FESTUS EZENWA v. JULIUS EJIKE & ANOR
(2018)LCN/12388(CA)
In The Court of Appeal of Nigeria
On Friday, the 9th day of March, 2018
CA/E/597/2014
RATIO
LAND LAW: WAYS TO PROVE TITLE TO LAND
“It is trite that the plaintiff can establish his title to the land in dispute through any of the five ways, identified in Idundun V Okumagba (1976) 9 – 10 S. C. 227; Piaro V Tenalo (1976) 12 S. C. 31; Fasoro V Beyioku (1988) 2 NWLR (pt. 76) 236. Further see Olugbode V Sangodeyi (1996) 4 SCNJ 1 at 13; Aigbobahi & Ors V Aifuwa & Ors (2006) 2 SCNJ 61 at 70; Nwokidu V Okanu (2010) 1 SCNJ 167 at 195; (2010) 3 NWLR (pt. 1181) 362. The five ways for avoidance of doubt are:
(i) By traditional evidence or
(ii) By production of document(s) of title duly authenticated and executed or
(iii) By acts of ownership over a sufficient length of time numerous and positive enough as to warrant the inference of a true ownership or
(iv) By acts of possession and enjoyment of the land or
(v) By 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.” PER TOM SHAIBU YAKUBU, J.C.A.
LAND LAW: WHERE THERE IS NO DEFINITIVE INDENTITY
“In sum, where a land in dispute enjoys no ‘definitive identity’ as required by law, the plaintiff’s claim for title to declaration to such a land, must fail and be dismissed. Ahwedjo Efetiroroje & Ors v. His Highness Onome Okpalefe II & Ors (1991) 1 SCNJ (pt. 1) 65 at 91 & 95; Alhaji Elias v. Chief Omobare (1982) 5 SC 25; Owuda v. Lawal (1984) 4 SC 145 at 149.” PER TOM SHAIBU YAKUBU, J.C.A.
LAND LAW: WHERE A PARTY RELIES ON TRADITIONAL HISTORY
“In his supportive contributory judgment in Anyafulu v. Meka (supra), Okoro, JSC at page 430 of the report, also restated that:
It is trite that a party seeking for a declaration of title to land, who relies on traditional history as proof of his root of title, must plead same sufficiently. That is to say; he must demonstrate in his pleading the original founder of the land, how he founded the land, the particulars of the intervening owners through whom he claims. Where a party has not given sufficient information in his pleadings as regards the origin or ownership of the land and the line of succession to himself, he has just laid foundation for the failure of his claim.” PER TOM SHAIBU YAKUBU, J.C.A.
JUSTICES
HELEN MORONKEJI OGUNWUMIJU Justice of The Court of Appeal of Nigeria
TOM SHAIBU YAKUBU Justice of The Court of Appeal of Nigeria
MISITURA OMODERE BOLAJI-YUSUFF Justice of The Court of Appeal of Nigeria
Between
FESTUS EZENWA
(For himself and on behalf of Ezenwa Family Ozoalla Village Aguluezechukwu) Appellant(s)
AND
1. JULIUS EJIKE
2. CHIADI EJIKE Respondent(s)
TOM SHAIBU YAKUBU, J.C.A. (Delivering the Leading Judgment):
This appeal is against the decision of the High Court of Anambra State, holden at Ekwulobia, delivered on 16th December, 2013, which dismissed the appellant’s claim.
In the appellant’s amended statement of claim, the following reliefs were prayed for, to wit:
(a) A declaration that the plaintiff is entitled to the customary right of occupancy over the piece or parcel of land called Ngafega Mgboko Ezenwa.
(b) A declaration that the Plaintiff is free under Aguluezechukwu custom to redeem the said land on return of the 7 goats or their monetary equivalent.
(c) An order of the Court permitting the plaintiff to give the seven goats or their monetary equivalent to the Defendant or deposit the money in the Court Registry for him.
(d) A perpetual injunction restraining the Defendant, his agents, privies, servants and associates from trespassing or continuing to trespass into the land now in dispute.
The Appellant’s claim is that the land in dispute which he called ?Ngafega Mgboko Ezenwa belonged to his great grandfather Ezenwa who deforested the land and acquired it absolutely under the native law and custom of Aguluezechukwu. The Appellant stated that the said Ezenwa begot Ezeneke who begot Dimekwulu and Okpalaogu. Dimekwulu as first son of Ezeneke inherited the land in dispute. Dimekwulu begot Onyebuibe and Anim. Onyebube the 1st son of Dimekwulu begot three (3) sons namely, Ezechiedo, Ekwenem and Ezenwa. Ekwenem got the land in dispute and built his obu there. Unfortunately, Ekwenem died without any male issue, and his brother shared his estate wherein Ezenwa the last son of Onyebuibe inherited the land of Ekwenem which land forms part of the land in dispute.
The Appellant further claimed that Ezenwa begot six (6) sons which include, Okeleke (or Okeke), Ezeamama, Ezeakunne, Ezenwankwo, Ezeokoli and Tasie. He stated that Ezenwankwo the 4th son of Ezenwa begot the Appellant who has been mandated by the other members of the Ezenwa family to commence this action.
It is the further contention of the Appellant that his grandfather Ezenwa pledged the land in dispute to one Nwokoye Ndukwe, the grandfather of the Respondents and as a result of the inability of the said Ezenwa to give seven goats to Nwokoye Ndukwe for selling the female goat given to him to husband for the sharing of the offspring. The said land was pledged to Nwokoye Ndukwe to hold same until Ezenwa or his descendants was able to pay for the seven goats as demanded or the monetary equivalent of it. As a mark to show that it was a pledge, the grandfather of the Appellants retained the right to harvest the only oil bean tree (Ukpaka) and one palm tree which he (Ezenwa) gave to his wife Ifeobuna Ezenwa. His said wife and descendants continued to harvest and enjoy this right until the said tree died. He claimed that the stump of the Ukpaka tree can still be found on the land.
