ESTHER EZENWORA & ORS v. PETER EZENWORA
(2018)LCN/12354(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 13th day of February, 2018
CA/E/81/2014
RATIO
LAND LAW: THE ONUS TO PROVE TITLE TO LAND
“The settled principle of law in land matters is that the onus is on a Plaintiff who claims a declaration of title to satisfy the Court that he is entitled on the evidence adduced by him to the declaration claimed. The onus only shifts where the Defendant claims exclusive ownership of family land, otherwise the onus never shifts. The next line of onus to be discharged is that the Plaintiff must rely on the strength of his own case and not on the weakness of the defense except where the Defendant’s case supports his case. See EZE vs. ATASIE (2000) 9 WRN 73 AT 88; ADESANYA vs. ADERONMU (2000) 9 NWLR (PT. 672) 370. In addition to these, the Plaintiff must prove his title by clear, emphatic, satisfactory and cogent evidence. If this is not so done, the weakness in the Defendant’s case will be of no use to the case of the Plaintiff. See the case of KODILINYE vs. ODU (1935) 2 WACA 336; ONIBUDO vs. AKIBU (1982) 7 SC 60 AT 84-85.”PER FREDERICK OZIAKPONO OHO, J.C.A.
LAND LAW: WHERE THERE IS A CUSTOMARY GIFT OF LAND
“It is clear that what is in contention between the parties to this Appeal is the question of gift of land inter vivos. To establish a gift of land inter vivos, there must be evidence of actual handing over of the land and acceptance thereof in the presence of witnesses. See AYINKE vs. IBIDUNNI (1959) 4 FSC 280 AT 282. The learned Author, B. O. NWABUEZE in his book NIGERIAN LAND LAW , p. 367 on the modes of constituting a gift, the author said: ‘It’s already noted, customary law requires no writing for the transfer of land, whether by way of sale or by way of gift. In lieu of writing, however, there must be actual handing over of the land to the donee in the presence of witnesses and an acceptance by him of the gift.’ In the case of FOLARIN vs. DUROJAIYE (1988) NSCC 255 AT 265, the Supreme Court, per OPUTA, JSC while, making as reference to customary transfer, the sage said: ‘To transfer an absolute title under customary law, it ought to be pleaded and proved that the gift was made in the presence of witnesses. To that effect, names of those witnesses should also be pleaded as well as the fact that they witnessed the actual delivery or handing over of the land to the purchaser or donee.'” PER FREDERICK OZIAKPONO OHO, J.C.A.
LAND LAW: IDENTITY OF THE LAND
“On the question of the identity of the parcel of land in dispute, due to the mistaken marking of the survey plan tendered, what is rather clear from the records is that the issue was being raised for the first time on Appeal. However, the settled principle of law is that in an action for a declaration of title to land, such as the present case, where the identity of the land and accuracy of the Survey plan in respect of such land and the features thereon remain uncontroverted and not made an issue, it must under the circumstances be treated as established. See OMOREGIE vs. IDUGIEMWANYE (1985) 2 NWLR (PT. 5) 41; ADESANYA vs. ADERONMU (2000) 6 SCNJ 242 AT 259.” PER FREDERICK OZIAKPONO OHO, J.C.A.
JUSTICES
HUSSEIN MUKHTAR Justice of The Court of Appeal of Nigeria
MUHAMMED LAWAL SHUAIBU Justice of The Court of Appeal of Nigeria
FREDERICK OZIAKPONO OHO Justice of The Court of Appeal of Nigeria
Between
1. ESTHER EZENWORA
2. GEORGE EZENWORA
3. CHIJIOKE EZENWORA
4. CHIKODIRI EZENWORA
5. EMMANUEL DANIEL EZENWORA Appellant(s)
AND
PETER EZENWORA Respondent(s)
FREDERICK OZIAKPONO OHO, J.C.A. (Delivering the Leading Judgment): This is an Appeal against the decision of the High Court of Anambra State sitting as High Court 1 Aguata Judicial Division in Ekwulobia Town in the Aguata Local Government Area of Anambra State. The said judgment was delivered on the 27th day of May, 2013 wherein the trial judge granted to the Respondent, the reliefs sought. The Appellants are aggrieved, hence this appeal. The suit leading to the judgment now appealed against was instituted by the Respondent (as the Plaintiff at the Court below) on the 7th day September, 2000 via a Writ of Summons and a Statement of Claim as well as other relevant annexed processes, and it was numbered as AG/62/2000.
