GEORGE v. AJOKU & ANOR (2020)

GEORGE v. AJOKU & ANOR

(2020)LCN/14756(CA)

In The Court Of Appeal

(OWERRI JUDICIAL DIVISION)

On Friday, November 20, 2020

CA/OW/290/2010

RATIO

APPEAL: RULE APPLICABLE WHERE THE RESPONDENT FILES NO BRIEF TO CONTEST AN APPEAL

The Appeal still has to be considered on the merits, as required by law and rules of practice in appellate jurisprudence. The rule is that even, when the Respondent files no brief to contest an appeal, the Appeal still has to be considered on its merits. See Onyenawuli V Onyenawuli & Anor (2017) LPELR – 42661 (CA); Echere Vs Ezirike (2006)12 NWLR (Pt. 994) 386; (2006) LPELR – 1000 (SC); Umeh Vs Nwokedi (2016) LPELR – 41470 (CA); Ogbu & Anor Vs The State (2007) LPELR – 2289 (SC). PER MBABA, J.C.A.

LAND LAW: DUTY OF A CLAIMANT WHO SEEKS TO BE DECLARED BENEFICIAL OWNER OF A FAMILY LAND

The law is trite, that where a disputed land/property is a family land/property, and the claimant seeks to be declared beneficial owner of the property, in his personal capacity, he has to prove that the property vested in him, exclusively, by reason of partitioning of the family property or of purchase, or allotment of the property exclusively to him intervivos by appropriate authority with requisite power to devise the same.
See the case of Atuanya Vs Onyejekwe (1975) 1, 2 and 3 (Reprint Editions) 115 at 119 to 120, (cited by Appellant), where it was held:
“Normally, the rule is that in a claim for declaration of title, the onus is on the plaintiff to prove his title, and that he has to do so, without relying on the weakness of the defendant’s case. The onus never shifts. This rule of law is now firmly established, that nothing can shake this foundation. Equally so, it is now well settled law that the onus lies squarely on the party who lays claim to family land to prove that he is the exclusive owner of the land in dispute… the onus of proof lies abinitio on the claimant to show that he is, in fact, entitled to the family land, as against all other family members. It is for the party who is claiming family land to prove that he or she is the exclusive owner of such land… Judging from the pleadings and the evidence and the findings made by the learned trial judge, there does not seem to be, in my view, any atom of doubt that the land in dispute is family land. Obviously, the 2nd defendant/appellant could not and did not, in any way, satisfy that burden of proof, which was cast upon her.”
Of course, it is simply logical to expect a family member, who claims exclusive right over a family property to prove how and when the right over the family property vested in/on him, exclusively. See Aduloju & Ors Vs Aluko & Ors (2018) LPELR – 46374 CA; and Ogbunuko Vs Ogbunuko & Ors (2019) LPELR – 47467 CA, where it was held:
“This Court has in number of times, re-iterated the obvious, that where parties, as in this case, are in agreement that the land in dispute is a family land or originally founded by a family, any party who claims exclusive ownership of the land or part therefore, (sic) must fail, unless he is able to plead and prove, by evidence, how that exclusive ownership or title devolves on him. See Ogundipe Vs Adenuga (2006) All FWLR (Pt.336) 266; Stephen Okedion & Ors Vs Federal Airport Authority of Nigeria & Anor (2007) LPELR – 8678; Motunwase Vs Sorungbe (1988)5 NWLR (Pt.92)90.” Per Umar, JCA.
See also ONWUBU Vs ONWUBU & Anor (2018) LPELR – 46259 CA; Okwusogu & Ors Vs Okadigbo (2017) LPELR – 42751 CA; Oraezue Vs Igboneme (2017) LPELR – 42842 CA, on effect of partitioning of family land.
In the case of Ojoh Vs Kamalu & Ors (2005) LPELR – 2389 (SC), it was held:
“The law is also trite that a party, such as the appellant in the instant case, who claims exclusive title to community or family land against the entire family or community, must prove that there had been a partition of the land claimed. See Adesanya Vs Otuewu (1993)1 NWLR (Pt.270)414 at 435.”
See also Ewo & Ors Vs Ani & Ors (2004) LPELR – 1182 (SC):
“Family land is certainly not the same thing as communal land, but the principles are the same. If a member of a family claims ownership of family land, he or she, the claimant, must prove how he or she came to own family land to the exclusion of other members of the family.” PER MBABA, J.C.A.

