EZUE v. OGWO & ANOR (2020)

EZUE v. OGWO & ANOR

(2020)LCN/14759(CA)

In The Court Of Appeal

(AWKA JUDICIAL DIVISION)

On Friday, November 20, 2020

CA/AW/247/2011

RATIO

PLEADINGS: EFFECT OF UNCHALLENGED AVERMENTS IN PLEADINGS

The relevant pleaded facts in the respondents’ pleadings that were not specifically traversed by the appellant are deemed in law to be admitted.
In NIGERIA DEPOSIT INSURANCE CORPORATION v. DR. VIVIENNE NNEKA BALONWU & ORS (2017) LPELR-41963 (CA) this Court per GARBA, JCA (now JSC) held thus:
“It is settled law, that by the established principles of pleadings any averment in pleadings of a party not effectively denied, challenged or controverted in the pleadings of another party who intends to dispute the facts averred and therefore owes the legal duty to do so would be presumed or deemed to have been admitted. The admission arises from the failure, omission or refusal to effectively deny, challenge or controvert the facts and is presumed by the principle of pleadings that the party does not intend to dispute and thereby join issues on the facts with the party who made the averments. In order to join issues in pleadings, there must be proper traverse to effectively controvert specific and positive facts contained in the party’s pleadings. It is only when issues are joined by the parties in their pleadings that such issues would call for proof by way of evidence, otherwise the issues would be deemed admitted by the party whose duty it is to do so. OYEBOLA v. OKUBULE (1986) 2 NWLR (pt.1) 251; AJIKAWO v. ANSALDO NIG. LTD. (1991) 2 NWLR (pt. 173) 359; OZOWALA v. EZEIHESHIE (1991) INWLR (pt. 170) 669; …” PER GYARAZAMA SANGA, J.C.A.

PLEADINGS: ESSENCE OF PLEADINGS

The essence of pleadings is to enable the parties make a clear presentation of their grievances to enable the Court determine the real questions in the controversy. Thus any fact not presented in the said pleadings cannot attract any evidence in proof thereof. See FALEKE v. I. N. E. C. (2016) 18 NWLR (pt. 1543) 61 at 89. PER GYARAZAMA SANGA, J.C.A.
LAND LAW: WAYS OF PROVING TITLE TO LAND

The law is trite that proof of one of the five ways of proving title to land entitles one to judgment and the lower Court was perfectly right in finding for the respondents based on the uncontroverted pleaded facts in the Further Amended Statement of Claim and the evidences adduced thereto by the respondents against the appellant. In FRANCIS ADESINA AYANWALE v. OLUMUYIWA OLUMIDE ODUSAMI (2011) LPELR 8143 (SC) the apex Court per RHODES VIVOUR, JSC held thus:
“Now, title to land or ownership of land may be proved in any of the following five ways:
1. By traditional evidence;
2. By production of documents of title which are duly authenticated;
3. By acts of Selling, Leasing, Renting out all or part of the land or farming on it or on a portion of it;
4. By acts of long possession and enjoyment of the land and;
5. By proof of possession of connected or and adjacent land in circumstances rendering it probable that the owner of such connected or adjacent land would in addition, be the owner of the land in dispute. See: IDUNDUN v. OKUMAGBA (1976) 9/10 SC 227.” PER GYARAZAMA SANGA, J.C.A.
PLEADING: OBJECT OF PLEADING

In S. S. GMBH v. T. D. INDUSTRIES LTD (2010) II NWLR (PT. 1206) 589 at 597 the apex Court held thus:
“The object of pleading is to settle the issues upon which the case between the parties is to be contested. In the instant case, the averments in paragraphs 3 and 4 of the statement of Claim, not having been traversed by the defence, were presumed admitted. Otherwise it would amount to defeating the object of pleadings.”
The burden of proof resting on the plaintiff in a litigation is affected by the state of pleadings. Admitted or untraversed facts specifically aid the case of the plaintiff and makes it unnecessary for him to call further evidence on those admitted facts. In MR. MOSES BUNGE & ANOR v. THE GOVERNOR OF RIVERS STATE & ORS (2006) LPELR – 816 (SC) the apex Court held as follows:
“It is often the case that parties assume that when a suit is filed in Court and parties have exchanged pleadings, further progress on the matter must at all events be determined by evidence to be called. The correct position is that whether or not it is necessary to call evidence must be dependent on the state of pleadings. Where a plaintiff has pleaded facts upon which his right in dispute in the suit hinges and the defendant admits those facts, it is not in such a case necessary for any evidence to be called and the Court would be entitled to give judgment on the pleadings. When a fact is pleaded by the plaintiff admitted facts is irrelevant and unnecessary. There is no dispute on a fact, which admitted.” Per OGUNTADE, JSC. PER GYARAZAMA SANGA, J.C.A.