The original statement of claim was filed on the 20th day of January, 2003 as can be found on pages 9 to 14 of the Records of Appeal. The amended Statement of Claim was later filed with the leave of the Court on the 25th day of February, 2006 as can be seen on pages 30 to 35 of the Record of Appeal. The Respondent (as Plaintiff at the Court below) also filed a Further amended Statement of Claim with the leave of Court on the 30th day of March, 2012 and also a 2nd Further amended Statement of Claim with the leave of the Court on the 4th day of March, 2013 as can be seen on pages 118 to 124 and pages 159 to 164 respectively.
The 1st to 4th Appellant’s (as the Defendants at the Court below) filed their joint statement of defense on the 24th day of May, 2005 and their amended statement of defense with the leave of the Court and the 5th Appellant as the 2nd set of defendants on the 6th day of May, 2008 as can be seen on pages 26 to 29 and pages 62 to 65 of the Records of Appeal respectively.
In the Appellants’ brief of Argument, the Appellants have prayed this Court to reverse the decision of the Court below, save the order that the 5th Appellant shall not be ejected from the area verged Blue in the
Respondent’s dispute survey. Plan No. SSC/AN/D/16/2005 and dismiss the claim of the Respondents at the Court below.
There are five (5) Grounds of Appeal filed vide the Notice of Appeal filed on the 31-5-2013. These Grounds of Appeal are reproduced without their particulars as follows;
GROUNDS OF APPEAL;
1. The learned trial Judge erred in law when he failed or neglected to properly evaluate and ascribe probative values to credible evidence adduced before him but merely based his judgment on extraneous issues/facts.
2. The learned trial judge erred in law when he relied on Respondent?s inaccurate and uncertain plan to give judgment.
3. The learned trial judge misdirected himself in law when he granted reliefs pleaded but not specifically claimed by the Respondent without ruling on the Application by the Respondent to regularize his evidence in line with the pleadings.
4. The trial judge misdirected himself in law when he upheld a customary grant of land without any credible supporting evidence.
5. The trial Court erred in law when he failed to appreciate and give effect to the customary arbitrations and decisions unanimously agreed to by the parties.
ISSUES FOR DETERMINATION;
Two (2) issues were nominated for the determination of this Appeal by the Appellants thus;
1. Whether from the totality of the evidence adduced before the trial Court, the Court was right to have granted the Respondent the reliefs sought?
2. Whether the trial Court was right by still relying on the Respondents inaccurate and uncertain plan to deliver its judgment.
On the part of the Respondents, two (2) issues were equally nominated for the determination of this Appeal thus;
1. Whether the Respondent established the grant of land to Michael Ezenwora through customary gift of the disputed land?
2. Whether there were contradictions as to identity of the land in dispute in the evidence and plan of the Respondent?
The Appellant’s Brief of argument dated the 23-1-2017 was settled by G. U. NWANKWO ESQ., and filed on the same date but deemed filed on the 25-1-2017 while the Respondent?s Brief of argument dated 10-3-2017 was filed on the 14-3-2017 and settled by IFEANYI OBIAKOR ESQ. At the hearing of this Appeal on the 6-12-2017, learned Counsel adopted their respective Briefs of argument on behalf of the parties and each urged this Court to resolve this Appeal in favour of their sides.
SUBMISSIONS OF COUNSEL;
APPELLANTS;
ISSUE ONE;
Whether from the totality of the evidence adduced before the trial Court, the Court was right to have granted the Respondent the reliefs sought?
As regards issue one, the Appellants respectfully submits that from the totality of the evidence adduced before the Court below it was not fair for the learned trial judge to enter judgment against the Appellants. On issue one, Counsel made a number of arguments first of which is that the Respondent failed to discharge the onus placed on him by law when he woefully failed to prove his case at the trial Court to entitle him to the judgment of the Court. Counsel submitted that the Respondent in his pleading at paragraph 11 of the further statement of claim at page 119 of the records of Appeal stated that his father Ezeokeke, after becoming the owner of the lands of Iloetusiago gave the compound of Iloetusiago to Michael, his immediate senior brother of full blood as his living land in the presence of family members and other witnesses.
Counsel further submitted that Respondent as Plaintiff who did not say that he witnessed the alleged grant failed to call as witness at the trial Court, any of the family members and other witnesses whom he alleged to have witnessed the purported grant. Counsel contended that it is the law that gift of land under customary law is a grant made involving an absolute transfer from the grantor to the grantee who may be a stranger or a member of the family or community. He cited the case of OGUEJIOFOR vs. OSAKA (2000) 3 SC 14, where the Apex Court stated thus:
“Gift inter – vivos is an act whereby something is voluntarily transferred from the true possessor to another person, with full intention that the thing shall not return to the Donor and with the full intention on the part of the receiver to retain entirely as his own without restoring it to the giver.”