The Appellant further claimed ownership of almost all the pieces of the adjoining land around the land in dispute except the portion owned by one Emmanuel Ezenwa and Rev. Patrick Chukwuna. He stated that the family of Ezenwa he was representing exercised rights of ownership and possession over the adjoining lands and granted customary residential rights to people to live on the lands which include people like Edwin Okoli and Isreal Nwafor.
He claimed that they cultivate and harvest crops and economic trees on the said adjoining land near the land in dispute without any interference from anybody including the Respondents. He filed a Survey Plan No. SSC/AN-D/25/2005 depicting the land of the Appellant together with the land in dispute and all the features shown therein. He finally claimed that neither the Respondents nor any members of their family own any land near the land in dispute.
On their part, the Respondents denied the claims of the Appellant in their Statement of Defence which they amended on the 7th October, 2009 wherein they also counter-claimed against the Appellant in the following terms:-
(i) A declaration that the Defendants are the persons duly entitled to the customary right of occupancy over the pieces of land known and called ‘Mgboko be Ekwenem’ both at home and at Agu Ugboagada situate at Eziagu village, Aguluezechukwu, Aguata Local Government Area whose annual rented value is N200 and more properly delineated by Survey Plan No. MU/D14/2007 and MU/D15/2007.
(ii) Possession of this land now in dispute forcibly occupied by the Plaintiff and verged blue in Survey Plan No. MU/D14/2007 and green in MU/D15/2007.
(iii) N1, 000,000.00 (One Million Naira) special and general damages against the Plaintiff for trespass.
(iv) An order of perpetual injunction, restraining the Plaintiff by himself, his agents, servants, privies, assigns, workmen from further trespassing on the defendants’ ‘Mgboko be Ekwenem’ now in dispute both at home and at Agu Ugboagada and or entering, farming, erecting structures thereon or interfering in any way or manner whatsoever with the defendants’ ‘Mgboko be Ekwenem’ both at home and at Agu Ugboagada now in dispute or any other land of Ekwenem not being the person entitled to the estate of Ekwenem.?
The Respondents in their Amended Statement of Defence claimed that they are natives of Ikeakam Kindred in Eziagu Village Aguluezechukwu. They stated that the land in dispute is situate at Eziagu Village, Aguluezechukwu and is known and called ‘Mgboko be Ekwenem’ and ‘Ugboagada’.
The Respondents traced their root to title to the land in dispute from one Ndukwe Senior, the son of Ikechukwu, who they claimed deforested the land in dispute. It is their further claim that Ndukwe senior begat two sons namely Sopurunkwo and Ujagba. After the death of Ndukwe senior, his sons partitioned his estate and Ujagba his second son inherited the land in dispute as his share. Ujagba begat two sons namely, Ekwenem and Ndukwe junior and at his death, his first son Ekwenem lived in his father’s Obi which is part of this land in dispute and gave his younger brother Ndukwe junior land close to the Obi called Aro Agulu all forming part of the land in dispute.
It is the further claim of the Respondents that Ugboagada land was jointly owned by Ikeakam Kindred which Ekwenem was using. They stated that the Ugboagada land was originally deforested by their ancestor Ikeakam and after his death, the entire Umuikeakam of Eziagu Village inherited the land.
It is their further claim that when Arochukwu people started encroaching into Aguluezechukwu land, Ndukwe jnr. left his ‘Ana Obi’ which is part of the land in dispute and relocated to Umuehi for fear of being killed by Aro people. They said that Ndukwe jnr. begat Nwokoye and Okeke and Okeke did not beget any child hence Nwokoye inherited Ndukwe Jnr.’s land including the ones in dispute as the only surviving son. Nwokoye on the other hand begat three sons namely, Ejikeme, Okoli and Nwankwo. Okoli and Nwankwo died without any issue hence Ejikeme inherited the entire land of Nwokoye. Ejikeme begat the 1st Respondent and Onwuha who died as a school child leaving the entire land of Ejikeme to the 1st Respondent who begat Chiadi (the 2nd Respondent), Ikechukwu, Emeka, Okisa and Kenechukwu.
The Respondents finally contended that there was never any pledge of land between the Appellant’s ancestors and the Respondent’s ancestor and that there was nothing like offering of redemption money to them by the Appellant. They denied that Ekwenem the brother of their ancestor Ndukwe Jnr. was not related to the Appellants. They further denied that the people of Ozalla of the Appellants village have no land in Eziagu village except those that bought land around the land in dispute.
The Appellant on the 28th of October, 2009 filed a Reply to the Statement of Defence and counter-claim of the Respondent and denied the genealogy of the Respondents and insisted that Ekwenem was one of the sons of Onyebuibe, the ancestor of the Appellants. Issues were joined by the parties. The parties and their witnesses in compliance with the Anambra State High Court Rules filed their witnesses’ Depositions on Oath.
At the trial, the Appellant testified and called two (2) other witnesses while the Respondent testified and called five (5) other witnesses. After the conclusion of the hearing, counsel to the respective parties filed their Final Written Addresses which they adopted in substantiation of their claims.
The trial Court on the 16th day of December, 2013 delivered its judgment and dismissed the Appellant’s claims and granted the Respondents’ counter-claim relating to the land known and called ‘Mgboko be Ekwenem’ and struck out the counter-claim over the land known as and called ‘Ugboagada’ for being incompetent.
The Appellant being dissatisfied with the said judgment of the trial Court appealed to this Court anchored on the Notice of Appeal containing six (6) grounds of appeal.
The appellant in prosecuting the appeal, filed the appellant’s brief of argument on 26th June, 2015 and the same was deemed as properly filed and served on 5th April, 2017.
The respondents’ brief of argument was filed on 9th May, 2016. The appellant’s reply on points of law was filed on 16th June, 2016.