Before Our Lordships:

Chioma Egondu Nwosu-Iheme Justice of the Court of Appeal

Rita Nosakhare Pemu Justice of the Court of Appeal

Bitrus Gyarazama Sanga Justice of the Court of Appeal

Between

NNAEMEKA EZUE (For Himself And On Behalf Of Omenife Family Nkitaku Village Agulu) APPELANT(S)

And

NWEKE OGWO 2. SYLVERSTER ANYABA (For Themselves And On Behalf Of Umunnaji Family Nkitaku Village Agulu) RESPONDENT(S)

BITRUS GYARAZAMA SANGA, J.C.A. (Delivering the Leading Judgment): This Suit No. AA/55/84 was instituted by the Respondents and two others (Okoye Ochoma and Okoye Anadudu now deceased) as Plaintiffs against the Appellant and two others (James Nwokike and Benedict Ndubuilo now deceased) as Defendants before High Court of Justice Anambra State, Awka Judicial Division, P. Chike Onyia J. (now RTD) presiding via a Statement of Claim dated 20/9/1984 filed on 2/10/1984; Amended Statement of Claim dated and filed on 2/6/1997 and a Further Amended Statement of Claim dated and filed on 20/11/2002 seeking for the following reliefs:
1. A declaration that the Plaintiff’s are entitled to the Statutory right of Occupancy to that piece or parcel of land verged Pink within the Plaintiffs’ larger land known as and called “Ana be Ugba” verged Blue in Plaintiffs’ Plan No. NLS/AN1510/84 situate at Nkitaku Village Agulu within jurisdiction. Its rental value is about N10.00 (Ten Naira).
2. N5,000.00 (Five Thousand Naira) damages for trespass.
3. An Order of Court for perpetual injunction restraining the Defendants, their agents,

servants, privies or workmen from entering or interfering with the said land in any manner whatsoever.
4. Order of possession of the area presently being forcibly occupied by the Defendants. (pages 71-77 of the Records).

Upon being served with the plaintiffs pleadings, the defendants filed a Statement of Defence on 10/3/1986. They later filed an Amended Statement of Defence on 3rd June, 1997 wherein they urged the lower Court to dismiss the plaintiffs’ claim for being “frivolous, speculative and misconceived.” (Pages 27-31 of the Records).

Pleadings having been filed and exchanged, the matter went to trial. The plaintiffs called five (5) witnesses in proof of their case while the Defendants called six (6) witnesses (pages 222-288 of the Records). The following documents were tendered and admitted in evidence by the plaintiffs through P.W2; Felix Chukwuezugo Muolokwu KSM, the Assistant Chief Registrar High Court of Justice, Awka who was in charge of all exhibits tendered in Court.
1. Subpoena served on A. C. R. (PW2) Exhibit ‘A’.
2. Plaintiffs’ Survey Plan re-tendered as Exhibit ‘B’.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px; font-size: 14px;”></br<>

Defendants Survey Plan re-tendered as Exhibit ‘C’.
4. C. T. C. of cross examination of Late Okoye Ochomma as Exhibit ‘D’
5. C. T. C. of cross examination of Late Okereke Okonkwo as Exhibit ‘E’
6. C. T. C. of evidence of Late Okafor Odinamba as Exhibit ‘F’.
7. C. T. C. of evidence of Late Okoye Ochomma as Exhibit ‘G’.
8. C. T. C. of Suit No. CCAGU/21/95: James Nwokike Mgbaf v. Alfred Okeke & 10 Ors as Exhibit ‘H’.
9. C. T. C of Ruling of Magistrate in Suit No. MNJ/451C/84: Police v. Emmanuel Anadodo & 4 Ors as Exhibit ‘J’.
10. C. T. C. of evidence of Late Christopher Nnaemeka Ezue as Exhibit ‘K’.
11. Page 3 of Exhibit was marked as Exhibit ‘K1’.
12. Pages 5 of Exhibit K was marked as Exhibit ‘K2’.
13. Pages 6 of Exhibit K was marked as Exhibit ‘K3’.
14. Pages 8 of Exhibit K was marked as Exhibit ‘K4’.
(Pages 224 of the Records).

The Defendants tendered a certified true copy of a cross action in Suit No. CCAGU/24/95 which was objected to by

learned counsel to the plaintiffs. The objection was overruled and the document was admitted in evidence and marked as Exhibit ‘N’. (Page 281 of the Records). Thereafter the defence closed its case and the matter was adjourned to 22/7/2009 for adoption of Written addresses. Learned counsel to the Plaintiffs adopted their Final Written Address but learned counsel to defendants was not ready. Matter was further adjourned to 24/7/2009 for adoption. Judgment was delivered on 21st October, 2009. The Judgment by the learned trial Judge is at pages 289-339 of the record of appeal.

After reviewing the oral and documentary evidence adduced during trial (some of the oral testimonies were copied verbatim) the learned trial Judge pronounced thus:
“In this land suit, five witnesses testified for the plaintiffs and six witnesses testified for the defence.
It is pertinent to note that this case was prolonged by all the motions, which the defence counsel brought at different times of the hearing of this suit, which were heard and overruled. This protraction must have been responsible for the reason why defendants failed to remember the

plaintiffs further amended statements of Claim of 20th November, 2002 and thereby failing to react to it.
ALBEIT, THE PLAINTIFFS have proved their title to the disputed land and I hereby give judgment in favour of the plaintiffs in this case. I hereby order perpetual Injunction restraining the defendants, their agents, privies or workmen entering or interfering with the said land.
Furthermore, I also order possession for the plaintiffs of the area presently and forcibly occupied by the defendants.”

This decision irked the defendant. He filed a Notice of Appeal on 30/10/2009 containing 6 grounds of appeal. (Pages 340-343 of the records of appeal).

Appellant’s brief was settled by S. N. Chukwuma Esq. It was filed on 8th December, 2016 but deemed properly filed and served on 6th March, 2017. Learned counsel formulated three issues for determination:
1. Whether failure of the Defendant to further amend their Amended Statement of Defence in response to the plaintiffs’ Further Amended Statement of Claim constitute an admission of plaintiff’s case based on which judgment could be entered for them?
2. Whether the

Plaintiffs proved their case by reliance on traditional history?
3. Whether the Learned trial Judge entered judgment for the plaintiffs after carefully reviewing and evaluating the evidence adduced by the parties and placing same on an imaginary scale to determine which one out weighed the other as enunciated in MOGAJI v. ODOFIN (1978) 4 S. C. 91?

