suit which started at the Onitsha Judicial Division of the High Court of Anambra State as Suit No.0/128/72, the Plaintiff/Respondent claimed against the Defendants/Appellants as follows:-
“1. The Plaintiff claims against the defendants jointly and severally as follows:
(i) Recovery of possession of the piece or parcel of land being and situate at Onitsha and known as and called No.8 Cole Street, in the Urban Division of Onitsha, the annual value of which is about 4 Pounds.
The Defendants have from about February, 1972, unlawfully ejected the Plaintiff from the said piece of land on which the 3rd Defendant is now erecting a building.
(ii) Injunction to restrain the Defendants their servants agents or assigns from interfering with the Plaintiffs enjoyment of the said 8, Cole Street, Onitsha.”
Pleadings were ordered, filed and delivered. The brief facts of this case as set down by the learned trial Judge in his judgment were as follows:
“Plaintiff was the widow of one Daniel Oguejiofor Ejiogu Nzekwu who died, in 1943 at Jos. Plaintiffs husband was the uncle of the 1st defendant and the junior brother of Nathaniel Akunma Odiakosa Nzekwu who died in 1945 at Onitsha. Both the plaintiff’s husband and the 1st defendant’s father were the sons of Nzekwu Ojudo who died in 1906. Although the plaintiff in her statement of claim and evidence claimed that Nzekwu Ojudo had only three sons, it transpired that Nzekwu Ojudo had other 3 sons who were dead. Of all the sons of Nzekwu Ojudo, Nathaniel Odiakosa Nzekwu, the father of the 1st defendant was the 1st son and therefore the Diokpa’ of Nzekwu Ojudo. Nathaniel Nzekwu himself left three sons – Michael Nzekwu, the 1st defendant and Clement Nzekwu D. W.5 in these proceedings. As Michael Nzekwu, the 1st son of Nathaniel Nzekwu had not been seen in the last 40 years, 1st defendant was regarded as the Diokpa, not only of Nathaniel Nzekwu’s but also that of Andrew Nzekwu Ojudo as well.”
The late Andrew Nzekwu Ojudo owned many lands in Onitsha including the land in dispute, 8 Cole Street, Onitsha. It was not clear whether the late Andrew Nzekwu Ojudo in his lifetime allocated any of his parcels of land to any of his six male sons. It is known that during the lifetime of Nzekwu Ojudo, a Sierra Leonean called Johnson approached Nzekwu Ojudo for a piece of land and he granted him part of 8 Cole Street where he erected a thatched roof house for his paramour Nnodu. When both Nnodu and Johnson later left, the thatched house reverted to Nzekwu Ojudo.
In 1912 the plaintiff married Daniel Ejiogu Nzekwu at Onitsha. According to the Plaintiff, soon after her marriage she lived with her husband in the thatched roof house built by Mr. Johnson at 8. Cole Street, Onitsha. They lived there until they both left for Northern Nigeria. The Plaintiff claimed that while they were in Northern Nigeria, the 1st defendant’s father and another of Nzekwu Ojudo’s sons Dennis had a dispute. This dispute culminated in the Onitsha Native Court Suit No.79/41. She claimed that her husband participated in the suit, and that following the: suit what was left of Nzekwu Ojudo’s lands were partitioned by Native Court Judges and 8 Cole Street fell to her husband.
It would appear that in 1943 plaintiff’s husband died in Jos, Plaintiff then returned to Onitsha with her two daughters, the only issues of the marriage. She claimed that on her return to Onitsha, she moved straight to the thatched roof house at 8 Cole Street without any consultation with either 1st defendant’s father or any other member of Nzekwu family. No one, not even 1st defendant’s father gave her the mandate to move in there. She claimed that she lived there unmolested in the lifetime of 1st defendant’s father who died in 1945. When 1st defendant returned to Onitsha in 1945, the plaintiff claimed that she continued to live in 8 Cole Street to the knowledge of 1st defendant. She exercised diverse acts of ownership in the house – collecting rents from tenants in the house, paying all water and general rates to the Onitsha Urban Council in her late husband’s name.
In 1950, the plaintiff said that the thatched roof house in 8 Cole Street was razed by fire but she subsequently rebuilt it with zinc roof with the help of her two daughters. She continued to occupy the premises until 1968 when she was forced to abandon it as a result of the Nigerian Civil War. At the end of the war in 1972, she returned to Onitsha to see that the building on 8 Cole Street had been destroyed. She cleared the debris and started farming on the land. She also submitted a building plan in her late husband’s name to the Onitsha Council Office for rebuilding the destroyed building. In 1972, when she went to Cole Street, she found some people on the land preparing to commence building thereon. She challenged them and was told that the 1st defendant had sold the land to the 2nd defendant. 2nd defendant subsequently sold to 3rd defendant. It was agreed that the matter had previously been referred to the Obi of Onitsha and his Chiefs who advised both sides to go home and settle. No settlement was in sight hence this Suit.
Because of the importance which must be attached to the pleadings and evidence in this suit, I intend to set down some important paragraphs of the pleadings. As for the Statement of Claim, I consider important paragraphs 3, 4, 5, 6, 7, 8, 9, 10, 11 and 12. These were as follows:-
“3. Nzekwu Ojudo was a native of Onitsha. He had three sons, viz:
1. Nathaniel Odiakosa (1st Defendant’s father)
2. Daniel Ejiogu (Plaintiff’s husband) and
3. Deonis Udu.
Nathaniel Odiakosa (1st defendant’s father) was disposing of Nzekwu Ojudo’s lands at Onitsha indiscriminately as absolute owner. This led to the Onitsha Native Court Suit No.79/41 between Dennis Udu and Nathaniel O. Nzekwu for an order of Court to restrain the First Defendant’s father from selling “out right” the lands of Nzekwu Ojudo. Plaintiff’s husband who was then in Jos in the then Northern Nigeria came to Court and participated. It was decided that Nzekwu Ojudo’s lands at Onitsha were communal to his children and in order to decommunalise the said lands and prevent friction, the Court members visited the lands and shared them out among the three sons. The property now known as No. 8 Cole Street, Onitsha (referred hereinafter as “the land in dispute”) fell in the lot of Daniel Ejiogu Nzekwu (Plaintiff’s husband). The Plaintiff will found on this case.
5. At all times prior to 1941, the land in dispute was occupied by one Mr. Johnson, a Sierra Leonean as tenant of Nzekwu Ojudo.
6. About 1943, after the death of plaintiffs husband, the Plaintiff returned from Jos, moved into the land in dispute, repaired the thatched house thereon, and performed the funeral of her husband.
7. In or about 1944 the father of the first Defendant, sued the Plaintiff in the Native Court of Onitsha claiming to recover the land in dispute but the claim was dismissed. The Plaintiff will found on this case.
8. The Plaintiff continued to live on the land in dispute, letting portions to tenants who paid rent to her, paying outgoings and otherwise exercising maximum acts of possession over the same without let or hindrance from anyone whatsoever.
9. In or about the year 1950, the Plaintiffs thatched house on the land burnt down but the Plaintiff put a zinc roof on the house and repaired the damaged house.
10. The plaintiff continued to enjoy the land in dispute paying all rates and outgoings until the year 1968.
11. After the Nigerian Civil War, 1967-1970, the Plaintiff came back to Onitsha in January, 1970 to find the house in ruins. She cleared the land in dispute of the ruins of war, and in the absence of the Plaintiffs house, she cultivated maize, cassava and other crops which she harvested without let or hindrance from anyone. The Plaintiff continued to cultivate the land in dispute until sometime in February, 1972.
12. Sometime in 1971-72 the first defendant purported to convey the land in dispute to the second defendant who broke and entered upon the same and uprooted and carried away the Plaintiffs cassava crops upon the land and planted four survey beacons. By a letter ref. No. MS/30/72 dated 21/2/72, the Plaintiff by her counsel warned the first and second Defendants to keep off the land. The second Defendant desisted (sic) and heeded the warning but proceeded to convey the land in dispute to the 3rd Defendant. The first defendant by his counsel wrote a letter dated 24/2/72 claiming for the first time that he was absolute owner of the land in dispute. The Plaintiff will found on both letters.”
In their joint Statement of Defence, the Defendants averred in paragraphs 2, 7, 8, 10, 12, 15, 16, 17, 18, 19 and 20 as follows:-
“2. Save that the Plaintiff is the widow of Daniel Ejiogu Nzekwu, the defendants say that they are not in a position either to admit or deny the rest of paragraph one………….
7. The defendants deny paragraph 4 of the Statement of Claim and say that No.8, Cole Street, Onitsha (referred to hereinafter as “the land in dispute”) was among the landed property which Andrew Nzekwu Ojudo in his lifetime allotted to his eldest son, Nathaniel Odiakosa Nzekwu Akunma, the 1st Defendant’s father.
8. In further answer to paragraph 4 of the Statement of Claim, the defendants say that late Andrew Nzekwu Ojudo in his lifetime and before he died in 1906 allotted to his wife, Osonwa Nzekwu and her son, Daniel Ejiogu Nzekwu a large building with spacious compound along Cole Street, Onitsha. It was this large building with spacious compound that Daniel Ejiogu Nzekwu developed and later sold to Madam Anyanwu Igbo-Amu-Udu, a well known fish seller and also the mother of a well known Onitsha youngman generally called Government Man. Daniel Ejiogu Nzekwu, the Plaintiff’s husband and her (sic) brother Nathaniel Ogbolu transacted the sale.
10. The defendants deny paragraph 5 of the Statement of Claim and say that before 1935, there was a building at No.8 Cole Street, Onitsha. That building with mud wall and thatch roof was built by one Osomari Woman by name NNODU with the permission of and consent of the owner of the portion of land, late Nathaniel Odiakosa Nzekwu. After the erection of the thatch roof building Madam Nnodu was later married to one Mr. Johnson who lived with Madam Nnodu at No.8, Cole Street, Onitsha until Nnodu relinquished the building to the landlord, late Nathaniel Odiakosa Nzekwu and left for her hometown.
Later Mr. Johnson left for Lagos and died there. Nnodu’s place as well as the portion of land allotted to Daniel Ejiogu Nzekwu with her (sic) mother along Cole Street Onitsha by Andrew Nzekwu Ojudo were clearly shown in the then approved local authority Building Plan No. 108 of 16/10/35 for Akunma Nzekwu. The defendants will found on this building Plan.
12. The defendants say in further answer to paragraph 6 of the statement of claim, that the late Daniel Ejiogu Nzekwu died as a cook in Jos in 1943 and the Plaintiff was asked to come down to Onitsha to perform the funeral rites for her husband. The Plaintiff and her two daughters, Mrs. Victoria Okocha and Mrs. Janet Achebe had no place of abode. Late Nathaniel Odiakosa Nzekwu Akunma (1st defendant’s father) arranged No.8 Cole Street, Onitsha by evicting his tenants and accommodated the plaintiff and her daughters therein.
15. The defendants say in further answer to paragraph 8 of the Statement of Claim that while late Nathaniel Odiakosa Nzekwu Akunma (1st defendant’s father) allowed the plaintiff and her two daughters to stay at No.8, Cole Street, Onitsha, he rendered help to the plaintiff with her two daughters. Late Nathaniel Odiakosa Nzekwu permitted the plaintiff to be collecting rents for her use from his tenants in the remaining rooms at No.8, Cole Street, Onitsha. He also instructed the plaintiff to use part of the rents in defraying annual rates which were assessable on buildings and not on land. The building at No.8 Cole Street contained 5 rooms and one big parlour with two rooms and one kitchen in the out house on the right side of the building.
16. The defendants say that they are not in a position to admit or deny paragraph 9 of the statement of claim.
17. The defendants say in answer to paragraph 10 of the statement of claim that since the plaintiff with her two daughters had been let into No.8, Cole Street, by late Nathaniel Odiakosa Nzekwu, she had remained therein until the year 1968.
18. The defendants say in answer to paragraph 11of the statement of claim that the houses at No.8 Cole Street, Onitsha, were completely destroyed as the result of the last Nigerian Civil War and the vacant land at No.8 Cole Street was planted with crops and cassava by one Mr. Ikechukwu who on the instructions of the 1st defendant uprooted his cassava and his crops on 19/7/72. It is therefore not true that the crops and cassava on the vacant land at No.8 Cole Street were ever planted or owned by the plaintiff.
19. The defendants deny paragraph 12 of the statement of claim and say that the 1st defendant in the month of October 1971 discovered that the plaintiff and her two daughters Mrs. Victoria Okocha and Mrs. Janet Achebe, arranged to dispose of the vacant land at No.8 Cole Street by sale or lease or by some agents to erect a building on the same vacant land without the knowledge and consent of the 1st defendant as the owner and the head of Nathaniel Odiakosa family. The 1st defendant challenged their action.
20. The defendants say in further answer to paragraph 12 of the statement of claim, that the plaintiff too challenged 1st defendant’s action, caused him to be invited to the Obi of Onitsha and his Cabinet members (Ndi-Ichie) The Plaintiff was advised by the Obi of Onitsha with his cabinet to consult the 1st defendant in anything she wanted to do on the land. Both the plaintiff and the 1st defendant were also advised to go home and effect a compromise on the matter. The plaintiff ignored the advice. Thereafter, the 1st defendant with the concurrence of other members of late Nathaniel Odiakosa Nzekwu’s family sold the portion of the vacant land at No.8, Cole Street to the 2nd defendant and who later sold the land to the 3rd Defendant.”
With the above pleadings, the matter went to trial before F.O. Nwokedi, J. While the plaintiff called 3 witnesses including herself, the defendants called 5 witnesses including the D.W.4 and D.W.5, 1st defendant’s sister and brother respectively. At the end of the trial, Nwokedi, J. gave Judgment to the plaintiff and made an order “restraining all the defendants together with their servants agents or assigns from interfering with the plaintiffs enjoyment of No.8, Cole Street, Onitsha for as long as she lives.”
As this appeal has involved an attack on the -findings made by the learned trial Judge which were confirmed by the Court of Appeal, I shall highlight some of them. The learned trial Judge started with the following appraisal of evidence before him.
“Upon consideration of the facts of this case, I do not think that there is any doubt that No.8 Cole Street, Onitsha was the original property of the late Nzekwu Ojudo “ho died in 1906. I believe that Nzekwu Ojudo granted (he piece and parcel of land now known as No.8 Cole Street to a Sierra-Leonean – one Mr. Johnson. who built a mud house with thatched roof. and that his paramour Nnodu lived in that house No.8 Cole Street, even in the lifetime of Nzekwu Ojudo. I do not believe the evidence of the 1st defendant and his sister Mrs. Grace Ojekwe – D. W.4., that it was their own father Nathaniel Odiakosa Nzekwu who granted No.8 Cole Street to Johnson and his lover Nnodu. This story could not have been correct since Mrs. Ojekwe herself admitted that she did not even know either Johnson or Nnodu. She merely heard of them. I am however satisfied from the evidence that after the departure of Johnson and Nnodu, No.8. Cole Street reverted to Nzekwu Ojudo and not to Nathaniel Nzekwu”.
The learned trial Judge also made the following findings and conclusions:-
1. That Nzekwu Ojudo had several lands at Onitsha which he allocated to his children. He did not believe both plaintiff and the 1st defendant that No.8, Cole Street was one of Nzekwu Ojudo’s properties allocated to any of his children in his lifetime.
2. That before their marriage, Plaintiffs husband was living at 8 Cole Street, and after the marriage in 1912, they both lived in the said 8 Cole Street built by Johnson.
3. That further down No.8, Cole Street, and where the Olympic Hotel now stands, was another house built by Nzekwu Ojudo for his wife Osonwa, the mother of Daniel Ejiogu Nzekwu.
4. That it was the very portion where Nzekwu Ojudo built a house for his wife Osonwa that the Plaintiff’s husband sold to Madam Anyanwu Igbo-Amu Udu alias Madam Anyanwu Ononye P.W.3.
5. That the whole of the area now known as Nos. 10 and 10A Cole Street originally formed one piece of land with what is now known as No.8, Cole Street, Onitsha, and the whole area belonged to Nzekwu Ojudo.
6. That Nathaniel Nzekwu and Dennis Nzekwu litigated over Nzekwu Ojudo’s properties at Old Market Road Onitsha.
7. That the copy of the proceedings in the alleged Native Court Suit No.79/41 was not produced because the civil war destroyed a good number of such Records in Onitsha.
That following the decision of that Native Court case No. 79/41, what was left of Nzekwu Ojudo’s landed property was partitioned amongst his sons and the partitioning was done by Nathaniel Nzekwu and not by the Native Court.
9. That plaintiff’s husband having got part of Cole Street on which his mother’s house stood, also got the whole of No. 8 Cole Street which is one continuous land with what is now identified as No.10A Cole Street where the Olympic Hotel now stands.
10. That since 1941 plaintiffs husband became the owner of 8 Cole Street and that 1st defendant’s father never permitted plaintiff to live in No.8, Cole Street. Plaintiff continued to live there until 1968 when she left due to the Civil War.
11. That neither 1st defendant’s father nor 1st defendant himself prior to 1968, ever interfered with the plaintiff’s occupation and enjoyment of No.8, Cole Street, Onitsha.
On appeal to the Court of Appeal, that Court as per Belgore, J .C.A. (as he then was) upheld all these findings holding that,
“the case was decided entirely on the facts on which the Judge had singular opportunity of assessing. This court has no such opportunity. The findings of the Judge follow the facts before him and I see nothing perverse in the main on the pith of plaintiffs and respondent’s facts and evidence to justify interfering with those findings.”
The defendants/appellants then appealed to this Court filing about 10 grounds of appeal in the process. In his brief of argument, learned counsel to the appellant, Senator N. Anah identified 5 issues for determination. These were:
1. Who was in possession of the property in dispute at the time the action was taken bearing in mind the decision in Kasunmu v. Madam Abeo (1972) 2 S.C. 69, 78.
2. As between the Plaintiff and the Defendants who had the onus to prove that the other was not the owner of the property.
3. Did the Plaintiff prove that her husband was the owner of the property relying on the Native Court Suit No. 79/41 On the record was there any evidence of misbehaviour by the Plaintiff from which the Court of Appeal could draw the legal inference that the Plaintiff had lost her right to possession of the property Was the Judgment of the trial Judge perverse and did the Court of Appeal abdicate its responsibility by not intervening to reverse the Judgment”
I have deliberately dealt with the background of this case in such details as the appeal will turn on the pleadings and evidence in this case. The first point I would wish to deal with concerns issues Nos. 1, 2 and 3 above. What was the nature of the action before the High Court. The manner in which issues 1, 2 and 3 have been framed, and indeed the submissions of learned counsel to the appellants suggest that this is indeed an issue of who has a better title to No.8, Cole Street, Onitsha. The contention of the Appellants appear to me to be this:-
“You claim to be owner in possession since 1943 through your late husband; the 2nd and 3rd defendants claim to be owners through the first defendant and the 3rd defendant was in possession of the land in dispute at the time this action was instituted. Since the plaintiff claimed to have been in possession throughout, she should have brought an action for trespass. In such case, the straight question would have been who had a better right to title and possession and of course the onus would have been on the plaintiff’.