In the appellant’s brief of argument prepared by G. C. Enekwechi, Esq., four issues were nominated for the determination of the appeal, to wit:
(i) Whether, judging from the pleadings and totality of the evidence proffered at the trial, the Court below was right in the findings he arrived at, particularly by allowing incompetent and hearsay evidence to influence its decision? (Grounds I and II).
(ii) Whether it was right for the trial Court to say that the traditional history of the Respondents to the land in dispute is preferred than that of the Plaintiff/Appellant that is with gap and broken and also failed to called his customary tenants (Grounds II and IV).
(iii) Whether the contradictions in the evidence of the Respondents’ witnesses were not enough for their counter-claim in respect of the land they termed ‘Mgboko be Ekwenem’ to be dismissed. (Ground V).
(iv) Whether the trial Court properly considered and evaluated the evidence tendered by the parties before arriving at its judgment? (Ground IV).
On their part, in the respondents’ brief of argument settled by O. J. Enemuoh, Esq., four issues were also suggested for the determination of the appeal. They are, namely:
1. Whether having regard to the totality of evidence placed before the Court below, the Court below was right in dismissing the Appellants case and granting part of the respondent’s relief as per the respondent’s counter claim.
2. Whether having regard to the nature and circumstance of this case, the evidence of traditional history given by the 2nd respondent can rightly be regarded as hearsay evidence.
3. Whether the standard of proof required in a civil matter is that beyond reasonable doubt.
4. Whether the trial Court properly evaluated the pieces of evidence tendered by the parties before arriving at its decision and/or whether there is any omission or commission in the judgment of the Court below that resulted in miscarriage of justice.
I have noticed that the four issues a piece, nominated by the parties are virtually the same. I have elected to adopt the four issues identified by the appellant, in my consideration and determination of this appeal. I shall consider issues 1, 2 and 4 together and thereafter consider issue 3 separately.
Issue 1, 2 and 4
A resum of the contentions of the appellant on these issues is that the learned trial judge did not properly evaluate the pieces of evidence proffered and placed before him and that the appellant’s traditional history evidence regarding the land in dispute was satisfactory to the extent that no gap or lacuna existed in the line of succession of the devolution of the land in dispute from their ancestor Ezenwa to the appellant. It was also contended by the appellant that the learned trial judge ought not to have placed reliance on the evidence of the DW2 who denied his signature on the Written Statement on Oath at pages 269 to 271 vis-a-vis page 376 of the record of appeal. The appellant also contended that the evidence of the 2nd respondent which the learned trial judge, relied upon was hearsay evidence and was therefore inadmissible in evidence.
In his responses to the contentions of the appellant, learned respondents’ counsel submitted that the appellant who had the onus of proving his claim of a declaration to the land in dispute, failed to discharge that onus and that the learned trial judge properly evaluated the pieces of evidence tendered and placed before him, before arriving at his decision, of dismissing the appellant’s action. He furthermore, submitted that the appellant’s traditional history evidence was full of gaps and was unreliable for it to have been believed by the learned trial judge, who rightly rejected it and preferred the respondents’ traditional history evidence. The respondents’ counsel also submitted that the appellant failed to prove the identity and location of the land in dispute, upon which issues were joined by the parties, in their pleadings. With respect to the 2nd respondent’s evidence, he submitted that in proffering evidence and relying on traditional history, the rule of hearsay evidence, is inapplicable.
Resolution:
The claim of the appellant, reproduced at the onset of this judgment is essentially for declaratory and injunctive reliefs.
The law has remained well settled that in an action for a declaration of title to land, the plaintiff has the duty of establishing to the satisfaction of the Court, how he came into possession of the land in dispute. In doing this, the plaintiff, in his pleadings must aver and state the circumstances which brought him to the land, that is, stating how he possessed the land in dispute, either through grant, sale, inheritance, settlement or conquest. Furthermore, the plaintiff has the obligation to lead evidence on hard facts to establish his title to the land before he can succeed in a claim for a declaration of title to such a land.
It is trite that the plaintiff can establish his title to the land in dispute through any of the five ways, identified in Idundun V Okumagba (1976) 9 – 10 S. C. 227; Piaro V Tenalo (1976) 12 S. C. 31; Fasoro V Beyioku (1988) 2 NWLR (pt. 76) 236. Further see Olugbode V Sangodeyi (1996) 4 SCNJ 1 at 13; Aigbobahi & Ors V Aifuwa & Ors (2006) 2 SCNJ 61 at 70; Nwokidu V Okanu (2010) 1 SCNJ 167 at 195; (2010) 3 NWLR (pt. 1181) 362. The five ways for avoidance of doubt are:
(i) By traditional evidence or
(ii) By production of document(s) of title duly authenticated and executed or
(iii) By acts of ownership over a sufficient length of time numerous and positive enough as to warrant the inference of a true ownership or
(iv) By acts of possession and enjoyment of the land or
(v) By 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.
The law is firmly settled that: “The first duty of a plaintiff who comes to Court to claim a declaration of title is to show the Court clearly the area of land to which his claim relates. (see Akinolu Baruwa V Ogunshola & Ors. 4 WACA 159). It is also trite law that before a declaration of title is granted, the land it relates must be identified with certainty (see Udofia V Affia 6 W.A.C.A. 216 at Kwadzo V Adjei 10 W.A.C.A. 274) 76 if it is not so ascertained, the claim must fail and it must be dismissed (see Oluwi V Eniola (1967) N.M.L.R. page 399″ per Fatayi – Williams, JSC (as he then was) in Okosun Epi & Anor V. Johnny Aigbedion (1972) LPELR 1151 (SC) at page 8; (1972) All N.L.R. 805; (1972) 10 SC 45. Further see Olufosoye & Ors V Olorunfemi (1989) LPELR 2615 (SC) (1989) 1 SC (pt. 1) 29.