It was also contended by Counsel that to be a valid gift, it must be made by the concurrence of the family head and the principal member of the family else such is void. See OSHODI vs. AREMU (1952) 1.4 WACA 53.
On the contrary, Counsel submitted that the Appellants at the Court below called DW1, Mr. Christian Ezenwora half-brother to the Respondent, while DW3 Mr. Pius Emegebo, nephew to the Respondent father and both witnesses stated that the land in dispute was given to Cyprian the father of the Appellants’ for homestead by his father and that arbitration panel at Anyakora family, Umuchi and Ekwulobia titled men ended in Cyprian’s favour. See paper 73 and 75 of the Records of Appeal. On account of this position, Counsel urged this Court to hold that the inexplicable failure by the Respondent to call as witness at the trial, the family members and/or other witnesses whom he claimed witnessed the alleged grant of the land in dispute to Michael who was 3 years when his father died is fatal to his case and consequently resolve the issue in favour of the Appellants. See Section 132 of Evidence Act 2011.
ISSUE TWO;
Whether the trial Court was right by still relying on the Respondents inaccurate and uncertain plan to deliver its judgment?
Under this issue, it is submitted by Counsel that the learned trial judge, with respect lost track of the case when he entered judgment for the Respondent relying on an inaccurate and an uncertain plan. Counsel makes this submission on the basis of the fact that there are inexplicable contradictions as to the identity of the land in dispute and the said contradictions are occasioned by the Respondent.
Counsel contended that the position of the law is clear that a party seeking the declaration of title to the land must first and foremost discharge the primary burden of proving clearly, the precise area of which the claim relates. He cite the cases of EZEOKEKE vs. UGA (1962) ALL NLR (PT. 1) 482; OGUN vs AKINYELU (2005) ALL FWLR (PT.243); OGEDENGBE vs. BALOGUN (2007) ALL FWLR (PT. 366) 615. Where the Supreme Court per OGBUAGU, JSC had this to say;
“It is also settled that before a declaration of title is given, the land which it relates, must be ascertained with certainty the test being whether a surveyor can from the record, produce an accurate plan.
See, Chief Aro vs. Chief Obaloro (1968) NMLR 236; Kwadzo vs. Adjei (1944) 10 WACA 274; Arabe vs. Asanlu (1980) SC 78@ 90; Udofia vs Afia (1940)6 WACA 216; Okorie vs. Udom (1960) 5 FSC 162 cited also in the case of Oke and Ors v. Eke & Ors (1982) 12 SC 218 at 232 and many others. Also firmly established, is that in a claim for declaration of title to land, (as in the instant case leading to this appeal), the onus is on the plaintiff to prove title to a defined area to which a declaration can be attached. See the cases of Odesanya v. Ewedemi (1962) 1 ALL NLR 318 at 320; Okuoja v. Ishola (1982) 7 SC 314 at 351 cited in Udofia v. Afia (supra), Baruwa v. Ogunsola (1938) 4 WACA 159; Elias v. Suleimon (1973) ALL NLR (pt.2) 282 just to mention but a few. It is also firmly settled that where a plaintiff in an action for declaration of title, fails to prove the boundary of the land he is claiming, he has failed by that omission, to prove his case and the proper order which the Court should make in such circumstances is that of dismissal of the claim. See Amaka vs. Maduka 14 WACA 580; Alade vs. Dina (1943) 17 NLR 32; Epi & Anor vs. Aigbedion (1975) 1 NMLR 3, (1975) 5 NLR (pt. 11) 157; Igbo vs. Nwokeke ENIR 106.”
Arising from this position, Counsel argued that the Respondent’s survey plan rendered and marked as “Exhibit A” at the Court below described the land in dispute as ‘verged pink’ while in fact the same survey plan marked the area in the plan ‘verged Red’ as the area in dispute. It was further contended by Counsel that the Respondent in his evidence in paragraphs 5 and 6 at pages 56 and 57 of the records of Appeal respectively stated that the land in dispute consists of two portions; the portion ‘verged Red’, unlawfully held by late Cyprian Ezenwora, the husband of the first Appellant and the father of the second to fourth Appellants and the other portion ‘verged Blue’ held by Daniel Ezenwora, father of the fifth Appellant. Counsel contended that it is clear that from the evidence of the Respondent and the contents of its survey plan, there is indeed no precise accuracy nor certainty vis-a-vis the land in dispute claimed by the Respondent and as such, not entitled for the judgment of the trial Court. He prayed this Court to resolve this issue in favour of the Appellants.