The respondents’ brief was prepared by A. Onwualu Esq. It is dated 27th April, 2018 but filed and deemed as properly filed and served on 2nd May, 2018. Learned counsel canvassed four issues for determination as follows:
1. Whether the Respondents proved their case by reliance on Traditional Evidence?
2. Whether the respondent proved possession of connected and adjacent land in circumstances that activates (Section 46) now Section 35 of the Evidence Act, 2011?
3. Whether the learned trial Judge entered judgment for the plaintiffs after reviewing and evaluating the evidence adduced by the parties and placing same on an imaginary scale to determined which one outweighs the other as enunciated in MOGAJI v. ODOFIN (1978) 4 SC. 91.
4. Whether failure of the appellant to react to the

respondents’ Further Amended Statement of Claim amounted to admission?

It is obvious that the three issues raised by the appellant are the same as issues 1, 3 and 4 of the respondents. Only issue two of the respondents introduced the issue of possession of connected or adjacent land to the land in dispute. I will consider the submission by learned counsel to the appellant, the reply by the Respondents before considering issue 2 by the respondents in determining this appeal. I noted that the appellant did not file a Reply Brief.
I will however give a summary of the facts that led to filling this suit by the Respondents.

BRIEF FACTS OF THE CASE:
The Appellant and Respondents are two out of the four sub-families that made up the extended family of the parties known as Umuejeaju having a common ancestor called Ejeaju. The Respondents are contending that the land of Ejeaju had long been partitioned by his four (4) sons, to wit; 1. Nnaji (ancestor of the Respondents) 2. Omenife (the ancestor of the Appellant) 3. Mpata and 4. Ezeada. That the descendants of the four sons of Ejeaju had also shared/partitioned their lands. The Respondents are

contending that the land in dispute is part of the share of Ugba, one of the Sons of Nnaji, hence the name of the land “Ana be Ugba”. Ugba lived and died without a child so the land in dispute reverts back to the common land of Umunnaji as is the custom of Agulu town.

That the father of the 1st defendant at the lower Court (now deceased) was a rain maker who has, in his possession the dreaded “rain making stone” which can cause pregnant women to have an abortion if they see it. That he asked for a portion of land from the Umunnaji family to preserved the rain making stone in a place away from human habitation. A portion of land in the Ana be Ugba was given to him where he erected a shed and continued the rain making business. That after a while the said father of 1st Defendant stopped the business of rain making, packed his belongings and vacated the land which automatically reverts back to the Umunnaji Family. They continued farming the land and reaping the economic trees. Nwokike the rain maker later died and was buried in his homestead. That the now deceased first defendant (son of Nwokike) conspired with some of his Umuomenife

family members and started laying claim to the land in dispute. Several efforts were made to arbitrate between the warring parties which was not successful. The Respondents then filed this Suit.

On their part the appellants admitted that Ejeaju was their proginator with the Respondents. But they contended that the land in dispute is part of a larger land known as Oghughuogu which the Umuejeaju Family annexed by force of arms after a fight between Nkitaku and Amatulu villages of Agulu. That the Oghughuogu land was earlier used by the Umuejeaju family as a common burial ground and that part of the said Oghughuogu land was granted to Nwokike father of Late 1st defendant as “Ana Obu”’ at the request of the said Nwokike of Umuejeaju family. That Nwokike paid the purchase price of the land, lived there and granted lease to some people until his death. That his son the deceased 1st defendant, James Nwokike, inherited the land and continue to exercise maximum acts of ownership.

Issue 1 formulated by the Appellant is:
Whether failure of Defendants to further amend their Amended Statement of Defence in response to the plaintiffs’

Further Amended Statement of Claim constitute an admission of the Plaintiffs’ case based on which judgment could be entered for them?

In answering this issue, learned counsel to the Appellant submits that the Amended Statement of Defence by the Defendant/Appellant gave rise to a Reply to the Amended Statement of Defence by the plaintiffs/Respondent. That the subsequent Further Amended Statement of Claim by the Respondents did not require a consequential amendment by the Appellants as their Amended Statement of Defence adequately answered all the issues raised in the Further Amended Statement of claim and did not admit the claims of the Plaintiffs/Respondents. That the Leaned trial Judge erred when he held, inter alia at page 339 of the Records;
“…This protraction must have been responsible for the reason why Defendants failed to remember plaintiffs’ further amended Statement of Claim of 20th November, 2002. And thereby failing to react to it. ALBEIT THE PLAINTIFFS have proved their title to the disputed land and I hereby give judgment in favour of the Plaintiffs’ in this case.”

That in order to determine whether there is an admission in the defendant’s pleading which would entitle the plaintiff to judgment, the Court must critically examine the Defendant’s statement of Defence as a whole and not merely consider each paragraph in isolation. That the paragraphs of the statement of Defence must be read conjunctively and not disjunctively to enable the issues joined in the pleadings to be properly ascertained. That the statement of defence constitutes the case for the defence and should, in the circumstances be-examined as a whole in order to appreciate where issues were joined and where the defence admits stated facts contained in the statement of Claim. That the law does not allow fragmentation of paragraphs. Cited: CHRIS EIGBE v. NIGERIA UNION OF TEACHERS (2006) 16 NWLR (pt. 1005) 244 at 258 paragraphs C – H; pages 258-259 paragraphs H – A. That the learned trial Judge completely ignored the Defendant’s Amended Statement of Defence.

That failure to react to the respondents Further Amended Statement of Claim by amending the Appellant’s Amended Statement of Defence does not constitute an admission of Respondents’ case to entitle

them to judgment. He urged the Court to resolve this issue in favour of the Appellant.

