EZEKIEL EZINWA & ANOR v. EMMANUEL AGU & ANOR(2003)

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EZEKIEL EZINWA & ANOR v. EMMANUEL AGU & ANOR

(2003)LCN/1331(CA)

In The Court of Appeal of Nigeria

On Wednesday, the 15th day of January, 2003

CA/E/112/92

 

JUSTICES

IGNATIUS CHUKWUDI PATS-ACHOLONU   Justice of The Court of Appeal of Nigeria

JOHN AFOLABI FABIYI   Justice of The Court of Appeal of Nigeria

CLARA BATA OGUNBIYI   Justice of The Court of Appeal of Nigeria

Between

 

  1. EZEKIEL EZINWA
    2. CHRISTOPHER EZINWA (For themselves and on behalf of Umuokpala family Udi Local Government Area of Enugu State) Appellant(s)

 

 

AND

  1. EMMANUEL AGU
    2. WALTER UTOBO Respondent(s)

JOHN AFOLABI FABIYI, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of Okadigbo, J., delivered at the High Court of Justice Enugu, then in the old Anambra State of Nigeria on 29th March, 1988. The learned trial Judge dismissed the plaintiffs’ claim. They felt dissatisfied and have, ex debito justitiae, appealed against the judgment to this court.
The plaintiffs’ claim before the trial court can be seen in paragraph 23 of their statement of claim which reads as follows:
“23. Wherefore, the plaintiffs claim against the defendants jointly and severally as follows:
(a) Declaration of a customary right of occupancy to the piece or parcel of land known as and called ‘Aniokpa Ajaezi Umuokpalla’ situate at Agballenyi Nachi and more particularly delineated in survey plan No. EP/AN/2132 LD and verged blue filed with this statement of claim.
(b) N28,000.00 damages being:
(i) N8,000.00 special damages for the destroyed building.
(ii) N20,000.00 general damages.
(c) Perpetual injunction restraining the defendants, their servants, agents and/or privies from further acts of trespass on the land.”
Pleadings were duly ordered, filed and exchanged at the trial court. The averments contained in the plaintiffs’ statement of claim and the evidence adduced in support of same tend to point to the direction that the claim was based partly on traditional evidence and partly on acts of ownership and/or possession. The plaintiffs also banked upon an ‘attempted settlement of the dispute by council of elders of Nachi’. Averments on this point and evidence thereon, if one may observe here, appear rather lean. The averments in the defendants’ amended statement of defence point to traditional evidence and acts of ownership as well. The 2nd defendant maintained that the land in dispute belongs to his Umuabia family in Nachi. Part of the land was leased to the 1st defendant by the whole people of Umuabia family.
Upon completion of evidence as adduced by the parties and witnesses where available, counsel on both sides advanced plausible arguments to assist the learned trial Judge to arrive at his judgment. The learned Judge reviewed at considerable length all the evidence adduced by both parties in his considered judgment. After applying the law to the facts garnered by him to the utmost of his ability on each issue that was canvassed, he found against the plaintiffs/appellants herein. The learned trial Judge ended his judgment on page 91 of the transcript record of appeal as follows:
“In conclusion, I am satisfied that the plaintiffs have failed to prove any of the claims set out in paragraph 23 of their pleadings. The claims are hereby dismissed with cost to each defendant assessed at N100.”
The plaintiffs felt unhappy with the stance posed by the learned trial Judge in the judgment. This has resulted in the appeal now under consideration in this judgment.
The plaintiffs, who will now be referred to as appellants formulated two issues for determination as can be seen on page 3 of their brief of argument. They read as follows:
“(1) Whether the abandonment of the amended statement of defence of the defendants/respondents at the hearing and determination of the suit amounted to admission of the averments in the statement of claim and evidence of plaintiffs/appellants before the lower court?.
(2) Whether the trial court properly and legally evaluated the evidence before him and found the evidence adduced on balance in favour of the defendants/respondents.”
For a due determination of this appeal, two issues were also couched by the respondents with a remarkable degree of brevity and accuracy. They read as follows:
“1. Whether the plaintiffs/respondents prove their case and were entitled to the reliefs claimed.
2. Whether the court properly evaluated the evidence of the parties.”
Arguing appellants’ first issue, the senior counsel observed that the amended statement of defence dated 7th March, 1985 took effect from the date of the original statement of defence filed on 13th July, 1983. He referred to the cases of M.A. Enigbokan v. American International Insurance (Nig.) Ltd. (1994) 6 NWLR (Pt.348) 1, (1994) 6 SCNJ 168 at 184; Rotimi v. MacGregor (1974) 11 SC 133; Warner v. Sampson & Anor. (1959) 1 Q.B. 297 at 321; Obulor v. Oboro (2001) 8 NWLR (Pt.714) 25.
Learned senior counsel felt that the respondents failed to adduce evidence in support of their averments in the amended statement of defence. He opined that mere averments in the amended statement of defence do not amount to proof of facts therein. He cited the case of Idesoh v. Ordia (1977) 2 SC 175 at 183. Senior counsel felt that the respondents did not discharge the burden on them after the close of the appellants’ case to rebut the appellants ownership and/or possession of the land. It was submitted that even though the defendants filed copious defence, they led no credible evidence and were unable to contradict the plaintiffs. He cited American Cyanamid Company v. Vitality pharmaceutical Limited (1992) 2 NWLR (Pt.171) 15, (1991) 2 SCNJ 42: Nwabuoku v. Ottih (1961) 1 All NLR (Pt.3) 487 at 490.