RESPONDENT:
ISSUE ONE:
Whether the Respondent established the grant of land to Michael Ezenwora through customary gift of the disputed land?
In the arguments of Counsel as to the meaning of what a gift inter vivos is, he cited the case of ANYAEGBUNAM vs. OSAKA (2000) 2 SCNJ 1 AT 16 where the apex Court defined it as an act whereby something is voluntarily transferred from the true possessor to another person, with full intention that the thing shall not return to the donor, and with the full intention on the part of the receiver to retain the thing entirely as his own without restoring it to the giver. The essential thing to consider is that the gift is complete when the donee has accepted it. If that condition is satisfied, the donor has no right to revoke it. Counsel also cited the case of ACHODO vs. AKAGHA (2003) FWLR (PT. 186) 612 AT 627, where this Court per NSOFOR, JCA (as he then was) explained the characteristics of a gift of land stated thus:
“By its very nature, a gift is a gratuitous transfer of property from the owner to another with the intention that the ownership thereof shall pass from the donor to the donee. The essential quality of a gift therefore is that it lacks the element of bargain based on quid pro quo by which a sale is characterized. Like a sale, a gift proceeds from the exercise of a free will by the donor. A declaration of title to land would be made based on a gift or customary grant once established.”
Counsel argued that by the above judicial authorities, for the Respondent to succeed in establishing his case, that is, that the grant of the disputed land was made to Michael Ezenwora through customary gift, he must prove the following:
1. That there was a transfer of the land from the possessor (that is the owner) to the donee.
2. With the intention that the thing shall not return to the Donor.
3. The intention on the part of the receiver to retain the gift entirely as his own without restoring it to the giver.
It was however submitted by Counsel that Respondent by his pleading and evidence proved by credible evidence that there was transfer of the land in dispute from the possessor to the donee with the intention that the land shall not return to the Donor and the intention of the donee to retain the gift entirely as his own without restoring it to the giver. He drew attention to Paragraph 11 of his further Amended Statement of Claim at page 119 of the Record and paragraph 4 of the Reply to the Amended Statement of Defense where he pleaded thus:
“11.Ezekeke, after, becoming the owner of the lands of Iloetusiugo, gave the compound of Iloetusuigo to Michael, the eldest son of his wife as his living land in the presence of family members and other witnesses, Iloetusiugos compound is the land now in dispute and verged GREEN on the Plaintiff’s plan.”
Paragraph 4 of the Reply to the Amended Statement of Defense states thus:
“4. The Plaintiff denies paragraph 6 of the Amended Statement of Defense to the extent that the Plaintiff’s father Ezekeke has been in full possession of the land now in dispute during his lifetime cultivating same and exhibiting other acts of possession over the land now in dispute until when he gave same to Michael his eldest son from his second wife (Mgbafor) who started cultivating same exclusively on behalf of her children during the lifetime of her husband (Ezekeke) without any Claim, challenge, trespass from any other children of Ezekeke until after his death. ” See pages 91- 92 of the Record of Appeal.
Counsel further submitted that in his evidence, the Respondent established that from the custom of Ekwulobia, Iloetusiugo land reverted to the Obu; the occupier of the “Obu Ezenwora” at that time was Ezekeke, the father of the Respondent, which means that he was in exclusive possession of the land of Iloetusiugo. He said in addition that being the possessor of the land of Iloetusuigo, Ezekeke voluntarily transferred the said land to Michael, the first son of his second wife, Mgbafor, who accepted the gift of the land on behalf of his son and went ahead to take possession by farming on the land and exercising exclusive right of occupation of the said land. According to Counsel, the said mother of the donee (Michael) retained the land during and after the death of Ezekeke until during the civil war when the fathers of the Appellants trespassed into the land.
Counsel however conceded that it is the law that a Plaintiff when claiming a declaration of title to land must succeed on the strength of his own case and not on the weakness of the Defendants’ case and that where this onus is not discharged, the Defendant’s case will not help him and the proper judgment will be for the Defendant. According to Counsel, the rationale behind this principle is that the Plaintiff, having sought relief from the Court but failed to establish his entitlement thereto, ought to have his claim rejected. However, that this broad general principle of law does not naturally apply where the Defendants’ case itself lends support to that of the Plaintiff and contains evidence on which the Plaintiff is entitled to rely. See the cases of ADESANYA vs. ADERONMU (2000) 6 SCNJ 242 AT 252-253; ELEMA vs. AKENZUA (2000) 6 SCNJ 226 AT 231; NWANKWO vs. OFOMATA (2009) 11 NWLR (PT. 1153) 496 AT 519.