There is no doubt that if the plaintiff had brought an action for declaration of title or an action for trespass and injunction, title would have been immediately in issue. As 3rd defendant was in possession at the time she instituted this suit claiming title through 1st and 2nd defendants, to succeed she would have had to show that she had a better right to possession. The onus of establishing such better right to possession would have been on her. As this court said in Godwin Egwuh v Duro Ogunkehin S.C. 529 – (1966) delivered on 28/2/69,
“If it be alleged that someone in possession of land is a trespasser the person so alleging has the onus of showing that he has a better right to the possession which was disturbed and unless that onus is discharged, the person so alleging cannot defeat the rival party,”
But here the plaintiff sued for recovery of possession and injunction as in my view she was entitled to do. Both the trial Court and the Court of Appeal held this was neither a case for declaration of title nor for trespass and injunction. It was merely one for recovery of possession of which plaintiff claimed she had been forcibly deprived. She claimed to have been in continuous possession of the land in dispute from 1941 to 1972 and claimed to be put back in possession. It is clear that the plaintiff could not have sued for trespass as she was no more in possession when she instituted her suit. Coker, J.S.C. stated the law correctly in Aromire and 2 Ors. v. Awoyemi (1972) 2 S.C: 1, at 7 when he said,
“A claim in trespass presupposes that the plaintiff is in possession of the land at the time of the trespass. A trespasser cannot claim to be in possession by the mere act of entry and clearly a plaintiff in lawful possession at the time still remains in possession despite purported eviction by the trespasser. On the other hand a claim for recovery of possession postulates that the plaintiff is not in possession at the time of the action, that he was once in possession but is at that time seeking to be restored to possession of the land. Hence in the present case the claims for trespass and recovery of possession should not have been put together as one postulates that the plaintiff was not in possession whilst the other suggests that he was.”
But the law is all the same settled that the plaintiff in an action for the recovery of land or recovery of possession is always a person who is out of possession, but who claims to have a right to the immediate possession of the land. If he desires to recover the whole of the premises mentioned in his writ, he should as a general rule join as a defendant every person who is in possession of any part of them. He will be prima facie entitled to a verdict on proof that the land is his; for the ownership of land involves a right to the possession of it, unless the owner has voluntarily parted with possession to some third person.
Where, however, there is no suggestion that the defendant received permission from the plaintiff, or has paid him rent, the onus lies on the plaintiff of strictly proving his title, and he must state his title in full detail in his pleading deducing it step by step through the various mesne assignments. (See Bullen and Leak and Jacobs, 12th Edition at p.67).
As stated earlier in this judgment, the plaintiff did not sue for declaration of title, nor or trespass and injunction but for recovery of possession. If what she still has to show is a better title of ownership it is my view that she would be hard put to it showing a better title. In her pleadings and evidence, she seemed to have made a double case. In one sense she relied, as pleaded in paragraph 4 of her statement of claim, on the partition of the land in dispute following the Onitsha Native Court Suit 79/41. She claimed that following that case the land in dispute, 8 Cole Street, fell to her husband’s ownership and subsequently passed to her. If that was the only case she put forward, I would have had no difficulty in dismissing her claim for she, in my view, did not establish any title of ownership. I think it is wrong for the Court of Appeal to say that she did not hang her claim for title on the Native Court case. She did. The proceedings of the Native Court Suit 79/41 were not tendered in Court, and neither in her pleadings nor in evidence in Court did she give reasons for failing to tender a judgment she had said she would found on. There was no evidence to Support the finding of the learned trial Judge that the proceedings were lost just like other documents in Onitsha because of the Civil War. Besides, the evidence she led on this was contradictory. While she said it was the native Court that did the partition of Nzekwu Ojudo’s land, P.W.2, who claimed to have been one of the Judges in Suit 79/41, said that the plaintiffs husband got where he lived at Cole Street through his father Nzekwu Ojudo, but that when he (plaintiffs husband) needed more land he had to apply to 1st defendant’s father. To compound it all, the learned trial Judge held that it was 1st defendant’s father, and not the Native Court Judges, who did the partitioning of the lands.
The other case which the plaintiff established on the evidence was that she had been in continuous possession of the land in dispute, at least from 1943 to 1972. She exercised various acts of possession on the land without the let or hindrance of the 1st defendant or his father, Nathaniel Odiakosa Nzekwu. She re-roofed the house in 1950, paid rates to the Onitsha Urban Council, and after the civil war in 1970, continued to plant cassava, yams etc on the land. Even on these acts of possession, the 1st defendant sought to show that they were at the permission and concurrence of his father, Nathaniel Nzekwu. In his pleadings and evidence, the 1st defendant claimed that when the plaintiff returned from Jos in 1943 with her 2 daughters, Nathaniel Nzekwu let them into 8 Cole Street which, according to 1st defendant, was his property. He allowed the plaintiff to collect rents from his tenants for her upkeep and generally allowed her to exercise all the acts of possession which the plaintiff relied on in this case. This evidence was not believed by the learned trial Judge. He rejected it and rather held that the plaintiff had through her husband been in possession of the land in dispute since 1941.
The next issue which calls for examination, and this is almost the same as the second issue for determination as stated by the defendants, is whether the title which the defendants put forward in their pleadings and evidence was such as could oust the possession of the plaintiff on the ground that the defendants have a better right to possession
On the pleadings and evidence, the 2nd and 3rd defendants traced their title to the 1st defendant. His claim to title can be gleaned from paragraphs 7, 12, and 20 of the Statement of Defence. In these paragraphs, the 1st defendant averred first, that the land in dispute was among the landed property which Andrew Nzekwu Ojudo in his lifetime allotted to his eldest son, Nathaniel Nzekwu, 1st defendant’s father. Secondly, that, as stated earlier, Nathaniel Nzekwu allowed the plaintiff and her two daughters to live in Scale Street when they returned from Jos in 1943; and thirdly that when in 1971 he discovered that the plaintiff and her two daughters were about to alienate or build on the land in dispute, he, as the Diokpa, with the concurrence of the other members of late Nathaniel Nzekwu’s family sold the land in dispute.
As regards the first and second legs of the 1st defendant’s claim to title as stated above, the learned trial Judge disbelieved his story and rejected it. The learned trial Judge instead held that the land in dispute was the property of Nzekwu Ojudo and that it reverted to him, not to Nathaniel Nzekwu, after Mr. Johnson and his paramour, NNODU vacated it. He did not believe both parties that Nzekwu Ojudo allocated that land to any of his sons in his lifetime. As for the second leg, I had already set down the learned trial Judge’s rejection of 1st defendant’s story about his father allowing plaintiff and her daughters to live in 8 Cole Street in 1943. The learned trial Judge who had the opportunity of seeing the witnesses was in a unique position to assess their credibility and I cannot see how the Court of Appeal could have, or this Court can, interfere with those findings and conclusions. It is trite that in the area of findings based on the demeanour of witnesses and credibility, the trial Court is the master. Frank Ebba v Ogodo (1984) 4 S.C. 84. As regards the third leg, it is true that the learned trial Judge did not specifically advert to it. He, however, generally disbelieved the 1st defendant. In a situation such as this in which the trial Court has not evaluated or wrongly evaluated the particular piece of evidence, the Court of Appeal is in as good a position as the trial Court. What was the nature of this allegation that the plaintiff attempted to alienate the land in dispute The evidence which the 1st defendant gave on this matter was not more detailed than what was stated in paragraph 20 of the statement of defence. He said at page 26 of the record,
“In 1971 discovered that plaintiff was making arrangement to sell the vacant land in No.8 Cole Street or lease it or ask someone to build the house in her name. I challenged her and she consulted a lawyer claiming that the land belonged to her.”
There is nothing here to indicate to whom she was about to sell or lease the land. Besides, it is not clear whether she was trying to sell the land, or trying to get agents to build all this land in her name. I cannot put this allegation beyond an attempt to show misbehaviour on the part of the plaintiff which would in customary law justify the 1st defendant, with the concurrence of his relations to sell the land as indeed he did.
This takes me to the question of Onitsha custom and the case of Nezianya and Anor v. Anthony Okagbue (1963) 1 All N.L.R. 352. Indeed, Senator Anah had in his submission to this court said that the appeal hinges on the right of a widow under the Onitsha native law and custom over the property of her husband who died without any male issue. In the Nezianya case, the Federal Supreme Court observed as follows: at page 356,
“It would appear that the essence of possession of a wife in such a case is that she occupies the property or deals with it as a recognized member of her husband’s family and not as a stranger; nor does she need express consent or permission of the family to occupy the property so long as the family make no objection to her occupation. The Judge in the Court below has the benefit of the evidence of a Senior Chief of Onitsha who gave evidence as an expert on Native Law and Custom of Onitsha people….The Onitsha Native Law and Custom postulates that a married woman, on the death of her husband without a male issue, with the concurrence of her husband’s family, may deal with the deceased property – her dealings of course must receive the consent of the family….she cannot by the effluxion of time, claim the property as her own….she has however a right to occupy the building or part of it, but this is subject to good behaviour” (Italics mine).
So much argument arose from the contention of learned counsel to the Respondent, Mr. Babayeju, that the custom of Onitsha having not been pleaded or evidence led, the Nezianya case was not applicable. This argument was accepted by the trial Court and the Court of Appeal. There is no doubt that the Onitsha custom on this issue was not pleaded nor was any evidence led on it. In paragraph 20 of the statement of defence, the 1st defendant, as earlier stated, alleged misbehaviour on the part of the plaintiff hence he proceeded to sell the land. This was not a plea on the relevant custom. Even when the plaintiff gave the lead in paragraph 13 of the statement of claim in which she averred that. “The plaintiff will at the trial contend that the first Defendant is not entitled under any law or under any known native law and custom of Onitsha to interfere with the Plaintiffs enjoyment of the land in dispute”.
The Defendants in paragraph 21 of the Statement of Defence merely replied G “The defendants deny paragraph 13 of the statement of claim and will put the plaintiff to the strictest proof of same.”
However, the question that arises from this argument is whether there was any need to plead and prove the custom in this case. Senator Anah has strenuously argued that it is not, relying on decisions of this Court and the Federal Supreme Court in Giwa v Erinmilokun (1961) I A N.L.R. 294, 296; Okiji v Adejobi (1960) 5 F.S.C. 44 and akpan v Uyo (1986) 3 N.W.L.R. (Part 26) 63, 78 which approved the earlier cases. He also relied on Sections 14(1) and 73(1)(1) of the Evidence Act.-I agree with that submission. It seems that the custom, if it has been well established in a decision of the Superior Courts, need not be pleaded and proved. It would be necessary, however, to plead facts and lead evidence to bring the suit in question within the ambit of the judicially noticed custom. In this case, it was pleaded and evidence was led to the effect that the plaintiff was a widow of Daniel Ejiogu Nzekwu and that there were 2 issues – girls – of their marriage. Nezianya’s case was therefore applicable.
But does it help the defendant I think not. It has been contended that the land in dispute was the property of 1st defendant’s father, Nathaniel Nzekwu. The learned trial Judge disbelieved this and rejected it. The Court of Appeal confirmed this and I have no reason to interfere with this. The finding of the learned trial Judge was that the land in dispute was the property of Nzekwu Ojudo and was not allotted to any son of his in his lifetime. Even after rejecting the plaintiff’s case as to the partition of Nzekwu Ojudo’s land, it is the land in dispute that the plaintiff was in possession of from 1941 to 1972. She was in possession of the family land of Nzekwu Ojudo as the widow of a member of that family. Having rejected the 1st defendant’s pleading and evidence as to plaintiffs alleged misbehaviour, there is no thing, even on Nezianya, that would justify 1st defendant’s interference with the plaintiff’s enjoyment and occupation of that land. Besides, the 1st defendant’s purported alienation of the land to 2nd defendant (and hence 3rd defendant) was defective. The 1st defendant in his pleadings and evidence stated that he sold the land in dispute with the concurrence of his brother, D.W.4, and sister D.W.5. These were all children of Nathaniel Odiakosa Nzekwu. There is no evidence to show that the other members of Nzekwu Ojudo’s family were consulted before this sale. The land was the property of Nzekwu Ojudo. The sale by 1st defendant is therefore, at best voidable. See Ekpendu v Erika (1959) 4 F.S.C. 79.
The rights of a widow in her husband’s property in customary law have been settled.
“A widow who chooses to remain in the husband’s house and in his name is entitled, in her own right and notwithstanding that she has no children to go on occupying the matrimonial home and to be given some share of his farmland for her cultivation and generally to maintenance by her husband’s family. Should her husband’s family fail to maintain her, it seems that she can let part of the house to tenants and use the rent obtained thereby to maintain herself. Her interest in the house and farmland is merely possessory and not proprietary so that she cannot dispose of it out-and-out.”
(Nezianva’s case) See Nwabueze: Nigerian Land Law page 391 and flg; Elias: Nigerian Land Law, page 193 and flg. The conclusion I have reached is that there was no title touted by the 1st defendant to oust the plaintiff’s possession in all these years. Nor was there anything established to indicate to me a better right to possession of the land in dispute. I would agree entirely with the conclusion of Nwokedi, J. at page 65 of the record. The learned trial Judge there said,
“It is my view, that subject to good behaviour, plaintiff in this case has the right of possession of her late husband’s property and no member of her husband’s family has the right to dispose of the property at least whilst she is still alive. I have no doubt that the 1st defendant is the Okpala of Nathaniel Odiakosa Nzekwu. I am even prepared to concede to him, although I have my doubts on this point, that 1st defendant is also the overall Okpala of Nzekwu Ojudo. But his conduct in alienating the property of Daniel Ejiogu Nzekwu whilst his widow is still alive is a most callous and despicable act. He should have at least waited until the death of the plaintiff, before claiming the property in this case as Diokpala property. Any Onitsha custom which postulates that the 1st defendant has the right to alienate as the Okpala, property of a deceased person in the lifetime of his widow, is in my view a barbarous and uncivilized custom which in my view should be regarded as repugnant to equity and good conscience and therefore unacceptable to me.”
What I have said so far is enough to dispose of this appeal. I shall, however, briefly deal with the appellants’ issue which is that the learned trial Judge’s judgment is perverse and that the Court of Appeal ought to have intervened. I have already in the course of this judgment referred to those findings by the trial Judge which were perverse and so cannot be protected by the rules as to concurrent findings. These include his finding as to the proceedings in Suit 79/41 being lost during the civil war and his finding that it was Nathaniel Nzekwu who partitioned the lands of Nzekwu Ojudo. To the extent that he used the Suit 79/41 and the alleged partition by Nathaniel Nzekwu as the basis of the title of the Judgment would have been perverse. He, however, made findings to the effect that the plaintiff, a widow, was in possession of this land from 1941-1972. It would seem to me that although the use of terms appear confused it was this possessory title that he upheld in the end – the right of the plaintiff to occupy and enjoy this family land subject to good behaviour. It is this possessory title that the Court of Appeal was concerned with in its own judgment. As Belgore, J.C.A. (as he then was) said,
“She is perfectly entitled to live on the property and to effect repairs and rebuild. But if she intends to deal with the property, she needs the consent of the family.”
One final thing I wish to say concerns Messrs James Obieze and Emmanuel Achebe who were joined as respondents on 19/9/88 by order of this Court. It was claimed by learned counsel to the appellants that the need to join them arose from the death of the plaintiff herein, and the claim of the 2nd and 3rd Respondents that she devised the property to them hence they have been collecting rents from the property on the land in dispute. To hold an equitable balance between the parties, this Court ordered that those rents be paid to the High Court, Onitsha pending the determination of this appeal.
It is clear that this appeal has been considered completely in relation to the deceased plaintiff only. The pleadings were never amended nor was there any fresh evidence which could have brought the parties joined into this appeal. Indeed I can only express surprise that they were joined at all. From the circumstances of this case, it may have been more worth while to examine whatever rights may have accrued to the 1st defendant as the Nzekwu Ojudo family on the death of the plaintiff. Because of the decision I have reached that the plaintiff did not establish any title of ownership to the land in dispute, but a right of possession at least for life, larder that the result of this appeal shall not prejudice the rights of the defendants and Messrs lames Obieze and Emmanuel Achebe to pursue the question of their relative rights to the land in dispute after the death of the plaintiff.
This appeal has failed, and I hereby dismiss it. Costs assessed at N500 are awarded in favour of 2nd and 3rd respondents.
KARIBI-WHYTE, J.S.C.: I have had the privilege of reading the judgment of my learned brother, Nnamani, 1.S.C. in this appeal just delivered; and I agree entirely with the reasoning and the conclusion that this appeal fails and should be dismissed. I also hereby, for the same reasons dismiss the appeal.
Appellants shall pay costs assessed at N500 to the 2nd and 3rd Respondents.
AGBAJE, J.S.C.: I have had the opportunity of reading in draft the lead judgment of my learned brother, Nnamani, J.S.C. I agree entirely with his reasoning and conclusions. It is because of the important procedural points with their attendant consequences raised in this appeal that I have decided to contribute the following to the lead judgment to emphasise its correctness, In my view.
A great deal turns on the state of the pleadings in this case. So it behoves me to reproduce in full the plaintiffs statement of claim and the defendants’ statement of defence:-
“STATEMENT OF CLAIM
1. The plaintiff is the widow of Daniel Ejiogu Nzekwu, who died in or about the year 1943. Both the Plaintiff and the late Daniel Ejiogu Nzekwu were married in the Christ Church at Onitsha, the officiating minister being the late Rev. Anyaegbunam, in or about the year 1912. The intention of the contracting parties was that they should live as one man and one woman for life, to the exclusion of all others. The parties continued to live as intended.
2. The first Defendant is a nephew of the plaintiffs husband while the rest Defendants are strangers to Nzekwu Ojudo’s family. All the Defendants live at Onitsha.
3. Nzekwu Ojudo was a native of Onitsha. He had three sons, viz: 1. Nathaniel Odiakosa (1st Defendant’s father) 2. Daniel Ejiogu (Plaintiffs husband) and 3. Dennis Udu.
4. Nathaniel Odiakosa (1st Defendant’s father) was disposing of Nzekwu Ojudo’s lands at Onitsha indiscriminately as absolute owner. This led to the Onitsha Native Court Suit No. 79/41 between Dennis Udu Nzekwu and Nathaniel O. Nzekwu for an order of Court to restrain the first Defendant’s father from selling “out-right” the lands of Nzekwu Ojudo. Plaintiff’s husband who was then in Jos in the then Northern Nigeria came to Court and participated. It was decided that Nzekwu Ojudo’s lands at Onitsha were communal to his children and in order to decommunalise the said lands and prevent friction, the Court members, visited the lands and shared them out among the three sons. The property now known as No.8, Cole Street, Onitsha (referred hereinafter as “the land in dispute”) fell in the lot of Daniel Ejiogu Nzekwu (Plaintiffs husband). The Plaintiff will found on this case.
5. At all times prior to 1941, the land in dispute was occupied by one Mr. Johnson, a Sierra Leonean, as tenant of Nzekwu Ojudo.
6. About 1943, after the death of Plaintiff’s husband the Plaintiff returned from Jos, moved into the land in dispute, repaired the thatched house thereon, and performed the funeral of her husband.
7. In or about 1944 the father of the first Defendant, sued the Plaintiff in the Native Court of Onitsha, claiming to recover the land in dispute but the claim was dismissed. The Plaintiff will found on this case.