The same principle was restated by the apex Court in Odiche V Chibogwu (1994) 7 ? 8 SCNJ 317 at 323; to wit:
In a claim for a declaration of ownership or exclusive possession of a piece of land, the first and foremost duty of the claimant is to describe the land in dispute with such reasonable degree of certainty and accuracy that its identity will no longer be in doubt:-
(i) The boundaries of the area and location of the land he is claiming;
(ii) His neighbours and their names on all sides of the boundaries. Where some of the boundaries are marked by rivers, stream or road should be named;
(iii) Any other physical features on the land like rock, buildings, trees, etc, that may assist in its identification.
Unarguably, this is so because:
It cannot be over-emphasized that before a declaration can be granted, the area of land to which it relates must be ascertained with certainty and precision, the test being whether a surveyor can from the record produce an accurate plan of such land. SeeKwadzo v. Adjei (1944) 10 WACA 274; Udekwu Amata v. Modekwe 14 WACA 580 and Ezeokeke v. Umunocha Uga and Ors (1962) 1 All NLR (pt. 3) 482. per Iguh, JSC, in Ugbo v. Aburime (1994) LPELR 3314 (SC) at P. 15; (1994) 9 SCNJ 23.
Therefore, a declaration of title to land cannot be made in respect of an unidentified land. Further see: Eigbejale v. Oke & Ors (1996) 5 NWLR (pt. 447) 128; (1996) LPELR 1057 (SC); Olusanmi v. Oshasona (1992) 6 SCNJ 282; (1992) LPELR 2629 (SC); (1992) 2 NWLR (pt. 245) 22.
So also, being an equitable relief, a declaration can be granted or denied subject to credible evidence led and proffered by the claimant to the satisfaction and discretion of the Court. Tukuru & Ors v. Sabi & Ors (2013) 3 SCNJ 212; Edozien v. Edozien (1998) 13 NWLR (pt. 580) 133 at 147 – 148.
In the appellant’s amended statement of claim, he averred at paragraphs 3, 4, 5, 6, 7, 8 and 9 as follows:
3. The land, the subject of dispute is in Ozalla Village, Aguluezechukwu and known as Ngafege Mgboko Ezenwa.
4. The said land is the land of the plaintiff being land inherited from their father, Onyebuibe who has since died.
5. The land was originally acquired by Ezenwa who was the first man to deforest the land and so acquired same absolutely under native law and custom of Aguluezechukwu.
6. Ezenwa, begat many sons whom he shares his lands and Ezeneke got the pieces of land in dispute. Ezeneke had 2 sons, Dimekwulu and Okpalaogu. Dimekwulu, the 1st son got the lands in dispute.
7. Dimekwulu begat Onyebuibe (1st son) and Anim. Onyebuibe begat 3 sons namely Ezechiedo, Ekwenem and Ezenwa (the 2nd) who later shared their father’s estate. Onyebuibe got the land in dispute. He also got other pieces of land.
8. Each of these succeeding sons who inherited his father’s lands including the land in dispute also cultivated, planted on and harvested from the land in dispute amongst others, without let or hindrance from any body including the defendant or his ancestors.
9. Onyebuibe had 3 sons, namely Ezechiedu, Ekwenem and Ezenwa. Ekwenem got the land in dispute and built his Obu there. When Ekwenem died without male issue his brothers shared his lands and Ezenwa got his Obu which the land in dispute form part of.
The respondents, at paragraph 2 of their amended statement of defence, averred that:
2. The defendants deny paragraphs 2 and 3 of the statement of claim and will at the trial put the plaintiffs to their strictest proof. In further answer to the said paragraphs the defendants state that:
a. the defendants state that he is a native of Ihuowelle quarter precisely from Ikeakam kindred in Ezeiagu village Aguluezechukwu but resides at Uhuehi Village Aguluezechukwu.
b. The land the subject matter of this suit is situate at Eziagu village Aguluezechukwu and is known as and called ‘Mgboko be Ekwenem’ and Ugbagada.
It is clearly manifest from the pleadings of the parties reproduced above, that whereas, the appellant averred that the land in dispute is in Ozalla Village, Aguluezechukwu and known as ‘Ngafega Mgboko Ezenwa’, the respondents averred that the land in dispute is situate at Eziagu Village Aguluezechukwu and is known as and called ‘Mgboko be Ekwenem’ and Ugbagada. Hence, it is glaring that the parties had joined issues on their pleadings with respect to the identity and location of the land in dispute.
The learned trial judge, in his opinion as expressed in his judgment with respect to the identity of the land in dispute had found, at pages 419 to 420 of the record of appeal, thus:
‘Plaintiffs in this case in paragraph 3 of their Amended Statement of Claim filed 17/10/07 claimed that the land in dispute is situate in Ozalla village, Aguluezechukwu and known as Ngafege Mgboko Ezenwa. In the statement on oath of 17/10/2007 which PW1 adopted as his evidence-in-chief on 27/2/09 PW1 testified that the land in dispute is shown verged red in plan No. SSC/AN-D/25/2007 made on 15/2/2007. The plaintiffs in prove of their case tendered the said Survey Plan as Exhibit A
Upon examination of Exhibit A by this Court, this Court found that Exhibit A which is the plaintiff’s plan states that the land in dispute is located or situate at Umuochukwu village Aguluezechukwu.
It is found that the defendants in paragraph 2(b) of their Amended Statement of Defence joined issue with the plaintiff and claimed that the land is located at Eziagu village Aguluezechukwu.
Being that the parties joined issues on the location of the land in dispute, the plaintiff by law is bound to prove the location of the land as pleaded. See Idehen v. Osemwenkhae (1997) NWLR 10 (pt. 525) 358.
Being that Survey Plans are part of pleadings, there is therefore conflict in the pleadings of the plaintiff when he claimed in the said statement of claim that the land is situate at Ozalla village but went on in his survey plan Exhibit A to plead that it is located Umuchukwu village and there is no effort by the plaintiff in his pleadings to reconcile such conflict.