That failure to react to the respondents Further Amended Statement of Claim by amending the Appellant’s Amended statement of Defence does not constitute an admission of Respondents’ case to entitle them to judgment. He urged the Court to resolve this issue in favour of the Appellant.

Learned counsel to the respondents argued this issue as issue 4 in his brief. He submitted that the learned trial Judge never hinged his judgment on Appellant’s non reaction to the Further Amended Statement of Claim but on the unchallenged and credible evidence of traditional history, ownership of contiguous land and various acts of ownership pleaded by the Respondents. That it is only the relevant pleaded facts in the Further Amended Statement of Claim which needed reply which was not made. That the law deems that as an admission by the defendants in favour of the respondents. That the failure by the appellant to reply to some salient and crucial issues of facts raised in the Further Amended Statement of Claim of the respondents amounted to admission of those

uncontroverted facts. Learned counsel stated the trite position of the law that the essence of pleadings is to enable the Court determine the real questions in controversy. Any fact not controverted in the said pleadings cannot attract any evidence. Cited FALEKE v. I. N. E. C. (2016) 18 NWLR (pt. 1543) 61 at 89.

That a careful glance at the Further Amended Statement of Claim particularly paragraphs 4, 4a, 5, 11, 14 and 15 reveals crucial facts that were brought in, in furtherance of the case of the respondents. That the Appellant did not controvert these pleadings. That paragraphs 4 and 5 of the Further Amended Statement of claim contain two of the five methods of prove of title to land and they were never countered by the appellant. That it is trite law that proof of anyone of the five ways of proof of title to land entitles one to judgment and the lower Court is right to find for the respondents on the uncontroverted pleaded facts contained in the said Further Amended Statement of Claim and the evidences adduced thereto by the respondents as against the appellant. Cited AYANWALE v. ODUSAMI (2011) 18 NWLR (pt. 1278 328 at 331; S. S. GMBH v. T. D. IND. L. T. D. (2010) II NWLR (pt. 1206) 589 at 596.

That just as the appellant failed to challenge the pleadings by the respondents, he also fatally failed to challenge the evidence led on same during cross-examination. That failure to cross-examine a witness on a particular issue is a tacit acceptance of the truth of the evidence of that witness. Cited: FRN v. SANI (2014) 16 NWLR (pt. 1433). That the extent of burden of proof resting on any plaintiff in a litigation duel is affected by the state of pleadings. That facts that are admitted and untraversed aid the case of the plaintiff and immunes the said plaintiff from calling further evidence on those facts. Cited: BUNGE v. GOVERNOR OF RIVERS STATE (2006) 12 NWLR (pt. 1995) 573 at 578. That the inability of the appellant to consequentially amend his pleadings to counter the pleadings by the respondents in their Further Amended Statement of Claim amounted to an admission of those facts and the lower Court was right to find for the respondents. Learned counsel to the respondents urged the Court to so hold and resolved this issue in favour of the respondents.

FINDING ON ISSUE 1:
To answer this issue, I have to state at the outset that upon considering the judgment by the learned trial Judge at pages 289 to 339 of the Records, he did not state, expressly or by implication, that the failure of the appellant to amend his defence in reaction to the respondents Further Amended Statement of Claim amounted to an admission. The lower Court did not based its judgment solely on the failure of the appellant to file a Further Amended Statement of Defence but on the unchallenged and credible evidence of traditional history, ownership of contiguous land and various acts of ownership pleaded by the respondents. What the learned trial Judge state in his judgment is that while the appellant was preoccupied with filing motions to stall the proceedings before him, he forgot and/or failed to make consequential amendments to the respondents’ amendments reflected in their Further Amended Statement of Claim. The relevant pleaded facts in the respondents’ pleadings that were not specifically traversed by the appellant are deemed in law to be admitted.
In NIGERIA DEPOSIT INSURANCE CORPORATION v. DR. VIVIENNE NNEKA BALONWU & ORS (2017) LPELR-41963 (CA) this Court

per GARBA, JCA (now JSC) held thus:
“It is settled law, that by the established principles of pleadings any averment in pleadings of a party not effectively denied, challenged or controverted in the pleadings of another party who intends to dispute the facts averred and therefore owes the legal duty to do so would be presumed or deemed to have been admitted. The admission arises from the failure, omission or refusal to effectively deny, challenge or controvert the facts and is presumed by the principle of pleadings that the party does not intend to dispute and thereby join issues on the facts with the party who made the averments. In order to join issues in pleadings, there must be proper traverse to effectively controvert specific and positive facts contained in the party’s pleadings. It is only when issues are joined by the parties in their pleadings that such issues would call for proof by way of evidence, otherwise the issues would be deemed admitted by the party whose duty it is to do so. OYEBOLA v. OKUBULE (1986) 2 NWLR (pt.1) 251; AJIKAWO v. ANSALDO NIG. LTD. (1991) 2 NWLR (pt. 173) 359; OZOWALA v. EZEIHESHIE (1991) INWLR (pt. 170) 669; …”

