IFEANYI UGWU UWAONAH ONYISHI & ORS v. REV. WILFRED OMEJE NWAONAH ONYISHI & ANOR (2016)

IFEANYI UGWU UWAONAH ONYISHI & ORS v. REV. WILFRED OMEJE NWAONAH ONYISHI & ANOR

(2016)LCN/8426(CA)

In The Court of Appeal of Nigeria

On Thursday, the 24th day of March, 2016

CA/E/285/2012

RATIO

EVIDENCE: STANDARD OF PROOF; ONUS OF PROOF IN CRIMINAL AND CIVIL MATTERS

At the Customary Court, the Appellants/Cross-Respondents action had been dismissed and the Respondent/Cross-Appellant were held to have proved their claim beyond reasonable doubt. Curiously, the matter was not a criminal matter, where that onus of proof is required. It is only in criminal matters that proof beyond reasonable doubt is required. But in a civil matter, you only require proof on a preponderance of evidence or on a balance of probability. PER. RITA NOSAKHARE PEMU, J.C.A.

LAND LAW:LAND OWNERSHIP; PROOF OF OWNERSHIP TO LAND

The case of IDUNDUN v. OKUMAGBA (1976) 9-10 S.C. 227 is the locus classicus on proof of ownership or title to land, and the five ways of proof are –
1) By production of documents of title duly authenticated and executed.
2) By acts of ownership extending over a sufficient length of time numerous and positive enough as to warrant the inference of true ownership.
3) By acts of long possession and enjoyment.
4) 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.
5) By proof of traditional evidence.
See THOMPSON v. AROWOLO (2003) 7 NWLR (Pt. 818) 163 at Page 7 of the Record of Appeal, it is clear that the Appellants/Cross-Respondent traced their root of title to Ona Umuona Onyishi. PER. RITA NOSAKHARE PEMU, J.C.A.

EVIDENCE:TRADITIONAL HISTORY; WHAT THE PARTY WHO RELIES ON TRADITIONAL HISTORY WOULD NEED TO PLEAD

The law is trite, that communal ownership cannot be situated in vacuo LEBILE v. THE REGISTERED TRUSTEES OF C & S CHURCH OF ZION OF NIGERIA UGBONLA & ORS (2003) 13 NSCQR 19 @ 28.
Per Uwaifo JSC (as he then was): “It cannot be too often said that a party who relies on traditional history (which a claim to the founding of a village or town implies) would need to plead the names of his ancestors to narrate a continuous chain of devolution, not allowing these to be any gap or gaps defying explanation or leading to a prima facie collapse of the traditional history. The history must show how the land by a system of devolution came to be owned by the Plaintiff.” Onu, JSC (as he then) was had this to say ? “To establish traditional evidence of title by conclusive evidence, the plaintiff must plead and prove such facts as who founded the land in dispute, how he founded the land and the particulars of the in tenancy owners through whom they claimed.” – See OBA ELEGUSHI & ORS v. OSENI & ORS (2005) 23 NSCQR 193 @ 209. Did the Appellants/Cross Respondents prove their assertion as required by law? That proof has to be on preponderance of evidence or balance of probabilities – BELLO v. ARUWA (1999) 8 NWLR (Pt. 615) 454 @ 476; OYINLOYE v. ESINKIN (1999) 10 NWLR (Pt. 624) 540 @ 549. I think not. PER. RITA NOSAKHARE PEMU, J.C.A.

JUSTICES

MASSOUD ABDULRAHMAN OREDOLA Justice of The Court of Appeal of Nigeria

RITA NOSAKHARE PEMU Justice of The Court of Appeal of Nigeria

EMMANUEL AKOMAYE AGIM Justice of The Court of Appeal of Nigeria

Between

1. IFEANYI UGWU UWAONAH ONYISHI
2. SUNDAY UGWU NWAONAH ONYISI
3. EMMANUEL UGWU NWAONAH ONYISI
4. EMEKA UGWU NWAONAH ONYISI Appellant(s)

AND

1. REV. WILFRED OMEJE NWAONAH ONYISI
2. FIDELIS OMEJE NWAONAH ONYISI Respondent(s)

RITA NOSAKHARE PEMU, J.C.A. (Delivering the Leading Judgment): This appeal to the High Court emanates from an initial decision of the Opi Customary Court, Nsukka, against the defendants/Appellants with these reliefs viz:
(a) Setting aside the judgment of the Opi Customary Court Nsukka.
(b) To grant the claims/reliefs sought in the Appeal.

The Appeal from it was heard by His Lordship Hon. Justice N. P. Emehelu, Judge on 22nd September 2008.
The Defendants/Appellants are dissatisfied with the Judgment of the High Court and has filed a Notice of Appeal.

By an order of this Honourable Court of 28th May 2014, the Respondents/Cross-Appellants on record were substituted for the deceased original plaintiffs/respondents. By another order granted by this Honourable Court, the respondents/cross-appellants were granted leave to cross-appeal against the Judgment of the Court below. The Notice of Appeal was filed on the 14th of June 2011, with three (3) Grounds of Appeal.

FACTS
At the Customary Court Opi, the Respondents/cross-appellants had commenced a suit against the appellants/Cross-respondents seeking the following

order:
1) Order of injunction.
2) Oath of clear conscience.
3) N2,000 general damages.
4) Order that the land should continue to be looked after by the Onyishi.
– See Pages 5 – 6 of the Record of Appeal.

The Appellants/Cross-Respondents filed a Counter suit in which they claimed exclusive ownership of the land, injunction, oath of clear conscience and general damages. The two suits were consolidated and determined after hearing same on the 25th of March 2005 by the Customary Court, Opi.