Before Our Lordships:

Raphael Chikwe Agbo Justice of the Court of Appeal

Ita George Mbaba Justice of the Court of Appeal

Ibrahim Ali Andenyangtso Justice of the Court of Appeal

Between

CHIEDOZIE GEORGE APPELANT(S)

And

1. MR. SABASTINE AJOKU 2. MISS JUSTINA AJOKU RESPONDENT(S)

ITA GEORGE MBABA, J.C.A. (Delivering the Leading Judgment): Appellant filed this Appeal against the judgment of Imo State High Court in Suit No. HOW/301/1993, delivered on 25th October, 2006 by Hon. Justice P.O. Nnadi, whereof the learned trial judge gave judgment to the Plaintiff and granted the reliefs sought. Appellant was the Defendant at the Court below:
At the trial Court, the Respondents (as plaintiffs) had sought the following reliefs:
“i) A declaration that the plaintiffs are entitled to the grant of the Statutory Right of occupancy to the piece or parcel of the land know as and called “UHU NWAEBELEBE” situate and lying at Mkpama Village Egba, Owerri Local Government Area
ii) N2,000.00 (Two Thousand Naira) being general damages for trespass into the plaintiffs’ land in dispute.
iii) Perpetual injunction to restrain the Defendant, his agents and servants, from committing further acts of trespass on the said land of the plaintiffs.”
(See page 80 of the Records of Appeal).

The action was originally commenced by Samuel Ajoku and Peter Ajoku as plaintiffs but in the course of the proceedings at the

trial Court, the 1st Plaintiff (Samuel Ajoku) died, leaving the 2nd Plaintiff (Peter Ajoku) as the sole surviving plaintiff. After the delivery of the judgment Peter Ajoku (Plaintiff) also died and by the Order of the Court below, Christian Ajoku was substituted for the deceased Peter Ajoku on 28/6/2010, (Christian and Peter were sons of the original 1st Plaintiff – Samuel Ajoku). Christian Ajoku was later also substituted by the present Respondents – MR SABASTINE AJOKU & MISS JUSTINA AJOKU – at the demise of Christian Ajoku. See the Order of this Court, made on 16/03/2016 (page 114 of the Records).

After hearing the case and considering the evidence and addresses of Counsel, the trial Court held as follows:
“… A comparison and evaluation of the evidence of the plaintiff on the one side and that of the defendant on the other side, will show that the evidence of the plaintiff appears to be straight forward, direct and positive, both in relation to his root of title and acts of possession of the land, including the planting of survey beacons on same and as it enjoys the presumption of S.146 of the Evidence Act.

Beside the presumption of ownership of the land in dispute raised in favour of the plaintiff by S.146 of the Evidence Act, the acts of possession and ownership exercised by Nathaniel Ajoku over the land in dispute by carrying out survey of the same and planting of survey beacons on it, stands out as positive and overt act of possession and ownership of the land to the exclusion of the defendant… There is nothing in the evidence of the defendant to show what he did to challenge the survey and planting of beacons on the land in dispute by Nathaniel Ajoku in 1988 when he claimed that the same land was given to him in 1983. Surprisingly too, there is nothing to show what the defendant or his mother did, to challenge the survey and planting of beacons on the land in 1988 by Nathaniel Ajoku. The dispute which went for arbitration shown in Exhibits ‘G’ and ‘G1’, was not the land in dispute, but on the proceeds of sale of another portion of land … the only inference the Court can draw from the conduct of the parties, especially Nathaniel, was that they (beacons) were planted by the owner and person in possession of the land and

that was the late Nathaniel Ajoku. See the case of Yusuf Vs Dada (1990)4 NWLR (Pt.146)… Therefore, since the evidence of the defendant appear to have gaps and seem improbable, when considered against the background facts and acts of the plaintiffs and his (sic) predecessors in title, such as acts of the late Nathaniel Ajoku over the land, they cannot induce belief and that tilts the imaginary scale in favour of the plaintiff’s assertion of claim.” See pages 86-87 of the Records of Appeal.

That is the decision Appellant appealed against, as per his Amended notice and grounds of Appeal, filed on 4/3/2014. He filed his brief of arguments on 26/4/2018, after regularizing the Records of Appeal on 27/3/2018. In the Brief, Appellant donated two issues for the determination of the Appeal, as follows:
1) Whether the trial Court made the proper use of the evidence of native arbitration on record? (Ground 5)
2) Whether the Respondent proved his exclusive title over the disputed land against the Appellant? (Grounds 1, 2, 3, 4, 5, 6 and 7).