Counsel however contended that under this issue the Appellants’ evidence supported the case of the Respondent that the father of the Respondent was the possessor of the land he granted to Michael and the fact that Mgbafor the mother of Michael after the gift was made, took exclusive possession of the given land. Counsel said that on this ground alone, the Respondent discharged the burden placed on him. He made Reference specifically to the evidence DW5- George Ezenwora, the 2nd Appellant who in his evidence under cross-examination admitted that the custom of Ekwulobia people is that if a man dies childless his land reverts to the Obu. See page 261 of the Record. He also referred to the evidence of the DW2, Pius Emeghebo in his evidence under cross-examination at pages 357 to 258 of the Record of Appeal Stated thus:
“I know Ezekeke very well. I know when he died in 1948. I am aware that Mgbafor, the second wife was farming this land in dispute during the lifetime of Ezekeke and after his death.”
Further in his evidence under cross-examination this witness, Counsel said, stated thus:
“I am aware that Iloetusiugo died without a son shortly after his death, Ezenworah died before Iloetusiugo. When Ezenwora died, his eldest son Ezekeke then inherited the Obu?. In Ekwulobia when a man dies without a child, the person occupies (sic) the Obu takes charge of the property of that Childless man.”
Counsel pointed out at this stage that the evidence of the DW2 under cross-examination is in clear support of the Respondent’s pleading in paragraph 4 of his Reply to the Statement or Defense already reproduced hereinabove in the Respondent?s brief. He contended in addition that on the face of the evidence of the Appellants? witnesses there is presumption that the mother of the said Michael having been exercising acts of possession and ownership over the gifted land for over a period of twenty years after the death of Ezekeke the Donor of the disputed land might be the owner of the said land and there is no rebuttal from the Appellants why she had been on that land even during the lifetime of her husband.
In response to the argument that the Respondent failed to call a witness of any family member or other witnesses who were present at the time when Ezekeke made the gift, Counsel argued that the Respondent established this aspect of the requirement of customary gift of land inter vivos. He referred to the evidence of the PW2 under cross- examination. At page 248 line 14 where in answer to a question put to him stated thus:
“I was not at home when Michael was given the land but my brother Nwafor was present and attended the event.”
In addition, Counsel said that the mother of Michael and the Respondent (Mgbafor) a member of the family were present and witnessed when the gift was made to her son Michael, otherwise she could not have accepted the gift on behalf of his son and later took possession of the said land and started exercising acts of possession and ownership, which nobody challenged her during the lifetime of the Donor and after the death of the Donor. He said that the Appellants trespassed into the land when they knew the Donee went to war and may not come back. Counsel cited the case of ORIDO vs. AKINLOLU (2012) 9 NWLR (PT. 1305) 370 AT 387 PARA E-F where the Court of Appeal held that to prove a gift of land inter vivos there must be evidence of actual handover of the land and acceptance thereof in the presence of witnesses. (Even if the witnesses are dead at the time of the proof thereof before the Court).
Counsel further argued that having established that the lands of Iloetusiugo reverted to the Obu, and the occupant of the Obu was Ezekeke who made a gift of that land to his son Michael in the presence of at least; Ezekeke the Head of the family, Mgbafor his second wife and Nwafor who are all dead and the said Michael accepted the gift and his mother on his behalf went into actual possession and exercised acts of possession and ownership of the land in question, the Appellants cannot take away the land from that family. He said that the Respondent apart from the custom of Ekwulobia people succeeds his late brother who had no issue before he died, but also under Section 120 (1) (g) of the Administration and Succession (Estate of Deceased Persons) Law, CAP 4, Revised Laws of Anambra State, 1991. In the light of the forgoing submission, Counsel urged this Court to resolve this issue in favor of the Respondent.
ISSUE TWO:
Whether there were contradictions as to identity or the land in dispute in the evidence and plan of the Respondent?