Two Judgments were delivered by the Customary Court Opi, and it was these judgments that were appealed and cross appealed at the lower Court, whose judgment has given rise to the instant appeal.
The Appellants/Cross Respondents filed their Notice of Appeal on the 7th of April 2015 with 3 Grounds of Appeal.
They filed their brief of Argument on the 21st of September 2012.

The Respondent/Cross-Appellant filed their brief of argument on the 28th of May 2015. It is settled by Mr. C. N. Onah ACI Arb.
There is Appellants cross-Respondents Reply brief filed on the 29th of June 2015. The

Appellant/cross-Respondent had proffered six 6 issues for determination. They are ?
“(i) Whether on proper appraisal of evidence before the trial Court and the applicable laws, the learned judge below was right in rejecting the Traditional histories of the respondents/Cross-Appellants and Appellants/Cross-Respondents without testing same with acts of ownership and recent possession to resolve the conflict.
(ii) Whether the contradictions in the evidence led by the Respondents/Cross-Appellants at the trial Court was material as to render the evidences of the witnesses unreliable.
(iii) Whether the learned Judge below was right in holding that the cause of action for the suit at the trial Court arose in the year 2000.
(iv) Whether upon the evidence led before the trial Court the learned Judge below was right in holding that the Respondents/Cross-Appellants (now Appellants) did not prove a case of exclusive possession.
(v) Whether the learned Judge below was right in holding that the trial customary Court descended into the arena and drew inferences from facts not before it.
(vi) Whether the judgment delivered by the learned

Judge below is not a nullity in view of the delay between the conclusion of adoption of briefs by counsel and judgment which had adversely affected the evaluation of evidence and findings of facts.”

The Respondent/Cross Appellant had proffered four (4) issues for determination. They are:
“a. Whether the respondents/cross-appellants’ failure to name any of the Onyishis (eldest men from the appellants/cross-respondents branch that looked after the land rendered their traditional evidence unworthy of belief denied the land in dispute its communal status.
b. Whether the Court below was right in upholding the dismissal of the respondents/cross-appellants’ claim by the trial Customary Court after holding that their appeal succeeded in part and the dismissal of the claim of the appellants/cross respondents at the trial customary Court.
c. Whether the failure of the lower Court to order a retrial after its decision that none of the parties proved their case at the Customary Court did not occasion a miscarriage of justice especially as the respondents/cross appellants ought it as an alternative relief.”

Before I go into the merits of the

Appeal, I observe that in Ground 1 of the Respondents/Cross Appellants Notice of Appeal, he averred thus ?

“The appellate lower Court erred in law and misdirected itself, when it held that more of the traditional evidence of the parties was nothing of belief and that the failure of the respondents/cross-appellants to mention which of the Onyishis (eldest men) that came from the Appellants/Cross Respondents was fatal to their case.”

In my view, this Ground of Appeal is not only inelegant but vague. You cannot complain that a Court erred in law and misdirected itself at the same time. It is either it has erred in law OR in fact or it misdirected itself.
The Provisions of Order 6 Rule 3 (2) of the Court of Appeal Rules, 2011 are clear. It says –
“Where a ground of appeal alleges misdirection or error in law, the particulars and the nature of the misdirection or error shall be clearly stated.” It says OR, not AND. It therefore suggests that a Ground of Appeal shall not bear both error of law and misdirection at the same time. The Appellant has to choose one. Order 6 Rule 3 of the Court of Appeal Rules mandates a

striking out of such ground.
This Ground i.e. Ground 1 of the Respondents/Cross Appellants Notice of Cross Appeal is one that cannot stand and same is hereby struck out accordingly.

ISSUE NO 1 OF APPELLANTS CROSS/RESPONDENTS
The Appellants/Cross Appellants submit that they hinged their claims at the lower Court on traditional history and long possession, while the Respondents hinged their claim on traditional history alone.

He submits that where a claimant seeking title to land is doing so as co-owner or exclusive ownership of the land, the law is that such a claimant has to state how the land came into ownership or possession of the predecessors of the claimants. Citing RABIATU ADEBAYO & 3 ORS v. RASHEGD SHOGO (2005) ALL FWLR (PART 253) Pg.739 at 746 paragraph e.

Submits that the respondents relied solely on traditional history as their root of title, as they failed to prove which of the five ways laid down by the Supreme Court in IDUNDUN v. OKUMAGBA (1976) 7-10 S.C. 227.
Therefore he submits, the learned trial Judge was right in upholding the dismissal of their claim by the trial Court.

He submits that

in KOJO v. BONSIE (1957) 1 NWLR 1223, the Apex Court had held inter alia that where traditional evidence is unsatisfactory in the sense of being inadequate or conflicting with that of other parties, the trial Court should resolve the conflict by testing the evidence against recent happenings within living memory.

They submit that trials in the Customary Court are to attain substantial justice based on the reasonable practice, tradition and custom of the local people.

They submit that an Appellate Court’s duty is to see the facts and apply same to the issues raised, to determine if substantial justice has been done. i.e. whether the decision of the Customary Court accords with common sense citing ISRAEL ARUM & ANOR v. OKECHUKWU NWOBODO (2005) ALL F.W.L.R. (Pt. 246) Pg. 1231 at 1257 paragraph f – h; KPISHII KUUSU v. VANGER UDOM (1990) 1 SCNJ 4.

Submits that in the Customary Court, no pleadings were filed, and the parties were at liberty to adduce evidence on any ground, and the Court then decides, on a preponderance of evidence adduced by the competing parties.

?In the instant case, the 1st Appellant had testified of other acts

of ownership and this the trial Court accepted. One of such evidence given by the 1st Appellant is that his late father built a house or the land in dispute. This fact was admitted by the Respondents in their evidence, that the Appellants father build a home on the land in 1972. That the Appellants also testified that when the Respondents trespassed on the land, their father challenged them, but the Respondents frightened him off with their numerical strength. – Pg. 13 lines 33-36 – pg. 14 lines 1-6 of the Record of Appeal. That the Respondents have no crops in the land.