The Respondent did not file any brief in this Appeal, and did not also appear to contest the

Appeal. But that does not suggest Appellants arguments can sail through as though admitted by the Respondent. The Appeal still has to be considered on the merits, as required by law and rules of practice in appellate jurisprudence. The rule is that even, when the Respondent files no brief to contest an appeal, the Appeal still has to be considered on its merits. See Onyenawuli V Onyenawuli & Anor (2017) LPELR – 42661 (CA); Echere Vs Ezirike (2006)12 NWLR (Pt. 994) 386; (2006) LPELR – 1000 (SC); Umeh Vs Nwokedi (2016) LPELR – 41470 (CA); Ogbu & Anor Vs The State (2007) LPELR – 2289 (SC).

Arguing the Appeal on 28/10/2020, O.S. Akinola Esq., (who adopted the brief, settled by the learned Senior Counsel, D.C. Denwigwe Esq. SAN), on issue one, said Appellant had duly pleaded the native arbitration and called the DW2 to confirm it, to the effect that the arbitration was over the Appellant’s complaint against the alienation of the Ajoku family land, without his consent. Counsel said that the Respondent did not effectively dispute that arbitration; but that the trial Court failed to appreciate the essence of that evidence, as it

did not give proper effect to the evidence, but simply dismissed it as an arbitration over sale of another land. Counsel argued that their case in that arbitration was that Nathaniel Ajoku should not alienate any part of the Ajoku family land to his (Appellant’s) exclusion, and so it did matter whether the family land in issue was this land in dispute or another land of the family.

He argued that the trial Court did not hold that the arbitration did not hold or that their decision was not as pleaded and verified by the Appellant’s evidence. Counsel said that the Respondent never pleaded that the dispute, which went for arbitration, arose from the proceeds of sale of another land; he said that the summation by the trial Court constituted a case which the Respondent (as plaintiff) never made out as his case, even when he filed a reply to the Appellant’s statement of defence. He said that the trial Court did not even consider the basis of the dispute over the land between Appellant and Nathaniel Ajoku, which had to do with the sale of family land, without his (Appellant’s) Counsel, as a principal member of the family of Ajoku.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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On Issue 2, whether the Respondent had proved exclusive title to the land, Counsel answered in the negative. Counsel referred us to the cross examination of PW1, where he said:
“It is true we instructed our solicitors over this case as presented in the statement of claim. (Page 24 of the Records) that on page 23, he said:
“There is nobody like Utoro and as such to say that Oleru gave shelter to Utoro, because of hostilities from Nathaniel, is false.”

Counsel said that the above evidence conflicted with the paragraphs 4 to 6 of the pleadings of Respondent (page 4 of the Records), where he pleaded that, Lumanze Oleru of Oleru Family married a woman called Utoro, a female servant of Nathaniel Ajoku and both of them begat George Lumanze Oleru, the father of the defendant and a daughter called Nwaogazi; that Lumanze Oleru had other sons from different wives and late Wilson Oleru was the eldest son; that on the demise of Lumanze Oleru, his widow Utoro was remarried by Emeribe Oleru, the brother of Lumanze Oleru; that Emeribe later drove away Utoro and her son, George Lumanze, for bad conduct, waywardness and adultery committed by

Utoro with one Chibundu from Akabo Ikeduru; that Utoro and her son George then had no home and were begging from house to house, looking for place to live, when late Nathaniel Ajoku, out of sympathy, harboured and gave refuge to Utoro and her son, George Lumanze Oleru, in the Ajoku’s compound in Umueze Orji Kindred.

Counsel said that such serious conflict, wherein PW1 denied the existence of Utoro, and by inference, the facts pleaded by the Respondent, amounted to a brazen denial of the material facts upon which he founded his case. He relied on Ezemba Vs Ibeneme (2000)10 NWLR (Pt.674)61 at 74; Ugoji Vs Onukogu (2005)5 SC (Pt.11) 45 at 49 – 52. Counsel said that the PW1 therefore abandoned those material parts of his pleading. Thus, that PW1 was not a credible witness, and there was no other basic evidence to found Respondent’s case, as the next other witness was the surveyor, who knew nothing about the progenitor of the parties. He relied on Dingyadi Vs Wamako (2008)17 NWLR (Pt.1116)395 at 422, 431.