8. The Plaintiff continued to live on the land in dispute, letting portions to tenants who paid rent to her, paying outgoings and otherwise exercising maximum acts of possession over the same without let or hinderance from anyone whatsoever.
9. In or about the year 1950, the Plaintiffs thatched house on the land was burnt down but the Plaintiff put a zinc roof on the house and repaired the damaged house.
10. The plaintiff continued to enjoy the land in dispute paying all rates and outgoings until the year 1968.
11. After the Nigerian Civil War, 1967 – 1970, the Plaintiff came back to Onitsha in January, 1970 to find the house in ruins. She cleared the land in dispute of the ruins of war, and in the absence of the Plaintiffs house, she cultivated maize, cassava and other crops which she harvested without let or hinderance from anyone. The Plaintiff continued to cultivate the land in dispute until sometime in February, 1972.
12. Sometime in 1971-1972 the first Defendant purported to convey the land in dispute to the second Defendant who broke and entered upon the same and uprooted and carried away the Plaintiffs cassava crops upon the land and planted four survey beacons. By a letter ref. No. MS/30/72 dated 21/2/72, the Plaintiff by her Counsel warned the first and second Defendants to keep’ off the land. The second Defendant desisted and heeded the warning, but proceeded to convey the land in dispute to the 3rd Defendant. The first Defendant by his Counsel wrote a letter dated 24/2/72 claiming, for the first time that he was absolute owner of the land in dispute. The Plaintiff will found on both letters.
13. The Plaintiff will at the trial contend that the first Defendant is not entitled under any law or under any known native law and custom of Onitsha to interfere with the Plaintiffs enjoyment of the land in dispute.
14. Pursuant to the purported conveyance of the land in dispute by the 2nd to the 3rd Defendant, the 3rd Defendant about October 1972, began to dig the foundation of a building on the land in dispute on a building plan submitted for approval on 29/6/72 and which had not yet been approved. The Plaintiff tried all she could to eject the 3rd Defendant and his workmen who threatened the Plaintiff with violence. By his Counsel’s letter ref. No. GENO/CNF/268/72 dated 8/11/72, the 3rd Defendant showed unmistakable intention to eject the Plaintiff from the land in dispute by force. The Plaintiff will found on this letter and the reply by Plaintiffs Solicitor dated 4/2/72.
15. The Plaintiff has submitted a plan of a building to the Onitsha Urban Council for building her proposed house on the land in dispute, but the 3rd Defendant by her illegal structures on the land in dispute, has deprived the Plaintiff of the land on which she could build her house.
16. The Defendants would not desist from the land in dispute unless restrained by the Court.
17. Wherefore the Plaintiff claims against the Defendants jointly and severally as follows:-
(i) Recovery of possession of the piece or parcel of land being and situate at Onitsha and known as and called No.8 COLE STREET, in the Urban Division of Onitsha, the anuual value of which is about ‘a34.
(ii) Injunction to restrain .the Defendants, their servants, agents or assigns from interfering with the Plaintiffs enjoyment of the said No.8, Cole Street, Onitsha.”
“STATEMENT OF DEFENCE
1. Save as hereinafter specifically admitted, the defendants deny each and every allegation of fact contained in the Plaintiff’s Statement of Claim as if each was separately set out and traversed seriatim.
2. Save that the plaintiff is the widow of Daniel Ejiogu Nzekwu, who died in or about the year 1943, the defendants say that they are not in a position either to admit or to deny the rest of paragraph one of the statement of claim and will put the plaintiff to the strictest proof of same.
3. The defendants admit paragraph 2 of the statement of Claim and in addition, say that the 1st defendant is the son and presently, the Head (Diokpala) of Nathaniel Odiakosa Nzekwu Akunnia’s family.
4. In further answer to paragraph 2 of the Statement of Claim, the defendants say that MICHAEL NZEKWU who is the only senior brother of the 1st defendant has been on self exile in the French Territory since 1930, about 43 years now. The circumstances of Michael Nzekwu’s absence without tidings for 43 years has created an impression that he is no longer alive and thus giving the 1st defendant the right of claim as Head of Nathaniel Odiakosa Nzekwu Akunnia’s family.
5. In answer to paragraph 3 of the Statement of Claim, the defendants say that it is not a true statement of fact that ANDREW NZEKWU OJUDO had only three sons, namely (1) Nathaniel Udiakosa, (2) Daniel Ejiogu and (3) Dennis Udu.
6. In further answer to paragraph 3 of the statement of claim, the defendants say that OSIOZO NZEKWU, OGEOGU NZEKWU, FELIX AZUBIKE NZEKWU are also sons of late ANDREW NZEKWU OJUDO of Odojele Village in Onitsha inland town. Nathaniel Odiakosa Nzekwu, the 1st defendant’s father was the eldest son and also the (DIOKPALA) of Andrew Ojudo family.
7. The defendants deny paragraph 4 of the Statement of Claim and say that No.8 Cole Street, Unitsha, (referred to hereinafter as “the land in dispute”) was among the landed property which Andrew Nzekwu Ojudo in his life time allotted to his eldest son, Nathaniel Odiakosa Nzekwu Akunnia, the 1st defendant’s father.
8. In further answer to paragraph 4 of the statement of claim, the defendants say that late Andrew Nzekwu Ojudo in his life time and before he died in 1960 alloted to his wife, Osonwa Nzekwu and her son, Daniel Ejiogu Nzekwu a large building with spacious compound along Cole Street, Onitsha adjacent to and situate to the right of No.8, Cole Street, Onitsha. It was this large building with spacious compound that Daniel Ejiogu Nzekwu developed and later sold to Madam Anyanwu Igbo-Anu-Udu, a well known fish seller and also the mother of a well-known Onitsha youngman generally called GOMENT MAN. Daniel Ejiogu Nzekwu, the plaintiff and her brother Nathaniel Ogbolu transacted the sale.
9. Further to paragraph 8 above and in further answer to paragraph 4 of the statement of claim, the defendants say that in the year 1952, the plaintiff instructed her Counsel, then Barrister Oseloka Araka to write the 1st defendant’s junior brother, Mr. Clement Nzekwu requesting that the said Clement Nzekwu should ask Mrs. Grace Ojekwe of Egerton Road Onitsha to stop collecting rents from a portion of the land which the plaintiff alleged was assigned to her late husband in 1941 by the 1st defendant’s father late Nathaniel Odiakosa Nzekwu Akunnia. This letter by Barrister Oseloka Araka dated 2118152 addressed to Mr. Clement Nzekwu will be founded upon at the trial of this case.
10. The defendants deny paragraph 5 of the statement of claim and say that before 1935, there was a building at No. 8 Cole Street Onitsha. That building with mud wall and thatch roof was built by one Osomari woman by name NNODU with permission and consent of the owner of the portion of land, late Nathaniel ODIAKOSA NZEKWU. After the erection of the thatch roofed building. Madam NNODU at No. 8, Cole Street, ONITSHA until Nnodu relinquished the building to the landlord, late Nathaniel Odiakosa Nzekwu Akunnia and left to her home town. Later Mr. Johnson left to Lagos and died there. Nnodu’s place as well as the portion of land allotted to Daniel Ejiogu Nzekwu with her mother along Cole Street Onitsha by Andrew Nzekwu Ojudo were clearly shown in the then approved Local Authority Building Plan No. 108 of 16/10/35 for Akunnia Nzekwu. The defendants will found on this building plan.
11. The defendants deny paragraph 6 of the Statement of Claim and will put the plaintiff to the proof of the same.
12. The defendants say in further answer to paragraph 6 of the statement of claim, the late Daniel Ejiogu Nzekwu died as a cook in Jos in 1943 and the plaintiff was asked to come down to Onitsha to perform the funeral rites for her husband. The plaintiff and her two daughters, Mrs. Victoria Okocha and Mrs. Janet Achebe had no place of abode. Late Nathaniel Odiakosa Nzekwu Akunnia (1st defendant’s father) arranged No.8 Cole Street, Onitsha, by evicting his tenants and accommodated the plaintiff and her daughters therein.
13. The defendants deny paragraph 7 of the statement of claim and will put the plaintiff to the strict proof of same.
14. The defendants deny paragraph 8 of the statement of claim and will put the plaintiff to the strict proof of same.
15. The defendants say in further answer to paragraph 8 of the statement of claim that while late Natbaniel Odiakosa Nzekwu Akunnia (1st defendant’s father) allowed the plaintiff and her two daughters to stay at No.8 Cole Street, Onitsha, he rendered help to the plaintiff with her two daughters. Late Nathaniel Odiakosa Nzekwu permitted the plaintiff to be collecting rents for her use from his tenants in the remaining rooms at No.8 Cole Street, Onitsha. He also instructed the plaintiff to use part of the rents in defraying annual rates which were assessable on buildings and not on lands. The building at No.8 Cole Street contained 5 rooms and one big parlour with two rooms and one kitchen in the out house on the right side of the building.
16. The defendants say that they are not in a position to admit or to deny paragraph 9 of the statement of claim.
17. The defendants say in answer to paragraph 10 of the statement of claim that since the plaintiff with her two daughters had been let into No.8 Cole Street, by late Nathaniel Odiakosa Nzekwu, she had remained therein until the year 1968.
18. The defendants say in answer to paragraph 11 of the statement of claim that the houses at No.3 Cole Street, Onitsha, were completely destroyed as the result of the last Nigerian civil war and the vacant land at No.8 Cole Street was planted with crops and cassava by one Mr. Ikechukwu who on the instructions of the 1st defendant uprooted his cassava and his crops on 1917/72. It is therefore not true that the crops and cassava on the vacant land at No.8 Cole Street were ever planted or owned by the plaintiff.
19. The defendants deny paragraph 12 of the statement of claim and say that the 1st defendant in the month of October 1971 discovered that the plaintiff and her two daughters, Mrs. Victoria Okocha and Mrs. Janet Achebe arranged to dispose of the vacant land at No.8 Cole Street by sale or lease or by some agents to erect a building on the said vacant land without the knowledge and consent of the 1st defendant as the owner and the head in Nathaniel Odiakosa Nzekwu’s family. The 1st defendant challenged their action. The defendants say in further answer to paragraph 12 of the statement of claim, that the plaintiff to challenge 1st defendant’s action, caused him to be invited to the Obi of Onitsha and his Cabinet members (Ndi-Ichie). The plaintiff was advised by the Obi of Onitsha with his Cabinet to consult the 1st defendant in anything she wanted to do on the land. Both the plaintiff and the 1st defendant were also advised to go home and effect a compromise on the matter. The plaintiff ignored the advice. Thereafter, the 1st defendant with the concurrence of other members of late Nathaniel Odiakosa Nzekwu’s family sold the portion of the vacant land at No.8 Cole Street to the 2nd defendant who later sold the land to the 3rd defendant.
21. The defendants deny paragraph 13 of the statement of claim and will put the plaintiff to the strictest proof of same.
22. The defendants say in further answer to paragraph 13 of the statement of claim that Nathaniel Odiakosa Nzekwu Akunnia (1st defendant’s father) died in 1945. By hereditary succession, the 1st defendant and at present, the Head of Nathaniel Odiakosa Nzekwu Akunnia’s family and the overall Diokpa (Head) in late Andrew Nzekwu Ojudo’s family has title and right of claim over No.8 Cole Street, Onitsha being the landed property of Nathaniel Odiakosa Nzekwu.
23. In answer to paragraph 14 of the statement of claim, the defendants say that the 3rd defendant having taken conveyance of No. 8 Cole Street from the 2nd defendant commenced to erect a storey building on the land.
24. The defendants say that they are not in a position to admit or deny paragraph 15 of the statement of claim and will put the plaintiff to the strict proof of same.
25. The defendants deny paragraphs 16 and 17 of the Statement of claim and say that the plaintiff is not entitled as claimed in paragraph 17 of the statement of claim.
26. The defendants say that they will plead all the legal and equitable defences available to them at the trial of this case.”
The case was tried by Nwokedi J. who in his judgment dated 26th March, 1975 found for plaintiff as follows:-
1. “In view of the foregoing I do not think that there is any doubt that plaintiff is entitled to the relief sought by her. She is entitled to recovery of possession of that piece of parcel of land known as No.8, Cole Street, Onitsha.”
2. All the defendants are nereby restrained together with their servants, agents or assigns, from interfering with the plaintiffs enjoyment of No.8 Cole Street, Onitsha for as long as she lives.”
In coming to the above decision the learned trial Judge made the following findings of fact:-
1. “I am satisfied and I find as a fact that Nzekwu Ojudo had many landed properties in Onitsha and that in his lifetime, he allocated some of those properties to his children. I however do not believe both the plaintiff and the 1st defendant that No.8 Cole Street was one of Nzekwu Ojudo’s properties allocated to any of his sons in his life time. I believe the evidence of the plaintiff that long before her marriage to Daniel Ejiogu Nzekwu, her husband was living in No.8, Cole Street, Onitsha and that soon after their marriage in 1912, they lived together as husband and wife in the same No.8, Cole Street which was built by Johnson and Nnodu the Ogbaru woman.”
2. “I have no doubt that after the death of Andrew Nzekwu Ojudo in 1906, he was succeeded by his 1st son Nathaniel Odiakosa Nzekwu, who soon afterwards embarked on indiscriminate alienation of Nzekwu Ojudo’s land in Onitsha, and this led to some friction between Nathaniel Nzekwu and the other sons of the zekwu Ojudo. I accept me evidence of Madam Grace Ojekwe D.W.4, that Nathaniel Nzekwu and Dennis Nzekwu litigated over Nzekwu Ojudo’s properties at Old Market Road Onitsha.
Although the copy of the proceedings in the alleged Native Court Suit No.79/41 was not produced in Court, this is not surprising as the civil war destroyed a good number of such Records in Onitsha. I however accept the evidence of Chief Ike Bosah P.W.2 that such a case took place. I accept the evidence of this witness P.W.2 that he was on the panel of Judges who adjudicated at the trial of the suit. I have no doubt that following the decision of that Native Court case No.79/41, what was left of Nzekwu Ojudo’s landed property was partitioned amongst his sons. I however accept that the partitioning was done by Nathaniel Akunnia Nzekwu, father of the 1st defendant in 1941 and not by Native Court Judges.”
3. “I believe that since 1941, plaintiffs husband became the owner of No.8 Cole Street, Onitsha. I also believe that after the death of plaintiffs husband in 1943, plaintiff returned to Onitsha and went straight to No.8 Cole Street, Onitsha to live. I do not believe the story that 1st defendant’s father Nathaniel Nzekwu permitted plaintiff to live in No.8 Cole Street, Onilsha. I believe that plaintiff continued to live in No.8 Cole Street as the owner in possession until the civil war interposed in 1968, and she had to leave Onitsha like most other Onitsha people.
I believe that neither the 1st defendant’s father nor the 1st defendant himself prior to 1968, ever interfered with the plaintiff’s occupation and enjoyment of No.8, Cole Street, Onitsha. Nor is it disputed that during the civil war plaintiff’s house at No. 8, Cole Street, was destroyed.”
4. “It is also conceded by the 1st defendant, that he subsequently in 1972 sold No.8, Cole Street to the 2nd defendant, who later sold it to the 3rd defendant. I have no doubt that both the 2nd defendant in particular and the 3rd defendant knew that No.8, Cole Street was in dispute before and soon after they had purchased the property. The 3rd defendant knew of the dispute before erecting his building. It is also conceded that plaintiff has only two female issues from her marriage with Daniel Nzekwu.”
The defendants appealed unsuccessfully against the judgment of the trial court to the Court of Appeal, Enugu Division. This is a further appeal by the defendants to this court.
In the forefront of the arguments on behalf of the defendants is the submission of their counsel Senator Anah, that the learned trial Judge, having himself realised it that the proceedings with judgment in suit No. 79/41 pleaded by the plaintiff, as the basis of the partition of Nzekwu Ojudo’s landed properties among his children were not tendered in evidence before him, was wrong to have held that following the decision in the Native Court case No. 79/41 what was left of Nzekwu Ojudo’s landed properties was partitioned among his sons. In the absence of the proceedings with judgment in the case, the learned trial judge accepted the oral evidence before him on the point as proof of the facts in question.
Section 131(1) of the Evidence Act says that when any judgment of any court or any other judicial or official proceedings has been reduced to the form of a document or series of documents no evidence may be given of such judgment or proceedings except the document itself or secondary evidence of its contents in cases in which secondary evidence is admissible under the provisions of the Evidence Act. The provisos to Section 131(1) of the Evidence Act do not apply here. Because a judgment of a court is a public document within the meaning of that expression in Section 108 of the Evidence Act and because of the combined effect of Sections 96(1)(e) and 96(2)(c) of the same Act, the secondary evidence admissible in respect of the original document constituting the proceedings and judgment of a court is a certified true copy of the document but no other kind of secondary evidence.
I am therefore satisfied that the learned trial Judge was definitely in error in accepting oral evidence as proof of the judgment in the native Court case suit No.79/41. The effect of what I have just said is that the plaintiff failed to prove paragraph 4 of her statement of claim; which for ease of reference I hereby reproduce again here:-
“Nathaniel Odiakosa (1st Defendant’s father) was disposing of Nzekwu Ojudo’s lands at Onitsha indiscriminately as absolute owner. This led to the Onitsha Native Court Suit No. 79/41 between Dennis Udu Nzekwu and Nathaniel O. Nzekwu for an order of Court to restrain the first Defendant’s father from selling “out-right” the lands of Nzekwu Ojudo, Plaintiffs husband who was then in Jos in the then Northern Nigeria came to Court and participated. It was decided that Nzekwu Ojudo’s lands at Onitsha were communal to his children and in order to decommunalise the said lands and prevent friction, the Court members visited the lands and shared them out among the three sons. The property now known as No.8 Cole Street, Onitsha (referred hereinafter as “the land in dispute”) fell in the lot of Daniel Ejogo Nzekwu (Plaintiff’s husband). The Plaintiff will found on this case,”
It is noteworthy that the plaintiff says in this paragraph, “The Plaintiff will found on this case.” It is equally worthy of note that a similar expression occurs in paragraphs 7, 12 and 14 of plaintiff’s statement of claim where different sets of facts were alleged.
Belgore. J.C.A., as he then was, in the lead judgment of the Court of Appeal, said vis a vis the point I have just discussed:-
“It is true a judgment was pleaded but was not brought legally into court as evidence. But the judgment was not the peg upon which this claim was based…….A member of that Court testified in Court below but his evidence is of little value. The learned Judge held that many Court records were destroyed during the war; but with respect this was neither pleaded nor in evidence and totally was a finding erroneously made. Nonetheless, upon the totality of the evidence before the Court the sting in plaintiff’s case was unaffected.” The judgment in the Native Court Case Suit No.79/41 was a peg on which the plaintiff’s claims were hung. But it is evidently not the only peg on which the claims hung, going by the pleadings and the evidence in this case. What remains to be seen now is whether having regard to the other facts pleaded by the plaintiff, the evidence in support thereof and the findings of the trial Judge in that regard the plaintiff’s claims still ought to succeed
The learned trial Judge in the following passage from his judgment correctly, in my view, appreciated the nature and implications of the plaintiff’s claims:-
“But as I said earlier, the present action is not founded in trespass or declaration of title. It is clearly a claim for recovery of possession by the plaintiff who alleges that she was ousted from her possession of No. 8, Cole Street, Onitsha by the defendants. There is no question of settling competing claims of title between the plaintiff and the defendants. The title in No.8, Cole Street is ultimately (sic) resided in the Nzekwu Ojudo’s family.” (Italics mine)
It is common ground that the land in dispute formed part of the landed properties of Nzekwu Ojudo. Nzekwu Ojudo is now dead. What then happened after his death to his real property The answer to this question was put as far back as 1901 by Osborne C.J. delivering the judgment of the full Court in the case of Lewis v. Bankole (1909) 1 N.L.R.81 at 90 as follows:-
“At Mabinuori’s death the piece of land which he owned became family property. The defendants as his daughters or their fathers or mothers as his children were entitled to reside on the land in dispute subject to and in accordance with native law and custom”
So I am in agreement with the learned trial Judge that the title in No.8, Cole Street ultimately resides in the Nzekwu Ojudo family, that is to say, if partition is not proved as I have held is the case now.