Conflicts in pleadings, knowing that evidence led not arising from pleadings goes to no issue, must therefore be resolved or explained by way of pleadings. The above state of pleadings of the plaintiff left the plaintiff?s case as to the exact location of the land in dispute without proof.
I have no difficulty at all in agreeing with the findings of the learned trial judge, which to my mind is unimpeachable and unassailable.
The law needs to be restated again, that it is the appellant who approached the Court below, seeking a declaration to the title of the parcel of land called Ngafega Mgboko Ezenwa, in question, who had the burden to establish with certainty and clarity, the size, dimensions and location of the said land, to the satisfaction of the Court before a declaration to it, could be made in his favour. That is why it was held that
‘… the burden of establishing a case based on a declaration rest more on the plaintiff whose evidence must be convincing, positive, affirmative and unequivocal in support of his case. Such evidence must be in accordance with his pleadings” per Adekeye J. S. C., in Arowolo v. Olowokere (2011) 18 NWLR (pt. 1278) 280 at 304. Further See: Uchendu v. Ogboni (1999) 5 NWLR (pt. 603) 337; Owoade v. Omitola (1988) 2 NWLR (pt. 77) 413.
Furthermore, in Benedict Otanma v. Kingdom Youdubagha (2006) 1 SCNJ 94; (2006) 10 WRN 1 at 22, the Supreme Court again restated the principle with respect to establishment of the identity of a land in dispute in a claim for a Declaration to title to land, thus:
“The law is well settled that: in an action for declaration of title to land, the onus is on the plaintiff to establish with certainty, the identity of the land in dispute to which his claim relates. The name or etymology of a piece of land is not necessary indicative of its identity. In a claim for declaration of title to land, the first and foremost duty on the claimant is to describe the land in dispute with such reasonable degree of certainty and precision that its identity will no longer be in doubt, in other words, the land must be identified positively and without any ambiguity.”
It is glaringly clear that in the instant case, the appellant’s averment at paragraph 3 of the statement of claim, was no more than pleading the name or etymology and location of the land in dispute. It is to my mind, a half measure averment. The appellant could have done better by describing the land and showing the area/size and dimensions/boundaries of it and follow it up with filing a survey plan, showing the same area/size and dimension/boundaries thereof. Odunze & Ors v. Nwosu & Anor (2007) 5 SCNJ 204; (2007) 50 WRN 71.
It is instructive to say that the essentiality of a survey plan in a situation such as it was in the instant case, is to ensure that if the claim for a declaration of title to land was to succeed and an injunctive relief was to be granted and issued against the defendants/respondents, such an injunction must be targeted at an identified land, with precision. The reason is not farfetched. His Lordship, Oputa, JSC in Olufosoye v. Olorunfemi (1989) 1 S. C. (pt. 1) 29; (1989) LPELR 2615 (SC) at pg. 19, succinctly stated that:
“The reason for insisting on accurate plans is simply to enable the parties and other persons claiming through them to know precisely the area of land to which the judgment and orders relate:- Maberi v. Alade (1987) 2 NWLR (pt. 55) 101 at 106. Enforcement of a judgment and an order of injunction based on inaccurate plans will create difficulties, untold difficulties.”
Also see: Marcus Ukaegbu & Ors v. Mark Nwololo (2009) 1 SCNJ 49; (2009) LPELR 3337 (SC); Salami v. Oke (1987) 9 – 10 SCNJ 27; (1989) 4 NWLR (pt. 63) 1 at 17; Carpenter v. Adutor 8 WACA 76; Amadu Rufai v. Ricketts & Ors 2 WACA 95.
In sum, where a land in dispute enjoys no ‘definitive identity’ as required by law, the plaintiff’s claim for title to declaration to such a land, must fail and be dismissed. Ahwedjo Efetiroroje & Ors v. His Highness Onome Okpalefe II & Ors (1991) 1 SCNJ (pt. 1) 65 at 91 & 95; Alhaji Elias v. Chief Omobare (1982) 5 SC 25; Owuda v. Lawal (1984) 4 SC 145 at 149.
I have perused the pleadings and the case made at the trial Court by the appellant and it is clear to me that their claim was squarely premised on traditional history with respect to their connection to and descent from their ancestor called Ezenwa. It must be borne in mind that for the appellant to succeed in a claim for a declaration of title to land, predicated on traditional history, he must plead in his statement of claim and lead evidence in Court, showing the names and histories of his ancestors in such a manner as to disclose a continuous chain of devolution from one generation to the other until the land finally devolved on him. Akinloye & Anor v. Eyiyola & Ors. (1968) NMLR 92 at 95 (SC); Total Nig. Ltd. v. Nwako (1978) 5 SC 1 at 12; Elias v. Omobare (1982) 5 SC 25 at 57 – 58.
Furthermore, it is incumbent on a claimant, such as the appellant herein, to plead and establish how his ancestor said to be Ezenwa founded the land in dispute, whether by conquest, uncontradicted and conclusive, for him to succeed in obtaining the Court’s declaration in his favour. Iseogbekun & Anor. V. Adelakun & Ors (2012) 4 SCNJ 100; Nruamah & Ors v. Ebuzoeme & Ors. (2013) 1 SCNJ (pt. 1) 128; Alli v. Alesinloye (2000) 4 SCNJ 264 at 284; Piaro v. Tenalo (1976) 1 All NLR 229 at 234.
In Eze & Ors v. Atasie & Ors (2000) 6 S.C. (pt. 1) 214 at 220, the apex Court, succinctly stated, inter alia:
“To establish traditional history of land relied on as root of title, a plaintiff must plead the name of the founder and others after him upon whom the land devolved to the last successor(s) and lead evidence in support without leaving gaps or creating mysterious or embarrassing linkages which have not been and cannot be explained. In other words, the devolution i.e. naming them one by one and the evidence in support must be reliable being credible or possible otherwise the claim for title will fail.”