Learned senior counsel felt that the appellants gave evidence of traditional history and evidence of acts of possession in recent years without let or hindrance. He maintained that the respondents abandoned traditional history pleaded by them and failed to give any evidence of acts of possession in recent years. Senior counsel contended that if the trial Judge had taken into consideration the case of Kojo II v. Bonsie (1957) 1 WLR 1223, the court would have resolved the inconclusive traditional histories in favour of the appellants. He felt that the trial Judge referred to discrepancies in the evidence of witnesses for appellants as contradictions and that such led to perverse judgment. He cited the cases of Ogoala v. State (1991) 2 NWLR (Pt.l75) 509: Odiba v. Azege (1991) 7 NWLR (Pt.206) 724 at 730.
Senior counsel, on the issue, finally observed that the trial Judge failed to take into consideration the abandonment of the amended statement of defence by the respondents and such resulted in perverse judgment.
On issue 2, learned senior counsel observed at the out-set that it is the duty of the trial court to consider the whole evidence before it and to assess the credibility of witnesses. He referred to the case of Sodipo v. Lemninkainen or & Anor. (1986) 1 NWLR (Pt.15) 220. Senior counsel opined that if the trial Judge had properly evaluated the evidence of the parties without ‘a priori’ assumption, he would have come to the conclusion that evidence of possession of the land was not challenged in cross-examination nor rebutted by any evidence of the respondents. The respondents who claim that the land in dispute belonged to the people of Umuabia failed to call any member of Umuabia to support their case. He felt that the respondents have the onus to prove that the people of Umuabia owned the land and they failed to discharge the said onus. He contended that evidence established that the appellants were in possession of the land and by virtue of section 145 of Evidence Act, the respondents had the onus to show that the appellants were not true owners. Senior counsel referred to the case of Oke v. Atoloye (1986) 1 NWLR (Pt.15) 241. He felt that the respondents failed to call any person from Umuabia community who was aware of the case but accepted the decision of Ameke elders council.
Senior counsel submitted that on the balance of probabilities, the appellants were in possession without let or hindrance from Umuabia community. He urged this court to interfere with the findings of the trial court since the conclusions of the court below on the facts, according to senior counsel, are perverse. He referred again to the case of Odiba v. Agege (supra) at 723-733. He maintained that the defendants did not disprove the evidence of P.W.4 as to decision of elders. Senior counsel asserted with force ‘that the decision therefore stands unchallenged and deemed to stand.’ He referred to the case of Ikuomola v. Oniwaya (1990) 4 NWLR (Pt.146) 617 at 733. He finally urged that the appeal should succeed on the issue as evidence adduced was not properly evaluated.
On behalf of the respondents, learned senior counsel pointed it out that out of the five ways of proving ownership of land as laid down in Idundun v. Okumagba (1976) 9 – 10 SC 227, the appellants pleaded three of them. These are acts of ownership, traditional history and acts of possession. Senior counsel submitted that the appellants failed to prove any of the methods they have adopted.
He maintained that in a claim for declaration of title, the plaintiffs must succeed on the strength of their own case and not on the weakness of the defence. He further noted that since there is no counter-claim in the case for a declaration of title, the entire burden of proof is on the appellants and never shifts. He referred to Kodilinye v. Odu (1935) 2 WACA 336; Piaro v. Tenalo (1976) 12 SC 31.
Senior counsel for the respondent further submitted that the burden is always on the plaintiffs who claim a declaration of title to lead evidence that is sufficiently cogent and credible in proof of their root of title. He contended that as the plaintiffs/appellants failed to prove their root of title, any secondary acts of possession or ownership upon which they sought to rely could not avail them. He referred to the cases of Fasoro & Anor. v. Beyioku & Ors. (1988) 2 NWLR (Pt.76) 263, 271-272; Eronini v. Iheuko (1989) 2 NWLR (Pt.101) 46 at 66. Senior counsel urged us to hold that the appellants failed to prove their title to the disputed land.
As regard acts of ownership and possession, senior counsel for the respondents maintained that the trial Judge meticulously considered and evaluated the evidence before him. He then made findings and gave his reasons for the conclusions reached by him. Senior counsel urged this court to approach the findings of fact by the trial court with extreme caution. He submitted that if a trial court that had the opportunity of hearing and watching the demeanour of witnesses has unquestionably evaluated the evidence tendered before it, it is not generally for the appellate court to revaluate the same evidence and then come to its own conclusion. He cited Enang v. Adu (1981) 11 – 12 SC 25, 40. Senior counsel however conceded that where the trial court has failed to advert its mind to the evidence on record and make unreasonable and perverse findings, this court is in a good position as the trial court to examine the evidence and make its own assessment, provided such exercise does not involve the making of decision based on the demeanour and credibility of witnesses. Learned senior counsel was quick to point out that such is not the situation here as the trial Judge had very ably evaluated the evidence after seeing and hearing the witnesses. He did not find the evidence of the appellants and their witnesses credible. They also contradicted themselves and no reason or explanation was given why he should accredit one witness and discredit the other.
