IGWE EMMANUEL UGWU & ORS v. CHIEF EDWARD MBA
(2019)LCN/12667(CA)
In The Court of Appeal of Nigeria
On Thursday, the 7th day of February, 2019
CA/E/577/2014
RATIO
LAND LAW: WAYS OF PROVING TITLE TO LAND
“It has long been settled since the case of IDUNDUN V OKUMAGBA (1976) 9-10 SC 227 that there are indeed five methods of proving title to land. These are: (1) Traditional evidence (2) By production of documents of title (3) Acts of ownership such as selling, leasing, renting or farming extending over sufficient length of time, numerous and positive enough to warrant the inference that the person is the true owner. (4) Acts of long possession and enjoyment of the land (5) 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. Proof of any one of the five ways is sufficient as each of them stands or falls on its merit. The Respondent adduced traditional evidence of ownership of part of Okpuhu Achalla land shared with his siblings. The Appellants conceded to that fact.” PER CHINWE EUGENIA IYIZOBA, J.C.A.
LAND LAW: BURDEN OF PROOF FOR OWNERSHIP OF LAND
“I wish to add that the law has been long settled that the burden of proof in a claim for declaration of title to land lies on the plaintiff, who generally must rely on the strength of his own case and not on the weakness of the defendant’s case. See WOLUCHEM V. GUDI (1981) SC 291, PIARO V. TENALO (1976) 12 SC 31.” PER CHINWE EUGENIA IYIZOBA, J.C.A.
JUSTICES
CHINWE EUGENIA IYIZOBA Justice of The Court of Appeal of Nigeria
MISITURA OMODERE BOLAJI-YUSUFF Justice of The Court of Appeal of Nigeria
ABUBAKAR SADIQ UMAR Justice of The Court of Appeal of Nigeria
Between
1. IGWE EMMANUEL UGWU
2. CHIEF ROBINSON UGWU
3. CHIEF GODWIN UGWU
(For themselves and members of Ibagwa Nike Power of Attorney Ibagwa Nike Autonomous Community) – Appellant(s)
AND
CHIEF EDWARD MBA – Respondent(s)
CHINWE EUGENIA IYIZOBA, J.C.A. (Delivering the Leading Judgment):
This appeal is against the judgment of the High Court of Enugu State, Enugu Judicial Division delivered on the 9th day of June, 2014 Coram Nwobodo J. in suit No E/168/2011.
The Respondent as Plaintiff took out a writ against the Appellants on the 24th day of May 2011 claiming the following reliefs:-
i. A declaration that the defendants operating in the style and manner ‘IBAGWA NIKE POWER OF ATTORNEY’ are not holder nor occupier of ‘OKPUHU-ACHALLA’ land, therefore have no interest on the said land which belong to the plaintiff.
ii. A declaration that the plaintiff as the holder and occupier of the land in dispute known as ‘OKPUHU-ACHALLA’ by inheritance, constituting his own share among the children of Late Chief Ugwu Nwa Mba Ugwu, surveyed and represented in Survey Plan No. COS/EN/12/2008, is the bona fide owner of the said land in dispute and entitled to the statutory grant of Customary Certificate of Occupancy.
iii. A declaration that the Defendant?s letter to the plaintiff dated the 18/10/2010 with their reference No. INPA/BOT/001 has no basis in law and an act of interference to the plaintiff?s enjoyment of his property.
iv. A declaration that the Defendant have no authority over the plaintiff?s land shown on plan No. COS/EN/12/2008 Exhibit A and
v. Order of Perpetual Injunction restraining the Defendants by themselves, servants, agents, workmen and or their representatives however, called further acts of trespass on the plaintiffs property/land and or interfering with the plaintiffs enjoyment of the use of his said land represented by Survey Plan COS/EN/12/2008 Exhibit ‘A’.
The case of the Respondent is that the land in dispute was part of the land inherited by his father Chief Ugwu Nwa Mbah Ugwu from his forefathers. On his death on 16/12/92, his land known as Okpuhu-Achalla devolved on his four sons. The land was shared among the four sons on 17/10/05. The Respondent claims the land in dispute is his own share of their father’s Okpuhu-Achalla land which has common boundary with the community land called Ugwu Isiji. The Respondent claimed that Ugwu Isiji had been surveyed, necessary boundary adjustments made and the land shared to the community in 2003. In 2008, the Respondent then surveyed and registered his own share along with small off cuts beside his land in Survey plan no COS/EN/12/2008. The Respondent averred that sometime in 2010, the current Igwe of the community and some members of his cabinet (the Appellants) out of spite wrote to the Respondent claiming that he was trespassing on community land known as ‘Ugwu Isiji’ and asked him to vacate the land as the community now wished to make use of it. The Respondent then instituted this suit claiming the reliefs set out above.