That from evidence in Court, Ona Onyishi or Onyishi Nshi refer to one and the same person called Onyishi Nshi, who is the ancestral father of the four branches of Umu Onyishi. Therefore the learned trial Judge came to a wrong conclusion, believing that the conflict regarding who was the father of the appellants and the Respondents was not resolved.

ISSUE NO. 2
He submits that it is not every contradiction and/or inconsistency in the evidence of two or more witnesses to a party that render the evidence of those witnesses on the facts unreliable, or destroy the credibility

of the witnesses. SHURUMO v. STATE (2010) 12 KLR (Pt. 287) Pg. 3021.

That the learned trial Judge had referred to, as contradictory evidence, the fact that the 1st Appellant said that Onyishi Nshi had three sons, Ugwu Nwaona, Omeje Nwaona and Abonyi Ugwu Ezugwu, while DW2 who spoke on behalf of Umuagogu elders, added a fourth son called Agbo Ashani Nwa Ugwu Onyishi.

That the important thing is that there were other sons of Onyishi Nshi other than Ugwu Nwaona and Omeje Nwaona. That this contradiction is not material and does not go to the substance of the case.

ISSUE NO. 3
Submits that the learned trial Judge was wrong to hold that the cause of action for the suit at the trial Court commenced in 2000 and remained alive till 2004.

That in the instant case, the cause of action arose in 2000, when the appellants started laying claim over the land which the Respondents claimed it was in their possession then, though adversely, by the Respondents.

The case went to customary arbitration in 2000 whose decision was acceptable to both parties. The dispute stopped, until in 2004. The Appellants had entered the land, and

started farming thereon with interference from the respondent’s, until the respondents resumed the case in 2004. Therefore as at 2004, there was no more any cause of action available for the Respondents.

That the entry of the Appellants into the land was an act done in 2000, and taken charge of the portions of land up to 2002.

That the Respondents had conceded title of the land to the Appellants.

ISSUE NO. 4
He submits that it is on record, that the respondents admitted that the appellants entered into the land, and claimed possession for which the respondents through PW1 at the trial Court had testified. – at pages 7 lines 20-27 and page 8 – lines 1-3 of the Record of Appeal. That there is evidence that the Appellants father built a house on the land. – referring to Page 7, lines 15-16 of the Record of Appeal.

There is evidence that the Umuomeje of the appellant buried their dead on the land in dispute, and that Ugwuanyi Omeje built a zinc house on the land.

That the trial Court was right when he stated that the act of possession exercised over the land in dispute by the respondents, was in the absence of the

appellants – refers to page 35 – lines 5 – 27 of the Record of Appeal.

Submits that as at 1972 when the Appellants’ father built a house on the land in dispute, the respondents were not in possession. That at Page 27 lines 4-5 of the Record of Appeal, the appellants did say that the cassava which they planted on the portions of the land in dispute were already three years old, and this assertion by the Appellants remain unchallenged by the Respondents.

He submits that in the instant case, the parties had submitted themselves to the Elders of Umuagogu and the Oha Ibeku, each of which took decision on the matter.

That the learned trial Judge failed to take cognizance of this customary arbitration that took place between the Appellants and the respondents in the year 2000.

ISSUE NO. 5
He submits that the Respondents have not suffered injustice or miscarriage of justice, on the finding of fact of the trial Court. That a Court of trial can put questions to parties and their witnesses. And it is not restricted to any number of questions to ask a party, or a witness in a case. That the respondents have suffered no

miscarriage of Justice.

ISSUE NO. 6
The Appellants submit that on the 31st of March 2008, both Counsels adopted their briefs. The case was adjourned for Judgment to 28/5/2008. On that day, both Counsels were asked to re-adopt their briefs which they did, and the case was adjourned to the 28th of July 2008 for judgment. This did not take place until 22nd of September 2008 after the mandatory 90 days had elapsed.

Therefore, he submits, the trial Judge had, as at the time he delivered Judgment, lost grasp of the case before him.

That the lower Court having misrepresented the names of the sons of Ona Onyishi, stated on the claim of the respondents by the learned Judge below led to his wrong conclusion. That there was nowhere on the claim stating that the names of the two male issues of Ona Onyishi were Omeje and Ugwu. This erroneous impression of the trial Judge made him come to a wrong conclusion, he submits.

He submits that these substantial errors by the trial Judge, if not made by him in his Judgment, the Judgment in favour of the Appellants by the trial Court would not have been set aside.

RESOLUTION OF THE

ISSUES
ISSUE NO. 1
It is apparent that the Appellants/Cross Respondents claim is that they (the Umu Omeje Nwaona Onyishi) and the Umu Ugwu Nwaona Onyishi family of the Respondent/Cross Appellant communally own the land in dispute consisting of several portions of land.

The Respondents/Cross-Appellants on their part are claiming that they of Umu Ugwu Nwaona Onyishi own same exclusively, and sought a grant of customary right of occupancy over the land.

At the Customary Court, the Appellants/Cross-Respondents action had been dismissed and the Respondent/Cross-Appellant were held to have proved their claim beyond reasonable doubt.

Curiously, the matter was not a criminal matter, where that onus of proof is required. It is only in criminal matters that proof beyond reasonable doubt is required. But in a civil matter, you only require proof on a preponderance of evidence or on a balance of probability.

Both parties relied on evidence of traditional history in proof of their respective cases. The Appellants/Cross-Respondent had traced their root of title to Ona Onyishi whom they alleged owned the land in dispute, but the

Respondents/cross-Appellant traced their root of title to one UGWU NWAONA, their grandfather. But, with respect, there is no evidence to show which of the parties ancestors founded the land in dispute. The line of succession is not feasible.