Senior counsel observed that the burden of proving that a person is entitled to declaration of title rests on that person. He maintained that it is not an excuse that the defendants filed no defence or abandoned a defence. Unless there is a counter-claim, the weakness of the defence cannot strengthen the appellants’ case. The burden of proof is on them and never shifts.
Senior counsel further observed that P.W.3 and P.W.4, under cross-examination, said that the appellants are not exclusive owners of the land in dispute. He felt that even if the defence did not give evidence or abandoned their pleadings, no court will grant the appellant a declaration of title in respect of the land in dispute having regard to the evidence of P.W.3 and P.W.4. He submitted that once the appellants failed to prove their case, a dismissal is the proper order. The appellants failed to prove their case and the trial Judge was perfectly entitled to dismiss same.
Senior counsel for the respondents pointed it out that the appellants in their pleadings, introduced the issue of customary arbitration. He submitted that no valid binding customary arbitration was pleaded and/or proved in the instant case. It was observed that in every case that a customary arbitration is pleaded, the test of validity and proof must also follow. He cited the case of Agu v. Ikwewibe (1991) 3 NWLR (Pt.180) 385; Ohiaeri v. Akabeze (1992) 2 NWLR (Pt.221) 1.
Senior counsel asserted that once pleadings are filed and exchanged, the parties and the court are bound by same. Evidence must be led in accordance with the pleadings. Facts not pleaded went to no issue. He cited Anyanwu v. Iwuchukwu (2000) 15NWLR (Pt.692) 721 at 727; Eze v. Atasie & Ors. (2000) 10 NWLR (Pt.676) 470. He strongly felt that a person relying on customary arbitration must go further to show that it was between the same parties or their privies and affected the land in dispute. He maintained that P.W.4 did not give evidence from which one could get an impression of a customary arbitration. He urged this court to reject the plea of customary arbitration as an afterthought. He finally urged us to dismiss the appeal.
In the appellants’ reply brief, they maintained that the secondary acts of possession and ownership which they relied upon avail them. They asserted that the respondents did not rebut the evidence of possession by them. They agree that in an action for declaration of title to land, the onus is on the plaintiff to prove his case. He must rely on the strength of his own case and not on the weakness of the defence except where the weakness of the defendant’s case tends to strengthen plaintiff’s case or where the defendant’s case supports his case. They cited the case of Jules v. Asani (1980) 5 – 7 SC 96 Nwagbogu v. Ibeziako (1972) Vol.2 (Pt.1) ECSLR 335; Akinola v. Oluwo (1962) 1 All NLR 224, (1962) (Pt.1) ANLR 225. They strongly feel that they are entitled to judgment.
Whenever title to land is in dispute, the Supreme Court has restated time without number the five ways of proving same. Refer to Idundun v. Okumagba & Ors. (1976) 10NSCC 445 at 453, (1976) 9 – 10 SC 227; closely followed by the decision in Piam v. Tenalo (1976) 10 NSCC 700, (1976) 12 SC 31; Mogaji & Ors. v. Cadbury (Nigeria) Ltd. (1985) 2 NWLR (Pt. 7) 393; Omoregie v. Idugiemwanye & Ors. (1985) 2 NWLR (Pt.5) 41; Ezeoke & Ors. v. Nwagbo & Anor. (1988) 1 NWLR (Pt.72) 616; Fasoro & Anor. v. Beyioku & Ors. (1988) 2 NWLR (Pt.76) 263; Okpuruwu & Ors. v. Chief Okpokam & Ors. (1988) 4 NWLR (Pt.90) 554 and Oladipupo & Anor. v. Olaniyan & Ors. (2000) 1 NWLR (Pt.642) 556 at 564; Alade v. Awo (1975) 4 SC 215 at 228.
The five ways may be re-stated thus
(1) Proof by traditional evidence.
(2) Production of document of title duly authenticated.
(3) Acts of ownership by a person such as selling or leasing or renting out all or part of the land.
(4) Acts of long possession and enjoyment of the land.
(5) Proof of possession of connected or adjacent land.
It must be noted here very carefully that the general burden of proof in a suit lies on that party who would fail if no evidence at all were given on either side. See Are v. Adisa & Ors. (1967) NMLR 304. The burden of proof of any issue before evidence is adduced rests on the party asserting the affirmative of the issue. See Okechukwu & Ors. v. Ndah (1967) NMLR 368.
General, it is on the plaintiff seeking a decree of declaration of title that the onus of proof usually rests. See Onobruchere v. Esegine (1986) 1 NWLR (PU9) 799; Kuma v. Kuma (1934) 2 WACA 336; Nwokafor v. Udegbe (1963) 1 All NLR 107. Where a plaintiff fails to prove his title to the land in dispute, he is not entitled to judgment. See Oyeyiola v. Adeoti (1973) NNLR 10. Where evidence of title is not satisfactory and conclusive, a party will not succeed at trial. See Onibudo v. Akibu (1982) 7 SC 60; Aikhionbare v. Omoregie (1976) 12 SC 11.