It is my finding that the failure by the appellant to react to some salient issues of facts raised in the respondents’ Further Amended Statement of Claim invariably amounted to admission of those uncontroverted facts. It is akin to the situation where the processes involved in the amendments were duly served on the appellant who read, understood them and decide that there is nothing to traverse. The essence of pleadings is to enable the parties make a clear presentation of their grievances to enable the Court determine the real questions in the controversy. Thus any fact not presented in the said pleadings cannot attract any evidence in proof thereof. See FALEKE v. I. N. E. C. (2016) 18 NWLR (pt. 1543) 61 at 89.
I have noted the submission by learned counsel to the respondents that paragraphs 4, 4a, 5, 11, 14 and 15 of the Further Amended Statement of Claim contain new facts that were pleaded in furtherance of the case of the respondents. The appellant did not sufficiently join issues with these paragraphs, particularly paragraphs 4 and 5 which contain two out of the five methods of proving title to land which were not traversed

by the appellant. The law is trite that proof of one of the five ways of proving title to land entitles one to judgment and the lower Court was perfectly right in finding for the respondents based on the uncontroverted pleaded facts in the Further Amended Statement of Claim and the evidences adduced thereto by the respondents against the appellant. In FRANCIS ADESINA AYANWALE v. OLUMUYIWA OLUMIDE ODUSAMI (2011) LPELR 8143 (SC) the apex Court per RHODES VIVOUR, JSC held thus:
“Now, title to land or ownership of land may be proved in any of the following five ways:
1. By traditional evidence;
2. By production of documents of title which are duly authenticated;
3. By acts of Selling, Leasing, Renting out all or part of the land or farming on it or on a portion of it;
4. By acts of long possession and enjoyment of the land and;
5. By proof of possession of connected or and adjacent land in circumstances rendering it probable that the owner of such connected or adjacent land would in addition, be the owner of the land in dispute. See: IDUNDUN v. OKUMAGBA (1976) 9/10 SC 227.”
Upon considering the Record of appeal, it

is obvious that the pleading by the respondents, evidence adduced thereto, in their Amended Statement of Claim dated 284/1999 (Pages 36-40 of the Records) and their Further Amended Statement of Claim dated 20/11/2002 (pages 71-77 of the Records) that they own or possess the adjacent land to the land in dispute were not countered or controverted by the Appellant. Thus paragraphs 4, 4(a), 5, 11, 14 and 15 of the Further Amended Statement of Claim were not controverted and are therefore deemed admitted by the Appellant. In S. S. GMBH v. T. D. INDUSTRIES LTD (2010) II NWLR (PT. 1206) 589 at 597 the apex Court held thus:
“The object of pleading is to settle the issues upon which the case between the parties is to be contested. In the instant case, the averments in paragraphs 3 and 4 of the statement of Claim, not having been traversed by the defence, were presumed admitted. Otherwise it would amount to defeating the object of pleadings.”
The burden of proof resting on the plaintiff in a litigation is affected by the state of pleadings. Admitted or untraversed facts specifically aid the case of the plaintiff and makes it unnecessary for him to

call further evidence on those admitted facts. In MR. MOSES BUNGE & ANOR v. THE GOVERNOR OF RIVERS STATE & ORS (2006) LPELR – 816 (SC) the apex Court held as follows:
“It is often the case that parties assume that when a suit is filed in Court and parties have exchanged pleadings, further progress on the matter must at all events be determined by evidence to be called. The correct position is that whether or not it is necessary to call evidence must be dependent on the state of pleadings. Where a plaintiff has pleaded facts upon which his right in dispute in the suit hinges and the defendant admits those facts, it is not in such a case necessary for any evidence to be called and the Court would be entitled to give judgment on the pleadings. When a fact is pleaded by the plaintiff admitted facts is irrelevant and unnecessary. There is no dispute on a fact, which admitted.” Per OGUNTADE, JSC.
Therefore, it is my finding that the inability of the Appellant to consequentially amend his pleadings to counter the new facts pleaded by the Respondents in their Further Amended Statement of Claim amounted to an admission of those

facts. The lower Court was on terra firma to find in favour of the respondents on this issue and I so hold. I resolve this issue in favour of the Respondents.

Learned counsel to the Appellant argued issues 2 and 3 together. The said issues are:
2. Whether the plaintiffs proved their case by reliance on traditional history?
3. Whether the learned trial Judge entered judgment for the plaintiffs after carefully reviewing and evaluating the evidence adduced by the parties and placing same on an imaginary scale to determine which one outweighs the other as enunciated in MOGAJI v. ODOFIN (1978) 4 S. C. 9L?

While arguing the two issues Learned counsel to the Appellant reharshed the history of the land in dispute, the pleadings by the parties and the evidence adduced by parties during trial. He submitted that the Respondents referred to the land in dispute as part of their “Ana be Ugba” but did not give any evidence that Ugba ever lived there. That the respondents claimed that the land in dispute was Ana-Agu or farm land but the only evidence of physical occupation of the land in dispute is that of the Appellants which was admitted by

the respondents that Nwokike built a thatched house on the land in dispute. That the Appellants gave evidence that Nwokike built a fence round his Ana Obi with Ekpe wall where he lived and gave portions of the land to one Daniel Ezue who built on the land and raised his family on the land which includes the 3rd Defendant who grew up on the land. That 1st Defendant also gave portion of the land to Samuel Ndubuilo who also built a house there and his family is residing there. That the Survey Plan No. NEC/AN/512/85 tendered and marked as Exhibit ‘C’ by the appellant shows the houses of 2nd and 3rd Defendants families and ruins of the house of Nwokike and his Agwu shrine. That in paragraph 35 (d) of their Further Amended Statement of Claim the respondents admitted that the appellants are in occupation of the land in dispute albeit by force.