The case of the Appellants is as stated by the 2nd Appellant Chief Robinson Ugwu who as at the time of the institution of the suit was the recognized Chairman of Ibagwa-Nike holders of Power of Attorney. In the Statement of Defence and as averred in his written deposition Chief Robinson Ugwu as DW1, conceded that the land of Chief Ugwu Nwa Mbah Ugwu, Okpuhu Achalla shared amongst his four sons was not communal land but family land owned exclusively by him. He also conceded that the piece of land known as Ugwu Isiji did not belong to the family of the Respondent but shared boundaries with the Respondent?s family land Okpuhu Achalla. His contention is that the ‘off cuts’ mentioned by the Respondent in paragraph 8 of his Statement of Claim and in his evidence in chief were pieces of land part of Ugwu Isiji which belong to Ibagwa Nike Community which the Respondent trespassed into and acquired illegitimately. DW2 Elder Mba Nwaugwu Nwamba is the Respondent?s brother of the full blood.
He conceded that their family male members shared some of their pieces of land near the land in dispute; that the shared land has common boundary with Ibagwa Nike community land; that he showed the representatives of Ibagwa Nike Community the proper boundary between their family land and that of Ibagwa Nike community and that the land the Respondent was claiming does not belong to his family. DW3, Chibueze Mba is the Respondent?s half brother. He confirmed that they had shared their family plots of land at Okpuhu-Achalla where they had common boundary with Ibagwa Nike Community; that the land now in dispute was not part of plots of land they shared; that the Respondent did not inform the family when he went to survey the land as he did not know the boundaries of their land; that it is their eldest brother Mba Nwaugwu Nwamba (DW2) who knows the boundary of their land; that the land in dispute belongs to Ibagwa-Nike Community.
At the trial, the Respondent (plaintiff) testified for himself and called two other witnesses. The 1st and 2nd Appellants testified for the Defence and called two other witnesses (brothers of the Respondent). After the trial, written addresses were ordered, filed and duly adopted. Judgment was delivered in favour of the Respondent (Plaintiff) on 9/6/2014. Dissatisfied with the judgment the Appellants (Defendants) filed a Notice of appeal with five grounds of appeal out of which the Appellants distilled the following issues for determination:
(i) Whether the learned trial Court erred in law by deliberately excluding the vital evidence of D.W.3 and D.W.4 and by so-doing failed, ignored and or neglected to consider the totality of evidence and issues formulated by the Appellants (then defendants) at the trial Court?
(ii) Whether the learned trial Court also erred in law when it equally deliberately, excluded, refused and or failed to consider the totality of issues formulated by the Appellants? counsel for determination at the trial Court?
(iii) Whether the trial Court misdirected itself in law when it erroneously held that:
‘now it seems to me that the practice which is acceptable is that where a plaintiff brings an action claiming a piece of land as his own, and files a plan of the land it is the duty of the defendant to show that the land does not belong to the plaintiff. It is not the province of the Defendants to argue that some other piece of land apart from the one claimed by the plaintiff is the one in dispute.”
(iv) Whether the trial Court misdirected itself in law when it held penultimately thus:
The plaintiff did not at any time claim that Ugwu – Isiji belonged to him or to his family. What he claimed is the parcel of land represented in Exhibit ‘A’, situated at Okpuhu-Achalla. It is often the case that parties assume that when a suit is filed in a Court and parties exchanged pleadings? further progress in the matter must at all events be determined by evidence to be called.
The correct position is that whether or not it is necessary to call evidence must be dependent on the state of pleadings. Where the plaintiff has pleaded facts upon which his right in dispute in the suit hinges and the defendant admits those facts it is not in such a case necessary for any evidence to be called and the Court would be entitled to judgment on the pleadings. When a fact is pleaded by the Plaintiff and admitted by the Defendant, evidence on the admitted facts is irrelevant and unnecessary. See Bunge v. Gov. of Rivers State (2006) 141 LRCN 2227.