Counsel said that despite the obvious conflicts and contradictions in the evidence of the Respondent, the trial Court rather

preferred that evidence of the Respondents, “that the same appeared to be straight forward, direct and positive, both in relation to his root of little and acts of possession… including the planting of survey beacons on the land.” Counsel submitted that that was a faulty finding, as the dispute was not whether or not Nathaniel Ajoku exercised acts of possession over the land, but whether he did so as the family head of Ajoku family, to which both parties belonged. Counsel referred us to page 23 of the Records, where PW1 also admitted – under cross examination:
“It is true that under native law and customs, the head of a family controls family land and does not own it, exclusively.”

Counsel said that, from the above evidence, the trial Court should have considered the capacity in which the said Nathaniel Ajoku held the land and exercised the acts of control over it. Counsel further referred us to page 87 of the Records, where the trial Court held that it was not in doubt that the defendant was a bonafide member of the Ajoku family and that the parties made heavy weather about it. It held:

“On the issue of whether the defendant is a bonafide member of Ajoku family, it is not in doubt that the parties made a heavy weather over it, but as there is no claim to which the issues relates, this Court will not bother itself, except to state that there is abundant evidence before this Court, that the defendant answers and is identified by the name Chiedozie Ajoku, as all his credentials tendered in this Court, attest to this fact.”

Thus, Counsel said, the trial Court failed to appreciate the actual dispute between the parties, even with the above findings, that Appellant was the same Ajoku family, even though the Respondent, in the suit, had invented another name “Chiedozie George” for the Appellant (omitting Ajoku as the last name). He said that the presumption of family ownership of the land in dispute, therefore, arose and was affirmed, thus, placing the burden on the Respondent to establish exclusive ownership of the land, in personal capacity, and to exclude the Appellant in the decision to alienate such family land. He relied onAtuanya Vs Onyejekwe (1975) 1, 2 & 3 (Reprint Editions) 115 pages 119 to 120 also (1974 to 1975) NSCC Vol. 9

page 89 to 93, to say that, in a declaratory relief, the plaintiff has the onus to establish his claim on the strength of his own case and not on the weakened of the defence; that the onus does not shift. He argued that:
“…the onus of proof lies abinitio on the claimant to show that he is, in fact, entitled to the family land as against all other family members. It is for the party who is claiming family land to prove that he or she is the exclusive owner of such land.”

Counsel argued that, if the Appellant was/is truly a bonafide member of Ajoku family with the Respondents, then the presumption in favour of the family ownership of the land will automatically arise, and the burden will rest on the Respondents to prove exclusive ownership, which require him to prove when the land was partitioned for the members of the family.

Counsel said the identity of the land was not in dispute, neither was the acts of possession by Respondents. But the dispute was on the capacity in which the said Nathaniel Ajoku exercised the acts of possession and whether he could, legitimately, exclude the Appellant from the ownership of the land.

He argued that the sale of parts of the land by Nathaniel Ajoku, without the consent of the Appellant, was the dispute in the arbitration, which the Respondent never denied. He relied on Babayeju Vs Ashamu (1998) 9 NWLR (Pt.567) 546 at 554 – 556; Ogbuanyinya Vs Okudo (No.2) (1990) 4 NWLR (Pt.146) 551; UNIC Vs U.C.I.C. Ltd (1999)3 NWLR (Pt.593) 17; REMI Vs SUNDAY (1999) 8 NWLR (Pt.613) 92 EJILEMELE Vs OPARA (1998)9 NWLR (Pt.567) 587.

Counsel added that, at page 52 of the Records of Appeal, DW2 had stated thus:
“The defendant is a member of the Ajoku family of Egbu. I know the father of the defendant. The defendant’s father is George Ajoku. I have never heard that the defendant comes from any other family in Egbu except the Ajoku family.”

He said that that evidence was not challenged under cross examination and so was deemed admitted. He relied on some cases, including WAEC Vs Oshionebo (2006)12 NWLR (Pt.994)258. He also relied onEjilemele Vs Opara (supra) on the point that:
“The onus is on the party challenging another’s membership of a particular family, to show which family the person belongs…”<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”></br<>

Counsel also referred us to the case of Eleh Vs Anyadike (1999)5 NWLR (Pt.603) 454 at 466, where it was held:
“Evidence of traditional history, as the name implies, sounds better and generally so, when given by witnesses who are old in terms of veracity or authenticity. Thus, Courts, generally, attach importance to evidence of aged, in respect of traditional history.”