?One Isreal Nwoana Onyishi testified thus –
“Is now

about five years ago the defendants came up from Opi Agu to live at Opi Uno. They went to live where their father built a house in the land of Umuona Onyishi. In about 1972 their father gave Oha Umuona Onyishi kola to enable him build the house.”

It was a communal land, according to him which passed from person to person, as they harvest and make use of their communal land according to their seniority.

He testified that as this went on, the Respondents/Cross-Appellants who were the defendants at the Customary Court came up and entered into the portions of the land claiming the lands, claiming that those portions of the land are for their late father Onyishi Ugwu Nwaona Onyishi.

PW2, Wilfred Ogwu Nwa Ugwuanyi did say that the person who is supposed to be in charge of the land is Ugwu Omeje Nwa Ona Onyishi.

the founding of a village or town implies) would need to plead the names of his ancestors to narrate a continuous chain of devolution, not allowing these to be any gap or gaps defying explanation or leading to a prima facie collapse of the traditional history. The history must show how the land by a system of devolution came to be owned by the Plaintiff.” Onu, JSC (as he then) was had this to say ? “To establish traditional evidence of title by conclusive evidence, the plaintiff must plead and prove such facts as who founded the land in dispute, how he founded the land and the particulars of the in tenancy owners through whom they claimed.” – See OBA ELEGUSHI & ORS v. OSENI & ORS (2005) 23 NSCQR 193 @ 209.

Did the Appellants/Cross Respondents prove their assertion as required by law? That proof has to be on preponderance of evidence or balance of probabilities – BELLO v. ARUWA (1999) 8 NWLR (Pt. 615) 454 @ 476; OYINLOYE v. ESINKIN (1999) 10 NWLR (Pt. 624) 540 @ 549. I think not.

?How did the Appellants come into ownership or possession of the land? In claiming exclusive ownership of the portions of the land,

they also asserted that they are entitled to the declaration which they claim.
Section 15 (1) (a) of the Customary Court Edict No. 6 of 1984 of Anambra State as applicable to Enugu State, now Section 15 (1) (a) of Customary Courts Law (Cap 32) Laws of Enugu State 2004 stipulates that ?

“The customary law prevailing in the area of Jurisdiction of the Court or binding on the parties to a dispute, So far as that customary law is not repugnant to national justice, equity and good conscience, and is not incompatible either directly or by necessary implication with any written law for the time being in force.”

Section 20 provides that ?

“No proceedings in a customary Court and no summons warrant, order, declare or other processes issued or made by the Court shall be declared void or otherwise varied upon appeal solely by reason of any defect in procedure or want of form; but every Court or authority exercising appellate jurisdiction by virtue of this Edict or any other law, shall decide all matter brought to it on appeal from a Customary Court as substantial justice of the case may require.”

Because pleadings are

not required in the Customary Court, it becomes incumbent on a trial Court to decide any case before it simply on a preponderance of evidence, as adduced by the respective parties in the case. Ipso facto, the Court must only give what is claimed, if the claim is successful. But where there are conflicting claims, resort must decidedly be had to acts in recent times.

The Appellants/Cross-Respondent had given evidence that even his late father built a house on the land in dispute a fact which the Respondents admitted, this was in 1972.

They also testified (as seen at Page 13 Lines 33 – 36 and Page 14 – Lines 1-6) that when the respondents trespassed on the land, their father challenged them but the respondents is warded him off, as he was alone, but the respondents had numerical strength.

During a visit of the trial Court to the locus in quo, it saw that the appellants have their crops planted on a predominant part of the land. The Respondents/cross-Appellants on the other hand had none.

At the visit to the locus in quo, the Appellants showed the Court two portions of land belonging to Umu Onyishi among the land in

dispute. There was no objection from the Respondents.

Again at the locus in quo, the Respondents showed the court “Ani Unam” comprising 6 portions of land, one of which is planted tenia (Ede) by Justina Onugu, who was in fact given that portion of land to cultivate by the Appellants – Page 25 Lines 10-13 of the Record of Appeal.

At Page 186 of the Record of Appeal, the learned trial Judge had observed thus –

“Though the Appellants/Cross Respondents in their claim at page 2 of the records and in their evidence stated that the land is owned by one Onyishi and said that the land is the land of Umuama Onyishi, there is no evidence of how the land was acquired or got by Ona Onyishi whether it was by clearing when it was still a virgin forest or acquired by purchase or by gift.”

I agree entirely with this observation.

Now in the claim of the Plaintiffs at the Customary Court, they alleged that the land, the subject matter of this suit is located at Umuagogu Ibeku Opi. It is called Ona Onyishi’s land. The land was owned by Ona Onyishi. That Ona Onyishi had two male children – Umeje and Ugwu Umeje who inherited the land from

their father after his death. The land was communally owned by the sons – Umeje and Ugwu. That the land is being looked after by the Onyishi (the most senior) either from the plaintiffs or from the defendants, from time immemorial.

Isreal Nwaona Onyishi from Umuagogu Ibeku Opi testified as 1st Plaintiff that the defendants came up from Opi Agu to live at Opi Uno, and they went to live where their father built a house in the land of Umuoha Onyishi. That in 1972 their father gave Oha Umuona Onyishi Kola to enable him build the house.

He testified that the land in dispute is communal land and Umuona Onyishi harvest and make use of their communal land according to their seniority. That the first man he saw who made use of the land was Ahonyi Omeje Nwaona Onyishi, and after that it rotated on down, till it got to the turn of Ugwu Omeje Nwaona Onyishi.

That when the defendants entered the land, they claimed that the land was that of their late father Onyichi Ugwu Nwaona Onyishi.

Under cross examination, he said that Ona Onyishi was the father of Ugwu Nwaona Onyishi, and Ugwu Nwa Omeje Ona Onyishi.