(v) Whether the learned trial Court grossly erred in law when it failed, refused and or neglected to use nor presume as admitted the uncontroverted nor contradicted evidence of D.W.2, Elder Mba Nwaugwu Nwamba, which the same trial Court retained after jettisoning or abandoning a similar evidence given by D.W.3, Mr. Chibueze Mba, along with that of D.W.4, who are the younger brother to the Respondent (Plaintiff) and the revered traditional Ruler of Ibagwa Nike, to the effect that the land in dispute does not belong to their family nor to the Respondent (Plaintiff) as a person, who is their own brother.
The Respondent on his part formulated the following issues for determination:
i. Whether the learned trial judge failed, ignored and/or deliberately excluded the evidence of DW3 and DW4 and thereby erred in law for failing to properly evaluate the totality of the evidence before the Court.
ii. Whether the learned trial Court failed to consider the totality of the issues formulated by the Appellant and thereby erred in law.
iii. Whether the trial Court misdirected itself in law when it held thus:
‘Now it seems to me that the practice which is acceptable is that where a plaintiff brings an action claiming a piece of land as his own and files a plan of the land it is the duty of the defendant to show that the land does not belong to the plaintiff. It is not the province of the defendants to argue that some other piece of land apart from the one claimed by the plaintiff is the one in dispute.’
iv. Whether the trial Court misdirected itself in law when it held thus:
That plaintiff did not at anytime claim that Ugwu-Isiji belonged to him or his family. What he claimed is the parcel of land represented in Exhibit A situate at Okpuhu Achalla.
It is often the case that parties assume that when a suit is filed in a Court and parties exchange pleadings, further progress in the matter must at all events be determined by the evidence to be called. The correct position is that whether or not it is necessary to call evidence must be dependent on the state of pleadings. Where the Plaintiff has pleaded facts upon which his right in dispute in the suit hinges and the defendant admits those facts it is not in such a case necessary for any evidence to be called and the Court would be entitled to give judgment on the pleadings. When a fact is pleaded by the plaintiff and admitted by the defendant evidence on the admitted facts is irrelevant and unnecessary. See Bunge v. Gov. of Rivers State (2006) 141 LRCN 2227.
v. Whether the learned trial Court erred in law in failing to use or presume as admitted the ‘uncontroverted’ or un-contradicted evidence of DW2 Elder Mba Nwangu Nwamba to the effect that the land in dispute does not belong to their family.
The Respondent’s issues are identical to those of the Appellants. I have examined carefully the pleadings, the evidence led by the parties, the written addresses and the judgment of the Court. The parties are in agreement that the land of Chief Ugwu Nwa Mbah Ugwu, Okpuhu Achalla shared amongst his four sons was not communal land but family land owned exclusively by the family. They also agree that the land known as Ugwu Isiji is communal land and did not belong to the family of the Respondent but has boundaries with the Respondent?s family land Okpuhu Achalla. The crux of the matter in this appeal is whether the Respondent discharged the burden on him of proving that the land he surveyed and registered, plan COS/EN/12/2008 is exclusively his own share of the family property entitling him to a declaration that he is the bona fide owner of the land and the right to a grant of Customary Certificate of Occupancy. All the issues formulated by both sides are fall outs from this primary issue. I shall therefore determine this appeal on the sole issue whether the Respondent proved his title to the land in dispute. For this reason, I shall not as usual set out the submissions of counsel on the issues they formulated.
I shall go straight ahead to the meat of the matter that is whether the trial Court was right in entering judgment in favour of the Respondent. Reference will be made to the submissions of counsel as the need arose.
It has long been settled since the case of IDUNDUN V OKUMAGBA (1976) 9-10 SC 227 that there are indeed five methods of proving title to land. These are: (1) Traditional evidence (2) By production of documents of title (3) Acts of ownership such as selling, leasing, renting or farming extending over sufficient length of time, numerous and positive enough to warrant the inference that the person is the true owner. (4) Acts of long possession and enjoyment of the land (5) 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. Proof of any one of the five ways is sufficient as each of them stands or falls on its merit. The Respondent adduced traditional evidence of ownership of part of Okpuhu Achalla land shared with his siblings. The Appellants conceded to that fact.