Counsel argued that the trial Court applied this principles of law wrongly, against Appellant, when it held, placing the burden on the Appellant, to call sufficient evidence, to show that Nathaniel Ajoku (who was in possession of the land) was not the owner of the land in dispute. Counsel argued in Paragraph 4.23 (Page 15) of the Brief, thus:
If failure to call other witnesses on that point ascribed weakness to the case, then the principal victim of that failure and its effect should be the Plaintiff (Respondent), but the trial Court placed the burden on the Appellant to disprove the Plaintiff’s case. The effect of misplacement of burden of proof is invariably a miscarriage of justice. See Udengwu Vs Uzuegbu (2003)13 NWLR (Pt.836)136 at 152… Onobruchere Vs Ezegine (1986)1 NWLR (Pt.19).”

Counsel concluded his argument by saying that, in the face of all the foregoing, it cannot be validly stated that the plaintiff at the trial proved his exclusive title to the land, as it was obvious the Appellant was a bonafide member of the family of Ajoku, and Nathaniel was only the head of the family and held the land in that capacity; the family land having not been partitioned. He urged us to allow the Appeal.

RESOLUTION OF THE ISSUES
I shall consider this Appeal on the two issues donated by the Appellant and shall take them, together, since they all have to do with the evaluation of evidence, and proof of exclusive ownership of the land, to entitle Respondents to declaration of title.

I have already reproduced the Reliefs sought by the Respondent at the lower Court, being a declaration that they were entitled to the grant of the statutory right of occupancy to the land in dispute and for damages and injunction against the Appellant (who was defendant at the Court below). The lower Court had believed the account of the Plaintiffs (Respondents) as to the traditional evidence led by them; that the

land in dispute was originally owned by Anozie, the great great grandfather of the Plaintiffs, who deforested the land and from whom it devolved through successive customary inheritance, to Ajoku and from Ajoku to Nathaniel Ajoku; from Nathaniel Ajoku to Samuel Ajoku, who took out the action, as first Plaintiffs (with his son) as original plaintiffs. They had claimed that Nathaniel Ajoku had remained in undisturbed possession of the land in dispute, until his death on 2/12/89, at the age of 105 years; that sometime in March 1990, the Defendant. (Appellant herein) entered the land in dispute, without the consent of the Respondent and cut economic tress on the land. They had denied the claims of the Defendant (Appellant), that he too was a member of the Ajoku family.

The Appellant, at the trial Court, had asserted that he was/is a member of Ajoku family; that the land in dispute was/is traceable to the same Anozie, who begat Ajoku and Nzenwa as his only sons; he said that Nzenwa married a woman called Utoro, who begat George Ajoku the father of the defendant; that Nzenwa had pre-deceased his father, Ajoku; that the land in dispute was part of the larger

family property of the Ajoku family, to which both the Plaintiffs and defendant belonged; that the land in dispute comprised two and half portions, out of which one and half portions were given to Utoro, the grandmother of the Defendant by Ajoku, as marriage gift, and which Utoro passed on to her daughter-in-law, called Eunice, the mother of the Defendant, while the other one portion was given to the Defendant by the late Nathaniel Ajoku, as head of the Ajoku family; Counsel said that Utoro, the Defendant’s grandmother and the Defendant had farmed on these portions before and after the death of late Nathaniel Ajoku, and that the Defendants’ entry into the land in 1990, was not an act of trespass, but continued exercise of ownership and possession of the land in dispute. See pages 81 – 82 of the records (where the trial Court summarized the evidence of the parties).

The Plaintiffs had surveyed the land on 16/8/1993, as per Exhibit B. They also pleaded an earlier survey by Nathaniel Ajoku dated 12/3/88; while the Defendant, too, surveyed the land in 1993, as per Exhibit E. There was clear evidence that the Defendant was a member of the

Ajoku family, as all his credentials, tax and rate papers bore the name Chiedozie Ajoku (See Exhibits ‘F’ – F3’). There was also evidence that the plaintiffs had sued the defendant before the Magistrate’s Court, Owerri, in Suit No. OW/89/90 over the land, and got judgment against the Defendant, but the judgment was nullified, on appeal, by the High Court, Owerri, in Appeal No. HOW/10A/92. (See page 182 of the Records of Appeal as per the findings, of the lower Court).