It is submitted by Counsel that the argument by the Appellants that there were inexplicable contradictions as to the identity of the land and the said contradictions are occasioned by the Respondent is misplaced. He drew attention to paragraph 3 of the Further Amended Statement of Claim, where the Respondent pleaded thus:
3. The land, the subject matter of the action is a piece or parcel of land situate and being at Umuchi village, Ekwulobia within jurisdiction. It is shown GREEN on the Plaintiff’s plan No: NLS/AN171/2002 filed with the original Statement of Claim, and made for him by Mr. C.C. Nwosu, licensed/registered surveyor. The land in dispute is bounded on the North partly by the land of Cyprian Asiegbu and partly by the compound of Jonathan Akunne; on the South, by an existing Village Road; on the West, partly by the land of Ben Ezeokafor and partly by the land of Nwaudoye; and on the East, by an access road to the compound of late Ezeike. The land in dispute comprises two portions. The portion on the right verged RED was unlawfully held by Cyprian Ezenwora, husband of the 1st and father of the 2nd to 4th Defendant; (the 1st set of Defendant; while the portion on the left verged BLUE was unlawfully held by Daniel Ezenwora, father of the 5th Defendant (the 2nd set of Defendants) the Plaintiff hereby pleads and will at the hearing rely on all the features, boundaries and delineations as are contained in and shown on the said Plan No; NLS/AN171/2002.?SEE PAGES 118-119 of the Record of Appeal.
Counsel said that the Respondent in paragraphs 3-6 of his Statement on Oath at Page 56 of the Record of Appeal gave evidence in line with the pleaded facts in Paragraph 3 of his further Amended Statement of Claim. It was the argument of Counsel that by the rule of pleadings, the Defendant’s pleading or defense shall deny all such material allegation in the Plaintiffs pleading as the Defendant intends to deny at the hearing and that every allegation of facts, if not denied specifically or by the necessary implication or slated to be admitted shall be taken to be established. Counsel cited the case of LEWIS & PEAT (NRI) LTD vs. AKHIMIEN (1976) FNLR 80 AT 86.
Learned Counsel drew attention to the fact that the Appellants as Defendants did neither challenge the averments of the Respondent in his Statement of Claim nor did they controvert the evidence of the Respondent under cross-examination. In fact, he said that by implication they admitted Paragraph 3 of the description of the land in dispute. Counsel therefore submitted that given the evidence given by the Respondent taken together with the description of the boundaries of the disputed land and their neighbours, it is sufficient to satisfy the test laid down in KWADZO V. ADJEI 10 WACA 274 to the effect that whether a surveyor taking the record could produce a plan showing accurately the land to which title has been given.
It was further contended by Counsel that the survey plan tendered by the Respondent was never made an issue at the hearing and that the settled principle of law is that in an action for a declaration of title to land, such as the present case, where the identity of the land and accuracy of the Survey plan in respect of such land and the features thereon as these, being uncontroverted and not made an issue, must under the circumstance be treated as established. See OMOREGIE vs. IDUGIEMWANYE (1985) 2 NWLR (PT. 5) 41; ADESANYA vs. ADERONMU (2000) 6 SCNJ 242 AT 259. Again, Counsel cited the case of AGBONRAN II vs. AYODELE (2002) FWLR. (PT. 86) 522 AT 531, where this Court per ADAMU, JCA reiterated the law as to whether it is necessary to raise issue of identity of land that is known to both parties when he held that:-
“Where both parties in dispute are familiar with or know the land in dispute, the question of its identity or its certainty will cease to perplex the trial Court, so also the appellate Court, and neither party will be allowed to place a cog in the wheel of justice by mischievously raising the issue of identity in order to becloud what is otherwise a piece of land that is well-known to the parties.”
According to Counsel, the trial Court also noted this fact in its evaluation of the evidence when it observed at Pages 270 – 271 of the Record of Appeal thus:-
“As to claim or proof of root of title, the parties are of a common ancestry and identity of the land in dispute is not in doubt. The two survey plans Exhibit “A” and “E” respectively identify the same piece and parcel of land.”
Arising from the foregoing, Counsel argued that where both Appellants and the Respondent as parties know the identity and certainty of the land in dispute, the contention of the Appellants under Paragraph 4.02 CD – (h) of the Appellants Brief of Argument that the Respondent’s Survey Plan tendered and marked as Exhibit “A” at the trial Court described the land in dispute as verged Pink, while in fact the same survey plan marked the area in the Plan verged Red as the area in dispute and for that reason there is indeed no precise accuracy nor certainty vis – a – vis the land in dispute goes to no issue and is immaterial.
Meanwhile, Counsel argued, that just by mentioning that the area described as the land in dispute is ‘verged Pink’ in Exhibit “A” and in the same Survey Plan, it is mentioned to be ‘verged Red’ as the area in dispute, whether that is really a contradiction? He cited the case of the WACHUKWU vs. OWUNWANNE (2011) 14 NWLR (PT. 1266) 1 AT 25 where the Supreme Court defined the word ‘contradiction’ in relation to evidence placed before the Court as follows:-
“A piece of evidence contradicts another when it affirms the opposite of what that evidence has stated, not when there is just a minor discrepancy. And two pieces of evidence contradict one another when they are by themselves inconsistent. On the other hand, a discrepancy may occur when a piece of evidence stops short or, contains a little more than what another piece of evidence says or contains, some minor differences in detail.”