The issue here is whether the land surveyed by the Respondent and which is in dispute is the actual land he got from the sharing of the family land and is exclusive of any portion of the communal land. To appreciate the fact that it is indeed the only bone of contention, it is necessary to set out in extenso the pleadings of the parties.
The relevant paragraphs of the Respondent?s Statement of Claim read thus:
5. Chief Elder Iyenze Nwa Anke begot late Elder Okoloafor Nwa Iyenze, later Elder Okoloafor Iyenze gave birth to late Elder Ugwu Okoloafor, then Elder Ugwu Okoloafor to Chief Ugwu Nwa Mbah Ugwu.
6. Late Chief Ugwu Nwa Mbah Ugwu who died on 16th December, 1992 left the Land for his children namely Elder Mba Nwa Ugwu, Chief Edward Mba, Chibueze Mba and Uchechukwu Mba. The land was later shared (the land) among the four( 4) of them on 17th October, 2005.
7. In the year 2008, the Plaintiff, Chief Edward Mbah surveyed his portion and registered it because the Ibagwa Nike Power of Attorney had already surveyed the Ugwuisiji land in question and registered the place in the year 2003.
8. The Plaintiff then joined the small off cuts beside his land because he inherited the land after his father according to the custom and tradition of Ibagwa Nike.
9. The said plot of land is called Okpuhu-Achalla and not Ugwu-Isiji. The 1963 Ibagwa Nike land declaration stated that Okpuhu-Achalla is among the family individual lands. (The Plaintiff hereby pleads the 1963 land declaration and will rely on same during hearing of this suit)
10. The first layout was surveyed by a set of power of attorney which was chaired by Chief Christopher Ugwuokolo in 2002 to 2004, the second set was chaired by Chief Anike Nwoga. They have all surveyed part of the community land and had done the necessary boundary adjustment.
11. There is a common boundary between the Plaintiffs land in Okpuhu-Achalla and that of the community. The so-called Ugwuisiji has been surveyed and all the necessary boundary adjustment has been done and the land shared to the community in 2003, before the Plaintiff did his own land surveying in Plan NO. COS/ENI121200S.
12. This incumbent purported Power of Attorney which is chaired by Robinson Ugwu knew that the Plaintiffs land does not belong to the community, but they are acting out of jealousy and a way to witch hunt the Plaintiff and then take-over his land.
13. The community surveyed layout clearly showed that the Plaintiffs land is not in anyway part of the community land.
14. The Plaintiff surveyed and registered his own plots of land with Ministry of Lands and Survey Plan No. COSIEN/121200S five years after the Ibagwa Nike Power of Attorney has concluded all their land survey and boundary adjustment. Ugwuisiji has been surveyed by Chief Christopher Ugwuokolo. The Plaintiff have a common boundary with the community (At the trial, the Plaintiff shall rely on the survey Plan. No. COS/ENI12/2008 registered as —— in land register Enugu.
15. Has it been that the first set of Ibagwa- Nike Power of Attorney neglected it; the second set of Power of Attorney would not have neglected it. They all knew that the Plaintiff’s land is not among the community land.
16. The 1963 Ibagwe Nike land declaration which they referred to in their letter to the Plaintiff clearly stated that Okpuhu-Achalla is among the lands owned by individuals and even the Ibagwa-Nike constitution also said the same thing.
17. Ugwuisiji has long time ago been surveyed along with Okpaokuko since 1999 –2003. And shared to all the adult age in the community.
18. When the 1st Defendant, Igwe Emmanuel Ugwu invited the Plaintiff for a meeting on 24/2/2008 the Plaintiff did not honour the invitation because the Igwe has divided the community into 2 parts peddling trouble as his stock in trade (At the trial, the Plaintiff shall rely on the letter from the 1st Defendant, dated 20/2/2008 inviting him for a meeting on the 21st day of February 2008 at 4.pm). The 1st Defendant is hereby given notice to produce the original copy of the said letter).
19. The Defendants wrote a letter to the Plaintiff dated 18th of October, 2010, wherein they told the Plaintiff that his land has now become community land. The 1st Defendant had wanted the Plaintiff to become a member of his cabinet which offer was rejected by the Plaintiff and out of spite, the Defendants schemed to take over the Plaintiffs land. (At the trial, the Plaintiff shall rely on the letter with reference Nominal/BOT/001 dated 18th October, 2010 authored by one Chief Robinson Ugwu (Chairman) and one Chief Godwin Ngwu (Secretary), and the Defendants are given notice to produce the original copy of the letter).