It is also common ground in this case that between 1943 and 1968 the plaintiff lived in the house on the land in dispute by virtue of the fact that she was the widow of Daniel Ejiogu Nzekwu, one of the sons of Nzekwu Ojudo. During this period of about 25 years it was the finding of the learned trial Judge that neither the 1st defendant’s father nor the 1st defendant ever interfered with the plaintiffs occupation and enjoyment of No.8. Cole Street, Onitsha – the land in dispute.
The learned trial Judge rejected the story of 1st defendant that it was his father Nathaniel Nzekwu who permitted the plaintiff to live in No.8, Cole Street, Onitsha. Instead the learned trial Judge held as follows as I have shown earlier in this judgment:-
“I believe the evidence of the plaintiff that long before her marriage to Daniel Ejiogu Nzekwu, her husband was living in No.8, Cole Street, Onitsha and that soon after their marriage in 1912, they lived together as husband and wife in the same No.8, Cole Street which was built by Johnson and Nnodu the Ogbaru woman.”
So it is clear from this finding that independently of the partition pleaded in paragraph 4 of the statement of claim, the plaintiff and her husband had occupied No.8, Cole Street, Onitsha, the latter in his capacity as a son of Nzekwu and the former as his spouse. However, this finding is not supported by the plaintiffs pleading so it has to be discountenanced.
I have said above that upon the death of Nzekwu Ojudo his real property became Nzekwu Ojudo family land. Each member of the Nzekwu Ojudo family had the right to live on the property and the right to go to court and ask for its partition. See Ogunmefun v. Ogunmefun 10 N.L.R. 82 at 83.
In the instant case the plaintiff pleaded the fact that Nzekwu Ojudo family land has been partitioned as well as the additional fact that she lived on the family land to wit 8 Cole Street, Onitsha. She failed to prove the former but the latter was clearly established as I have shown above. I do not think that any right enuring to her by reason of the fact that she lived on the family land would cease to exist because she has failed to prove partition of the family land she alleged. The right of a member of a family to live on the family land and his right to go to court and ask for partition of the family land are two distinct and separate rights each independent of the other.
The plaintiff is a widow of a son of Nzekwu Ojudo. I am satisfied the case of Nezianya and anor. v. Okagbue and ors. (1963) 1 All N.L.R. 352 is authority for the proposition that under the native law and custom of Onitsha a widow is a recognised member of her late husband’s family and not a stranger to it. So in the instant case the plaintiffs possession of No.8, Cole Street, Onitsha is possession of the premises by a member of Nzekwu Ojudo family. Her possession is of course subject to and in accordance with the relevant native law and custom.
It is common ground in this case that No.8 Cole Street in which the plaintiff and her daughters lived and from which they fled during the last Nigerian Civil war, was completely destroyed during the war. The learned trial Judge found that as a fact that although the civil war forced the plaintiff out of No.8, Cole Street, it did not even destroy the plaintiff’s possession of the premises during the war years. This finding of the learned trial Judge is apparent from the following passage from his judgment:
“However, at the end of the civil war, in 1970 she returned to Onitsha to discover that No.8, Cole Street had been destroyed as a result of the civil war. She however cleared the debris there, and planted her cassava farm therein, and allowed one Ikechukwu to be tending the cassava farm on No.8 Cole Street, Onitsha. She later prepared a building plan in her late husband’s name to reconstruct her destroyed building, and in fact submitted a plan to the Onitsha Council Office for approval. It is not known what became of that plan. But although receipt of plaintiffs plan was recorded in Council’s books, the plan could not be seen anywhere again.
However, in 1972, when later she went to No.8 Cole Street, she found some people on the land preparing to commence building there. She challenged them, but was told that the 1st defendant had sold the land to them. 2nd defendant was the person plaintiff claimed she saw on No.8 Cole Street, Onitsha after the war.”
It was the case of the 1st defendant that after the war in 1971 when he discovered that the plaintiff who had no male issue in Nzekwu family was arranging either to sell or to lease out No.8 Cole Street, he, in order to forestall her, sold the property to the 2nd defendant after consulting the children of his (1st defendant’s) father and then, the 2nd defendant in turn sold the property to the 3rd defendant who has now built a house on the land. The learned trial Judge found that the 2nd and 3rd defendants knew that No.8 Cole Street was in dispute before they bought it, the implication of this being that the learned trial Judge must have accepted the evidence of the plaintiff that she warned them off the land; See Exhibits “P” & “C” in these proceedings.
The learned trial Judge found that the 1st defendant was the Okpala of Nathaniel Odiakosa Nzekwu and even the overall Okpala of Nzekwu Ojudo family.
The next point for consideration in this appeal is whether the sale transaction in respect of No.8, Cole Street carried out by the 1st defendant could have the effect of over-reaching the possessory interest of the plaintiff in the land in dispute. It is clear that at the time the plaintiff went to court she has lost her possession of the land in dispute to the 3rd defendant who claimed to have bought the land from the 2nd defendant who claimed to have bought it from the 1st defendant. So in my judgment the plaintiffs claims for recovery of possession and an injunction are not misconceived. See Aromire v. Awoyemi (1972) 2 S.C. 1 at page 7.
On the authority of Ekpendu v. Erika (1959) 4 F.S.C. 79 if the 1st defendant as the overall Okpala of Nzekwu Ojudo sold the No.8 Cole Street, the sale is not void even if all other principal members of Nzekwu Ojudo were not consulted. It is only voidable at the instance of those members not consulted. But that does not mean the buyer takes the property free of all encumbrances.
The learned trial Judge observed that no custom of Onitsha on the issue of a widow’s right in her husband’s family land was pleaded or given in evidence. He went on to say that native law and custom had to be established by evidence unless the particular custom was notorious in which case a court could take judicial notice of it. I may only add that because of section 73(1)(1) of the Evidence Act a court can take judicial notice of all general customs which have been held to have the force of law in or by the Supreme Court of Nigeria i.e. this court. This takes me back to the case of Nezianya & Anor. v. Okagbue & Ors. (supra).
I now refer to the following passage from the judgment of the Supreme Court per Ademola, C.J.N. at pages 356 – 7:-
” It would appear that the essence of possession of the wife in such a case is that she occupies the property or deals with it as a recognized member of her husband’s family and not as a stranger; nor does she need express consent or permission of the family to occupy the property so long as the family make no objection to her occupation. The Judge in the Court below had the benefit of the evidence of a senior Chief in Onitsha who gave evidence as an expert on the Native Law and Custom of the Onjlsha people. From the evidence of this witness it is abundantly clear that a married woman, after the death of her husband, can never under Native Law and Custom be a stranger to her deceased husband’s property; and she could not, at any time, acquire a distinct possession of her own to oust the family’s rights of ownership over the property. The Onitsha Native law and Custom postulates that a married woman, on the death of her husband without a male issue, with the concurrence of her husband’s family, may deal with his (deceased’s) property; her dealings, of course, must receive the consent of the family. The consent, it would appear, may be actual or implied from the circumstances of the case, but she cannot assume ownership of the property or alienate it. She cannot, by the effluxion of time, claim the property as her own. If the family does not give their consent, she cannot, it would appear, deal with the property. She has, however, a right to occupy the building or part of it, but this is subject to good behaviour.
In the present case, it is clear that the possession of Mary, the plaintiffs’/appellants’ ancestor, cannot be regarded as adverse. She occupied the land by virtue of her relationship (as a wife) to the family or the respondents, and her possession can never be adverse to rights of her husband’s family and she cannot, however long she was in possession of the land, acquire an absolute right to possession of it as against her husband’s family. Her descendants therefore can make no claim to the land”
(Italics mine)
Because of what I have just said above as regards section 73(1)(L) of the Evidence Act, I take it that in the above judgment of the Supreme Court we have the relevant native law and custom on the point at issue in this case. I observe that this case was cited to the learned trial Judge. In my judgment it provided him with the native law and custom on the point calling for his determination and he ought to have applied that custom. If he had done this the conclusion he would have reached is that the plaintiff had a right to occupy the land in dispute subject to good behaviour which in fact was the conclusion he eventually arrived at.
There is no allegation in the defence of the defendants that the plaintiff had lost her right to occupy the land in dispute because of misconduct. Paragraph 19 of the defence of the defendants pleaded that in October 1971 the plaintiff and her two daughters arranged to alienate the land in dispute without the knowledge and/or consent of her late husband’s family and she was promptly challenged. There was no allegation let alone evidence that in spite of the challenge she proceeded to alienate the property. Nezianya v. Okagbue (supra) decides it that the plaintiff cannot alienate the land in dispute without the consent of her husband’s family. But she has infact not alienated the property. So it cannot be said that she has committed any misconduct on that score. So, in my judgment, the right of the plaintiff to occupy the land in dispute remains intact on the evidence in this case. I have said earlier on in this judgment that a sale of the land in dispute by the 1st defendant without the concurrence of all the principal members of Nzekwu Ojudo family will only be voidable and not void. This necessarily raises the question whether such a sale can overreach the right of the plaintiff to live on the [and in dispute or the sale will only be subject to the right. This question will of course only arise if a valid sale of the land either according to native law and custom or in accordance with English law has been proved.
In Erinosho v. Owokoniran & Anor. (1965) N.M.L.R. 479 Idigbe J.S.C. delivering the judgment of this court said on the point as to how to prove sale of land at page 483 as follows:-
“We observe that there is not sufficient evidence on the exact nature of the transaction between Morinatu Oladiran and the Fafunwa branch of the Ojomo Eyisha family. Was it a sale under native law and custom or under “English law” In order to transfer an absolute title under native law and custom it is necessary that such a sale should be concluded in the presence of witnesses who saw the actual “handing over” of the property from the Fafunwa branch of the family to Oladiran (See Cole v. Falami F.S.C. 66; [1956] SCNLR 180).In order to transfer the legal title under “English Law” a deed of conveyance in respect of the same should have been executed in favour of Oladiran by the Fafunwa branch of the Ojomo Eyisha family;”
The evidence of the 1st defendant as to the sale of the land in dispute is as follows:-
“After discussing the question with members of my family I and my junior brother Clement Nzekwu then sold the vacant land to the 2nd defendant. Later 2nd defendant sold to the 3rd defendant. Clement and I are the only two surviving sons of our father.”
On the same point the 2nd defendant said:-
I paid 700 Pounds (N1,400.00) for the land. Eventually I sold the same piece of land to the 3rd defendant.”
and the 3rd defendant said:-
“I know land in dispute – No.8 Cole Street Onitsha. I bought the land from 2nd defendant. 1st defendant and his brother Clement witnessed the agreement for sale of the land. After buying No.8, Cole Street, I made a building plan and thereafter started building on it. I have completed the ground floor of five rooms. I have rented all the rooms out to tenants.”
Incidentally, 3rd defendant did not produce the agreement he talked about. In the circumstances his oral evidence as to the sale is inadmissible. See Section 131(1) of the Evidence Act and Abiodun & Ors. v. Adehin (1962) 1 All N.L. R. 550 at 553. On the authorities therefore it cannot be said that a sale of Nzekwu family land has been proved. So the radical title in the land in dispute is still in that family and has not passed to the 2nd or 3rd defendant. In effect on the evidence neither the 2nd nor the 3rd defendants has acquired an absolute title to the land in dispute. At the highest, the payment of the purchase price in respect of the alleged sale of land and entry upon the land pursuant to this will only give the 2nd or 3rd defendants equitable interest in the land. (See Ogunbambi v Abowab 13 W.A.C.A. 222). That equitable interest cannot be better than the earlier equity of the plaintiff to live on the land. This is all the more so because the 2nd and 3rd defendants acquired their interest with full knowledge of the plaintiffs interest.
Even assuming that the 2nd and/or 3rd defendant has proved sale of the land in dispute to them by the 1st defendant, two passages from the judgment of the old West African Court of Appeal in Emegwara v. Nwaimo 14 W.A.C.A. 347 tell me that such a sale without anything more cannot overreach the right of the plaintiff to occupy the land in dispute subject to conditions. The first passage is at page 348:-
“The statement of claim hesitates between allegations of absolute ownership from “time immemorial” which is, in my view, indistinguishable from original ownership, and the acquisition of title “several generations ago” by grant from the appellants’ predecessors in title. These allegations are inconsistent, but counsel assures us that it is the latter allegation which is the real basis of the respondents’ claim. It is beyond doubt that such grants may take many forms, ranging from an absolute gift to a mere tenancy or right of occupation subject to conditions. Lying between the extremes there may be a grant of such complete user without payment of tribute or other term or condition that all that is reserved to the grantor is a right to reversion should the grantee abandon his right of occupation or succession to that right fail.”
The second passage is at page 349:-
“Whatever may be the precise nature of the grant or the terms upon which they are entitled to such occupation, it is clear that unless and until the appellants can by suit show that this right has been extinguished they have no right whatever to enter upon the land in disturbance thereof or at all,” (Italics mine)
I am therefore satisfied that the learned trial Judge was right when he said in his judgment in this case that the plaintiff, subject to good behaviour, had the right to occupy the land in dispute and that no member of her husband’s family had the right to disturb that right through sale of the land in dispute, This judgment was confirmed by the Court of Appeal, Enugu Division. In my view the two lower courts have come to the correct decision.
It is for the above reasons and the fuller reasons in the lead judgment of my learned brother, Nnamani, J.S.C. that I too will dismiss the appellants’ appeal with costs as assessed in the lead judgment.
NNAEMEKA-AGU, J.S.C. (Dissenting): I have had a preview of the lead judgment of my learned brother, Nnamani, J.S.C., in this judgment. I regret to say that, for reasons which will appear in this judgment, I find myself, with greatest respects, unable to agree with him.
This is a further appeal by the defendants against the judgment of the Court of Appeal, Enugu Division, and the Onitsha High Court in this suit.
In the High Court, Madam Christiana Nzekwu claimed against Ernest Nzekwu, Joseph Nwoha and Christopher Okafor the following reliefs:
“(i) Recovery of possession of the piece or parcel of land being and situate at Onitsha and known as and called No.8, COLE STREET, in the Urban Division of Onitsha, the annual value of which is about 4 Pounds.
The Defendants have, from about February, 1972, unlawfully ejected the Plaintiff from the said piece of land on which the 3rd Defendant is now erecting a building.
(ii) Injunction to restrain the Defendants their servants agents or assigns from interfering with the Plaintiffs enjoyment of the said No.8, Cole Street, Onitsha.”
Pleadings were filed and exchanged. In paragraphs 1, 2, 3, 4, 5, 6, 7, 10, 11 and 12 of the statement of claim, the plaintiff averred as follows:
“1. The Plaintiff is the widow of Daniel Ejiogu Nzekwu, who died in or about the year, 1943. Both the Plaintiff and the late Deniel Ejiogu Nzekwu were married in the Christ Church at Onitsha, the officiating minister being the late Rev. Anyaegbunam, in or about the year 1912. The intention of the contracting parties was that they should live as one man and one woman for life, to the exclusion of all others. The parties continued to live as intended.
2. The first Defendant is a nephew of the plaintiff’s husband while the rest Defendants are strangers to Nzekwu Ojudo’s family. All the Defendants live at Onitsha.
3. Nzekwu Ojudo was a native of Onitsha. He had three sons, viz:
1. Nathaniel Odiakosa (1st Defendant’s father) 2. Daniel Ejiogu (Plaintiffs husband) and 3. Dennis Udu.
4. Nathaniel Odiakosa (1st Defendant’s father) was disposing of Nzekwu Ojudo’s lands at Onitsha indiscriminately as absolute owner. This led to the Onitsha Native Court Suit No.79/41 between Dennis Udu Nzekwu and Nathaniel O. Nzekwu for an order of Court to restrain the first Defendant’s father from selling “out-right” the lands of Nzekwu Ojudo. Plaintiffs husband who was then in Jos in the then Northern Nigeria came to Court and participated. It was decided that Nzekwu Ojudo’s lands at Onitsha were communal to his children and in order to decommunalise the said lands and prevent friction, the Court members visited the lands and shared them out among the three sons. The property now known as No.8, Cole Street, Onitsha (referred hereinafter as “the land in dispute”) fell in the lot of Daniel Ejiogu Nzekwu (Plaintiffs husband). The Plaintiff will found on this case.
5. At all times prior to 1941, the land in dispute was occupied by one Mr. Johnson, a Sierra Leonean, as tenant of Nzekwu Ojudo.
6. About 1943, after the death of Plaintiffs husband the Plaintiff returned from Jos, moved into the land in dispute, repaired the thatched house thereon, and performed the funeral of her husband.
7. In or about 1944, the father of the first Defendant, sued the Plaintiff in the Native Court of Onitsha, claiming to recover the land in dispute but the claim was dismissed. The Plaintiff will found on this case.
8. The Plaintiff continued to live on the land in dispute, letting portions to tenants who paid rent to her, paying outgoings and otherwise exercising maximum acts of possession over the same without let or hinderance from anyone whatsoever.
10. The plaintiff continued to enjoy the land in dispute paying all rates and outgoings until the year, 1968.
11. After the Nigerian Civil War, 1967-1970, the Plaintiff came back to Onitsha in January, 1970 to find the house in ruins. She cleared the land in dispute of the ruins of war, and in the absence of the Plaintiff’s house, she cultivated maize, cassava and other crops which she harvested without let or hinderance from anyone. The Plaintiff continued to cultivate the land in dispute until sometime in February 1972.
12. Sometime in 1971-1972, the first Defendant purported to convey the land in dispute to the second Defendant who broke and entered upon the same and uprooted and carried away the Plaintiffs cassava crops upon the land and planted four survey beacons. By a letter ref. MS/30/72 dated 21/2/72, the Plaintiff by her Counsel warned the first and second Defendants to keep off the land. The second Defendant desisted and heeded the warning, but proceeded to convey the land in dispute to the 3rd Defendant. The first Defendant by his Counsel wrote a letter dated 24/2/72 claiming for the first time that he was absolute owner of the land in dispute. The Plaintiff will found on both letters.”
Thus, it is clear particularly from the averment in paragraphs 3 and 4 of the statement of claim that it was plaintiff’s case that her claim to the land in dispute had its foundation in an Onitsha Native Court suit No. 79/41 as a result of which the members of the Native Court visited the land and partitioned the landed property of Andrew Nzekwu Ojudo. As a result of that partition, No.8, Cole Street, Onitsha (to be hereinafter referred to as the property in dispute) fell to the lot of Daniel Ojudo Nzekwu. By law, if the partition were proved, it became his absolute property. That this has been the foundation of the respondent’s case even in this Court is apparent from the first two paragraphs of the Statement of Facts in her brief in this appeal. It must be emphasized even at this early stage that it is common ground that when Andrew Nzekwu Ojudo died in 1906, he left surviving him sons, among whom were Nathaniel Nzekwu, the father of the 1st appellant, Daniel Nzekwu, the husband of the plaintiff, and Dennis Udu Nzekwu.