PW1, Wilfred Ogwu Nwa

Ugwuanyi, testified that Umuona Onyishi has communal land and they eat or harvest cash crops and cultivate their portions of their land according to seniority. People look after the land in turn in the family. That the first Onyishi that he knows is Abonyi Omeje Nwa Ona Onyishi.

That those who did not reach the level of Onyishi from Umuona Onyishi did not harvest any cash crops from the communal land. That the father of the 2nd defendant was given a portion of land to build a house.

That the first name who own the communal land is Ona Onyishi. That the issue of owning the land is not there, as the parties plant and harvest crops at random.

PW11, Josephine Omeje from Umuagogu also testified that the land is communal land.

PW111 – Marcel Ezugwu testified that the land in dispute is communal land.

The Defendants had stated that there is no land called the land of Ona Onyishi. That the land which Umu Ugwu Nwaona is making use of belong to Umu Ugwu Nwaona. That Umu Ugwu Nwaona and Umuomeje have no communal land, except the one for Umu Onyishi.

?That before his grandfather died, he asked Umuomeje why they trespassed

into his land, but he was rebuffed. That it is not communal land.

2nd Plaintiff Levi Agbo from Umuagogu testified that the 1st Defendant/Plaintiff is the owner of the land or portions. He was the eldest man at the time of the hearing of this case but not before. That both parties are the owners of the land.

That at a meeting, the elders and youths of Ibeku were told by the eldest man – Ogbuka Eze that the portions are for the 1st defendant – Ifeanyi and his brothers and none of the parties objected to this decision on that day.

The matter having come up in the Customary Court, where pleadings do not obtain, the Court is bound to see if the party claiming on a preponderance of evidence, can establish how the community was founded and who founded same.

The Plaintiffs at the Customary Court who averred communal land should establish this.

The Appellants/Cross Respondent has been able to establish that the land in dispute was owned by Ona Onyishi, save that one is at a loss as to how he acquired it.
?There is evidence that the land is being looked after by successive Onyishis, who come from either the Plaintiff or the

Defendants side, since time immemorial. – i.e. beyond human memory.

I agree with the lower Court when it observed that the requirements for proof by traditional history is that the line of succession to the party must be traced without leaving gaps or creating any serious leakages or allowing the link to break. The law is trite, that a party who traces his title to land to another person must prove how that person got title to the land – EYO v. ONUOHA (2011) 11 NWLR (Pt. 1257) 1; OTANMA v. YOUDUBAGHA (2006) 2 NWLR (Pt. 964) 337.

The Gravaman of what the trial Judge was saying is that whether land is communal land or not, there has to be established through traditional evidence that they own the land in dispute. This would have necessitated a setting aside of the Customary Court judgment because both parties are guilty of this. Lacunae, i.e. not able to establish who founded the land in dispute, as first settler and who deforested the land in dispute.

?This issue is resolved against the parties because the learned trial Judge was right in its holding, that neither of the parties met this requirements in law.

ISSUE NO. 2
Where

there are material contradictions in the evidence of witnesses, without any explanation, that is fatal to the case of the party calling those witnesses.

The learned trial Judge had referred to the contradictions in the evidence of the Respondents/Cross-Appellants, the 2nd Appellant/Cross-Respondent and indeed the Respondents/Cross-Appellants as to the sons of Onyishi Nshi. That while they stated that he had three sons, the 1st Respondent/Cross Appellant said he did not.

What did the learned trial Judge say about this contradictions?

At Pages 193-194 of the Record of Appeal he observed thus –
“I must at this stage observe that the apparent conflict regarding who was the father of Ugwona of the Respondents/cross appellants and Ugwu Omeje of the Appellants/cross respondents and how many children whoever was their father begat was not resolved.”

The learned trial Judge now went on the elucidate on this apparent contradictions.

For example the claim in the suit stated that Ona Onyishi whom the Appellant/cross Respondents said owned the land had two (2) male issues namely Omeje and Ugwu.

?But that in answer

to a question by the Court as to who was the father of Ugwu Nnaona Onyichi and Ugwu Nwa Omeje Ona Onyishi, the Appellant/Cross-Respondent answered thus ?

“Ona Onyishi was the father of the two.”

The 2nd Appellant/Cross-Respondent gave the names of Ona as the father of Ugwu Nwaona and Omeje Nwaona.

On the part of the Respondent/cross Appellant, they say that Onyishi Nohi is the father of Ugwu Nwaona and that he had three sons namely Ugwu Nwaona, Omeje and Abonyi Ugwu Ezugwu.

The 1st defence witness under cross examination said that the names of the sons of Onyishi Nshi are Abonyi Ugwu Ezugwu, Nwa Ugwu Onyeshi, Omeje Naona, Ugwu Nwaona and Agbo Ishani Nwa Ugwu Onyishi. This makes 4 names as opposed to 3 names given by the 1st Respondent/Cross-Appellant.

Answering questions put to him as to whom Nwaona Onyishi is, he answered ?

“Ona is the father.”

According to the learned lower Court, this conflict in the evidence of the 1st Respondent/Cross-Appellant and Agbo Lori the Onyeishi of Umuagogu elders, regarding the number of children of Onyishi Nahi was not resolved by the

Respondent/Cross-Appellant.

I agree with the learned trial Judge that this apparent contradiction could have been resolved by their calling any one from the Respondents/cross Appellants family or from his lineage.
This issue is resolved in favour of the Appellant/Cross Respondent.

ISSUE NO 3
The lower Court had held that the cause of action from the suit at the trial Court commenced in 2000 and remained alive till 2004. Decidedly, a Cause of Action has been defined as that which makes an action possible. It is every fact, which is material to be proved, to entitle a plaintiff to succeed, or all those things necessary to give a right to relief in law or equity. It is the totality of the factual situation in a case which entitles the Plaintiff to a relief or reliefs, that constitutes the phrase “cause of action” ? OMOMEJI v. KOLAWOLE (2008) 14 NWLR (Pt. 1106) 180; MOSOJO v. OYETAYO (2003) FWLR (Pt. 165) P. 545 @ 557. Paragraphs d – f.