The trial Court had made what appears to be the correct findings on pages 83 – 84 of the Records of Appeal, as follows:
“It is not disputed by both Plaintiff and the Defendant that Anozie deforested and founded the “UHU NWAEBELEBE” land, now in dispute and that his son, Ajoku, inherited the land. The dispute appears to be the capacity, in which Nathaniel Ajoku came into possession of the land. Whereas the plaintiff claimed that Nathaniel Ajoku inherited same from his father, Ajoku, exclusively, the Defendant claims that Nathaniel Ajoku came into possession of the land by virtue of his position as the head of Ajoku family and should

inherit that land together with the defendant as a principal member of Ajoku family. Furthermore, the defendant claims exclusive ownership and possession of the land in dispute, on the basis that part of it (one portion) was given to him, exclusively, by Nathaniel Ajoku, while the other part (11/2 portions) was given to the defendants grandmother, Utoro, by Ajoku, as marriage gift.” (Underlining mine)

After making such excellent findings, as to what, in fact, constituted the real issue before the Court, that is, the fact of the parties being of the same family of Ajoku, and the capacity in which late Nathaniel Ajoku held the land in dispute, the trial Court, in my opinion, misdirected itself, when it said:
“Therefore, to determine which side of the competing evidence or story is more probable and believable than the other, the Court will look at the evidence of possession right from when Nathaniel Ajoku took possession of the land in dispute and look at the acts of possession and ownership, which each claimed to have exercised over the land in dispute and put each side of the story on that imaginary scale and attach evidential value and

weight to it and decide which evidence preponderates over the other and resolve the issue of proof of title in favour of the side where the evidence is more probable and where the scale tilts.” See page 84 of the Records of Appeal.

The trial Court, in my view, was expected to go beyond the acts of possession and/or ownership, to determining the capacity in which the late Nathaniel Ajoku held the land, having accepted (as it was obvious) that the Appellant, too, was a member of the same Ajoku family, and had claimed that the late Nathaniel Ajoku held the land as the head of the Ajoku family, and had even allotted a portion of the land in dispute to him (Appellant)! This is because, if the Appellant was a member (or principal) member of the Ajoku family, as the evidence revealed, and the late Nathaniel Ajoku was holding the property in dispute in his capacity as head of the Ajoku family, as stated by the Appellant, and the said property had not been partitioned to the individual members of the Ajoku family, (which the parties in this suit belonged), then the reliefs sought by the Respondents against Appellant, cannot be granted, Appellant being a

bonafide member of the Ajoku family, also entitled to the same rights, claimed by the Respondents over the land in dispute.

land in dispute… the onus of proof lies abinitio on the claimant to show that he is, in fact, entitled to the family land, as against all other family members. It is for the party who is claiming family land to prove that he or she is the exclusive owner of such land… Judging from the pleadings and the evidence and the findings made by the learned trial judge, there does not seem to be, in my view, any atom of doubt that the land in dispute is family land. Obviously, the 2nd defendant/appellant could not and did not, in any way, satisfy that burden of proof, which was cast upon her.”
Of course, it is simply logical to expect a family member, who claims exclusive right over a family property to prove how and when the right over the family property vested in/on him, exclusively. See Aduloju & Ors Vs Aluko & Ors (2018) LPELR – 46374 CA; and Ogbunuko Vs Ogbunuko & Ors (2019) LPELR – 47467 CA, where it was held:
“This Court has in number of times, re-iterated the obvious, that where parties, as in this case, are in agreement that the land in dispute is a family land or originally founded by a family,

any party who claims exclusive ownership of the land or part therefore, (sic) must fail, unless he is able to plead and prove, by evidence, how that exclusive ownership or title devolves on him. See Ogundipe Vs Adenuga (2006) All FWLR (Pt.336) 266; Stephen Okedion & Ors Vs Federal Airport Authority of Nigeria & Anor (2007) LPELR – 8678; Motunwase Vs Sorungbe (1988)5 NWLR (Pt.92)90.” Per Umar, JCA.
See also ONWUBU Vs ONWUBU & Anor (2018) LPELR – 46259 CA; Okwusogu & Ors Vs Okadigbo (2017) LPELR – 42751 CA; Oraezue Vs Igboneme (2017) LPELR – 42842 CA, on effect of partitioning of family land.
In the case of Ojoh Vs Kamalu & Ors (2005) LPELR – 2389 (SC), it was held:
“The law is also trite that a party, such as the appellant in the instant case, who claims exclusive title to community or family land against the entire family or community, must prove that there had been a partition of the land claimed. See Adesanya Vs Otuewu (1993)1 NWLR (Pt.270)414 at 435.”
See also Ewo & Ors Vs Ani & Ors (2004) LPELR – 1182 (SC):
“Family land is certainly not the same

thing as communal land, but the principles are the same. If a member of a family claims ownership of family land, he or she, the claimant, must prove how he or she came to own family land to the exclusion of other members of the family.”