Whenever a plaintiff relies on traditional history to buttress his claim for a declaration of title to a piece of land, he must adequately and sufficiently plead his root of title and adduce cogent evidence to support same. Indeed, it has been stated that such a plaintiff must plead and prove:
(1) the founder of the land.
(2) the mode of founding or discovery of the land and
(3) the history of the devolution of the said land from the founder to the present claimants.
The above can be deciphered from the decisions in Piaro v. Tenalo (supra); Ohiaeri v. Akabeze (1992) 2 NWLR (Pt.221) 1; Anyanwu v. Mbara (1992) 5 NWLR (Pt.242) 386; Mogaji v. Cadbury (1985) 2 NWLR (Pt.7) 393.

Where there is no counter-claim by a defendant in an action for declaration of title to land, generally, the entire burden of proof never shifts. As a plaintiff, he should succeed on the strength of his case. Refer to Kodilinye v. Odu (supra); Piaro v. Tenalo (supra).

The Court of Appeal has to approach the findings of fact by a trial court with extreme caution. This is because it is the trial court that had the opportunity of hearing and watching the demeanour of witnesses. The Court of Appeal acts on solid, cold transcript record of appeal. It is not generally for the appellate court to evaluate the same evidence and then come to its own conclusion. Refer to Enang v. Edu (supra) at page 40.
It must however be noted that where a trial court has failed to advert its mind to the evidence on record and makes unreasonable and perverse findings not in tune with the current or flow of evidence, the appellate court is in a good position as the trial court to examine the evidence and make its own assessment provided such exercise does not involve the making of decision based on the demeanour and credibility of witnesses. See Onuchukwu v. State (1998) 5 NWLR (Pt.547) 576 at 588; Ebba v. Ogodo (1984) 1 SCNLR 372 at 379, 381; Okoya v. Santilli (1990) 2 NWLR (Pt.131) 172 at 207.
With the state of the law enunciated above as hind-sight, I shall now consider in detail the claim of the appellants as plaintiffs at the trial court; based on the pivots given by them. I wish to start with the point relating to traditional history as pleaded and testimony in relation to same. To my mind, this is the launching pad in a bid to sustain their claim for a declaration of title to the land in dispute. In paragraph 10 of their statement of claim, they pleaded as follow:
“10. The land in dispute has been from time immemorial, the plaintiffs and their fore-fathers’ property.”
In support of the above pleading by the appellants, P.W.1 at page 47 lines 29-30 testified, as if he employed the words fashioned out in the reproduced pleadings above, in these words:
“The land in dispute has been the property of the people from time immemorial.”
P.W.3 at page 52, lines 16-17 of the transcript record of appeal testified thus:
“It was our grand fathers who owned the land in dispute from time immemorial.”
After a meticulous appraisal or evaluation of the above evidence, the learned trial Judge at page 84 lines 6-17 of the record of appeal concluded as follows:
“I find in the plaintiffs’ pleadings and evidence in support thereof a total absence of facts about (a), the founding of the land in dispute; (b), the person or persons who founded the land in dispute and exercised original acts of ownership and (c), the persons who have held or on whom title had devolved in respect of the land since the founding before the plaintiffs acquired control of the land in dispute. All these facts which are necessary for the proper determination of the issue raised are not provided by the swooping assertion that the land in dispute has been from time immemorial the property of the plaintiffs and their fore-fathers. The total absence of these relevant facts leaves the plaintiffs’ traditional evidence in the air and this is fatal to the plaintiffs’ claim.
Refer to the observations of Obaseki. J.S.C. in Sunday Piaro v. Chief Tenalo & Ors. (1976) 12 SC 31 at 4142.”