Further see Nwokorobia v. Nwogu (2009) 50 WRN 1 at 20 & 24; Iroagbara v. Ufomadu (2009) 30 WRN 1 at 15.
The law has remained well settled and become so notorious to the effect that, in an action for declaration of title to land, where the plaintiff/claimant places reliance on traditional history, in order to proof such title to land, he must plead his root of title, showing clearly the original founder of the land, how that original founder founded the land and specifying the intervening owners of the land upon whom the land devolved from the original founder of the land, before the same land devolved on him, as the current owner thereof. The chain of descent in the genealogical tree must be continuous and unbroken. There is a plethora of decided authorities by the Supreme Court on this well established principle of law that a recap of a few of them should suffice. For example, in Eze v. Atasie (2000) 10 NWLR (Pt. 676) 470 at 485 – 486, his Lordship, Katsina-Alu, JSC (as he then was) succinctly reiterated the law, to the effect that:
“For the plaintiffs to succeed on the state of pleadings, they must satisfy the Court by credible evidence as to the origin and devolution of the title in respect of the land in dispute down to themselves.”
This is a well settled principle of law. This Court in Alhaji Elias v. Omo-Bare (1982) 5 SC per Obaseki, JSC restated the principle as follows:
“This Court has not spared its breath of recent and at least in the past 10 years in all appeals on land matter involving a claim for declaration of title to restate the principle of law that for a plaintiff describing and identifying the land with certainty as well as credible evidence establishing the origin and devolution of the title down to the plaintiff, where the evidence is unsatisfactory as to the description and identity of the land or as to the origin and devolution of title as has been the case in this appeal, the claim must fail.”
So, a party relying on evidence of traditional history must plead his root of title. Not only that he must show in his pleadings who those ancestors of his were and how they came to own and possess the land and eventually pass it to him. In the case in hand paragraph 7 wherein the plaintiffs pleaded devolution of title is scanty and unsatisfactory.
The averment in paragraph 7 did not state how many children Ololo had, if any, it did not state the link between the alleged Ololo and the alleged family heads including the plaintiff. Clearly therefore the line of succession was not traced.
So also, in Alli v. Alesinloye (2000) 4 SCNJ 264 at 284, the Supreme Court again stipulated copiously that a plaintiff who claims title to land vide traditional history, especially through an act of first settlement, must plead and in evidence, establish the following facts namely:
(1) The founding of the land, that is how it was founded;
(2) The person who founded it;
(3) The person(s) who exercised original acts of ownership over the land and
(4) The persons who had held title or on whom title had devolved in respect of the land since its founding, before the plaintiff acquired control of the land.
And more recently in Anyafulu v. Meka (2014) 7 NWLR (Pt. 1406) 393 at 419, the apex Court, per Akaahs, JSC, re-echoed the same principle, to wit:
‘As the defendants’ line of descent from Ademe to themselves challenged the traditional history of the plaintiffs were duty bound to plead their line of descent from Abua to themselves in order to show:
(a) The persons who have held title or on whom title devolved in respect of the land since the founding to the present day.
(b) That the line of descent by inheritance as pleaded and testified to by the defendants is wrong.
The consequence of not establishing a line of descent from Abua to the present plaintiffs is that they have failed to establish their link as a community with Abua and the land in dispute. There is no burden of proof placed on the defendants since they did not counter claim for declaration of title. The burden of proof remained with the plaintiffs who were bound to fail if no evidence was adduced on either side.
In his supportive contributory judgment in Anyafulu v. Meka (supra), Okoro, JSC at page 430 of the report, also restated that:
It is trite that a party seeking for a declaration of title to land, who relies on traditional history as proof of his root of title, must plead same sufficiently. That is to say; he must demonstrate in his pleading the original founder of the land, how he founded the land, the particulars of the intervening owners through whom he claims. Where a party has not given sufficient information in his pleadings as regards the origin or ownership of the land and the line of succession to himself, he has just laid foundation for the failure of his claim.
Further see: A. M. Akinloye & Anor v. Bello Eyiyola & Ors (1968) N. M. L. R. 92 at 95; Total (Nig) Ltd v. Wilfred Nwako (1978) 5 SC 1 pt. 12; Aikhionbare & Ors v. Omoregie & Ors (1976) 12 SC 27; Balogun v. Akanji (1988) 1 NWLR (pt. 70) 301 at 323; Ndukuba & Anor v. Nwankwo & Ors (2016) LPELR 40937 (CA). Therefore, a party who relies on traditional history to assert ownership of a land in dispute must plead the names and history of his ancestors/forebears in such a manner as to disclose a continuous chain of devolution and if this is not done, no evidence can be led and entertained to establish such traditional history.
The appellant at paragraphs 5, 6, 7, 8 and 9 of his amended statement of claim, reproduced earlier in this judgment, averred the genealogical tree of his family and in his written statement on oath recapitulated the same averments in the amended statement of claim. It can be deduced from the pleadings and evidence proffered by the appellant that the land he was claiming was founded by Ezenwa by deforestation. Thereafter, Ezenwa passed it on to Ezeneke and from him to Dimekwulu. From the latter, the land passed on to Onyebuibe and then to Ekwenem, from whom it passed on to Ezenwa.
The said Ezenwa was said to have begotten six sons including Okeleke (or Okeke), Ezeamama, Ezeakunne, Ezenwankwo, Ezeokoli and Tasie. However, there is no iota of evidence nor from the averments at paragraphs 5, 6, 7, 8 and 9 of the amended statement of claim as to who amongst the sons of Ezenwa, upon whom the land devolved from Ezenwa. This is a gap or lacuna at the peril of the appellant’s claim.