Learned counsel made a preview of the evidence by the witnesses in their testimonies and submitted that the Appellants’ case outweighed by far the evidence of the respondents. He cited and quoted the apex Court’s holding in FRANCIS SHANU & ANOR v. AFRIBANK NIGERIA PLC (2002) 6 SCNJ 454 at 477

in support of his submission on evidence of proceedings before another Court pursuant to Section 34 of the Evidence Act. He also cited the Supreme Court authority of MICHEAL ROMAINE v. CHRISTOPHER ROMAINE (1992) 5 SCNJ 25 on the position of the law that where parties claim through the same original owner the case should be decided on the relative strength of their respective case. That where the evidence shows that the Appellants are in possession of the land in dispute, the onus is on the respondents to show that they have a better title. Cited: FABUNMI v. AGBE (1985) INWLR (pt. 2) 299. That the respondents have failed to prove a better title to the land in dispute and therefore cannot dislodge the Appellants from the land. Cited BENEDICT OTANMA v. KINDOM YOUDUBAGHA (2006) ISCNJ. 94 at 111. That in BENNETH UDE AGU v. MAXWELL NNADI (2002) 12 SCNJ 238 at 257 the Supreme Court held thus:
“In law, a plaintiff must show a prima facie case before the need to consider the Defendant’s case can arise. See AROMIRE v. AWOYEMI (1972) 2 S. C. 1 at 10-11. This is a pre-test that the burden is on a plaintiff to prove his case, and when the Defendant adduces

evidence, the case is then decided on the balance of probabilities. See MOGAJI v. ODOFIN (1978) 4 S. C. 55; ONWUAMA v. EZEOKOLI (2002) 5 NWLR (pt. 760) 353.”

That the learned trial Judge in his judgment merely reproduced the claim of the respondents, the evidence of witnesses for the parties without their written statements on oath and in two paragraphs at page 339 of the Records granted the plaintiffs claims. That he did not evaluate the evidence before him, made no reference to the exhibits tendered, did not place the evidence of the parties on an imaginary scale of justice before summarily granting all claims of the respondents. Learned counsel urged the Court to resolve issued 2 and 3 in favour of the Appellant, allow this appeal and set aside the judgment of the lower Court.

The respondents argued issues 2 and 4 of the appellant as their issues 1 and 3. I will also consider the submission by the respondents in respect to the two issues together. While arguing issue 1, learned counsel to the respondents also we viewed the evidence of the witnesses that testified, pointed out the contradiction in the evidence of the Appellant wherein they

alleged in paragraphs 4b, 4c and 4d that:
1. That Ejeaju was the original founder of the land in dispute.
2. That the said land was bequeathed to the children of Ejeaju.

That D.W1 in his testimony on the land in dispute changed the story by stating thus:
“Nkitaku and Amatutu Villages fought a war over this land in dispute called Oghughogu. Later the land was divided into two Nkitaku took one and Amatutu took the other share.” (page 258 of the Records)

That it is trite law that a party who gives inconsistent evidence is bound to have his entire case or claims dismissed. Cited: KAYILI v. YILBUK (2015) 7 NWLR (pt. 1457) 26 at 40; ABUBAKAR v. YAR’ADUA (2008) 19 NWLR (pt. 1120) 1 at 153 – 154. That the inconsistency in the traditional evidence of the appellant gravely affected the credibility of the said evidence and therefore it must crumble. Learned counsel urged the Court to resolve this issue in favour of the respondents.

On issue 3, learned counsel to the respondents submitted that the evaluation of evidence and ascription of probative value to them is the exclusive preserve of the trial Court for the

singular reason of having the privilege of watching the witness and observing their conduct and demeanour. Cited BUNGE v. GOVERNOR RIVERS STATE (2006) 12 NWLR (pt. 995) 573 at 581. That in the case of MOGAJI v. ODOFIN (1978) 4 SC91 the apex Court enumerated the ingredients the trial Court is expected to consider in deciding which of the testimonies weighed heavier between the two sides and held thus:
“Therefore, in determining which is heavier, the judge will naturally have regard to the following:
a. Whether the evidence is admissible;
b. Whether it is relevant;
c. Whether it is credible;
d. Whether it is conclusive; and
e. Whether it is more probable than that given by the other party.”

That these ingredients are the hallmark in determining whether the judgment of any Court is well considered, evaluated and accord with common sense. That the judgment by the lower Court culminating in the instant appeal contains all the ingredients above. Learned counsel reviewed the evidence adduced by the appellant before the lower Court vis-à-vis that of the respondents and submitted that the judgment by the lower Court

is regular and represented the expectation of the law. That the lower Court critically juxtaposed the pieces of evidence adduced by both parties and agreed with that of the respondents. That there is no specific format the lower Court is restricted to in delivering its judgment except that the said judgment should flow from the evidence adduced before it. That the judgment of the lower Court is well considered and evaluated. He urged the Court to resolve issue in favour of the respondents.

FINDING ON ISSUES 2 AND 3
The issues 2 and 3 canvassed by the Appellant are:
2. Whether the Plaintiffs proved their case by reliance on traditional history?
3. Whether the learned trial Judge entered judgment for the plaintiffs after carefully reviewing and evaluating the evidence adduced by the parties and placing same on an imaginary scale to determine which one outweighed the other as enunciated in MOGAJI v. ODOFIN (1978) 4 S. C. 91?