I need to say it here, that the above thought provoking conclusion provides a beautiful rendition which is worthy of note. One can hardly improve on same. However, I wish to stress the point here that the appellants who relied on traditional history to buttress their claim for a declaration of title to the land in dispute failed to plead adequately and sufficiently their root of title. This inaction on the part of the appellants precipitated the dearth of cogent evidence regarding the traditional history touching their root of title. There is a vacuum in respect of (1), the founder of the land; (2), the mode of founding or discovery of the land and (3), the history of the devolution of the land from the founder to the present claimants – appellants herein. The appellants who desire a declaration of title had the onus to prove the above. Since land is a special commodity of recent, the appellants must prove their case. They cannot have their desire actualised just for the asking or on a platter of gold. The foundation of their claim got destroyed. It is necessary to say it forcefully that their launching pad, as it were, fizzled into oblivion due to their lethargy. The learned trial Judge rightly cited the case of Piaro v. Tenalo (supra). See also Ohiari v. Akabeze (supra); Anyawu v. Mbara (supra) Mogaji v. Cadbury (supra); Alade v. Awo (1975) 4 SC 215 at 228.
I need to further stress the point that since the appellants as plaintiffs at the lower court failed to plead and give evidence of their root of title, their case based on same ought to fail and must be dismissed. Refer to the case of Ogbechie v. Gabriel Onochie (1988) 1 NWLR (Pt.70) 370 at 392, In Odofin v. Isaac Ayoola (1984) 11 SC 72 at page 106, the Supreme Court per Karibi-Whyte, J.S.C. pronounced as follows:
“It follows therefore that where traditional evidence of that alleged from which title is derived, is lacking or rejected, as was in this case, such evidence is not only merely inconclusive but also cannot be relied upon, whether any other acts positive or numerous can support evidence of ownership. The basic foundation, that is traditional evidence, having been rejected, there is nothing on which to found acts of ownership.”
In the present appeal, the appellants completely failed to adduce traditional evidence in respect of their root of title. They left it hanging in the air. It occurs to me that the secondary acts of possession and ownership upon which they desire to rely cannot avail them. They have no foundation. See Fasoro & Anor. v. Beyioku & Ors. (supra) at pages 271-272; Eronini v. Iheuko (supra) at page 66.
Let me say it right away here, that the burden of proof that the appellants are entitled to declaration of title to the disputed land rests on them. With due respect to the senior counsel for the appellants, it is not an excuse that the respondents, as defendants at the trial court, abandoned their defence. Since there was no counterclaim, the respondents had no onus to discharge. Since the appellants claim declaration of title to the land in dispute, not even an admission by the respondents as defendants can preclude the appellants from discharging the onus of proof which lies on them heavily like lead. See Onobruchere v. Esegine (1986) 1 NWLR (Pt.l9) 799 at 806807.
The appellants contended that they pleaded acts of ownership and possession of the land in dispute and led evidence in support of same but the trial court rejected their evidence without any valid reason. To my mind, this assertion is not correct. The learned trial Judge painstakingly and meticulously evaluated the evidence garnered by him. He found that alleged tenants of the appellants like Alphonsus Ijagwu and Madam Omeme Eze and her children who are all still living were not called to testify that the appellants put them on the land in dispute. The learned trial Judge found that P.W.4 and P.W.5 did not know how the appellants got to be on the land in dispute. They merely saw them on the land and concluded that they must have been the owners. The learned trial Judge concluded that- ‘this to say the least, is a most unsatisfactory way of establishing ownership of land.’
From the evidence of P.W.3 and P.W.4 , it is clear that the appellants are not the exclusive owners of the land in dispute. P.W.3 stated it clearly that ‘the land in dispute is jointly owned by the plaintiffs’ sub-family and my-sub family of Umunyaba’. P.W.4 also testified to that effect.