?It is the argument of the Appellant/Cross Respondent that the cause of action arose in 2000, but consequential from the settlement of the dispute between the parties by the Oha Ibeku, which

gave ownership to the Appellants after the Appellants and the Respondents, had submitted to Oha Ibeku, arbitral outfit. Both parties had accepted the decision of Oha Ibeku which gave ownership to the Appellants.

It is the submission of the Appellants that with the conclusion of the customary arbitration in 2000, which was acceptable to both parties, the dispute abated, until in 2004, when the Respondents resurrected the matter by trespassing on the land in dispute.

The learned trial Judge had observed at Page 199 of the Record of Appeal thus:-

“? It is shown in the claim Exhibit A at Page 2 that it was in the year 2000 that the defendants started laying claim to the land?”

The lower Court continued ?

“If by 28/4/2002 the date of Exhibit B, the appellants admitted that the respondents own the land, how come that they came to Court in the year 2004 to file this action.”

I am of the view that in this regard the lower Court was misconceived. The matter came up in 2000 and was settled until 2004 when it came up again. It therefore cannot be said that the matter continued till 2004.

?This

issue must be answered in the negative and same is resolved in favour of the Appellants/Cross Respondents.

ISSUE NO. 4
I am of the view that this issue can be subsumed in my answer to Issue No. 1 as my consideration of Issue No 1 can be applied to this.

At page 193 of the Judgment of the lower Court, it observed thus ?

“The point has to be made that whether the land the subject matter in dispute is said to be communal land or a family land and whether it is being claimed by a party as exclusive ownership or communal ownership, the traditional history which attracts credibility must be total in its narration. Partial or overtly incomplete or abridged history of part events leave the recipient in doubt of the time nature of the aspect of such history embedded in secrecy – OGUN v. CHIEF ASEMEH (2002) 4 NWLR (Pt. 756) 208 @ 334.”

I dare say that the lower Court was right in so holding and for the reasons adduced by me in the consideration of Issue No 1. I hereby reiterate that none of the parties were able to prove their respective cases in this wise. None of them could trace the original settler on the

land.

Indeed this issue is not resolved in favour of any of the parties.

ISSUE NO. 5
First and foremost, I must say that it is one thing for a Judge to descend into the arena and another thing to draw inferences from facts not before it. The former obtains, when during the course of the trial, a Judge interferes so much with the parties conduct of their respective cases, that it becomes apparent that he has descended into the arena and allowed himself to be beclouded by the dust of the conflict.On the other hand, when it is apparent that a Judge, in the consideration of a matter before him exhibits a trait whereby he delves into issues which were not placed before him, then his evaluation of those issues become questionable. A Judge can only draw inferences from facts placed before the Court. It is on record that the customary Court judges asked questions in the trial of this case. The lower Court had at page 202 observed thus ?

“Further more a situation where the PW11 Josephine Omeje was not cross examined by the Respondents/Cross-Appellant but the Court asked her a total of 5 questions most

of which did not flow from the evidence of PW11 is not commendable.”

I am of the view that a Judge is at liberty to ask questions in Court, which counsel refuses or fails to ask, for clarification. But the lower Court quickly went on to say that this attitude of the judge did not make the case go the way it should go, because according to the lower Court ?

“? even if the Court had not asked those questions the case of the appellants would have not succeeded, since they did not prove same.”

He again said ?

“? I do not see how miscarriage of Justice has been done to the Appellants since their case would still have not succeeded.”

This issue fails.

ISSUE NO. 6
At the end of its judgment at page 203 of the Record of Appeal the lower Court had this to say ?

“Before I sign off, I wish to put on record that the delay in delivering this Judgment was occasioned by the backlog of Judgments and rulings I have following my absence for National Assignment at the Election Tribunal and also the vacation period.”

On the 31st of March 2008, both Counsels in this matter, at the

lower Court, adopted their respective briefs. The case was adjourned to the 28th of May 2008 for Judgment.

On that day, both Counsels were asked to re-adopt their briefs. The case was further adjourned to the 28th of July 2008 for Judgment. Judgment was however not delivered until 22nd of September 2008 after the mandatory 90 days had elapsed.

It is the contention of the Appellants/Cross Respondents) that as at the time the judgment was delivered, the lower court had lost grasp of the facts of the case.

At page 194 of the Record of Appeal, the Court observed thus ?

“At page 22 of the Records of Appeal, the said witness i.e. 2nd Appellant/cross Respondent gave the name of Ona as the father of Ugwu Nwaona and Omeje Nwaona. There is no doubt that the name “Ona” was still referring to Ona Onyishi.”

At page 195, he went on to say ?

“Further more there is no evidence on record showing that Ona Onyishi and Onyishi Nahi are one and the same person and therefore the issue as to who was the father of Ugwu Nwaona of the Respondents/Cross-Appellants and Omeje Nwaona of the Appellants/Cross-Respondent was

not resolved.”

I am of the view that in the absence of lack of consent from any of the Counsel for the Respective parties, for the delivering of the Judgment after the statutory period of ninety days, coupled with the cogent excuse proffered by the lower Court, there is nothing to show that this circumstance adversely affected the evaluation of evidence and findings of facts.

This issue also fails.

The totality is that the Judgment of the lower Court delivered on the 22nd of September, 2008 by N. P. Emehelu J. cannot be faulted. The Appeal fails and same is hereby dismissed while the Judgment is hereby affirmed. Parties to bear their own costs.