In applying the above definition to the facts of this case, Counsel queried whether the difference of area verged Pink and area verged Red in the Survey Plan be considered contradiction at all. Counsel drew attention to the fact that the Exhibit “A” was not prepared by the Respondent and he could not have known whether Pink and Red described the area in dispute. He therefore contended that the said difference in referring to the colour the area in dispute is verged is a minor discrepancy and that the settled principle of law is that the contradictions by witnesses should not be material to the extent that they cast serious doubts on the case presented as a whole by that party or as to the reliability of such witnesses. Counsel urged this Court to resolve this issue in favour of the Respondent.
RESOLUTION OF APPEAL
This Court has carefully considered the submissions of learned Counsel to the parties in this Appeal. The settled principle of law in land matters is that the onus is on a Plaintiff who claims a declaration of title to satisfy the Court that he is entitled on the evidence adduced by him to the declaration claimed. The onus only shifts where the Defendant claims exclusive ownership of family land, otherwise the onus never shifts. The next line of onus to be discharged is that the Plaintiff must rely on the strength of his own case and not on the weakness of the defense except where the Defendant’s case supports his case. See EZE vs. ATASIE (2000) 9 WRN 73 AT 88; ADESANYA vs. ADERONMU (2000) 9 NWLR (PT. 672) 370. In addition to these, the Plaintiff must prove his title by clear, emphatic, satisfactory and cogent evidence. If this is not so done, the weakness in the Defendant’s case will be of no use to the case of the Plaintiff. See the case of KODILINYE vs. ODU (1935) 2 WACA 336; ONIBUDO vs. AKIBU (1982) 7 SC 60 AT 84-85.
It is clear that what is in contention between the parties to this Appeal is the question of gift of land inter vivos. To establish a gift of land inter vivos, there must be evidence of actual handing over of the land and acceptance thereof in the presence of witnesses. See AYINKE vs. IBIDUNNI (1959) 4 FSC 280 AT 282. The learned Author, B. O. NWABUEZE in his book NIGERIAN LAND LAW , p. 367 on the modes of constituting a gift, the author said:
“It’s already noted, customary law requires no writing for the transfer of land, whether by way of sale or by way of gift. In lieu of writing, however, there must be actual handing over of the land to the donee in the presence of witnesses and an acceptance by him of the gift.”
In the case of FOLARIN vs. DUROJAIYE (1988) NSCC 255 AT 265, the Supreme Court, per OPUTA, JSC while, making as reference to customary transfer, the sage said: “To transfer an absolute title under customary law, it ought to be pleaded and proved that the gift was made in the presence of witnesses. To that effect, names of those witnesses should also be pleaded as well as the fact that they witnessed the actual delivery or handing over of the land to the purchaser or donee.”
In the instant Appeal, the Appellants made a number of arguments first, of which is that the Respondent failed to discharge the onus placed on him by law when he woefully failed to proof his case at the trial Court to entitle him to the judgment of the Court. Counsel submitted that the Respondent in his pleading at paragraph 11 of the further statement of claim at page 119 of the records of Appeal stated that his father Ezeokeke, after becoming the owner of the lands of Iloetusiago, gave the compound of Iloetusiago to Michael, his immediate senior brother of full blood as his living land in the presence of family members and other witnesses. Counsel, however, contended that the Respondent as Plaintiff did not say that he witnessed the alleged grant and failed to call as witness at the trial Court, any of the family members and other witnesses whom he alleged to have witnessed the purported grant.
It is however rather clear from the Respondent?s pleading and the evidence led that there was transfer of the land in dispute from the possessor to the donee with the intention that the land shall not return to the donor and the intention of the donee to retain the gift entirely as his own without restoring it to the giver. Paragraph 11 of the Respondent’s further Amended Statement of Claim is instructive on this point. This is at page 119 of the Record and paragraph 4 of the Reply to the Amended Statement of Defense where he pleaded thus:
“11. Ezekeke, after becoming the owner of the lands of Iloetusiago, gave the compound of Iloetusiago to Michael, the eldest son of his wife as his living land in the presence of family members and other witnesses, lloetusiago’s compound is the land now in dispute and verged GREEN on the Plaintiff’s plan.”