It was further plaintiff’s case that when Daniel, her husband, died in Jos in 1943, she and her two daughters returned to Onitsha and settled at No.8, Cole Street, obviously as of right which derived from the Native Court judgment and the partition aforementioned. She also pleaded acts of possession from 1943 till the events of the civil war forced her to leave the property in dispute animus revertendi. Most of these acts, such as payment of rates to the Onitsha District Council, were not disputed: but the 1st appellant’s case is that when the husband of the plaintiff died in 1943, it was he who as the head of the family showed the land in dispute, the house in which was before then occupied by one Sierra Leonian called Johnson, to the plaintiff so that she could live in it look after it and collect rents and depend upon it to sustain herself and her children.
The case for the defence was that the 1st defendant was the first son and Diokpa of Nathaniel Nzekwu who had been alloted the land by his father Andrew Nzekwu Ojudo. He asserted that the land in dispute was his property by custom.
It must be pointed out that the relevant custom of Onitsha was not pleaded or given in evidence to show the rights of the respondent as a widow, who survived her husband without a male issue, over the property in dispute admitted and found to have originally been the family property of Andrew Nzekwu Ojudo. Nor was any custom pleaded or given in evidence to show the rights of the 1st appellant as the first son of the Diokpa of the family over the land in dispute. All he pleaded in paragraph 22 of the statement of defence was as follows:
“22. The defendants say in further answer to paragraph 13 of the statement of claim that Nathaniel Odiakosa Nzekwu Akunnia (1st defendant’s father) died in 1945. By hereditary succession, the 1st defendant and at present, the Head of Nathaniel Odiakosa Nzekwu Akunnia’s family and the overall Diokpa (Head) in late Andrew Nzekwu Ojudo’s family has title and right of claim over No.8, Cole Street, Onitsha being the landed property of Nathaniel Odiakosa Nzekwu.”
I am of the clear view that unless the custom was one that could be judicially noticed this was a very unsatisfactory pleading. It ought to have been shown in the pleading and evidence how he acquired rights over the land in dispute under the customary law of Onitsha. It would have been necessary to plead and prove the position of Diokpa of the family and show how, ipso facto, he acquired right over No.8, Cole Street as an evidence of the custom, but he did not. Therefore, on the face of the pleadings of both parties, the most important issue would appear to be:
Whether the plaintiff became entitled to the property in dispute as a result of the decision of the Onitsha Native Court in suit No.79/41 and the partition of the landed property of Andrew Nzekwu Ojudo by the members of that court in that suit; or Whether the property in dispute was that of the 1st defendant as a result of his being the first son and Diokpa of Nathaniel Nzekwu to whom the land had been alloted by his father Andrew Nzekwu Ojudo.
At the trial before F.O. Nwokedi, J., in the High Court the plaintiff did not tender any copy of the proceedings in suit No.79/41 and, surprisingly, did not offer any explanation as to why she did not do so. The only evidence given by the plaintiff about the case was that a case was heard in Onitsha Native Court. She said nothing about the issues litigated or the decision of the Court. On the partition she testified as follows:
“Following this case, Nzekwu Ojudo’s lands were shared and my late husband got No.8, Cole Street, Onitsha, and another piece of land at Ajasa Street, Onitsha.”
Her only witness on the point was one T.O. Bosah who testified as P.W.2. He testified that he was a member of the Native Court and that there was am case between one Udo Nzekwu and the 1st defendant’s father; and that “After the Court proceedings we visited the land in dispute.”
He also testified that the proceedings were recorded but said nothing about the whereabouts of such a record. Remarkably, contrary to the pleading in paragraphs 3 and 4 of the statement of claim, set out above, he did not say that the court members shared Nzekwu Ojudo’s lands and that the land in dispute fell to the lot of the plaintiffs husband. Thus the foundations of the plaintiffs case as pleaded in paragraphs 3 and 4 of the statement of claim were not proved.
In his judgment, the learned trial Judge after finding that. No.8, Cole Street, Onitsha, in dispute was part of Andrew Nzekwu Ojudo’s land made the following findings:
“Although the copy of the proceedings in the alleged Native Court Suit No. 79/41 was not produced in Court, this is not surprising as the Civil War destroyed a good number of such Record in Onitsha. I however, accept the evidence of Chief Ike Bosah P.W.2 that such a case took place. I accept the evidence of this witness P.W.2 that he was on the panel of Judges who adjudicated at the trial of the suit. I have no doubt that following the decision of that Native Court case No. 79/41, what was left of Nzekwu Ojudo’s landed property was partitioned amongst his sons. I however accept that the partitioning was done by Nathaniel Akunnia Nzekwu, father of the 1st defendant in 1941 and not by the Native Court Judges.”
It is noteworthy that nobody tried to explain by evidence why the copy of proceedings in the case was not tendered. The learned Judge offered the explanation himself without any evidence. He could, I believe, have taken notice of the fact that there was a civil war in Nigeria from 1967 to 1970. But evidence was certainly necessary to show that the copy of proceedings got lost as a result of the civil war. Equally remarkable is the finding that the partitioning of the landed property of Nzekwu Ojudo was done by Nathaniel Akunnia Nzekwu, the father of the 1st defendant, and not by the Native Court members, as pleaded by the plaintiff. It was neither the case of either party before the court, nor indeed, based on the evidence before the court.
In any event, on the first of the alternative main issues which I have set out above, on a proper finding, the learned Judge should have found that the plaintiff did not prove the foundation of her possession which she pleaded in paragraph 4 of her statement of claim. For it is trite that record of proceedings in court are public documents and that once they are admitted to have been recorded, they can only be proved by production of the original records or of duly certified true copies, by the joint effect of sections 92, 94, 96, and 108 of the Evidence Act. Even if it is conceded that, being native court proceedings, oral evidence of the proceedings was admissible in proof, the fact remains that in this, particular case, no reason was given as to why the record could not be produced and no evidence of what was decided was given. Thus it is clear that both in proof of the Native Court proceedings and of the partition in which the plaintiff’s case rested, she failed woefully to prove her case. However, inspite of this position of the facts, the learned trial Judge found for the plaintiff.
On appeal by the defendants to the Court of Appeal, Enugu Division, that Court per Belgore, J.C.A. (as he then was) found as follows:
“It is true a judgment was pleaded but was not brought legally into Court as evidence. But the judgment was not the peg upon which this claim was based. All that occurred in the Statement of Claim is that the appellant’s father was once indiscriminately disposing of the family land and he had to be taken to Native Court where partition of the property was made. A member of that Court testified in Court below but his evidence is of little value. The learned Judge held that many Court records were destroyed during the war; but with respect this was neither pleaded nor in evidence and totally was a finding erroneously made. Nonetheless, upon the totality of the evidence before the Court the sting in plaintiffs case was unaffected.”
Thus, the Court of Appeal did not find that the Native Court suit was proved by legal evidence. It did not find that the plaintiff proved the partition she pleaded and relied upon.
That Court, however, dismissed the appeal. The defendants (hereinafter called the appellants) have appealed further to this Court.
While this appeal was pending the plaintiff in the court below was said to have died. Then by a motion dated 24th February, 1988, the learned counsel for the appellant, Senator Anah, applied, inter alia for an order to substitute James Obieze for the deceased plaintiff. He was said to be the person who was collecting rents from the house built by the 3rd appellant on the property in dispute during the plaintiffs lifetime and now claims entitled to inherit the property. With respects, I would have thought that on the limited issue before the Court, that is possession of the property by Madam Christiana Nzekwu, now dead, the better course would have been to discontinue the appellate proceedings. This would have cleared the way for James Obieze to come forward and establish by proper proceedings whatever rights he asserts over the properly, Howbeit, as no one has raised this point, I should proceed to express an opinion on the merits of the appeal. I shall hereinafter refer to James Obieze as the substitute respondent, and Madam Christiana Nzekwu (deceased) as the respondent.
The appellants’ notice of appeal raised three grounds of appeal. They also had leave of this Court to file and argue eleven additional grounds of appeal. All the grounds of appeal are as follows:
Original Grounds of Appeal
“1. The Lower Court erred in Law to have confirmed the decision of the learned trial Judge that the plaintiffs claim as formulated was proper when the Plaintiff was granted the relief sought, i.e., recovery of possession.
Particulars of the Errors in Law:
(i) The lower court held that the Plaintiff was in possession and was being forced out of possession;
(ii) The Plaintiffs action should then have been in trespass not recovery of possession as formulated in her writ;
(iii) A trespasser cannot claim to be in possession by the mere act of entry as a plaintiff in lawful possession at the time still remains in possession despite a purported eviction by a trespasser;
(iv) Distinction being drawn between physical possession and implied possession is irrelevant;
(v) A claim for a recovery of possession postulates that the Plaintiff is not in possession at the time of the action, that he was once in possession but that at the time of seeking to be restored to possession of the land NOT the reverse that he was in possession and was being forced out.
2. The Lower Court erred in law when it held that the case of Nezianya and Anor. v. Anthony Okagbue & Ors. (1963) 1 All N.L.R. 352 at p.356 was of no use to the appellant.
Particulars of the Errors in Law:
(i) There was evidence that the Plaintiff attempted to sell or lease the land in dispute.
(ii) There was evidence that the Plaintiff challenged the 1st defendant and claimed the land in dispute as her own.
(iii) There was evidence that the Plaintiff took the 1st Defendant to Obi of Onitsha.
(iv) That the Plaintiff will not abide by the decision of the Obi of Onitsha and His Ndichies.
(v) The Plaintiff will not listen to the 1st Defendant.
(vi) The Plaintiff did not ask for the concurrence of her husband’s family before attempting to deal with the land in dispute.
3. The Lower Court failed to make a proper appraisal of the legal admissible written evidence before it having regard to the finding of the trial court when the learned trial Judge said “I have no doubt that the whole of the area now known as No.10 and 10A Cole Street, originally formed one piece of the land with what is now known as No.8, Cole Street, Onitsha, and the whole area belonged initially to Nzekwu Ojudo. It is therefore not difficult to understand why No,8, Cole Street, fell to Daniel Nzekwu. If Nzekwu Ojudo in his lifetime built a house for his wife. Osonwa, on a piece of land close to No.8, Cole Street, the son of Osonwa naturally would be expected to inherit not only the piece of land where his mother’s house stood, but also land immediate and close to it as well.” such was the finding of the trial Court which was confirmed by the Court of Appeal without any pleading to that effect and evidence in support thereof.
Additional Grounds of Appeal
1. The learned trial Judge erred in law by importing evidence which was not led by any of the parties and which was at variance with the Plaintiffs pleading and the Court of Appeal was in error by upholding the judgment based on this imaginary evidence.
Particulars
(i) Paragraph 4 of the Statement of Claim pleads that as a result of the native Court Suit No. 79/41 the Native Court decided that the property of Nzekwu Ojudo was communal to his children and he shared them out among the three sons.
(Italics supplied). See Page 5 Line 13.
(ii) The learned trial Judge in his judgment said as follows:
“I however accept that the partitioning was done by Nathaniel Akunnia Nzekwu … in 1941 and not by the Native Court Judge.” (Italics supplied). Page 61 Lines 29-30.
(iii) Nobody led the above evidence which the trial Judge accepted and what the Plaintiff indeed pleaded as stated above is at variance with the evidence the learned Judge imported and accepted.
(iv) A trial Court should appraise only the evidence led before it and not go on a picnic to discover evidence to build up a case for a party.
(v) The Court of Appeal did not advert its mind to this obvious learned trial Judge erred in law by holding that the Plaintiff
2. The learned trial Judge erred in law by holding that the Plaintiff who rooted her title to the property in dispute, namely No.8, Cole Street, Onitsha, on the result of an alleged partition resulting from the Native Court Suit No.79/41 had proved her title when the evidence for this proof was based on inadmissible evidence and the Court of Appeal was clearly wrong in law to have upheld this defective proof of title awarded to the Plaintiff by the trial Court without setting it aside and holding that the Plaintiff had failed to prove her root of title.
Particulars.
(i) The Native Court Suit No.79/41 which was pleaded by the Plaintiff was not tendered as an Exhibit in Court.
(ii) Oral evidence of the said suit was inadmissible.
(iii) No reason was given for the non-production of the Record of Proceedings.
(iv) The Oral evidence of T. O. Bosah, a Court member and P.W.2, was therefore inadmissible.
(v) His evidence was also at variance with pleading as to who actually allotted the land to the Plaintiff’s husband and so went to no issue. (Page. 23A Lines 21-23)
3. The learned Justices of the Court of Appeal completely failed to appreciate the issue in this appeal and misdirected themselves in law when they held that the judgment in the Native Court Suit No.79/41 “was not the peg on which his claim was based”.
Particulars.
(i) The Plantiff pleaded specifically in paragraph 4 of the Statement of Claim that her husband became the owner of the property in dispute after the judgment of the Native Court Suit No.79/41 which ordered partition of the property of Nzekwu Ojudo among his three sons and after the sharing, No. 8 Cole Street “fell in the lot of Daniel Ejiogu Nzekwu (Plaintiff’s husband)”. The Plaintiff emphatically pleaded she would found on the case.
(ii) The Plantiff maintained the above averment in her evidence (Page. 18 Lines 30-34)
(iii) The Court of Appeal failed to appreciate that the judgment was the root of Plaintiff’s title.
4. The Court of Appeal erred in law by not interpreting properly and appreciating fully what the Supreme Court decided in the case of Nezianya v. Okagbue (1963) 1 All N.L.R. 352, 356 and thus realizing that there is no need for a party to plead a custom which has been judicially recognized, when it held:
“This case, I wonder, if it is of no (sic) use to appellants. xxxxxx The averment that she wanted to alienate the property was not contrary to any custom to justify her eviction”
Particulars
(i) By doubting whether Nezianya’s case was of any use to the Appellants the Court of Appeal failed to take judicial notice of the decision of the Supreme Court in that case about the Onitsha Native Law and Custom on the right of a childless widow on the property of her deceased husband.
(ii) Nezianya’s case has already decided that any attempt by her to alienate the property is contrary to Onitsha Native Law and Custom and need not be pleaded but to be judicially noticed by all the courts.
5. The Court of Appeal misdirected itself by holding as follows:
“The Plaintiff has not been alleged to misbehave and that she was trying to dispose of the property though pleaded was not in evidence before the learned trial Judge ”
Particulars
(i) There was evidence before the trial Judge that the Plaintiff wanted to dispose of the property. See Page 26 Lines 26-31, Page 52, Lines 5-9.
(ii) There was also evidence that the Plaintiff refused to accept the decision of the Obi of Onitsha and his Ndichies to consult the first Defendant before dealing with the property. Page 50 Lines 15-20.
(iii) The Plaintiff refused to “attorn tenant” to the 1st Defendant as was decided by the arbitration. Page 21 Lines 11-12.
(iv) An attempt by a life tenant to alienate the property she holds can result to a forfeiture.
(v) There was also evidence she claimed the property as her own. All these are copious evidence of misbehaviour and an attempt to dispose of the property which were before the learned trial Judge.
6. The learned trial Judge erred in law by not making a finding of fact on the positive evidence of the 1st Defendant on the behaviour of the Plaintiff who wanted to dispose of the property by sale or lease and her claim that the property belonged to her as an owner, and the Court of Appeal was equally in error by not resolving this issue which was canvassed before it.
Particulars
(i) 1st Defendant led-evidence of the attempt by the Plaintiff to dispose of the property in dispute either by sale or lease but the trial Court failed to say whether it believed or disbelieved the 1st Defendant’s evidence on this point. See also Paragraphs 19 and 20 of the Statement of Defence.
(ii) Both the trial Court and the Court of Appeal did not think it was necessary to make a finding of fact on this important issue because of their reluctance to relate the ratio decidendi in the case of Nezianya v. Okagbue (supra) to the facts of the present case – the former holding that positive evidence of the Onitsha Customary Law must be led before it could consider the application while the latter just dismissed. The application of Nezianya’s case to the present case because it held the case was of no use to the Appellants without ascribing good reasons.
(iii) The failure to make a finding on this evidence by the Court of Appeal occasioned a miscarriage of justice.
7. Both the trial Court and the Court of Appeal erred in law by not deciding on the effect of the arbitration to which both parties voluntarily submitted.
Particulars
(i) The 1st Defendant pleaded arbitration by the Obi of Onitsha and his Cabinet (Ndichies).
(ii) There is evidence that both parties voluntarily submitted to the arbitration.
(iii) It was not denied that after hearing the parties the arbitration gave a decision.
(iv) It was not denied that the Plaintiff who brought the matter to the arbitration later resiled.
(v) Neither the trial Court nor the Court of Appeal considered this issue of arbitration which the Plaintiff rebuffed, thus lending weight to her misbehaviour to attorn tenant” to the 1st Defendant.
8. The Court of Appeal having held that “the Plaintiff was continuously and consistently in possession and was being forced out of possession” erred in law to have held that the Plaintiff could sue for possession which she never lost bearing in mind the decision of the Supreme Court in Aromire v. A woyemi (1972) 2 S.C. 1.
Particulars
(i) The person to sue for possession is one who lost it.
(ii) The Court of Appeal found the Plaintiff never lost possession even at the time of this action and should have sued in trespass and not for possession.
(iii) This posture by the Court of Appeal is contrary to the decision in Aromire’s case (supra) and Kasunmu & 1 Other v. Malam Saudalu Abeo (1972) 2 S.C. 69, 78.
9. The Court of Appeal erred in law by not considering the onus of proof which was seriously canvassed before it and further erred by upholding the judgment of the learned trial Judge who placed a wrong onus on the 1st Defendant to prove that the Plaintiff is not the owner of No.8 Cole Street, Onitsha, after the trial Court had found that the Plaintiff had lost possession to the 1st Defendant.
Particulars
(i) Plaintiff’s case is that she had been in possession of the property before the civil war.
(ii) That she resumed possession after the civil war.
(iii) That before the institution of the action by her, 1st Defendant dispossessed her by selling the property to the 2nd Defendant.
(iv) That the 2nd Defendant in turn sold the property to the 3rd Defendant.
(v) That the 3rd Defendant began to build on the property before she took out action to be restored in possession.
(vi) The Plaintiff conceded that the 1st Defendant was in possession before her action but did so unlawfully, in other words he was a trespasser. On the other hand 1st Defendant said he was lawfully in possession because the Plaintiff misbehaved by attempting to dispose of the property and that he transferred a good title to the 2nd Defendant who lawfully sold to the 3rd Defendant.
(vii) On the authority of Alhaji Aromire & 2 Ors. v. J. J. Awoyemi (1972) 2 S.C. 1 at paragraphs 10-13 the onus is clearly on the Plaintiff to prove that the 1st Defendant was a trespasser when he installed himself into possession. There are two competing rights to possession and the Judge ought to decide who had a better title and in doing so he should consider Plaintiff’s title first and decide whether on her pleading she had a good title before considering the 1st Defendant’s claim. In other words onus was on the Plaintiff and until she discharged the onus 1st Defendant had no onus which the trial Court placed on him.