The relevant portions of the Statement of Defence read:
4. In response to paragraph 6 of the Statement of Claim, the defendants categorically state that the pieces of land shared by the successors in-title late Chief Ugwu Nwa Mbah Ugwu were the pieces of land owned exclusively, by him, but by no means communal land.
5. The defendants’ response to paragraphs 7 and 8 of the Statement of Claim is that albeit the plaintiff and his siblings had shared the piece of land they inherited from their father late Chief Ugwu Nwa Mba Ugwu, collectively known as Okpuhu Achalla, the piece of land Known as and called Ugwuisiji do not in fact belong to the family of the plaintiff as alleged in this suit and this appears to be the bone of contention in this suit, it is pertinent to observe that the “off cuts” mentioned by the plaintiff in paragraph 8 were some pieces of land that truly belong to Ibagwa -Nike community which he trespassed into and acquired illegitimately before this suit was filed: moreover the plaintiff did not name the number of community plots of land he illegally acquired as “off cuts’ in his Statement of Claim.
6. The defendants’ response to paragraph 9 of the Statement of Claim is that Okpuhu -Achalla and Ugwu-Isiji have a common boundary, but they are not the same piece of land, rather the difference is that UgwuIsiji is one of the pieces of land declared as communal land in the 63 Ibagwa Nike Land Declaration, but Okpuhu-Achalla is not a communal land, therefore, the plaintiff misconceived the difference.
7. The answer to paragraph 10 of the Statement of Claim is that the adjustment therein is not correct as it stands, because the boundary subsequent referred to therein is not comprehensive, so the subsequent donees of Ibagwa-Nike Power of Attorney continued the boundary adjustment where their predecessors stopped in the past. This may have given room for the “small off cuts” which the plaintiff claim he inherited in paragraph 8 hereinbefore responded to.
8. Paragraph 11 of the Statement of Claim is false, as the boundary adjustment earlier embarked on by the community did not reach up to the common boundary between the family of the plaintiff’s part of Okpuhu-Achalla and the community land, contrary to the plaintiffs’ averment, although other common boundaries with some other families were adjusted.
9. The Plaintiffs’ averment in paragraph 12 of the Statement of Claim is not correct, the truth remains that some parts of the community land were earlier surveyed and the boundaries adjusted, however, that earlier survey and boundary adjustment of the community land did not extend to the community land that has common boundary with the plaintiff’s family land, by whatever name so-called; rather it was later that the community resolved to properly survey and adjust their common boundary abutting or near the plaintiff’s family land and this later decision may have confused the plaintiff in this suit.
10. Paragraph 13 of the Statement of Claim is hereby denied, as it is absolutely false and unfounded, because the community land is clearly different from the plaintiffs family land.
11. The defendants’ reply to paragraph 14 is that the plaintiff cannot by mere survey claim the community land, especially as he did not inform the community when he surveyed the land under reference, moreover, the survey plan pleaded by the plaintiff in this suit is not a Litigation nor dispute survey plan, which could lucidly portray the boundaries in dispute for the purpose of this very suit, as the law requires; the plaintiff’s confusion appears to emanate from the fact that his family has a common boundary with the community land and nothing more, especially as the plaintiff did not file any plan showing how his family shared their land.
12. Paragraph 15 of the Statement of Claim is false or spurious, as no group of holders of Power of Attorney has the prerogative to do everything under the sun during their tenure in office.
13. Paragraph 16 of the Statement of Claim is admitted, but the defendants are not contesting the ownership of Okpuhu-Achalla.
14. The defendant’s response to paragraph 17 of the Statement of Claim is that some parts of Ugwuisiji and Okpa Okuko were really surveyed between 1999 and 2003, but that does not affect the land in dispute in this suit.
15. The defendants state that paragraphs 18 and 19 of the Statement of Claim are false to the extent that their distinguished traditional ruler of their community who is the 1st defendant in this suit, is not a peaceful person; the truth is that when the plaintiff encroached on or trespassed into our community land the community instructed the defendants to write him and find out why he encroached on their communal land, but the plaintiff bluntly refused to respond to the invitation of the community, while his eldest brother Elder Mba Nwa Ugwu Mba and younger brother Mr. Chibueze Mba responded to the same invitation and subsequently denied the plaintiff’s claim of the community land as per this suit or otherwise, that is, the brothers of the plaintiff denied that the land in dispute in this suit belongs to them so they made a written statement on oath that the land in issue belongs to the community, which statements are hereby pleaded and shall be relied on during the trial of this suit.