THE CROSS APPEAL
Decidedly, a party who is dissatisfied with the WHOLE DECISION of the trial Court must file a Notice of Appeal and not merely a notice of cross appeal, LOCAL GOVERNMENT v. THE EXECUTIVE GOVERNOR NASARAWA STATE & 35 ORS (2012) 17 NWLR (Pt. 1328) @ 94 SC.

?By notice of Appeal filed on the 7th of April 2015, the Respondents/Cross-Appellant being dissatisfied with the Judgment of the Enugu State High Court sitting at Nsukka, presided over by Hon. Justice N. P.

Emehelu delivered on the 22nd of September 2016, is appealing same.

The Notice of Appeal has three (3) Grounds of Appeal.
I find it pertinent to reproduce verbatim Ground 1 on the Notice of Cross/Appeal. It says ?

“The appellate lower Court erred in law and misdirected itself when it held that none of the traditional evidence of the parties was worthy of belief and that the failure of the Respondents/Cross-Appellants to mention which of the Onyishi’s (eldest man) that came from the Appellants/Cross-Respondents was failed to their case.”

Notably is the term “The Appellate lower court erred in law and misdirected itself.”

This Ground of Appeal is patency inelegant and vague.

An appellant cannot say that a Judge erred in law and at the same time misdirected itself. The Rules of Court mandates that you choose one.
By the provisions of Order 6 Rule 2 (2) of the Court of Appeal Rules 2011, this ground is one that is liable to be struck out and same is herby struck out accordingly.

That leaves this Court with two (2) Grounds of Appeal – Grounds 2 and 3 respectively.

SYNOPSIS OF

FACTS
This is a cross appeal against the Judgment of the High Court of Enugu State, Nsukka Judicial Division, delivered by Hon. Justice N. P. Emehelu delivered on the 22nd of September 2008. At the Customary Court, Opi, the Appellants/Cross-Respondents cross appealed the appeal by the Respondent/Cross-Appellant. The two appeals were consolidated.

Pertinent also to note that the Respondents/Cross-Appellants on record were substituted for the deceased original Plaintiffs/Respondents by order of Court of the 28th of May 2014.

By another order of this Court, the Respondents/Cross-Appellants were granted leave to cross appeal against the Judgment of the lower Court.

The Respondents/Cross-Appellants had instituted a claim against the appellants/Cross Respondents at the Customary Court Opi, seeking for an order of Injunction, Oath of clear conscience, general damages and an order that the Onyishi (eldest man) should continue to look after the land as a communal property.

The Appellants/Cross-Respondents had filed a counter claim to the claim in which they claimed exclusive ownership of the land, injunction, oath of clear

conscience and general damages. The two suits were consolidated.

Two judgments were delivered by the Customary Court. One was delivered by the Chairman and a member where 57 out of the 60 pieces of land in dispute was awarded to the Appellants/Cross Respondents, while the 3rd member of the Court in his minority Judge held that the pieces of land were communal property of the parties and that there was no individual family in Opi who had that number of land as its share of communal land. It therefore ordered that the land be shared equally to the parties. They appealed this decision at the High Court of Enugu State, Nsukka Judicial Division.

The Respondent/Cross-Appellant had proffered three issues for determination. They are ?

1) Whether the Respondents/Cross-Appellants failure to name any of the Onyishis (eldest man) from the Appellants/Cross Respondents branch that looked after the land rendered their traditional evidence unworthy of belief denied the land in dispute its communal status.

2) Whether the Court below was right in upholding the dismissal of the Respondents/Cross Appellants claim by the trial Customary Court

after holding that their appeal succeeded in part and the dismissal of the claim of the Appellants/Cross Respondents at the trial Customary Court.
3) Whether the failure of the lower Court to order a retrial after its decision that none of the parties proved their case at the Customary Court did not occasion a miscarriage of justice especially as the Respondents/Cross Appellant sought it as an alternative relief.

Let me quickly say here that Issue No. 1 seems to me to flow from Ground 1 in the Cross Appellants Notice of Appeal. That ground, having been struck out, makes me now order that Issue No. 1 in the Cross Appellants issues for determination be and is hereby struck out.

That leaves are with Issues No. 2 and 3 of the Respondents/Cross Appellants issues for determination.

ISSUE NO. 2
It is the Respondents/Cross Appellants submission that where a plaintiff in any claim for declaration of title to land fails to discharge the burden of proof placed on him, his claim fails and must be dismissed. – OLOWO LAGBA v. ADESHOYE (1996) LRCN 2535.

Same applies to a counter claim in any suit.

?That the

Respondents/Cross-Appellants were the Plaintiffs at the Customary Court while the Appellants/Cross-Respondents counter claimed. Therefore he submits, each party had a duty to prove its case.

That both parties hinged their claims on traditional history.

That the Respondents/Cross-Appellants case was that the land was communal property of Umu Ona Onyishi, while the Appellants/Cross-Respondents laid exclusive ownership over the land.

That the Respondents/Cross-Appellants had listed the names of the original owner of the land and those who held it in turn for the family to those of them living now. But that the Appellants/Cross-Respondents gave random names of those that owned the land.

The Appellants/Cross-Appellants claimed also that they do not have any land in common with the Respondents/Cross-Appellants. That the only communal land they have with them is that of Umu Onyishi. No evidence was called to prove this.

The Appellants/Cross-Respondents also said that they were in possession of the land and had exercised acts of ownership over the land. That the fact that their father built a house on the land in 1972 shows that

they were in possession of the land. They also relied on the decision of the Oha Umuagogu and Oha Ibeku that they owned the land.

He submits that it cannot be said that the acts of possession exercised by the Appellants/Cross-Respondents from 2000, when they forcefully entered the land till 2004, when the suit that led to this appeal was instituted was long enough to have satisfied one of the ways through which a claim for declaration of title can be proved.