The findings of fact by the trial court should be approached with extreme caution. After all, the trial Judge had the opportunity to hear and watch the demeanour of witnesses who testified before him. The findings and conclusions reached by him sound plausible. Refer to Enang v. Edu (supra) at page 38-40. The findings of fact by the trial court are not unreasonable or perverse. I cannot see the propriety of tampering with same. The appellants failed to invite their ‘tenants’ to testify in their support. It has been shown that the appellants are not the exclusive owners of the land in dispute. And yet they claim a declaration of title to same. Such is unthinkable. No reasonable court will grant such a declaration of title in favour of the appellants to the disadvantage of people who are not parties to the action.
The last point which is worthy of consideration relates to customary arbitration which the appellants in their pleadings and evidence at the trial court as well as in their brief of argument before this court obliquely touched upon.
I need to state it here that for customary arbitration to operate as estoppel, the following ingredients must be available:
(a) That there has been a voluntary submission of the matter in dispute to an arbitration of one or more persons.
(b) That it was agreed by the parties either expressly or by implication that the decision of the arbitrators would be accepted as final and binding.
(c) That the said arbitration was in accordance with custom of the parties or of their trade or business.
(d) That the arbitrators reached a decision and published their award.
(e) That the decision was accepted by the parties expressly or by implication at the time of the award.
The above ingredients of customary arbitration were such as prescribed in Agu v. Ikewibe (1991) 3 NWLR (Pt 80) 385; Igwego v. Ezeugo (1992) 2 NSCC (vol.23) 454; Larbi v. Kwesi 13 WACA 81 at 82; Ohiaeri v. Akabeze (1992) 2 NWLR (Pt.221) 1.
On page 2 of appellants’ brief of argument, there is a mention of attempted settlement of the dispute by council of elders of Nachi.
May be I should state it clearly that an ‘attempted settlement’ is no real settlement. I am unable to trace the real evidence of customary arbitration which could prop or aid the appellants’ case. The real decision of the arbitrators is unknown. P.W.5 said the only advice they gave the appellants was to go and sue the 2nd respondent in court. It appears to me that the plea of customary arbitration by the appellants stands on a sinking sand.
In conclusion, I agree with the senior counsel for the respondents that the appellants failed to plead and give evidence of their root of title. The learned trial Judge meticulously evaluated the evidence and made accurate findings based on the evidence before him. There were loopholes in acts of possession and ownership claimed by the appellants. They have no secondary source of validity. Appellants’ own witnesses testified that the appellants are not exclusive owners of the land. Appellants talked of attempted settlement by elders whose award cannot be pin-pointed.
With all the above, the appellants felt that they are still entitled to a declaration of title to the land in dispute in their favour. They failed to appreciate that declaratory orders by a court are based on discretion.
It has been said that discretion must be exercised judicially and judiciously as well. And discretion herein is the art of being circumspect, wary and discrete in a bid to arrive at a reasonable and plausible judgment. Refer to Eronini v. Iheuko (1989) 2 NWLR (Pt.101) 46, (1989) 3 SC (Pt.1) 30; University of Lagos v. Aigoro (1985) 1 All NLR (Pt.1) 58; (1985) 1 NWLR (Pt.1) 143 at 148.
It was not proper to chastise the learned trial Judge. He performed his job well to the best of his ability. He exercised his discretion properly. I cannot see why an accusing finger should be pointed at him. On my part, I am unable to fault him. Appellant’s case had no merit from their own poor showing. And their claim was rightly dismissed by the learned trial Judge.
I come to the conclusion that the appeal lacks merit on all points canvassed. The appeal is accordingly dismissed as the judgment of the learned trial Judge is hereby affirmed. It is inviolate. The appellants shall pay N5,000 costs to the respondents.