Therefore, it remains inexplicable as to how the land in question devolved on the appellant himself. And on that alone, the traditional history evidence projected by the appellant became unreliable and unacceptable. Indeed, it was rightly rejected by the learned trial judge.
The appellant’s counsel made a heavy weather with respect to the evidence of the 2nd respondent, to the effect that it was hearsay evidence and so it was inadmissible in evidence. Suffice it to say that in declaration of title to land actions, predicated and fought upon traditional history evidence, most of the witnesses for both parties, recount stories of the acquisition of the land in dispute, as told to them by their forebears. Therefore, most of the witnesses have no first hand information to give in respect of the acquisition of such land by their forebears.
There is need to reiterate the principle enunciated in Kojo II v. Bonsie with respect to proof of title to land on the basis of traditional history evidence. It was graciously explained by Adekeye, JSC in Nwokidu & Ors v. Okanu & Anor (2010) 1 SCNJ 167 at 196, inter alia:
“In the scenario before the Court where the case is fought on evidence of traditional history – which in other words becomes a matter of hearsay upon hearsay which is the nature of traditional evidence, the trial Court in its traditional role of an umpire has a duty to examine the evidence of the parties and come to the conclusion which is more probable in the circumstances of the case, by testing it against the other evidence. Where witnesses of one party contradict each other on the traditional history relied upon the trial Court will be right to reject the traditional history. If the evidence adduced on one side is supportive of the traditional history relied on by the other side, the trial Court will be right in accepting the traditional history. It is only when it can neither find any of the two histories probable nor conclusive that he will declare both inconclusive and proceed to decide the case on numerous and positive acts of possession and ownership.”
Further see Matanmi v. Dada (2013) 2 SCNJ 816 at 832 where his Lordship Fabiyi, JSC., re-echoed the apex Court?s position inter alia:
“What then is the Rule in Kojo II v. Bonsie? The Rule which has stood the test of time for quite sometimes now is that where traditional evidence proffered by the parties are inconclusive, the Court is enjoined to take into consideration facts in recent times given by the parties in order to determine which of the traditional evidence is more probable. To resort to the rule, the traditional evidence of the parties must be capable of being believed but that since the two are competing, a Court cannot prefer one to the other. Rather, it is enjoined to look out for further facts in recent times to see which of the traditional history is more probable.
The finding of the trial judge that, there is no cogent evidence of tradition to prove the claim for declaration of title put steam out of the plaintiffs’ case. The Court below felt that the trial Court was right in the position taken by it. With respect, the Court below was wrong. Indeed, the two Courts below erred. The evidence of the plaintiffs that was rejected by the trial Court had no chance of being tested under the Rule in Kojo II v. Bonsie (supra). The application of the Rule in the prevailing circumstance is not apt.?
The evidence of traditional history is essentially, a sort of evidence premised on the story of how a parcel of land was acquired by the forebears/progenitors of the parties, as recounted to them by their own fathers. The stories could be true or false. Yet, the parties believe them, nevertheless. Hence either party could be honestly telling the truth. Or even telling lies. However, where such evidence of traditional history, either of conquest, first settlement, inheritance or grant is satisfactorily placed before the Court and it is believed and accepted, title to the land in dispute can be declared for the claimant/plaintiff. Alli v. Alesinloye (supra); Odofin v. Ayoola (1984) 11 S.C. 72.
However, where there is conflict in the traditional history evidence put forward by the parties, a trial judge by employing the principle in Kojo II v. Bonsie (supra) then resort to determining the probable traditional history between the two traditional histories projected by the parties, by reference to recent acts in recent years evidencing who has been in possession of the land. In the instant case, the appellant’s traditional history projected by them was yet to get up, such that the question of it being in conflict with that of the respondents, did not arise. That is, the traditional history evidence proffered by the appellant was not credible for it to be pitched against that of the respondents, in order to determine which of them is plausible and probable.
This Court in Amuda v. Ajobo (1995) 7 NWLR (pt. 406) 170 at 180 – 181, per his Lordship, Oguntade JCA (as he then was) succinctly stated, thus:
“A conflict arises when the traditional history given in evidence by the plaintiff and which was unchallenged by the evidence of the defendants, is capable of showing clearly the source of title relied upon by the plaintiffs is set against the traditional history given in evidence by the defendant and which unchallenged by the plaintiffs is capable of showing clearly the source of title relied upon by the defendants. In the instant case, the plaintiffs? evidence of traditional history would on its own have failed to show that Oderinlo granted the land in dispute to plaintiffs? ancestor even if the defendants had not set up any traditional history of their own. The question of a conflict between the two traditional histories given by the parties did not arise at all. It was only in the event of the plaintiffs showing that Oderinlo granted the land in dispute to their ancestor that it could be said that they put before the lower Court evidence of traditional history which could be pitched against the traditional history of the defendants to determine if there was a conflict between both. The trial judge should have held that the plaintiffs’ evidence of traditional history in respect of the grant of the land in dispute by Oderinlo to plaintiffs’ ancestor was nebulous and insufficient. This would have led to the dismissal of plaintiff?s claim for declaration of title.”
My Lords, the above position of the law was more recently reiterated by the apex Court in Matanmi v. Dada (supra) at page 631, per Fabiyi, JSC, to wit:
“I need to emphasize the point here that the position of law on the effect of rejection of traditional evidence is as stated by this Court in Odofin v. Ayoola (1984) 11 SC 72 at 106; (1984) NSCC (vol. 15) 711 at 720 per Karibi-Whyte, JSC 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 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.”
It is against the backdrop of the decisions of this Court in Amuda v. Ajobo (supra) and that of the Supreme Court in Matanmi v. Dada (supra) that I have come to the considered opinion that since the appellant’s traditional history evidence was yet to get up, it was unreliable and unbelievable. Therefore, there was no foundational evidence upon which to predicate traditional evidence proffered by the appellant, which was rightly rejected by the trial judge.