16. The defendants urge the honourable Court to dismiss the plaintiffs Claim in paragraphs (i) (ii) (iii) (iv) and (v) of the Statement of Claim and put the plaintiff to the strictest proof thereof, as the entire claim constitutes a mere gold-digging adventurism that is inconsequential.
17. The plaintiff is hereby given Notice to produce the boundary adjustment document which he pleaded without annexing same to the front loaded documents.
18. The defendants will object to the capacity in which they were sued by the plaintiff, as they cannot be compelled to represent any group of persons who did not give them any express authorization in that regard as and representation presupposes express mandate from the person being represented, not ‘vice versa”, which is rather presumptuous and renders the action incompetent, as the plaintiff sued the wrong parties.
19. It is worthy of note that the 1963 Land Declaration mentioned in paragraph 9 of the Statement of Claim and even pleaded was not frontloaded as provided in the High Court Civil Procedure Rules of Enugu State 2006 and this is a fundamental defect that adversely or fatally affects the competence of this suit “in limine” or “ab initio’.
20. In addition to the previous response, paragraph 11 of the Statement of Claim admits that some of the pieces of land in issue truly belong to the community, Ibagwa -Nike, ruled by the first defendant in this suit and this curious mix – up could not be explained just like the difference between “Okpuhu-Achalla’ and “Ugwuisiji”.
21. Further, the survey plan No. COS/EN/12/2008 pleaded in paragraph 14 of the Statement of Claim is not a litigation plan and was not frontloaded as provided in the High Court Civil Procedure Rules of Enugu State 2006 and this is fatal to the case of the plaintiff, as the exact land in dispute is not properly demarcated nor identified “strictu sensu” same applies to Ibagwa-Nlke Constitution mentioned in paragraph 16 of the same Statement-of Claim.
22. There was no list of documents to be tendered and the list of witness was not dated as required.
23. The eldest man in the family of the plaintiff and his younger brother, to wit, in Chief Ugwu Nwa Mba Ugwu and Chibueze Mba of the same family were not consulted before this action was instituted in respect of what is purported to be their family property and these relations of the plaintiff, to wit, Elder Ugwu Nwa Mba and Mr. Chibueze Mba, testified to this fact in their respective written Statements on Oath, which the defendants plead and will rely on during the trial of this suit.
24. The defendants plead and will at the trial set up and rely on all legal and equitable defences open and available to them and will in particular urge the honourable Court to dismiss the plaintiff’s claim in its entirety.
A careful perusal of the pleadings reveals that the parties are ad idem on the following points:
1. That Okpuhu Achalla land is the family property of the Plaintiff?s family and not communal land.
2. That Ugwuisiji is communal property of the community.
3. That the Plaintiff is not claiming to be owner of Ugwuisiji land.
4. That the Defendants are not claiming Okpuhu Achalla land which they agree belongs to the Plaintiff?s family.
5. Both parties agree that the Plaintiff?s family’s Okpuhu Achalla land has boundary with communal land Ugwuisiji.
The Plaintiff/Respondent surveyed the land which he claimed to be his share of the family land Okpuhu Achalla inclusive of some off cuts (in my understanding) of the communal land Ugwuisiji which came about because Ugwuisiji had been surveyed, boundaries adjusted and the communal land allocated to various adult members of the community.
The Defendants/Appellants disagree with the Plaintiff. They claim the boundary adjustment was not final but an on-going process; that the Plaintiff had no right to trespass into the communal land and to annex the off cuts to his land illegitimately. To worsen the plight of the Plaintiff, his own brothers gave evidence that the land in dispute is not part of their Okpuhu Achalla family land; that the plaintiff does not know the boundaries of the family land as he did not live in the community; that it is their eldest brother, DW2 who knew the boundaries of their family land. How does the Plaintiff surmount these hurdles?