That the lower Court erred after rightly observing that the Appellants/Cross-Respondents did not prove exclusive ownership and possession of the land in dispute.

That the Appellants/Cross-Respondents had failed to prove exclusive possession of the land in dispute and the dismissal of their case by the Court below was in order. And that the Respondent/Cross-Appellants had satisfied the conditions required to be proved by a claimant to be entitled to a declaration for title to land.

Urges Court to set aside the decision of the lower Court and affirm the judgment of the trial Customary Court and give Respondents/Cross-Appellants title to the land.

ISSUE 111<br< p=””

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Submits that the lower Court ought to have ordered a retrial as an alternative relief.

That where a trial Court fails to deal with a material point, such failure may result in an appellate Court ordering a retrial.

RESOLUTION OF ISSUES
ISSUE NO. 2
In his reply brief filed on the 29th of June 2015 the Appellants/Cross-Respondent submits that the minority Judgment of the Customary Court is in respect of issues not canvassed by either of the parties at the lower Court. That therefore a decision of a Court should not be found on any ground in respect of which it has neither received evidence in support, nor received argument on behalf of the parties.

That a Court can only grant a relief sought by a party, citing OBOJINMI v. A-G WESTERN NIGERIA AND ORS (1968) NMLR 96 @ 98; AKINBOBOLA v. PLISSON NIG LTD (1991) 1 NWLR (Pt. 167) 20 at 27.

They submit that the issues distilled by the Respondents/Cross-Appellants from their Ground of Appeal at the lower Court cannot be of help to the submission in their Issue 111 in its brief of argument, as the lower Court had decided on all the three issues raised by the

Respondents/Cross-Appellants at the lower Court.

That in the CASE OF NASIRU DARAMOLA AND ANOR v. THE GOVERNOR OF OGUN STATE AND ORS (2004) FWLR (Pt. 192) 112 at 133 – it was held that an appellate Court will order a retrial when an error of a lower Court cannot be corrected by an appellate Court based on the evidence on the record, without injustice to either of the parties, or where there has been a serious irregularity in the original trial or where the rules of fair hearing provided under the Constitution appear to have been breached.

The Court below had in my view appraised in detail the evidence adduced by the witnesses for both parties, at the Customary Court, and had arrived at the conclusion which it did.

The gravemen of the Court’s decision is that both parties had failed to establish ownership of the land because they failed to prove the ORIGINAL OWNER of the land, beyond the issue of traditional history. They had failed to establish who first settled on the land and deforested it.

The Court in my view was right in upholding the dismissal of the Respondents/Cross-Appellants claim by the trial Customary Court.

For the reason that they failed to establish EXCLUSIVE OWNERSHIP of the land in dispute.

But I am at a loss why the lower Court said that the Appeal succeeds in part. What was that part? If the reason why it upheld the dismissal of the Respondents/Cross-Appellants claim at the trial customary Court is because of failure to prove exclusive possession, then the Respondents/Cross-Appellants claim has to be dismissed in its entirety just as that of the Appellants/Cross-Respondents claims was dismissed at the Customary Court. The lower Court was therefore obligated to have made the same pronouncement of upholding both parties dismissal of their claims at the Customary Court. The Court cannot approbate and reprobate. The lower Court was therefore wrong and Issue No. 2 is hereby answered in the negative.

ISSUE NO. 3
Simply put, failure of the lower Court to order a retrial can occasion miscarriage of Justice. But is it so in the present case?

In GODWIN SASI D. OGOLO & ORS v. CHIEF JOSEPH TUMINI OGOLO & ORS (2004) FWLR (Pt. 194) 517, the Supreme Court held that an order of retrial should not be made where it only serves the

purpose of giving the losing party the opportunity to prove afresh what it has failed to prove. Before an order of retrial can be made, an appellate Court or tribunal ought to satisfy itself, that the other party is not thereby being wronged in such a manner as to occasion a miscarriage of justice.

The lower Court had, in my view, not averted its mind to the issue of the order made by the Customary Court in its judgment, by the allocation of the property to the parties, a relief not claimed by either of the parties.

Where the lower Court finds that the Customary Court did not evaluate the evidence properly, and that it failed to see that exclusive possession had not been proved, it was incumbent on it to have set aside the judgment of the Customary Court as it affects the Appellants/Cross-Respondents. Once the parties have been unable to establish their respective claims, they cannot be made to have another bite at the cherry.

This Issue is answered in the negative. The lower Court was obligated to set aside the Judgment of the Customary Court and not to order a retrial.

?In all the Cross Appeal fails and same is hereby

dismissed. Parties to bear their own costs.

MASSOUD ABDULRAHMAN OREDOLA, J.C.A.: The honour has been previously given to me by my learned brother Hon. Justice Rita Nosakhare Pemu, J.C.A. to read before now, the articulate lead judgment just delivered by my noble Lord, Pemu, J.C.A. I agree with the lucid reasoning and decisive conclusion reached therein, to the categorical effect that both the main appeal and cross-appeal lacked merit. Both appeals having failed ought to and should be dismissed. I also dismiss the same accordingly. I abide by the consequential orders made in the said lead judgment of my learned brother Pemu, J.C.A. I also subscribe to the order made with regard to costs.

EMMANUEL AKOMAYE AGIM, J.C.A.: I had a preview of the judgment delivered by my learned brother, RITA NOSAKHARE PEMU, JCA. I agree with reasoning, conclusions and orders therein.

Appearances:

P. O. Eze, EsqFor Appellant(s)

C. N. Onah (Mrs.) with Ifeanyi Onah, Esq. and Obinna Ugwu, Esq.For Respondent(s)

Appearances

P. O. Eze, EsqFor Appellant

AND

C. N. Onah (Mrs.) with Ifeanyi Onah, Esq. and Obinna Ugwu, Esq.For Respondent