IGNATIUS CHUKWUDI PATS-ACHOLONU, J.C.A.: I have read the judgment of my learned brother, Fabiyi, J.C.A. and I agreed with his conclusion. What riles me in this case is that though the respondent claimed that the land belongs to Umuabia family but they failed to field any member of Umuabia. Mere assertion or averment in a pleading is no evidence and where the postponement of a case fails to prove his case or the expected standard of proof then the verdict of the court cannot be in his favour. It must at all times be remembered that one who initiated an action in respect of declaration of title to land has a great responsibility. Where he fails to discharge such onus of proof, he fails and not his adversary. I subscribed to the view expressed by my learned brother that the appeal lacks merit. I too dismiss the appeal and abide by the consequential orders in the leading judgment.

CLARA BATA OGUNBIYI, J.C.A.: The facts of this case are well spelt out by my learned brother, Justice Fabiyi, in the lead judgment. The appellant who was the plaintiff at the trial court being dissatisfied with the judgment of the court filed three grounds of appeal, which without their particulars read as follows:
Ground of Appeal No.1
The learned trial Judge erred in law by failing to consider the effect of the abandonment of the amended statement of defence of the defendants during trial.
Ground of Appeal No.2
The learned trial Judge failed to properly evaluate the legal admissible evidence of the plaintiffs/appellants and those of the defendants and this resulted in miscarriage of justice.
Ground of Appeal No.3
The judgment is against the weight of evidence.
Based on their grounds of appeal, the appellants formulated two issues for determination. The first borders on the effect of the abandonment of the amended statement of defence and whether it amounted to an admission of the plaintiffs’ statement of claim. The second issue raised was whether the trial court properly and legally evaluated the evidence before him and consequent to his findings in favour of the defendants. The respondents on their brief of arguments also raised two issues: the first, which raises the question as to whether the plaintiffs did prove their case so as to have been entitled to the reliefs sought. The second issue, needless to repeat, also reproduced that same formulated by the appellants.
The main crux of the claim is declaration of title to land. In the actions, of this nature, the law has laid down five ways of proving ownership of land. These have been re-stated in the Supreme Courts authority of Idundun v. Okumagba (1976) 9 – 10 SC 227 which are as follows:
(1)    by traditional evidence
(2)    by production of title duly authenticated and executed.
(3)    by acts of ownership extending over a sufficient length of time numerous and positive enough as to warrant the interference of true ownership.
(4)    by acts of long possession and enjoyment and
(5)    proof of possession of connected or adjacent land in circumstances rendering it probable that the owner of such connected land, would in addition be the owner of land in dispute.
With reference to the appellants statement of claim, their action is predicated on acts of ownership, traditional history and acts of possession.
The law is well settled that it is for the plaintiff to succeed on the strength of his case by adducing evidence and not to rely on the weakness of the defence, though at times the weakness of the defendants’ case tend to strengthen the plaintiffs. The authorities of S. Kodilinye v. Odu (1935) 2 WACA 336 and Piero v. Tenalo (1976) 12 SC 31 are both in point, as well as that of Akunwata Nwagbogu v. Chief M.D. Ibeziako (1972) Vol. 2 Part 1 ECSLR 335 at 338 a Supreme Court decision.
Also, the provisions of the Evidence Act per section 136 and 137 are relevant in stating on whom burden of proof lies as well as the party who has the burden of proof in civil cases. The sections reproduced states:
“136 The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side.
137(1) In civil cases, the burden of first proving the existence or non-existence of a fact lies on the party against whom the judgment of the court would be given, if no evidence were produced on either side, regard being had to any presumption that may arise on the pleadings.
(2) if such party adduces evidence which ought reasonably to satisfy a jury that the fact sought to be proved is established, the burden lies on the party against who judgment would be given if no more evidence were adduced, and so on successively, until all the issues in the pleadings have been dealt with.” (Italicising is mine for emphasis.)
In the matter under consideration, the plaintiffs/appellants are claiming the ownership of the title over and above the defendants/respondents. In the absence of any counter-claim by the defendants, the plaintiff had the burden to produce evidence in order to succeed.
It is mandatory on the plaintiffs in the spirit of section 136 supra to produce some sort of evidence or else the total absence of which would lead to failure especially where they are the initiators.
By the interpretation of section 137(2) supra, it is not enough that the plaintiffs adduce evidence, but that “which ought reasonably to satisfy a jury that the fact sought to be proved is established.”
Thus, there is the need for a credible, cogent, reliable, and convincing evidence.
In the light of the provisions of section 136 and 137 of the Evidence Act under reference supra, what therefore is the legal effect of the first issue raised by the appellant in their briefs of argument?.
In other words, the effect of the abandonment of the amended statement of defence of the defendants/respondents?.
In my opinion and following from the interpretation of the Evidence Act supra, the appellants stood to run more risk than the respondents if no evidence is adduced regardless of whether or not the defendants sought to amend and eventually abandoned their statement of defence. This is more so especially where the appellants’ reliance on the supposed respondents’ weakness as their claim is not open to them, since the condition favouring reliance as provided in Akunwata Nwagbogu v. Chief M. O. Ibeziako supra does not arise.
It is in no doubt that parties are bound by their pleadings and cannot go outside same. It is also trite that all facts pleaded must be proved by credible, admissible evidence or else the facts pleaded go to no issue. An amended pleading also takes effect from and in place of the initial pleading filed.