The plaintiff is amongst other things asking for a declaration of title over the area in his survey plan. The burden rests on him to adduce evidence on a balance of probability that the area in his plan is indeed all his share of Okpuhu Achalla family land. In order to discharge the burden, the Plaintiff can call witnesses such as other siblings who are familiar with the Okpuhu Achalla family land and perhaps witnessed the sharing to testify that the Plaintiff’s survey plan is a true reflection of his share of the family land or the Plaintiff could produce and tender a plan showing the entire Okpuhu Achalla family land with its boundaries and the shares of each of his brothers in order to support his claim that the part he is claiming is indeed his exclusive share. The plan must also show the boundary between his share and the communal Ugwuisiji land, the off cuts, evidence that the boundary adjustment was final and the authority by which he annexed the off cuts to his share of the family land or that the off cuts are part of his inheritance. It is only when he has adduced such evidence that the burden would shift to the appellants to prove the contrary. The learned trial Judge apparently misconceived the facts and the incidence of burden of proof in land matters when in his judgment at pages 230-231 of the Record he observed:
‘Now it seems to me that the practice which is acceptable is that where a plaintiff brings an action claiming a piece of land as his own, and files a plan of the land it is the duty of the defendant to show that the land does not belong to the plaintiff. It is not the province of the defendants to argue that some other piece of land apart from the one claimed by the plaintiff is the one in dispute.”
A person claiming title to a piece of land bears the burden of establishing his title to the land by one of the modes of establishing title already set out above. He does not discharge the burden by merely tendering a plan showing his own conception of the disputed land and calling it whatever name he pleased. Learned counsel for the Appellant is correct in his submission that parcels of land are not acquired by mere preparation of a survey or perimeter plan. His lordship’s statement is that where a plaintiff brings an action claiming a piece of land as his own, and files a plan of the land, it is the duty of the defendant to show that the land does not belong to the plaintiff. By this statement his lordship is shifting the burden of proof to the defendant. The evidential burden will only shift to the defendant where the Plaintiff has satisfied the initial burden of proof of ownership of the land. Assuming for instance that the Plaintiff had tendered a plan showing the entire Okpuhu Achalla family land and the position of his own share of the land including the boundary between his land and the communal land UgwuIsiji, any dispute of his claim by the defendant will result in the shift of the evidential burden to the defendant to adduce evidence in rebuttal. It is not enough for the Plaintiff to just file a perimeter plan. He must through his plan show features and boundaries that will help him establish how he came to own the land and the extent of his land.
The features and boundaries must be pleaded in his statement of claim to enable the defendant traverse the pleading. The Respondent’s survey plan No. COS/EN/12/2008 is at page 21 of the Record of Appeal. It is captioned
‘Plan shewing Landed Property of SATELITE ESTATE at Ibagwa Nike Enugu. There were no features shown, just beacon numbers and proposed roads. The plan was not even front loaded to enable the Appellants react to it. The Respondent in his pleading referred to the land as Okpuhu Achalla. The Appellants in their pleading contended that the land is not Okpuhu Achalla but the communal land UgwuIsiji. It is for the Respondent to adduce evidence that the land is not only Okpuhu Achalla but his own exclusive share of their family Okpuhu Achalla land and that no part of Ugwuisiji land is contained therein or if the off cuts are part of the leftover after boundary adjustment, how he came to acquire them as part of his share of family land. The view of the learned trial judge that ‘it is not the province of the defendants to argue that some other piece of land apart from the one claimed by the plaintiff is the one in dispute” is a clear misrepresentation of the facts and law. The defence of the Appellants is that the piece of land the Respondent was claiming was not their family Okpuhu Achala Land but communal land of UgwuIsiji. The burden rests on the Respondent to adduce evidence that the land in dispute does belong to him; not by merely tendering a perimeter plan showing the area he is seeking title to but pleading and leading evidence as to how he acquired the land and its extent.
The cross-examination of the Respondent is at pages 188-190 of the Record. The part dealing with ?off cuts? run thus:
Q: What you call off cut do not belong to you, why did you take them?
A: They belong to me.
Q: What is the size of the land referred to as off cuts by you?
A: I cannot show that off heart but is shown on the plan
Q: Show us the off cuts on the plan
A: Shows the proposed roads as the off cuts.
Q: I take it that the off cuts you mean are the communal land near the road?
A: It is not communal land.
Q: Whose land is it then?
A: It is my land as I said earlier
Q: If it is your land why did you nick name them off cuts?