See also Paragraph 4 of the Reply to the Amended Statement of Defense on the issue where it is stated thus:
“4 The Plaintiff denies paragraph 6 of the Amended Statement of Defense to the extent that the Plaintiff’s father Ezeokeke has been in full possession of the land now in dispute during his lifetime cultivating same and exhibiting other acts of possession over the land now in dispute until when he gave same to Michael his eldest son from his second wife (Mgbafor) who started cultivating same exclusively on behalf of her children during the lifetime of her husband (Ezeokeke) without any Claim, challenge, trespass from any other children of Ezeokeke until after his death. See pages 91- 92of the Record of Appeal.”
It is rather clear that in his evidence, the Respondent established that as part of the custom of Ekwulobia, Iloetusiago land normally reverts to the Obu and the occupier of the “Obu Ezenwora” at that time was Ezeokeke, the father of the Respondent, which means that he was in exclusive possession of the land of Iloetusiago. Being the possessor of the land of Iloetusiago, Ezeokeke voluntarily transferred the said land to Michael, the first son of his second wife, Mgbafor, who accepted the gift of the land on behalf of his son and went ahead to take possession by farming on the land and exercising exclusive right of occupation of the said land. It is important to note that the said mother of the donee (Michael) retained the land during and after the death of Ezeokeke until during the civil war when the fathers of the Appellants began to trespass into the land.
On the issue of the failure of the Respondent to call as a witness, any family member or other witnesses who were present at the time when Ezeokeke made the gift, this aspect of the requirement of customary gift of land inter vivos was established by the Respondent who referred to the evidence of the PW2, who under cross-examination at page 248 line 14 in answer to a question put to him stated thus: “I was not at home when Michael was given the land but my brother Nwafor was present and attended the event.”
Apart from this, the mother of Michael and the Respondent (Mgbafor) a member of the family were said to be present and witnessed when the gift was made to her son Michael. For that was why she was said to be on hand to have accepted the gift on behalf of his son and later took possession of same and started exercising acts of possession and ownership.
In the case of EKPA vs. UTONG (1991) 22 NSCC (PT.2) 278, the apex Court per NNAEMEKA-AGU, held the view that a person is completely without power or competence to revoke a completely constituted gift of land made inter alia by his ancestor who let the donee into possession some, one and a half centuries ago, unless perhaps, he can show that such a gift was null and void ab – initio or that the gift was subject to a condition, which has been broken. In the instant case, there is no such thing recorded. The gift of land was complete with the delivery of possession according to custom and this transferred ownership of the land to the donee and extinction of the rights of those who claim through or under the donor. The learned trial judge cannot be faulted for having properly summed it all up in his judgment.
On the question of the identity of the parcel of land in dispute, due to the mistaken marking of the survey plan tendered, what is rather clear from the records is that the issue was being raised for the first time on Appeal. However, the settled principle of law is that in an action for a declaration of title to land, such as the present case, where the identity of the land and accuracy of the Survey plan in respect of such land and the features thereon remain uncontroverted and not made an issue, it must under the circumstances be treated as established. See OMOREGIE vs. IDUGIEMWANYE (1985) 2 NWLR (PT. 5) 41; ADESANYA vs. ADERONMU (2000) 6 SCNJ 242 AT 259.
Apart from this, where both parties in the dispute are familiar with or know the land in dispute, the question of its identity or its certainty will cease to perplex the trial Court, so also the appellate Court, and neither party will be allowed to place a cog in the wheel of Justice by mischievously raising the issue of identity in order to becloud what is otherwise a piece of land that is well-known to the parties. See the case of AGBONRAN II vs. AYODELE (2002) FWLR (PT. 86) 522 AT 531.
This Appeal therefore fails and it is accordingly dismissed. The judgment of the High Court of Anambra State sitting as High Court 1 Aguata Judicial Division in Ekwulobia Town in the Aguata Local Government Area of Anambra State and delivered on the 27th day of May, 2013 is hereby affirmed. There shall be cost of N50,000.00 against the Appellants in favour of the Respondent.
HUSSEIN MUKHTAR, J.C.A.: I was honoured to read in advance the lead judgment of my learned brother, Frederick O. Oho, JCA and I agree with his reasoning and the conclusion that the appeal lacks merit and should be dismissed.
I also dismiss it and subscribe to the consequential orders made in the judgment.
MUHAMMED LAWAL SHUAIBU, J.C.A.: I read before now the judgment of my learned brother, Frederick O. Oho, JCA I agree entirely with the reasoning and conclusion in that the appeal lacks merit. I also dismiss the appeal and I abide by the consequential orders made in the lead judgment.
Appearances:
G. U. NWANKWO ESQ.,For Appellant(s)
IFEANYI OBIAKOR ESQ.,For Respondent(s)