In the end, the appellant’s claim, merited a dismissal, since it was not proved. Therefore, I resolve issues 1, 2 and 4 against the appellant.
Issue 3, deals essentially, with the respondents’ counter- claim. The law is well settled to the effect that a counter-claim is a separate and independent action from the main claim. It is more of a cross-action by a defendant against the plaintiff in the main action. And because it is a distinct action on its own, it must be proved, just the same way and manner that the main action must be proved by the plaintiff therein. Oragbade v. Onituju (1962) 1 All NLR 33 at 36; Ogli Oko Memorial Farms Ltd & Anor v. Nigerian Agricultural and Cooperative Bank Ltd & Anor (2008) 12 NWLR (pt. 1098) 412 at 428. Therefore, the counter-claim which turns the defendant in the main action, to a plaintiff in the counter-claim, must be proved on a preponderance of evidence by the counter-claimant. It must never be assumed that the failure of the main action, necessarily and automatically translates to the success of the counter-claim or that the success of the main action, perforce spell doom for the counter-claim.Chief Adison Onyia & Ors v. Chief Godwin & Ors (2009) LPELR 8508 (CA); Clement Abayomi Onitiju v. Lekki Concession Co. Ltd (2016) LPELR 40564 (CA).
The respondents’ counter-claim is at page 250 of the record of appeal, wherein he prayed for:
(i) A declaration that the defendants are the person duly entitled to the customary right of occupancy over that pieces or parcels of land known as and called ‘Mgboko be Ekwenem’ both at home and at Agu Ugboagada situate at Eziagu village Aguluezechukwu Aguata Local Government Area whose annual rental value is N200 and more properly delineated by survey plan Nos. MU/D14/2007 and MU/D15/2007.
(ii) Possession of this land now in dispute forcibly occupies by the plaintiffs and verged blue in survey plan No. MU/D/14/2007 and green in MU/D15/2007.
(iii) N1,000,000.00 (One Million Naira) special and general damages against the plaintiffs for trespass.
(iv) An order of perpetual injunction restraining the plaintiff by himself, his agents, servants, privies, assigns, workmen from further trespassing on the defendants’ ‘Mgboko be Ekwenem’ now in dispute both at home and at Agu Ugboagada and or entering, farming erecting structures thereon or interfering in any way or manner whatsoever with the defendants’ ‘Mgboko be Ekwenem’ both at home and at Agu Ugboagada now in dispute or any other land of Ekwenem not being the persons entitled to the estate of Ekwenem.
The learned trial judge having evaluated the pieces of evidence placed before him, found at pages 423 – 424, that:
“The case of the defendant, to this was further reinforced by the evidence of DW4 who the plaintiff by his dispute survey plan also claimed was granted land adjoining the land in dispute in that Exhibit A.
DW4 testified that defendant’s father Ejikeme Nwokoye was the one that granted his father Israel Nwafor where he resided and still reside till today and even went further to confirm that he still performs customary right of ‘Iwochi Ana Ife na Onu’ for the defendant which is the custom of Aguluezechukwu.
To this Court, the evidence of the defendants that they are owners of adjoining land to the land in dispute as against that of the plaintiffs which is not supported by any evidence or witness is more credible and believed by this Court.
The finding is borne out of the evidence on the pleadings of the respondents at paragraph 11(ii) & (iii) of the amended statement of defence to the effect that 1st defendant/1st respondent?s father granted some adjoining lands to Lazarus Kanu, Israel Nwafor and Okoli Okeke also known as Ukata. The deposition on oath of Patrick Nwafor at page 204 of the record of appeal, is to the effect that he is a son of Israel Nwafor whom the respondents referred to in paragraph 11(ii) and (iii) of the amended statement of defence, as their customary tenant.
DW4 is the said Patrick Nwafor, the son of Isreal Nwafor. DW4 was cross-examined extensively at pages 384 – 387 of the record of appeal. His evidence remained unshaken and uncontradicted. I am in agreement with the learned trial judge in his conclusion that the evidence of DW4 added more prosperity to the respondents’ claim. Furthermore, the respondents’ Survey Plan No. MU/D14/2012 in respect of the land known as ‘Mgboko be Ekwenem’, was properly evaluated by the learned trial judge and it added a plus to the respondents’ counter-claim. Therefore, I resolve issue 3 against the appellant and in favour of the respondents.
Having resolved all the issues analysed in this appeal against the appellant, the appeal is doomed to fail. It is accordingly dismissed.
Consequently, the judgment of A. O. Okuma, J., in re-Suit No. AG/128/2006 delivered on 16th December, 2013 is affirmed.
The costs of this appeal is fixed at N100,00.00 only against the appellant, in favour of the respondents.
HELEN MORONKEJI OGUNWUMIJU, J.C.A.: I have seen the judgment just delivered by my learned brother TOM SHAIBU YAKUBU JCA. I agree with the exhaustive and erudite opinion that this appeal has no merit and it should be dismissed. I have to add that not only did the Appellant as Plaintiff not prove title to the land in dispute but the Appellant did not fully support by copious and believable evidence their exclusive ownership of the land in dispute to grant their claim. Whereas the Respondent was able to prove the counter claim to wit that they were the persons duly entitled to the customary right of occupancy over the land in dispute. The appeal is unsuccessful and should be dismissed and it is hereby so dismissed. I affirm the judgment of the learned trial judge in suit No. AG/128/2006 delivered on 16/12/13. I also abide by the order as to costs.
MISITURA OMODERE BOLAJI-YUSUFF, J.C.A.: I had the privilege of reading in draft the lead judgment of my learned brother TOM SHAIBU YAKUBU JCA. I agree with the reasoning and conclusion made therein.
Appearances:
O. E. Okeke, Esq.For Appellant(s)
O. J. Enemuoh, Esq., with him, C. N. Ijebunor, Esq.For Respondent(s)