The burden in the matter at hand is on the plaintiffs/appellants who claim a declaration of title to lead evidence sufficiently cogent and credible in proof of their root of title. The appellants in their evidence relied on acts of possession. Possession simplicita is insufficient proof but rather, that there is the necessity for them to plead and prove from what source or whom did they derive the title.
In other words, it is incumbent on the appellant to have pleaded and prove actual traditional history or evidence of the founder of the land and how it was founded, i.e., to say whether by conquest, settlement on the land, if it was vacant initially or by deforestation. From the record before us, the lower court after his finding and evaluation of evidence, did arrive at his conclusion at page 84 lines 6-16 and puts into question the plaintiffs’ failure to satisfy the court by producing concrete evidence in the circumstances and thus giving rise to the land being in their possession. The propositions are clearly spelt out in the authority of Piaro v. Tenalo under reference supra.
P.W.1 and P.W.3 in their attempt to prove the facts averred in plaintiffs’ pleadings testified their ownership to have been from ‘time immemorial’. As rightly concluded by the lower court, the summary of the evidence by the plaintiff did not go to prove the obvious facts necessary as it relates to expectations of possession and thus giving rise to ownership. In other words, for the appellants to succeed on their claim, there is a dependant on the proof of their root of title.
This cannot be underestimated or be seen in the light of abandonment of the statement of defence only to be interpreted as an admission.
The authority of Onobrechere v. Esegine (1996) 1 NWLR (Pt.19) 799 at 806-807 would assist in the expatiation of situations relating to admission. It was considered in that case that there cannot be any burden to proof where there are no issues in dispute between parties.
For example, in a situation where the plaintiffs’ claim is admitted, that will be the end of the story. Similarly, if a particular averment of the plaintiff is admitted, there will no longer be an onus to prove what has been admitted by the opposite party. It was for instance held in that case, that where ‘the plaintiff pleads possession of the land in dispute as his root of title and the defendant admits that possession, but adds that the land was given to the plaintiff on pledge, then, the onus shifts onto the defendant to prove that the plaintiff is not the owner of the land his possession of which has been admitted’.
Once the defendants admits the plaintiffs possession of the land in dispute in his statement of defence, the plaintiffs had then discharged the onus of proof cast on him.
Furthermore, in the authority of Orisharinu v. Mefue (1937) 13 NWLR 181, the plaintiff alleged in paragraphs 5, 6 and 7 of their statement of claim, that their ancestor was the original founder and owner of the land in dispute and that they are therefore still the owners thereof. By paragraph 6 of their defence the defendants averred thus:
“6. In further answer to paragraph 5 of the statement of claim the defendants answered that the land in dispute was pledged… but was an outright customary sale to her by members of the 2nd plaintiff’s family.”
It was a common ground by both parties therefore, that the title did once reside in the plaintiff’s family. This had been admitted by the defendant that at one time, the title was in the plaintiff’s, the onus therefore, is on the defendants to prove that, that title had been extinguished by the alleged sale pleaded by them.
Both sides had accepted and founded as a fact that the plaintiffs’ ancestor was the ‘original founder’ of the land in dispute, there is, therefore, the presumption that the plaintiff as his successor in title continued to be the owner of the land in dispute until the contrary is proved.
This is not the case in the matter at hand because there had not been such admission similar or as in the case under reference by the defendants/respondents so as to arrive at same deduction.
In the authority of Jules v. Ajani (1980) 5 – 7 SC 96 cited by the appellant’s counsel in his reply brief, the crux of the matter was that the evidential onus in regard to the averment shifted upon the defendant. It is also trite that he who alleges prove. Having made the averment, and having also failed to adduce evidence in proof thereof, the defendants’ case failed. In that case, the appellant was responsible and did raise the issue of forgery on his pleadings but that the learned trial Judge failed to avert his mind to it. With the appellant having raised the issue, their Lordships of the Supreme Court held him to bear the burden of proving that assertion.
The authority under reference is similar to the appeal at hand, in that while, the burden was on the appellant to prove, he so failed to do. The same applies in this case where the appellants as the plaintiffs had the burden to prove but never did. The authority of Nwagbogu v. Ibeziako (1972) Vol. 2 (Pt.1) ECSLR 335 was also cited by the appellants in their reply brief. One of the bone of contention in the case was that a withdrawal of the representatives in the case was held not to amount to acquiescence in its legal signification.
Also cited was the case of Akinola v. Oluwo (1962) 1 All NLR 224 where the rule that the plaintiff must succeed on the strength of his case and not on the weakness of the defence case does not apply where the defendants’ case itself supports that of the plaintiff and containing evidence on which the plaintiff is entitled to rely. This proposition is synonymous to that in the case of Akunwata Nwagbogii v. Chief M.D. Ibeziako having been considered supra.
Having regard to the appeal before us and especially in relation to the authorities relating to the abandonment of defence, the arguments by the appellants do not hold good to deter the discretion exercised by the lower court in arriving at the decision as he did. In other words, the onus of proof which was on the plaintiffs/appellants had not shifted even where the defendants/respondents abandoned their pleadings.
In the result and having regard to the appeal at hand, I also agree with my brother, Justice J.A. Fabiyi in his lead judgment that this appeal lacks merit on all issues canvassed and is accordingly dismissed. I also affirm the judgment of the trial Judge and do agree with the N5,000.00 costs awarded to the respondents.

Appeal dismissed.

 

Appearances

Chief Enechi Onyia, SAN (with him, C. Eze, Esq.)For Appellant

 

AND

Chief A.O. Mogboh, SAN (with him, B.C. Okoye [Mrs.], H.C.A. Ume [Mrs.] and G.A. Ezema [Miss]For Respondent

 

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