In answering issue 2, I will have to refer to the locus classicus by the apex Court on the five ways of proving title to land. In D. O. IDUNDUN & ORS v. DANIEL OKUMAGBA (1976) LPELR – 1431 (SC), the apex Court

held, inter alia, as follows:
“As for the law involved, we will like to point out that it is now settled that there are five ways in which ownership of land may be proved… Firstly ownership of land may be proved by traditional evidence as has been done in the case in hand… Secondly, ownership of land may be proven by production of documents of title which must of course be duly authenticated in the sense that their due execution must be proved, unless they are produced from proper custody in circumstances giving rise to the presumption in favour of due execution in the case of documents twenty years old or more at the date of the contract…. Thirdly acts of the person (or persons) claiming the land such as selling, farming on it or on a portion of it, are evidence of ownership provided the acts extend over a sufficient length of time and are numerous and positive enough as to warrant the inference that the person is the true owner… Fourthly, acts of long possession or enjoyment of the land may also be prima facie evidence of ownership of the particular piece or quantity

of land with reference to which such acts are done… Finally, proof of possession of connected or adjacent land, in circumstances rendering it probable that the owner of such connected or adjacent land would, in addition, be the owner of the land in dispute, may also rank as a means of proving ownership of the land in dispute…” Per FATAI-WILLIAMS, JSC.

It is to be noted that each of the five ways stated above suffices to establish title to a land in dispute. See NKADO v. OBIANO (1997) 5 NWLR (pt. 503) 31 at 61. I noted that both the Appellant and respondents pleaded and adduced evidence in support thereof of traditional history to support their respective claims to the land in dispute. The respondents pleaded in paragraphs 4, 5, 6, 7, 8, 9, 10, 11 and 12 of their Further Amended Statement of Claim at pages 81 to 82 of the Records. While the appellant pleaded in paragraphs 4b, c, d, e, f, 5, 8, 11, 13, 14 and 16 of their Amended Statement of Defence at pages 27 – 28 of the Records. However, I note that while the evidence adduced by the respondents as Plaintiffs through their witnesses was cogent and unassailable during

cross-examination of the pleadings and evidence adduced in support thereof by the Appellant contained some contradictions that left a yawning gap that was not filled by the evidence of the said Appellant. For instance in paragraphs 4b, 4c, and 4d the Appellants in tracing their root title to the land in dispute pleaded thus:
4b; “… Oghughuogu land was formally a strip of land at the boundary of Nkitaku and Amatutu Villages. In the past, Nkitaku and Amatutu Villages fought for ownership and possession of the said land.”
4c; “Umuejeaju, Umuojionu and Efele kindred group fought on the side of Nkitaku village against Amatutu village and took possession of the said land which became known as “OGUGHUOGU” as a result of the battles that took place there.”
In paragraph 11, the appellant pleaded, inter alia, thus:
“11 … In answer to the said paragraphs, the defendants aver that originally the land in dispute belonged to Ejeaju … And that on his death all his lands vested on his three children who held them jointly and never shared them in their life time.” (pages 27 – 28 of the Records).

Thus the Appellant pleaded in one breath that the land they are claiming was forcefully confiscated through conquest by their forbears having joined forces with three villages to seize the land by force of arms from the Amatutu village. In another breath, they averred that it was Ejeaju that founded the land. D.W.1 added to the confusion when in his testimony in chief on 6/10/2005 stated thus:
“Nkitaku and Amatutu villages fought a war over this land in dispute called Oghughuogu. Later the land was divided into two. Nkitaku took one and Amatutu took one and Amatutu took the other share…” (pages 258 of the Records).
It is my findings therefore, that the traditional history of the Appellant is contradictory and cannot be relied upon as it is incredible and thus unreliable. In GOYANG KAYILI v. ESLY YILBUK & ORS (2015) LPELR – 24 323 (SC), the Supreme Court held thus:
“The law is well positioned that where there are material contradictions in the evidence adduced by a party, Court is enjoined to reject the entire evidence as it cannot pick and choose which of the conflicting versions to follow. The entire

evidence must be rejected. See MOGAJI v. CADBURY NIGERIA LTD. (1985) 2 NWLR (pt. 2) 393.” Per OGUNBIYI, JSC.
I have considered the pleadings and the evidence adduced by the respondents in paragraphs 4-12 of the testimonies of their witnesses on how the land in dispute was founded by their proginator, Eeaju and how it devolved to the respondents, from Ejaju to Nnaji to Ugba who died without a child. (pages 222, 223, 225 and 226 of the Records is the testimony of P.W1 Mr. Anthony Mojeke). The evidence of P.W3, Herbert Obiefuna of Umuezeada family, a sub family of the Umuejeaju kindred and the Secretary of the said Umuejeaju family (through which appellant claims) at pages 244 – 246 is most illuminating on the traditional history of the respondents. He testified that Umuejeaju family had no communal land and never could have granted any land to the Appellants as they alleged since all the lands of their ancestor, Ejeaju was shared and owned separately by his sons.
Sequel to my finding on traditional evidence by the parties above, it is obvious that the traditional evidence of the respondents was not discredited or controverted during

cross-examination and I so hold. The traditional evidence of the respondents sustained their claim as it was not impeached by the Appellant. The lower Court rightly held that the respondents proved their traditional history in its judgment. I resolve this issue in favour of the respondents.

As for issue 3 canvassed by both parties, it is the trite position of the law that the evaluation of evidence and ascribing probative value to them is the exclusive preserve of the trial Court for the singular reason that it had the privilege of watching the witnesses and their conduct and demeanour in the witness box. The trial Court having heard and watched the witnesses is expected to ascribe probative value to their testimonies and in the final analysis determine between both sides, which testimony weighed heavier. In MR. MOSES BUNGE & ANOR v. THE GOVERNMENT OF RIVERS STATE & ORS (2006) LPELR – 816 (SC), the Supreme Court held thus:
“Generally speaking, an appellate Court does not interfere with the findings of fact made by the trial Court. In LAWAL v. DAWODU (1972) 8-9 SC AT 114 – 115, this Court per COKER JSC observed: In the

evaluation of evidence, we think it is firmly established in our jurisprudence that a Court of Appeal ought not, except in exceptional circumstances, to interfere with what must be considered the outcome of a dispassionate consideration of the evidence by a judge who saw and heard the witnesses given evidence. The ascription of probative values to evidence comes at a later stage of the whole process and it is also established that this is a matter for the Judge who saw and heard those witnesses give evidence..”