In this case at hand, the Respondents had pleaded and led historical evidence, tracing the land in dispute to their ancestors – from Anozie to Ajoku to Nathaniel Ajoku, right down to their father and themselves, in a manner that tactfully and/or deceitfully, created the Appellant as stranger to the Ajoku family. Right from the name they elected to sue the Appellant, they dropped the surname, ‘Ajoku’, which Appellant bears in all his documents and credentials. The Respondents, in their evidence also vainly belaboured in self-deceit, distancing the Appellant from their family, and even denying the name/existence of the mother of Appellant’s father, Utoro, whom they earlier pleaded and admitted in paragraphs 4-6 of their pleadings, as a female servant of Nathaniel Ajoku, allegedly married by Lumanze Oleru of Oleru family; that on the demise of Lumanze Oleru, his brother, Emeribe Oleru,

married UTORO, but later drove her away with her son, George; that they had no home and were begging from house to house, until Nathaniel Ajoku had sympathy on them and harboured them, giving them refuge in his (Nathaniel’s) compound! (See page 4 of the Records).

Giving evidence, the PW1 (1st Respondent), under cross examination had said:
“It is not true that the defendant is a descendant of Ajoku. He is a descendant of Oleru. It is not true that Anozie, the original owner, had 2 Sons Ajoku and Oleru. Rather Anozie had only one son called Ajoku… Ajoku had only one son called Nathaniel Ajoku… It is not true that Ajoku cautioned Nathaniel over his bid to marry Utoro, as no such thing ever happened. It is not true that Ajoku caused (sic) and disowned Nathaniel before he died. It is not true that Oleru was the brother of Ajoku from Anozie.” Page 23 of the Records of Appeal.

After struggling that much, to disown Utoro and her son George, from the family of Ajoku, PW1, strangely, stated what I consider absurd and unbelievable:
“There is no body like Utoro, and as such to say that Oleru gave shelter to Utoro,

because of hostilities from Nathaniel, is false. It is true that we instructed our solicitor over this case as presented in the statement of claim.” (Pages 23 – 24 of the Records).
That was strange, for the PW1 to question the existence of Utoro, while also stating that she was the mother of Defendant’s father! PW1 also denied Appellant’s family link with Nathaniel Ajoku. His evidence therefore had serious credibility problems in my opinion especially as the evidence and the arbitration report, clearly showed that Appellant was a member of the Ajoku family and that Utoro existed and was married to Nzenwa and later to Nathaniel, and was the mother of Appellant’s father.

Appellant, in his evidence at the trial Court, established that he was wrongly sued as Chidozie George, saying that his name was/is Chidozie Ajoku, as confirmed by his tax receipts, and other credentials (See Exhibits F to F3).

He showed that Utoro, his grandmother was customarily married to Nathaniel Ajoku; that he was a member of the Ajoku family, as grandson of Ajoku, and also had right over the land in dispute, and was in possession of the

land; that Utoro got part of the land, as marriage right, and his mother, Eunice, was farming on the land. He said that Ajoku had two sons – Nathaniel and Nzenwa; Nzenwa was the father of George Ajoku, but Nzenwa died before his father, Ajoku. He (Appellant) was the son of George Nzenwa Ajoku; Nathaniel married Utoro after the death of Nzenwa. See (Pages 35 – 36 of the Records).

That evidence of Appellant being a principal member of Ajoku family, was not challenged by the Respondents and his claims of being in possession of the land in dispute, and his mother farming thereon and one of the plots having been given to him by Nathaniel, also appeared unchallenged. There was no dispute that Nathaniel Ajoku was the head of the Ajoku when he was alive and this dispute appear to have started after his death, when Respondents said Appellant trespassed on the land in dispute. See also the Magistrate’s Suit. No. OW/87/90, which was nullified on appeal by the High Court at the instance of Appellant – Suit No. HOW/10A/92 – all relating to Respondents’ claim over the land.