10. The Court of Appeal misdirected itself by holding as follows:
“The case was decided entirely on the facts on which the Judge had singular opportunity of assessing. This Court has no such opportunity. The findings of the Judge follow the facts before him and I see nothing perverse in the main on the faith (sic) of Plaintiff’s and Respondent’s facts and evidence to justify interfering with those facts.”
Particulars
(i) The trial Court failed to make proper use of the advantage of seeing and hearing the witnesses.
(ii) The trial Court did not properly assess and evaluate the evidence before it.
(iii) The trial Court drew wrong inferences and conclusions and substituted its own evidence which was not pleaded by any of the parties.
11. The learned Justices of the Court of Appeal erred in law by entering judgment for the Plaintiff/Respondent when the witnesses for the Plaintiff contradicted themselves in their traditional evidence of the land in dispute.
Particulars
(i) The Plaintiff/Respondent led evidence that her husband acquired title over the land in dispute by a Native Court judgment but the P.W.3, Madam Anyanwu, to whom was sold part of the land in dispute said that before she bought the land there was a thatched building on it belonging to the 1st Defendant’s/Appellant’s father which means that the 1st Defendant’s/Appellant’s father was by S.45 of the Evidence Act the owner of the remaining portion which is the land in dispute (P.34/1-3).
(ii) P.W.2 also contradicted the Plaintiff/Respondent and the P.W.3 by saying that the Respondent’s husband got the land from his father, Nzekwu Ojudo and later added that the Respondent’s husband got more land from 1st Defendant’s father.
(iii) The Court of Appeal should have applied the principle in Mogaji v. Cadbury Nigeria Ltd. (1985) 2 NW.L.R. (Pt.7) 393 at p.430 10 dismiss the Respondent’s case.
12. The decision is against the weight of evidence.”
The learned counsel for the appellants framed five issues for determination in the appeal. In view of the grounds of appeal filed and the tenor of his argument in Court, it appears to me that these issues were not properly worded.
The learned Counsel for the respondent, who neither cross-appealed nor gave a respondent’s notice, on his part framed nine issues in his Brief. In his Reply Brief, the learned Counsel for the appellant has taken objection to four of the issues raised in the Respondent’s Brief as having been improperly raised without leave in that they were not raised in the courts below. This Court has said a number of times that a respondent who has neither cross-appealed nor given a respondent’s notice has not got an unbridled freedom of raising issues for determination which have no relevance to the grounds of appeal filed. So it is in this case. However, taking into account the grounds of appeal before the Court, the issues properly formulated and the argument of counsel, I believe the issues for determination could fairly be stated to be as follows:
(i) Whether the respondent proved the Native Court Suit No.79/41 and partition pleaded by her as foundation of her claim, and, if she did not, if the Court of Appeal was right to have held that it was not the peg upon which she rested her case;
(ii) Whether, in view of the learned trial Judge’s finding that the respondent was continuously in possession, she rightly sued for possession;
(iii) Whether, in view of the formulation of the respondent’s claim, the onus of proof was on the appellants or the respondent;
(iv) Whether the judgment of the trial Judge was perverse and, if so, if the Court of Appeal abdicated its responsibility by not intervening to reverse the judgment;
(v) Whether there was any evidence of misbehaviour by the respondent from which the Court of Appeal could have drawn the inference that the respondent had lost her right to possession of the property in dispute; and
(vi) Whether the Court below could have taken notice of the principles in the Supreme Court Judgment in Julie Nezianya & Anor. v. Anthony Okagbue & Ors. (1963) 1 All N.L.R. 352 and, if it could, were there’ facts in this case to warrant their application.
Now there can be no doubt that, from the pleading in paragraphs 3 and 4 of the statement of claim set out above, the respondent rooted her right to possession of the property in dispute upon the Native Court adjudication in suit No.79/41 and the partition of the property by the members of that Court. Upon the Court of Appeal finding, rightly I hold, that no legal evidence of that suit was called by the respondent and the inability of the two lower courts to find on the evidence any partition of the land by the members of the Native Court as pleaded, it follows that the foundation of the respondent’s possession as advanced by her was not proved. It is obvious, I believe, that, as partition by Nathaniel Akunnia Nzekwu which ‘the learned trial Judge found had no pleading or evidence to support it, it cannot be allowed to stand. In that state of the facts of the case as put forward by the responsdent, as plaintiff, the trial court, on a proper approach would have had no alternative but to accept the version of how she came into possession as given by the appellants, i.e., that the 1st appellant showed her the property to stay in after her husband’s death. After all, civil cases are decided on a preponderance of evidence. See on this Mogaji & Ors. v. Odofin & Ors. (1978) 4 S.C. 91; Bello v. Eweka (1981) 1 S.C. 101. On a proper application of this principle, where it has been shown that the evidence called by the plaintiff is untrue, or without weight, or has been discredited, the court ought to accept that given by the defence unless it has been shown to be of such a quality that no reasonable tribunal should accept it. There is no suggestion that the appellants’ case suffers from that fundamental defect. It follows, therefore, that a proper finding should have been that the property in dispute was that of the 1st appellant as a result of its being alloted to his father as the diokpa of the family – and that it was the 1st appellant who let the respondent into occupation of the house in the property in dispute after her husband’s death in 1943 so that she could live there, collect rents and pay rates and use the proceeds of the rents to look after herself and her two daughters. I shall consider anon whether this letting into occupation could entitle her to sue for possession, as she did next in this judgment. Suffice it to say at the moment that, in view of the pleading in paragraphs 3 and 4 of the statement of claim set out above, the Court of Appeal was in error to have held that the Native Court case was not the peg upon which she hung her case.
It has been suggested that because it was admitted that the respondent was let into possession by the 1st appellant she was entitled to succeed in any event. In my judgment this is a non sequitur. For if it is accepted that she went into possession in the circumstances claimed by the appellants, she was in possession by their permission and cannot claim that possession as of right against them. As Obaseki, J.S.C. observed in O.K.O. Mogaji & Ors. v. Cadbury Nigeria Ltd. & Ors. (1985) 7 S.C. 59, at p. 159:
“Long possession is more a weapon of defence on equitable grounds to defeat claims for declaration of title and trespass than of defence against the true owner.”
And he continued:
“Unless the origin of title is valid, the length of possession does not ripen invalid title of a trespasser to valid ownership title.”
Although the above dicta refer to a case of declaration of title, the underlying principle is applicable to his case. As the respondent has failed in her assertion as to how she came on the property in dispute i.e. as of right as per the Native Court decision and the consequent partition which would Rave given her absolute ownership, she cannot turn round to rely on the permissive possession, which the appellants have alleged, to find her claim against the appellants. It is one case to assert, as she did that she was an absolute owner as of right by virtue of the Native Court case and the partition. It is quite a different case to say that as a widow without an issue she was entitled to possession for her life under Nezianya decision, subject only to her good behaviour. By this failure, the bottom has completely been knocked out of her claim for possession. For, implicit in both the adversary system, which we operate, and the principle of audi alteram partem, is that in a civil matter a plaintiff succeeds or fails on the strength or weakness of the case he has brought to court. He is bound to reveal this case in his statement of claim. This is usually expressed in the now trite principle of law that a party is bound by his pleading: See Emegokwue v. Okadigbo (1973) 4 S.C. 113, at p.117; George v. Dominion Flour Mills Ltd. (1963) 1 All N.L.R. 71, at p.77 and so many other decisions. If he is to rely on an admission or concession by the defendant, he is bound to say so in his pleading. The need for these rules arises from the fact that a defendant is always entitled to know the nature and content of the case he is to meet, as he cannot defend the unknown.
There is, indeed a stronger reason why the respondent ought not succeed in her claim. Her pleading in paragraph 4 of the statement of claim set out above is that as a result of the Native Court case No.79/41 the family property of Nzekwu Ojudo was partitioned and that the property in dispute became that of her husband after the partition. It is the law that partition terminates co-ownership of family property. It is a division of ownership among the former co-owners. See Balogun v. Balogun (1943) 9 W.A.C.A. 78. at p. 82.
On a true view of the above pleading, therefore, what the respondent asserted was that, because of the partition, No.8. Cole Street in dispute became her husband’s absolute property, to which she had now succeeded. This is fundamentally different from the 1st appellant’s assertion that the property in dispute was not partitioned but merely alloted to his father and remained co-owned family property, of which he is the head of the family. Can the respondent who has failed to prove the absolute ownership which she pleaded be granted possession as of right on the ground of the permissive occupation which the appellants pleaded I think not. For, to do so will be tantamount to granting her relief on a case fundamentally different from the case she brought to court. She cannot claim possession as of right as an absolute owner and fail to prove it and be granted possession by courtesy of the 1st appellant or by reason of her right as a widow under Onitsha customary law. The finding is that she has been in possession since 1941. Considering the fact that possession of 8 Cole Street by the respondent and her husband prior to 1941, which the learned Judge found, was not pleaded and is, in fact, in conflict with the pleading in paragraph 5 of the statement of claim, how then did she explain the origin of that possession save by the Native Court judgment and the partition If they are removed, as they must be, her case falls to the ground.
The appellants, as defendants, did not counter-claim. All they needed to do was to raise a valid defence. It was for the plaintiff to prove her case. On the above conclusions, she failed to do so and her case ought to have been dismissed.
I shall now consider issue No.2. Senator Anah submitted that the fact that the respondent sued for possession is an admission that she was out of possession; that if it was her case that she was continuously in possession, her proper suit was one of trespass, not possession. He submitted that a claim for recovery of possession postulates that the plaintiff is out of possession. It was therefore wrong for the court to have adjudged that the respondent (plaintiff) was entitled to possession when her case was that she was in possession all the time. Learned counsel cited the case of Aromire v A woyemi (1972) 2 C S.C. 1.
Learned counsel for the respondent submitted that she was always in possession before the civil war, was in constructive possession during the civil war and that she gave evidence that she resumed possession after the civil war. Her complaint, he pointed out, was that the 1st appellant sold the property in dispute over her head in 1972-1973. Relying on the same Aromire’s case (supra) he submitted that a suit for possession was in order. He also referred to Bullen & Leake & Jacobs (12th Edn.) p.67 to show that the material averments in such a case are:
(a) that the plaintiff was in prior possession;
(b) that she was ejected from possession; and
(c) that she is entitled to be put back to possession.
In my judgment the law on this point is not recondite: it is its application to the facts of this case that seems to be the problem. At page 7 of Aromire v. A woyemi (1972) 2 S.C. 1, this Court held as follows:
“A claim in trespass presupposes that the plaintiff is in possession of the land at the time of the trespass. A trespasser cannot claim to be in possession by the mere act of entry and clearly a plaintiff in lawful possession at the time still remains in possession despite a purported eviction by a trespasser. On the other hand, a claim for recovery of possession postulates that the plaintiff is not in possession at the time of the action, that he was once in possession but is at that time seeking to be restored to possession of the land.” (Italics mine)
At this point, I should ask, what are the relevant facts of this case It is correct to say that by the pleading in paragraphs of the statement of claim set out above, particularly paragraph 12, the respondent’s case is that she was and remained in possession of the property in dispute up to the time the appellants went into the land. They uprooted some of her crops in the land. This is in line with the statement of her case by her counsel in a letter No. ref.MS/30/72 dated 21/2/72 which was pleaded in paragraph 12. In paragraph 4 of that letter, her counsel stated as follows:
“4. Immediately after the civil war in 1970, my client cleared the ruins and debris left on the property and thereon planted cassava and other crops on the land and has continued to plant and reap crops on the land until the incidents hereinunder mentioned.”
The incidents thereunder mentioned were the entry upon the land by the 2nd and 3rd appellants. Based on the above pleading and the evidence called, the learned Judge found that she continued to be in possession up till the time of the entry. She was never out of possession. It appears clear to me from the principles in Aromire’s Case set out above that on the above facts what she could have sued for was damages for trespass, and not recovery of possession which she proceeded to plead and prove was already in her. This point was, therefore, well taken.
It appears to me also that as the respondent’s case, as formulated, postulates that she was out of possession at the time the appellants went upon the land, the learned Judge should have directed himself that the onus was on the respondent to prove that she was the owner or at least had a better title than the 1st appellant. This is because the very nature of the respondent’s claim raises a presumption – rebuttable by evidence – that the appellants were in possession. It was, therefore, for the respondent to call evidence to rebut it. The onus would have been discharged if she had a better right to possession which the appellants had disturbed. Unless she discharged that onus she could not defeat the appellants. See David Fabunmi v. Abigail Ade Agbe (1985) 1 N.W.L.R. (Part 2) 299. On the claim before the trial court it is my view that the court below was in error to have failed to consider the complaint of the appellants that the trial court wrongly placed the onus of proof on them.
Another complaint by the appellants is that in considering the nature and limitations of the respondent’s interest in the property in dispute, the courts below failed to properly consider and take into account the Supreme Court decision in Julie Nezianya & Anor. v. Anthony Okagbue & Ors. (1963) 1 All N.L. R. 352: In that case, this Court made a pronouncement on the customary law of Onitsha as it relates to the rights of a widow like the respondent who has no male issue over the family property of her deceased husband. On the argument of counsel on both sides on this aspect of the appeal, it appears to me that the questions to be decided are as follows:
(i) It being conceded, as it must be on the materials before the court of trial, that the relevant native law and custom was not pleaded but that the notoriety and binding effect of the decision was only raised by counsel in the final address, were the trial court right in holding, and the Court of Appeal right in confirming, that the courts could not take judicial notice of that case and that as there was no evidence of the custom of Onitsha on the point it ought lot be considered
(ii) That even if the custom it pronounced upon could be judicially noticed, was there any evidence of any misbehavior by the respondent within the implications of that decision
Let me begin by confessing that I was initially inclined to agree with the respondent’s counsel that as the relevant custom was not pleaded, this was the end of the matter, as a single decision should not entitle a custom to judicial notice. I took that initial stand because of a number of decided cases which held that a custom could be judicially noticed only after it has been frequently proved in the courts. Such cases include –
Buraimo & Ors. v. Gbamgboye & Ors. (1940) 15 N.L.R. 139; Larinde v. Afiko & Anor. (1940) 6 W.A.C.A. 108. The decisions derived directly from English Law and were all handed down before the Evidence Ordinance of Nigeria came into force in 1945.
Now section 14(2) of the Evidence Ordinance (now Evidence Act) provides that:
..A custom may be judicially noticed by the court if it has been acted upon by a court of superior or co-ordinate jurisdiction in the same area to an extent which justifies the court asked to apply it in assuming that the persons or the class of persons concerned in the area look upon the same as binding in relation to circumstances similar to those under consideration.”
Importantly the words “frequently proved” in the pre-1945 decisions have not been incorporated into the above provision. It is enough if it has been “acted upon by a court of superior or co-ordinate jurisdiction in the same area to an extent”. Advisedly, it says “a court” not “courts”. In this regard, it is noteworthy that where the Supreme Court confirms a pronouncement on custom made by a lower court, it involves a pronouncement by at least two courts. It does appear to me that a different situation from those older cases arises in a case like Nezianya’s case where a particular custom has been pronounced upon by a High Court at first instance, after considering the pleadings and evidence, and the pronouncement has been confirmed by the Supreme Court. Such a pronouncement can be judicially noticed by all the courts of the land. That was the attitude of the Federal Supreme Court in the case of Olubunmi Cole & Anor. v. Akinyele & Ors. (1960) 5 F.S.C. 84 in which that Court took judicial notice of a single appellate confirmation of a custom on inheritance according to Yoruba custom in Alake v. Pratt (1955) 15 W.A.C.A. 20. At page 86 of Cole’s case (supra) Brett, F.J. stated:
“No attempt was made to call any evidence as to any rule of native law and custom which might apply to their case, but the court was invited to take judicial notice, under section 14(2) of the Evidence Ordinance, of the rule under the native law and custom of the Yoruba people which was held proved by Jibowu, J., and the West African Court of Appeal in Alake v. Pratt (1955) 15 W.A.C.A. 20 to the effect that if paternity of children is acknowledged by a man during his life time they are to be regarded as legitimate and entitled to share in his estate with his children born of a marriage contracted under the Marriage Ordinance.”
Then he later continued:
“I would accept the decision in Alake v. Pratt as one of sufficient authority to enable the courts to take judicial notice of the rule of Yoruba law and custom which was there held proved, but there can be no warrant for extending it, without evidence, beyond the circumstances in which it has been held to apply.”
No doubt, the inevitable inference from the above pronouncement is that where a rule of customary law has been pleaded and canvassed in a High Court and accepted as proved, and that acceptance is confirmed by the highest appellate court in the land, such a rule could be judicially noticed. Such were the precise circumstances in Nezianya’s case (supra).
I am not unaware of the decision of Taylor, F.J., in Liadi Giwa v. Bisiriyu Erinmilokun (1961) 1 All N.L.R. 294, where at p.296 he was still insisting that such a custom could be judicially noticed only “if it is of such a notoriety and has been so frequently followed by the courts. “As the learned author of Aguda: Law & Practice Relating to Evidence in Nigeria (1st Edn.) para. 3-39 has pointed out, the learned Federal Justice did not appear to have adverted his mind to the provision in Section 14(2) of the Evidence Act. To that extent, the decision appears to have been reached per incuriam. It is bad enough that our customary law has to be proved as a fact in our own country nearly thirty years after independence from British rule. It will be worse to say that after a custom has been pleaded at first instance and canvassed through all the stages up to and including the Supreme Court, it still cannot even be judicially noticed. To so hold could bring about ridiculous result. I do not so hold. I am of the firm view that following the Federal Supreme
Court in Cole & Anor. v. Akinyele & Ors. (supra) all the courts concerned in this case ought to have judicially noticed the decision in Nezianya’s Case (supra). In that case, the relevant custom of Onitsha was duly pleaded; evidence was called on it, and it was held duly proved by Reynolds, J., in an Onitsha High Court and it was so accepted by the Supreme Court. In the circumstances it appears to me to follow that the general principles adumbrated therein can be judicially noticed in subsequent cases, such as this. In that case, the Court held at page 356:
“It would appear that the essence of possession of the wife in such a case is that she occupied the property or deals with it as a recognised member of her husband’s family and not as a stranger; nor does she need express consent or permission of the family to occupy the property so long as the family makes no objection to her occupation. The Judge in the Court below had the benefit of the evidence of a senior Chief in Onitsha who gave evidence as an expert on the Native Law and Custom of the Onitsha people. From evidence of this witness it is abundantly clear that a married woman, after the death of her husband, can never under Native Law and Custom be a stranger to her deceased husband’s property; and she could not, at any time, acquire a distinct possession of her own to oust the family’s rights of ownership over the property. The Onitsha Native Law and Custom postulates that a married woman, on the death of her husband without a male issue, with the concurrence of her husband’s family, may deal with his (deceased’s) property; her dealings, of course, must receive the consent of the family. The consent, it would appear, may be actual or implied from the circumstances of the case, but she cannot assume ownership of the property or alienate it. She cannot, by the effluxion of time, claim the property as her own. If the family does not give their consent, she cannot, it would appear, deal with the property. She has, however, a right to occupy the building or part of it, but this is subject to good behaviour.”