The next question to consider is what are the ingredients the trial Court should consider in deciding which among the testimonies of the parties weighed heavier between the two sides? The apex Court provided the answer in the celebrated case of MOGAJI v. ODOFIN (1978) 4 S. C. 1 at 91 when it pronounced thus:
“Therefore in determining which is heavier, the Judge will naturally have regard to the following:
a. Whether the evidence is admissible;
b. Whether the evidence is relevant;
c. Whether the evidence is relevant;
d. Whether it is credible;
e Whether it is more probable than that given by the other party.”

These ingredients are the hallmark in determining whether the judgment by the trial Court is well considered, evaluated and in accord with common sense.
It is my finding on this issue that the judgment by the lower Court which gave rise to this appeal harbours the above quoted ingredients by the apex Court. I answer this issue in the positive that the learned trial Judge entered judgment for the Plaintiffs after carefully evaluating the evidence adduced by the parties and placing same on the imaginary scale of justice to determine which one outweighs the other as held in MOGAJI v. ODOFIN (1978) 4 S. C. 91. I resolve this issue in favour of the respondents.

I will now consider the second issue formulated by the respondents in their brief which is:
Whether the Respondents proved possession of connected and adjacent land in circumstances that Section 35 of the Evidence Act would be activated (Ground 4 of the grounds of appeal).

I have carefully considered the submission by learned counsel to the respondents on this issue. My work is made easier because the Appellant crafted a ground of appeal on this aspect of the judgment

by the lower Court but he did not formulated an issue out of it. However, since the respondents formulated an issue out of ground 4 of the notice of appeal at page 341 of the Records the question that arise in my mind is whether the respondents who did not file a cross appeal or a Respondents Notice of contention pursuant to Order 9 of the Court of Appeal Rules 2016, can formulate an issue from the ground of appeal abandoned by the Appellant? The answer is obviously in the affirmative. In MUSACONI LTD. v. MR. H. ASPINALL (2013) LPELR – 20745 (SC), the apex Court, Per ARIWOOLA JSC held thus:
“Similarly, since the respondent in an appeal is entitle to formulate issues for determination of an appeal and couch same in its own words as long as the said issue so formulated and differently couched from the issue distilled by the Appellant are traceable to and formulated from the Grounds of Appeal filed by the Appellant, the appellate Court can rely on the Respondent’s issues to determine the appeal if they are more succinct and precise than that of the Appellant.”

I have considered the submission by the respondents on this issue,

I also considered the pleadings by the said Respondents in paragraph 7 of their Further Amended Statement of Claim (Pages 2 of the Records) which averred thus:
“The said portion of land now in dispute is not only contiguous to and continues with the entire “Ana be Ugba” of the plaintiffs but in fact forms one, and the same common extensive piece of land.”

I then considered the testimonies of D.W1 James Nwokike (pages 258) and P.W4 who is a boundary neighbor to the land in dispute who testified thus:
“As a boundary neighbor, the Umunnaji (Plaintiffs) are the people who farm on the entire Anabeugba including this small portion in dispute. The Defendant does not farm on the Anabeugba and also the one in dispute.” (Page 247 of the Records)

It is my holding that when a boundary neighbor speaks, particular attention and credibility should be attached to his evidence since he is well placed to give such testimony. See MUDA ANWOYI & ORS v. JOHN BANKOLE SHODEKE & ORS (2006) LPELR – 502 (SC). I also considered the two Survey Plans tendered in evidence by the parties and marked as Exhibit B and C

respectively which showed clearly that the land in dispute is within a larger land owned by the respondents. Section 35 of the Evidence Act provides thus:
“Acts of possession and enjoyment of land may be evidence of ownership of a right of occupancy not only of the particular piece or quantity of land with reference to which such acts are done, but also of other land so situated or connected with it by locality or similarity that what is true as to the one piece of land is likely to be true of the other piece of land.”

Upon a close consideration of the pleadings, evidences adduced in support thereof, particularly that of the boundary neighbor to the land in dispute and Exhibits ‘B’ and ‘C’, it is my holding that this issue is also resolved in favour of the respondents.

Pursuant to my finding on the four issues argued above in favour of the respondents it is the decision of this Court that this appeal lacks merit. It is hereby dismissed. The judgment delivered by the lower Court on 21/10/2009 in Suit No A/55/84 is upheld. The respondents are entitled to cost which I assessed at N100,000 against the

Appellant and the Omenife family of Nkitaku Village Agulu.

CHIOMA EGONDU NWOSU-IHEME, J.C.A.: I have had a preview of the Judgment delivered by my learned brother, B. G. SANGA, JCA.
I agree with the reasons therein advanced to arrive at the final conclusion that this appeal be dismissed.

Accordingly, the Judgment of the Awka division of the High Court of Anambra State in Suit No. A/55/84 delivered on the 21/10/2009 is hereby affirmed.
I abide by the order as to costs made by SANGA, JCA in the lead Judgment.

RITA NOSAKHARE PEMU, J.C.A.: I had read in draft the lead judgment just delivered by my brother BITRUS GYARAZAMA SANGA, JCA.
I agree with his reasoning and conclusion.
I also dismiss the appeal.
I abide by the consequential order made as to costs.

Appearances:

N. CHUKWUMA, ESQ. For Appellant(s)

CHIEF ONYALI, SAN For Respondent(s)