The Arbitration Report was clear that Appellant was a

member of the Ajoku family, and it even stated that Appellant was the son of Nathaniel Ajoku (and warned him against bringing his said father before the village arbitration, again!). See Exhibit G date 21/5/88, where the Arbitrators said:
“We do not come here to divide or destroy Ajoku family… rather we are here to see that there is peace. Father and son can quarrel but make peace in the next minutes. Oha Nathaniel, you are aware that Chiedo is your son and it is your duty to take care of him and his family. You should continue to assist him and do not fail to give his mother her usual farming land every farming land season. Chiedo do you understand that Oha Nathaniel is your father, he is your father and your custodian, listen to him and try to take instruction from him… By tradition and custom of the land, son goes to his father to make peace and therefore we advise you, Chiedo, to meet Oha, and ask him to forgive you. Meet him in good faith with the following:- 1 goat, 1 bottle of hot drink and 4 kola nuts… Chiedo did as was advised… and Oha Nathaniel invited Umueze Orji kindred to witness and make peace between them.”

In Exhibit G1, dated 5/5/88, the panel said:
“The case between Chiedozi Ajoku plaintiff and Oha Nathaniel Ajoku Defendant was decided by the Cabinet of Oha Egbu Elders on 14th May, 1988. Verdict:
(a) Chiedozi Ajoku do not bring Oha Nathaniel Ajoku to Oha Egbu again he is your father and he is to see about your welfare.
(b) The Oha Egbu Cabinet abides by the decision given by the cabinet.”

With such clear evidence of the Appellant being a member of the Ajoku family, and the land in dispute, being part of the Ajoku family land, whereof late Nathaniel Ajoku superintended, as the head of the family, it is rather disturbing that the trial Court made no findings as to that fact, which needed the Respondents to established how the said family land vested on them exclusively to warrant the reliefs they sought. The PW1 had earlier admitted that:
“It is true that under native law and customs, the head of a family controls family land and does not own it exclusively.” See page 23 of the Records of Appeal.

The trial Court rather, sadly, concerned itself with the exaggerated claim of possession

of the land in dispute by the Respondents, simply because (according to the trial Court) they had planted beacon stones on the land and Nathaniel had exercised rights of ownership over the land!
The trial Court said that:
“… the acts of possession and ownership exercised by Nathaniel Ajoku over the land in dispute by carrying out survey beacons on it stands out as and ownership of the land, to the exclusion of the defendants… There is nothing in the evidence to show what he (defendant) did to challenge the survey and planting of beacons on the land in dispute by Nathaniel Ajoku in 1988, when he claimed that the land was given to him in 1983!”

I think that was a perverse finding and reasoning, in the light of the evidence that the said Nathaniel was the head of the Ajoku family of which the Appellant was also a member. There was no evidence of any dispute about the land, when the late Nathaniel was alive. It is also faulty reasoning to say that planting of beacon stones in a land, is evidence of it exclusive ownership!

I see merit in this Appeal and so resolve the Issues for the Appellant. I allow the Appeal and

set aside the decision of the Lower Court and dismiss the Suit by the Respondents (as Plaintiffs), as they did not prove exclusive right over the land in dispute, being family property of Ajoku of which Appellant was a member too.

Appellant is entitled to the Cost of this Appeal, which I assess at N100,000.00 (One Hundred Thousand Naira) only.

RAPHAEL CHIKWE AGBO, J.C.A.: I agree.

IBRAHIM ALI ANDENYANGTSO, J.C.A.: I have read in draft the judgment just delivered by my learned brother Ita George Mbaba, JCA, and I agree with his reasoning and conclusion.

The fact of the case, the grounds and issues distilled therefrom have been well marshalled out and well decided. I can only add a few words of mine by way of emphasis.

It is clear that the land in dispute was a family land, which had not been partitioned, as there was no evidence to that effect. It is also clear by evidence that the Appellant and the Respondents are members of one and the same Ajoku family. However for some weird reasons, the Respondents after the demise of Nathaniel Ajoku who was the family Head, decided to exclude the Appellant from the family. I see nothing but

greed, insatiable greed in the conduct of the Respondents in this case.
From Exhibits “G” and “G1”, it is clear that the Appellant was/is a bonifide member of the Ajoku family. The Respondents were not able to establish that they were exclusive owners of the Ajoku family land as required by law. See OJOH VS. KAMALU & ORS (2005) LPELR – 2389 (SC), EWO & ORS VS. ANI & ORS (2004) LPELR – 1182 (SC). The Respondent cannot in the circumstances of this case, claim exclusive ownership of a family land.

For the above reasons and the fuller reasons given by my Learned Noble Lord, Ita George Mbaba, JCA, I too allow the appeal as meritorious and is hereby allowed. I abide by the orders contained in the lead judgment.

Appearances:

C. DENWIGWE SAN, with him, O. S. AKINTOLA ESQ. For Appellant(s)

UNREPRESENTED For Respondent(s)