Applying the above principles to the present case, it appears to me that, subject to my observations below, the learned trial Judge was right when he stated in part of his judgment:
“…I should be reluctant to deny the widow, plaintiff in this case, at least life interest in what I have found to be the property of her late husband. It is my view that subject to good behaviour, plaintiff in this case has the right of possession of her late husband’s property and no member of her husband’s family has the right of possession of her late husband’s property and no member of her husband’s family has the right to dispose of the property at least whilst she is still alive.”
Her case was based on exclusive ownership as a result of the 1941 case and partition. So, I must pause to observe that on the premises that the respondent proved neither the Native Court suit No. 79/41 nor the partition upon which her late husband’s exclusive ownership of the property is rooted, that conclusion falls to the ground. I can only consider Nezianya’s Case on Theoretical basis. I must rest the position on the earlier finding by the learned Judge that the property in dispute was family property of the Nzekwu Ojudo family and the express finding by the learned trial Judge that the 1st appellant is the head of the family. If the broad principles in Nezianya’s Case applied to the situation in this case, I am of the clear view that the respondent has a type of usufruct, not right of ownership, of the property in dispute, for her life, but subject to good behaviour. I do not share the diatribes which the learned counsel for the respondent has poured down on Nezianya decision. But that was not her case.
This brings me to the issue of misbehaviour by the respondent. One serious complaint of the appellants against the Court of Appeal judgment is that the Court was wrong to have held that the respondent has not been alleged to have misbehaved; and that she was trying to sell the property, although pleaded, was not in evidence before the learned trial Judge. The submission of the learned counsel for the respondent that that ground went to no issue because no native law and custom of Onitsha was pleaded, in my view, loses sight of the fact that, as I have held, the principles in Nezianya’s Case could be judicially noticed. It follows then that the question of misbehaviour by the respondent (widow) becomes a life issue. There is evidence which was not challenged or disbelieved that the respondent tried to sell the property in dispute in 1971 without the consent of the head of the family; that when she was challenged she claimed the land to be her own. There is also evidence that the respondent herself took the matter to the Obi of Onitsha and the Ndichie who instructed her not to do anything on the land without the concurrence of the 1st appellant; and that the parties should go home to reconcile, but that the respondent ignored all these. There can be no doubt that on decided cases a denial of the family title is a misbehaviour which could result in forfeiture: See
Bongay v. Macauley (1932) 1 W.A.C.A. 225;
Ometa v. Numa (1929) 9 N.L.R. 46;
Okuojeror v. Sagay (1958) W.R.N.L.R. 70.
Similarly, it is a misbehaviour on Nezianya’s decision for her to alienate the property without the consent of the head of the family. It was also not challenged that she claimed the land as her own. Coupled with the respondent’s refusal to accede to the decision of the Obi and Ndichie which evidence was accepted by the learned trial Judge; I am of the view that upon a careful consideration. it would have been found that she was guilty of misbehaviour.
The other complaint of the appellants is that the judgment of the trial court was perverse and that the Court of Appeal was wrong to have failed to so hold. The main plank in the submission of learned counsel for the appellants is that the trial Judge imported evidence on many material issues, which evidence was either not given by any of the witnesses for the parties or was at variance, with the pleadings. As I have already adverted to some of the main complaints on this. such as the wrong finding on the alleged Native Court case No.79/41, the finding which was no party’s case that the partition of the family property of Andrew Nzekwu Ojudo was done by Nathaniel Akunnia Nzekwu, I do not intend to give this issue a detailed separate treatment. It is enough to say that the point was well-taken.
Finally, in view of all I have said above. I should consider what order to make. As this Court has said in a number of cases, where a respondent has not cross-appealed or at least given a respondent’s notice, the role of this Court is strictly limited to seeing whether or not the decision of the court below is correct. See on this Oguma Associated Companies (Nig.) Ltd. v. I.B.W.A. Ltd (1988) 1 N.W.L.R. (Pt.73) 658, p. 681; Eliochin (Nig.) Ltd. v. Mbadiwe (1986) 1 N.W.L.R. (Part 14) 47. As, in this case, the respondent has not filed either a cross-appeal or a respondent’s notice. I should confine myself to seeing whether the judgments of the courts below could be sustained.
It is clear that because neither the Native Court case nor the partition upon which she based her case was proved, she was not entitled to judgment in either court. The proper role of this Court is to say so. Strictly, the principles in Nezianya’s case would have been relevant only if she came to court to claim that the property in dispute remained communal family property and that, as a widow to one of the co-owners, without a male issue, she was entitled to a usufructuary interest for her life. That, unfortunately, is not her contention. Having failed to prove to be an absolute owner which she claims, she is not entitled to relief.
It would be worse to attempt to give her any relief on the basis of section 22 of the Supreme Court Act. This is so for a number of reasons:
First: There is neither a cross-appeal nor a respondent’s notice to enable us consider anything in her favour: we can only say whether or not the judgments of the courts below are correct.
Secondly: Nobody has asked us either in the briefs or in oral address to consider the application of Section 22. To turn round to invoke it without an address will be contrary to accepted practice. I should here repeat what I said in Appeal No. S.C. 207/1985: Chukwuma Okwudili Ugo v. Amamchukwu Obiekwe & Anor. of February 10.1989; (1989) 1 N.W.L.R. (Pt.99) 566, where I stated:
“It is basic and fundamental in our system of administration of justice that no one can have a decision entered against him without his being heard. This is the essence of the maxim: audi alteram partem. The maxim implies not only that all the parties to be affected by a decision are entitled to be heard in the case on hand, before the decision is given, but also that if, in the course of hearing any new point material to the decision arises, each of such parties shall be heard on it before a decision based upon it can rightly be handed down. See on this Sheldon v. Bromfield Justices (1964) 2 Q.B. 573, at page 578; also R. v. Hendon Justices, Ex Parte Gorchein (1973) 1 W.L.R. 1502. Quite apart from this, a judge who in our system must be and be seen as an impartial umpire will be anything but that if he takes up a material point, no matter how clear it may appear, and, without hearing the parties to be affected by it, decides it. That cannot be evenhanded justice. A court ought never raise an issue for either of the parties and, without hearing both parties, proceed to base its judgment on it. See Inua v. Nta (1961) 1 All N.L.R. (Pt.4) 576; Ejowhomu v. Edok-Eter Ltd. (1986) 5 N.W.L.R. (Part 39) 1.”
So it will appear in this case if I invoke the provisions of section 22 of the Supreme Court Act, rightly or wrongly.
Thirdly: On a proper interpretation of that section, it empowers this court to “make any order necessary for determining the real question in controversy in the appeal”. And, to that intent, the Court has been given a number of ancillary powers. The real question in controversy in this appeal is whether it was proved that the respondent was entitled to possession as an absolute owner. Once that was not proved, section 22 does not empower this Court to fish around, or asked, to prop up her possession which the appellants have explained on other grounds.
Fourthly: As it has been agreed that she is dead, if Nezianya’s case would have applied, her life interest is at an end. To give her any relief under the section, unasked, would be to set a dangerous precedent, and we were not addressed on it.
From all I have stated above, I am of the view that the Court below should have held that the judgment of the High Court could not be sustained. The judgment of F.O. Nwokedi, J., in the High Court is set aside.
I therefore, allow the appeal and set aside the judgments of the High Court and the Court below.
I assess costs against the substitute respondents and in favour of the appellants at N500.00 in this Court, N350.00 in the Court of Appeal and N200.00 in the High Court.
CRAIG, J .S.C. (Dissenting): This appeal took its origin from a family quarrel within the Nzekwu Ojudo Clan. The dispute, which concerns a family property at No.8, Cole Street, Onitsha, has unfortunately extended to third parties who have now acquired permanent interests in the said property.
The salient facts of the case are as follows:
The original plaintiff was one Mrs. Christianah Nzekwu, widow of Daniel Ejiogu Nzekwu who died sometime in 1943. She took out a Writ of Summons against her husband’s nephew, Ernest Nzekwu (1st Defendant) at the Onitsha High Court for:
“(i) Recovery of possession of the piece or parcel of land being and situate at Onitsha and known as and called No.8, COLE STREET, in the Urban Division of Onitsha, the annual value of which is about 5 Pounds. The Defendants have from about February, 1972, unlawfully ejected the Plaintiff from the said piece of land on which the 3rd Defendant is now erecting a building.
(ii) Injunction to restrain the Defendants their servants agents or assigns from interfering with the Plaintiff’s enjoyment of the said No.8, Cole Street, Onitsha.”
The plaintiff’s case was that the property was given to her husband as his share of the Nzekwu Ojudo estate when that estate was partitioned by the Onitsha Native Court in Suit No. 79/1941. The Plaintiff alleged that after her husband’s death in 1943, she took possession of the said property, cultivated it and performed other acts of ownership on it. Sometime in 1972, the 1st Defendant dispossessed her and purported to sell the land to the 2nd Defendant, who in turn sold it to the 3rd Defendant.
In reply to the claim, the 1st Defendant denied that the Ojudo estate was partitioned by any body. He claimed that Nzekwu Ojudo (Defendant’s Grand father) in his lifetime, allotted the land to Nathaniel Nzekwu Ojudo (Defendant’s father) and that on the death of Nathaniel in 1945, he, (Defendant), as the first son and head of Nathaniel’s family succeeded to the said property under native law and custom. He then asserted that in 1943 when the plaintiff’s husband died in Jos, she returned to Onitsha with her two children and was accommodated on the land in dispute, but she was evicted in 1971 when she attempted to alienate part of the property.
The pleadings tell the rest of the story, and in this regard, I must commend both parties for paying great attention to the material points of their case. For instance, the plaintiff pleaded the essential facts on which she intended to rely in proof of her case, and took time to emphasise the important issues in the case.
In the same way, the Defendants replied pointedly to the material averments in the Statement of Claim and after the exchange of pleadings, it was not difficult to ascertain the real point in dispute between the parties.
In support of her claim, the plaintiff pleaded the following material facts:
“1. The Plaintiff is the widow of Daniel Ejiogu Nzekwu, who died in or about the year, 1943. Both the plaintiff and the late Daniel Ejiogu Nzekwu were married in the Christ Church at Onitsha, the officiating minister being the late Rev. Anyaegbunam, in or about the year 1912. The intention of the contracting parties was that they should live as one man and one woman for life, to the exclusion of all others. The parties continued to live as intended.
2. The first Defendant is a nephew of the plaintiff’s husband while the rest Defendants are strangers to Nzekwu Ojudo’s family. All the Defendants live at Onitsha.
3. Nzekwu Ojudo was a native of Onitsha. He had three sons, viz:
1. Nathaniel Odiakosa (1st Defendant’s father) 2. Daniel Ejiogu (Plaintiffs husband) and 3. Dennis Udu.
4. Nathaniel Odiakosa (1st Defendant’s father) was disposing of Nzekwu Ojudo’s lands at Onitsha indiscriminately as absolute owner. This led to the Onitsha Native Court suit No. 79/41 between Dennis Udu Nzekwu and Nathaniel 6. Nzekwu for an order of Court to restrain the first Defendant’s father from selling “out-right” the lands of Nzekwu Ojudo. Plaintiffs husband who was then in Jos in the then Northern Nigeria came to Court and participated. It was decided that Nzekwu Ojudo’s lands at Onitsha were communal to his children and in order to decommunalise the said lands and prevent friction, the Court members visited the lands and shared them out among the three sons. The property now known as No.8, Cole Street, Onitsha (referred hereinafter as “the land in dispute”) fell in the lot of Daniel Ejiogu Nzekwu (Plaintiffs husband). The Plaintiff will found on this case.
5. At all times prior to 1941, the land in dispute was occupied by one Mr. Johnson, a Sierra Leonean, as tenant of Nzekwu Ojudo.
6. About 1943, after the death of Plaintiffs husband the Plaintiff returned from Jos, moved into the land in dispute, repaired the thatched house thereon, and performed the funeral of her husband.
7. In or about 1944 the father of the first Defendant, sued the Plaintiff in the Native Court of Onitsha, claiming to recover the land in dispute but the claim was dismissed. The Plaintiff will found on this case.
8. The Plaintiff continued to five on the land in dispute, letting portions to tenants who paid rent to her, paying outgoings and otherwise exercising maximum acts of possessions over the same without let or hinderance from anyone whatsoever.
9. In or about the year 1950, the Plaintiffs thatched house on the land was burnt down but the Plaintiff put a zinc roof on the house and repaired the damaged house.
10. The plaintiff continued to enjoy the land in dispute paying all rates and outgoings until the year 1968.
11. After the Nigerian Civil War, 1967 – 1970, the Plaintiff came back to Onitsha in January; 1970 to find the house in ruins. She cleared the land in dispute of the ruins of war, and in the absence of the Plaintiffs house, she cultivated maize, cassava and other crop which she harvested without let or hinderance from anyone. The Plaintiff continued to cultivate the land in dispute until sometime in February, 1972.
12. Sometime in 1971 – 1972 the first Defendant purported to convey the land in dispute to the second Defendant who broke and entered upon the same and uprooted and carried away the Plaintiff cassava crops upon the land and planted four survey beacons. By a letter ref. No. MS/30/72 dated 21/2/72, the Plaintiff by her Counsel warned the first and second Defendants to keep off the land. The second Defendant desisted and heeded the warning, but proceeded to convey the land in dispute to the 3rd Defendant. The first Defendant by his Counsel wrote a letter dated 24/2/72 claiming for the first time that he was absolute owner of the land in dispute. The Plaintiff will found on both letters.
13. The Plaintiff will at the trial contend that the first Defendant is not entitled under any law or under any known native law and custom of Onitsha to interfere with the Plaintiffs enjoyment of the land in dispute.
14. Pursuant to the purported conveyance of the land in dispute by the 2nd to the 3rd. Defendant, the 3rd. Defendant about October, 1972, began to dig the foundation of a building on the land in dispute on a building plan submitted for approval on 29/6/72 and which had not yet been approved. The plaintiff tried all she could to eject the 3rd Defendant and his workmen who threatened the Plaintiff with violence. By his Counsel’s letter ref. No.GENO/CNF/268/72 dated 8/11/72 the 3rd Defendant showed unmistakable intention to eject the Plaintiff from the land in dispute by force. The Plaintiff will found on this letter and the reply by Plaintiffs Solicitor dated 4/2/72.
15. The Plaintiff has submitted a plan of a building to the Onitsha Urban Council for building her proposed house on the land in dispute, but the 3rd. Defendant by his illegal structures on the land in dispute, has deprived the Plaintiff of the land on which she could build her house.
16. The Defendants would not desist from the land in dispute unless restrained by the Court.
17. Wherefore the Plaintiff claims against the Defendants jointly and severally’ as follows:-
(i) Recovery of possession of the piece or parcel of land being and situate at Onitsha and known as and called No.8, Cole Street, in the Urban Division of Onitsha, the annual value of which is about 5 Pounds.
(ii) Injunction to restrain the Defendants their servants agents or assigns from interfering with the Plaintiffs enjoyment of the said No.8, Cole Street, Onitsha.”
A close examination of the above Statement of Claim shows firstly that the plaintiff had divided her pleadings into four important parts:
(a) Her root of title – this is pleaded in paragraphs 3 and 4.
(b) Acts of ownership performed on the land – See paragraphs 5 – 11.
(c) Her eviction from the land – See paragraphs 12 and 13.
(d) Entry on the land by 2nd and 3rd Defendants See paragraphs 14 and 16.
Secondly, the Statement of Claim also invites the Court’s attention to some paragraphs of the pleadings and states that she intends to make the matters pleaded therein the pillars of her case. She in fact used the legal terminology “The plaintiff will found on this case” or “…….will found on these letters,” in respect of the matters pleaded in paragraphs 4,7,12 and 14.
Now, how did the Defendants react to all these averments
In answer to the above, the Defendants admitted that the plaintiff was the widow of Daniel Nzekwe; deceased, and that the property in dispute originally belonged to Andrew Nzekwu Ojudo deceased (1st Defendant’s grand father). But they made a general traverse of the plaintiffs pleadings and in regard to the four important parts of the Statement of Claim, (stated above) the Defendants pleaded as follows:
(a) Plaintiffs Root of Title:
“7. The defendants deny paragraph 4 of the Statement of Claim and say that No.8, Cole Street, Onitsha, (referred to hereinafter as “the land in dispute”) was among the landed property which Andrew Nzekwu Ojudo in his life time allotted to his eldest son, Nathaniel Odiakosa Nzekwu Akunnia, the 1st defendant’s father.
8. In further answer to paragraph 4 of the statement of claim, the defendants say that late Andrew Nzekwu Ojudo in his life time anti before he died in 1906 allotted to his wife, Osonwa Nzekwu and her son, Daniel Ejiogu Nzekwu a large building with spacious compound along Cole Street, Onitsha adjacent to and situate to the right of No.8, Cole Street, Onitsha. It was this large building with spacious compound that Daniel Ejiogu Nzekwu developed and later sold to Madam Anyanwu Igbo-Anu-Udu, a well known fish seller and also the mother of a well-known Onitsha youngman generally called GOMENT MAN. Daniel Ejiogu Nzekwu, the plaintiff and her brother Nathaniel Ogbolu transacted the sale.
9. Further to paragraph 8 above and in further answer to paragraph 4 of the statement of claim, the defendants say that in the year 1952, the plaintiff instructed her counsel, then Barrister Oseloka Araka, to write the 1st defendant’s junior brother, Mr. Clement Nzekwu requesting that the said Clement Nzekwu should ask Mrs. Grace Ojekwe of Egerton Road, Onitsha, to stop collecting rents from a portion of land which the plaintiff alleged was assigned to her late husband in 1941 by the 1st defendant’s father, late Nathaniel Odiakosa Nzekwu Akunnia. This letter by Barrister Useloka Araka dated 21/8/52 addressed to Mr. Clement Nzekwu will be founded upon at the trial of this case.”
(b) Plaintiffs acts of ownership:
“10. The defendants deny paragraph 5 of the statement of claim and say that before 1935, there was a building at No.8, Cole Street, Onitsha. That building with mud wall and thatch roof was built by one Osomari woman by name NNODU with the permission and consent of the owner of the portion of land, late Nathaniel ODIAKOSA NZEKWU. After the erection of the thatch roofed building, Madam NNODU was later married to one Mr. Johnson who lived with Madam NNODU at No.8, Cole Street, Onitsha, until Nnodu relinquished the building to the landlord, late Nathaniel Odiakosa Nzekwu Akunnia and left to her home town. Later Mr. Johnson left to Lagos and died there. Nnodu’s place as well as the portion of land allotted to Daniel Ejiogu Nzekwu with her mother along Cole Street, Onitsha by Andrew Nzekwu Ojudo were clearly shown in then approved Local Authority Building Plan No. 108 of 16/10/35 for Akunnia Nzekwu. The defendants will found on this building plan.
12. The defendants say in further answer to paragraph 6 of the statement of claim, that late Daniel Ejiogu Nzekwu died as a Cook in Jos in 1943 and the plaintiff was asked to come down to Onitsha to perform the funeral rites for her husband. The Plaintiff and her two daughters, Mrs. Victoria Okocha and Mrs. Janet Achebe had no place of abode. Late Nathaniel Odiakosa Nzekwu Akunnia (1st defendant’s father) arranged No.8, Cole Street, Onitsha, by evicting his tenants and accommodated the plaintiff and her daughters therein.
13. The defendants deny paragraph 7 of the statement of claim and will put the plaintiff to the strict proof of same.
14. The defendants deny paragraph 8 of the statement of claim and will put the plaintiff to the strict proof of same.
15. The defendants say in further answer to paragraph 8 of the statement of claim that while late Nathaniel Odiakosa Nzekwu Akunnia (1st defendant’s father) allowed the plaintiff and her two daughters to stay at No.8, Cole Street, Onitsha, he rendered help to the plaintiff with her two daughters. Late Nathaniel Odiakosa Nzekwu permitted the plaintiff to be collecting rents for her use from the tenants in the remaining rooms at No.8, Cole Street, Onitsha. He also instructed the plaintiff to use part of the rents in defraying annual rates which were assessable on buildings and not on lands. The building at No.8, Cole Street contained 5 rooms and one big parlour with two rooms and one kitchen in the out house on the right side of the building.
16. The defendants say that they are not in a position to admit or to deny paragraph 9 of the statement of claim.
17. The defendants say in answer to paragraph 10 of the statement of the claim that since the plaintiff with her two daughters had been let into No.8, Cole Street, by late Naihaniel Odiakosa Nzekwu, she had remained therein until the year 1968.”
(c) Plaintiffs Eviction:
19. The defendants deny paragraph 12 of the statement of claim and say that the 1st defendant in the month of October, 1971 discovered that the plaintiff, and her two daughters, Mrs. Victoria Okocha and Mrs. Janet Achebe arranged to dispose of the vacant land at No.8, Cole Street by sale or lease or by some agents to erect a building on the said vacant land without the knowledge and consent of the 1st defendant as the owner and the head in Nathaniel Odiakosa Nzekwu’s family. The 1st defendant challenged their action.
20. The defendants say in further answer to paragraph 12 of the statement of claim, that the plaintiff to challenge 1st defendant’s action, caused him to be invited to the Obi of Onitsha and his Cabinet members (Ndi-Ichie). The plaintiff was advised by the Obi of Onitsha with his Cabinet to consult the 1st defendant in anything she wanted to do on the land. Both the plaintiff and the 1st defendant were ‘also advised to go home and effect, a compromise on the matter. The plaintiff ignored the advice. Thereafter, the 1st defendant with the concurrence of other members of late Nathaniel Odiakosa Nzekwu’s family sold the portion of the vacant land at No.8, Cole Street to the 2nd defendant who later sold the land to the 3rd defendant.
21. The defendants deny paragraph 13 of the statement of claim and will put the plaintiff to the strictest proof of same.
22. The defendants say in further answer to paragraph 13 of the statement of claim that Nathaniel Odiakosa Nzekwu Akunnia (1st defendant’s father) died in 1945. By hereditary succession, the 1st defendant and at present, the Head of Nathaniel Odiakosa Nzekwu Akunnia’s family and the overall Diokpa (Head) in late Andrew Nzekwu Ojudo’s family has title and right of claim over No.8, Cole Street, Onitsha being the landed property of Nathaniel Odiakosa Nzekwu.”
(b) Entry by 2nd and 3rd Defendants:
“23. In answer to paragraph 14 of the statement of claim, the defendants say that the 3rd defendant having taken conveyance of No.8, Cole Street from the 2nd defendant commenced to erect a storey building on the land.
24. The defendants say, that they are not in a position to admit or deny paragraph 15 of the statement of claim and will put the plaintiff to the strict proof of same.
25. The defendants deny paragraphs 16 and 17 of the statement of claim and say that the plaintiff is not entitled as claimed in paragraph 17 of the statement of claim.
26. The defendants say that they will plead all the legal and equitable defences available to them at the trial of this case.
I have taken pains to sort out the pleadings in this manner because it seems to me that when presented in that way; it makes it easy to ascertain the real matter in controversy between the parties. However, one thing is clear, the property in dispute is admitted by both parties to be family land, and in that case, the onus is on the party who is claiming absolute title to the land to prove such conclusive entitlement. See
Adenle. v. Oyegbade (1967) N.M.L.R. 136.
Bamgbose v. Oshoko (1988) 2 N.W.L.R. (Part 78) 509.
In the instant case, the plaintiff is claiming possession of the land, and asks the Court for injunction to protect that possession; in those circumstances, the onus is on the plaintiff to show how she became the exclusive possessor of the land.
It now remains to find out whether or not the plaintiff discharged that onus.
When hearing commenced, she gave evidence and called two witnesses. With regard to her root of title, the plaintiff stated as follows:
“No.8, Cole Street, Onitsha initially belonged to Nzekwu Ojude and when he died after sharing the late Nzekwu Ojudo’s properties, my late husband became the ownerofthe No.8, Cole Street, Onitsha. After the death of Nzekwu’Ojudo his Okpala the father of 1st defendant started selling Nzekwu Ojudo’s property. Following this a telegram was sent to my late husband by one Dennis
Udu Nzekwu, asking my husband to come back from his station Jos. On my husband’s arrival 1st defendant’s father was asked to stop selling their father’s lands and that the lands should be shared for Nzekwu Ojudo’s sons. The case was heard in the Onitsha Native Court. Following this case, Nzekwu Ojudo’s lands were shared and my late husband got No.8, Cole Street, Onitsha and another piece of land at Ajasa Street, Onitsha ;”. ………………
“It is not true as pleaded by 1st defendant that No.8, Cole Street was given to his father in Nzekwu Ojudo’s life time.” …………………….
It is untrue that I in conjunction with my late husband, my brother Nathaniel Ogbolu sold to one Madam Anyanwu the piece of land adjacent to No.8, Cole Street, Onitsha. If my late husband and my brother jointly sold this piece of land to Madam Anyanwu – I do not know.”
Throughout her evidence, she did not tender the Native Court judgment in (Suit No. 79/41) pleaded in paragraph 4 of her statement of claim, but she called one T.O. Bosah who was at the time a member of the Onitsha Native Court. This is what he said:
“I recollect the dispute between the Nzekwu Ojudo family which came before Onitsha Native Court in 1941, I was one of the presiding Court members then. The case was between one Udo Nzekwu and Nathaniel Nzekwu. The subject matter was a land matter. The land was said to belong to Nzekwu Ojudo. After the Court proceedings we visited the land in dispute.
During the trial of the above native court suit, proceedings were recorded. I know plaintiffs husband. He is now dead. I know where he lived in his life time in Onitsha. He lived somewhere in Anyaogu’s Street now designated Cole Street, Onitsha. The house was opposite Anyaogu’s house. Plaintiffs husband was living in Cole Street’ before Native Court case referred to above.”
This witness also did not tender any copy of the Native Court judgment nor did he state that Ojudo’s estate was partitioned by the court.
With regard to the Defendant’s allegation that the plaintiffs husband had sold the property given to him by Nzekwu Ojudo, the plaintiff had this to say:
“It is untrue that I in conjunction with my late husband, my brother Nathaniel Ogbolu sold to one Madam Anyanwu the piece of land adjacent to No.8, Cole Street, Onitsha. If my late husband and my brother jointly sold this piece of land to Madam Anyanwu – I do not know.”
but the plaintiff then called the said Madam Anyanwu (3 PW) who contradicted the plaintiffs evidence. The witness stated as follows:
“I know plaintiffs late husband. I know where plaintiffs husband lived in his lifetime. It was some where in Ogbe Omu Onitsha opposite the house of one Ononye. I bought part of the land on which plaintiffs husband house stood. It was plaintiffs husband who sold the land to me. I later sold that piece of land to one Wawa man,”
For the rest of her testimony, the plaintiff gave evidence about the various acts which she performed on the land, but in regard to paragraphs 8 and 11 of her statement of claim, she did not call any of her tenants or any person who had assisted her to cultivate the land in dispute. In regard to paragraph 7, she did not tender any Native Court judgment to show that she had successfully maintained a suit against the plaintiffs father in respect of the said land in dispute.
In their own testimony, the defendants gave evidence along the lines of their pleadings. In particular, the 1st Defendant denied that the property in dispute was ever partitioned, and stated that his father had merely lodged the plaintiff and her daughters in the house on their arrival from Jos in 1943. 1st Defendant called his brother and sister and they corroborated his evidence.
On a visit to the locus in quo, the 1st Defendant showed the Court, the property, which had been given to plaintiffs husband. According to 1st Defendant, that property is now known as Nos. 10A and 10B, Cole Street, Onitsha and is now used as Hotel – “OLYMPIC HOTEL.”
Significantly, both the plaintiff and her witness (Madam Anyanwu) agreed that the said property (10A and 10B Cole Street) was the land which was sold by the Plaintiffs husband to 3 P.W. Madam Anyanwu.
At the close of the case for the parties, it was obvious that the principal issues which the Court had to decide rested mainly on the facts. Some of these issues are these:
1. Was the Ojudo Estate partitioned, and if so, to whom was the land in dispute given
2. Is it a fact that the late Andrew Nzekwu Ojudo gave the land adjacent to the land in dispute to the plaintiffs husband and this he had sold to Madam Anyanwu
3. Was the plaintiff in possession of the said property by virtue of the partition made in favour of her husband or was she merely accommodated on the land after her husband’s death
4. Did the 1st Defendant’s father sue the plaintiff in respect of the land in dispute and did she win the suit
Now, how did the trial Court deal with these points
In regard to the issue of partition the trial Judge observed that the judgment pleaded was not tendered and he then went on to say:
“This is not surprising as the civil war destroyed a good number of such Records in Onitsha. I however accept the evidence of Chief Ike Bosah P.W.2 that such a case took place………….
I have no doubt that following the decision of that Native Court case No. 79/41, what was left of Nzekwu Ojudo’s landed property was partitioned amongst his sons. I however accept that the partitioning was done by Nathaniel Akunnia Nzekwu, father of the 1st defendant in 1941 and not by the Native Court Judges.”
I pause here for a moment to say that none of the parties or their witnesses gave evidence that Nathaniel had partitioned their father’s estate, and it is difficult to know from where the learned Judge had imported this bit of evidence into the case. Furthermore, neither the plaintiff nor her counsel nor even the court member (2 P.W.) had given any reason why the Native Court judgment in Suit No. 79/41 could not be tendered, and it would appear that the learned Judge had conjured a reason for the non-production. In my view this is wrong. A Judge should regard himself as an impartial arbiter and has no right to prop up the weak case of one party or to assist that party to make out a case different from that which has been set up by the litigant.
See S. Ochonma v. A. Unosi (1965) N.M.L.R. 321 at 323 per Brett J.S.C. Earlier in his judgment, the learned Judge found as a fact that the land on which the Olympic Hotel stands (No.10A Cole Street) was given to Osonwa, (Daniel’s mother) by Ojudo, and that it was this land that Daniel (plaintiffs husband) had sold to Madam Anyanwu (3 P. W.). The trial Judge then made the following findings:
“I have no doubt that the whole of the area now known as Nos. 10 and 10A Cole Street originally formed one piece of land with what is now known as No.8, Cole Street, Onitsha, and the whole area belonged initially to Nzekwu Ojudo. It is therefore not difficult to understand why No.8, Cole Street fell to Daniel Nzekwu. If Nzekwu Ojudo in his lifetime built a house for his wife Osonwa on a piece of land close to No.8, Cole Street, the son of Osonwa naturally would be expected to inherit not only the piece of land where his mother’s house stood, but also land immediate and close to it as well.”
Again, I must say, with the greatest respect to the trial Judge, that no witness gave the evidence from which the learned Judge had made that finding. Nobody said that Daniel Nzekwu had inherited the land in dispute because it was close to another piece of land which was given to his mother by Ojudo. In any case, this finding also constitutes a different case from that which the plaintiff had put up in her pleadings. But of greater significance was the fact that in her evidence the plaintiff had strongly denied that her husband had sold Nos. 10 and 10A, Cole Street to Madam Anyanwu. (3, P.W.) Even though 3 P.W. gave evidence and said that she bought this land from the plaintiffs husband, the plaintiff maintained her stand until after the Defence had closed its case.
The plaintiffs Counsel then applied orally to amend paragraph 5 of the Statement of Claim by adding the words:
“Plaintiffs husband before his death sold a portion of the land in dispute to one “Madam Anyanwu of Odoje Village”
Although the Defence Counsel opposed the application, the Court nonetheless granted it. There is no appeal against that order and I shall make no comments on the propriety of granting such an amendment at such a late stage of the proceedings. But in my view, the amendment granted does not in any way help the plaintiffs case. The land which is in dispute in this case is No.8, Cole Street, and there is no evidence that any portion of that land was sold. What was sold to Madam Anyanwu was Nos. 10 and 10A Cole Street, – a piece of land adjacent to No.8, Cole Street and on which the Olympic Hotel has been erected.
In respect of the third issue of fact (stated above) – as to how the plaintiff came into possession of the land in dispute, the learned Judge found:
“I believe that since 1941, plaintiffs husband became the owner of No.8, Cole Street, Onitsha. I also believe that after the death of plaintiff’s husband in 1943, plaintiff returned to Onitsha and went straight to No.8, Cole Street, Onitsha to live.” (Italics mine)
Now the words “since 1941” in that quotation seem to suggest that Mr. Daniel became owner of the property since the partition by the Court in the case No. 79/41. In my view, it cannot be anything else, for although the Court found that Nathaniel Nzekwu partitioned Ojudo’s estate, but as I stated before, there was no evidence that he did so, or if he did partition it, there was no evidence as to when he did the partition.
I have again gone to this extent first to show that this latter finding of the trial Court appeared to contradict the earlier finding that Nathaniel partitioned the estate. Secondly, it is obvious from this that the plaintiff had predicated her possession of the disputed land on the fact that the land belonged absolutely to her late husband and that, by virtue of this fact, she was entitled to enter and take possession of her husband’s property. That was the case which the plaintiff had pleaded and it is not open to her to depart from those pleadings or to put up an entirely different case at the hearing.
See (1) Aderemi v. Adedire (1966) N.M.L.R. 398
(2) H. Ajoke v. A. Yesufu Oba (1962) 1 All N.L.R. 73. But it must be conceded in favour of the plaintiff that before partition of the estate, all members of the Ojudo Family had a joint interest in the property and any member of the Family was entitled to possess the land, but title to the land would still remain with the Family.
However, after the partition, that joint interest ceases, and title to the land becomes vested in the person to whom the land was given
See Shelle v. Asajan (1957) 2 F.S.C. 65 at 67
S. Lengbe v. R. Imale (1959) W.R.N.L.R. 325.
Bamgbase v. Oshoko (supra) at p. 519.
If the plaintiff, being herself a member of Ojudo Family, had claimed possession of the land because it was allotted to her by the Family, then the Court would have had to consider whose possession was earlier in time. But the plaintiff’s case, as I understand it, was that the property belonged absolutely to her husband (by virtue of the partition pleaded) and she was entitled to possess it. As previously stated, unless she proves that assertion, her claim would be dismissed.
In the long run, the trial Judge found that the plaintiff had proved her case and gave her judgment. The defendants were dissatisfied and they appealed to the Court of Appeal. In that Court, they argued almost the same grounds of appeal as they have canvassed in this Court.
In one of the grounds, they submitted that the trial Court erred in law in granting the relief sought. The lower Court agreed with Counsel that the plaintiff did not prove the case which was put up on the pleadings, but Belgore, J.C.A, as he then was and who read the lead judgment went on to say:
“It is true a judgment was pleaded but was not brought legally into Court as evidence. But the judgment was not the peg upon which this claim was based. All that occurred in the Statement of Claim is that the appellant’s father was once indiscriminately disposing of the family land and he had to be taken to Native Court where partition of the property was made. A member of that Court testified in Court below but his evidence is of little value. The learned Judge held that many Court records were destroyed during the war; but with respect this was neither pleaded nor in evidence and totally was a finding erroneously made. Nonetheless, upon the totality of the evidence before the Court the sting in plaintiffs case was unaffected.”
Consequently, the Court dismissed the appeal. Before us, it was submitted that the findings of fact made by the trial Judge (F.O. Nwokedi J.) was based on non-existing evidence, and was therefore perverse. It was also submitted that the lower Court was wrong to affirm the judgment of the trial Court when it agreed that that Court’s findings were wrong, I agree with that submission and for the reasons already stated, I am of the clear view that the plaintiff had failed to prove her claims and those claims ought to have been dismissed. In my view, this is one of the rare occasions when an appellate Court should interfere with the findings of the lower Court.
The principle about this is that when the findings made are based entirely on the credibility of the witness, the appellate Court has a very limited scope to interfere.
Fatoyinbo v. Williams (1956) 1 F.S.C. 87.
But where the findings were not based on the evidence before the Court, but on some facts imported into the case by the Judge, then the appellate Court has a duty to interfere and set such findings aside, Fashanu v. Adekoya (1974) 1 All N.L.R. 35.
Anyaoke v. Dr. F. Adi (1986) 3 N.W.L.R. (Part 31) 731 at 742.
In the instant appeal, it was wrong of the lower Court to say that the 1941 Judgment “was not the peg upon which this claim was based.”
I am satisfied that that judgment was the main platform on which the plaintiff rested her case, and that platform having collapsed, there was, in my view, no support upon which the plaintiffs claims could stand.
There is one more point that need be made, and this relates to the onus which rests on a plaintiff in a civil case. By a long line of decided cases, it has been held that the onus is on a plaintiff to prove his claims, and if he fails in this respect, judgment must be for the defendant.
The well known principle of law is that the plaintiff must succeed on the strength of his case and not on the weakness of his adversary, except that he is entitled to make use of any points in the defence case which support the plaintiffs case. See
Kodilinye v. Mbanefo Odu 2 W.A.C.A. 336.
Fabunmi v. Agbe (1985) 1 N.W.L.R. (Part 2) 299.
In the instant case, the 1st Defendant claimed that he succeeded to the property through his father, Nathaniel, and that as Diokpa and first son, he was entitled to the property, under Native Law and Custom. The trial Court disbelieved him and said that he had no right to sell Family property without the concurrence of other members of the Family. The case of Ekpendu v. Erika (1959) 4 F.S.C. 79 was cited.
Now, the 1st Defendant might have set up a weak defence; or his story might be totally untrue or he could even have refrained from giving oral evidence, yet, the onus was still on the plaintiff to prove the claims which she had brougl1tto the Court.
For the sake of emphasis, that claim was that her husband was the sole owner of the land in dispute and she, as widow of her husband, was entitled to the possession of the said property. The two lower Courts held, and rightly in my view, that she had failed to prove the partition pleaded, and that should have been the end of her case.
It remains for me to say that I have read in draft the judgment of my learned Brother, Nnaemeka-Agu, J.S.C., and I agree with his statement of the facts and his legal conclusions. For the reasons so clearly stated in the said judgment and which I adopt as mine, I regret that I am unable to agree with the views and conclusions contained in the lead judgment of my learned brother, Nnamani, J.S.C.
In the result, this appeal succeeds and it is allowed, the judgment of Nwokedi J. and that of the lower Court, are hereby set aside.
It is ordered that the plaintiff’s claims in the Onitsha High Court shall, and are hereby dismissed.
Appeal Dismissed.
Appearances
Senator N. N. Anah (with him, V. I. Agenekwu) For Appellant
AND
E.K.C. Babayeju For Respondent