A: That is what I chose to call it because it is nothing
It is obvious that the Respondent is economical with the truth. If the land truly belonged to him, he would not have referred to it as off cuts. Further there was no indication on the survey plan that the proposed roads were the off cuts the Plaintiff/Respondent was referring to. The Respondent went to a lot of trouble to show by his pleading and evidence that the community had surveyed Ugwuisiji land, established its boundaries and registered it in 2003, five years before he registered his own land. The inference is that they cannot come back after so many years to claim whatever remained outside the established boundary already registered. The Respondent in my view did not adduce satisfactory evidence that the off cuts he referred to was part of his share of the land inherited from his father.
The more confounding aspect is that the Respondent’s two brothers gave evidence that the land in dispute is not part of their family land. DW2, Elder Mba Nwangwu Nwa Mba is a brother to the Respondent of the full blood and the eldest man in the family. He resides in Ibagwa-Nike. In his written deposition he stated that the land the Plaintiff was claiming belongs to Ibagwa-Nike community as a whole; that the Plaintiff did not know their jointly owned pieces of land; that the community wrote to them inviting them for discussion over the land in dispute; the Plaintiff refused to honour the invitation; that he honoured the invitation and showed them the proper boundary between their family land and the communal land; that the land in dispute did not belong to his family or the Plaintiff exclusively. Unfortunately, the cross-examination of DW2 concentrated on showing that DW2 gave false evidence because he did not love the plaintiff who was favoured by their father more than all others of his children. No questions were put to DW2 to discredit his evidence and to show that the land in dispute was indeed the Plaintiff?s share of their father’s land.
The learned trial judge in his evaluation of the evidence completely glossed over the very damaging evidence of DW2 and did not even consider the evidence of DW3. DW2 is the elder brother of the Plaintiff and the head of his family. He lives in the village and it is expected that he would know the boundaries of his family land more than the Plaintiff who was a civil servant and just returned to the village on retirement. Even if there was no love lost between the Plaintiff and his brothers DW2 and DW3 and they were suborned to damage his case, it is for the Plaintiff who is seeking a declaration of title to the disputed land and on whom the burden of proof rests to show that the land in dispute was indeed his share of the family estate and that DW2 and DW3 were not telling the truth. No such evidence was adduced by the Plaintiff. At page 231-232 of the Record, the learned trial judge observed:
The plaintiff did not at anytime claim that Ugwu-Isiji belonged to him or his family. What he claimed is the parcel of land represented in Exhibit A situate at Okpuhu Achalla.
It is often the case that parties assume that when a suit is filed in a Court and parties exchange pleadings? further progress in the matter must at all events be determined by the evidence to be called. The correct position is that whether or not it is necessary to call evidence must be dependent on the state of pleadings. Where the plaintiff has pleaded facts upon which his right in dispute in the suit hinges and the defendant admits those facts it is not in such a case necessary for any evidence to be called and the Court would be entitled to give judgment on the pleadings. When a fact is pleaded by the plaintiff and admitted by the defendant evidence on the admitted facts is irrelevant and unnecessary. See Bunge v. Gov. of Rivers State (2006) 141 LRCN 2227.
The plaintiff pleaded facts upon which his right in dispute in the suit is hinged, and the defendants admitted those facts as I have shown above in the course of this judgment.
The defendants having admitted that the land shared by the plaintiff and his siblings was exclusively owned by their father and is called Okpuhu-Achalla, they have no right therefore to issue Exhibit ‘C’ to the plaintiff.
This in my humble view is a gross misconception of the issue in dispute. The issue is whether the land in dispute which the plaintiff surveyed and claims to be his share of his family’s Okpuhu-Achalla land was indeed his share of his family’s Okpuhu-Achalla land or whether what he surveyed was actually part of Ugwuisiji communal land? No lesser persons than the Plaintiff?s two brothers testified that the land in dispute is not their family Okpuhu-Achalla land and is not owned exclusively by the Plaintiff. The onus is clearly on the Plaintiff to initially adduce evidence that the land surveyed was indeed his share of the family land. He failed to discharge the burden. A person claiming title to land cannot succeed by merely tendering a perimeter plan without particulars and expect the burden to shift to the defendant to adduce evidence that he is not the owner of the land. The judgment of the trial Court is perverse and unsupportable. With this conclusion there is no need to consider all the peripheral issues raised by the Appellant. There is no doubt that the learned trial judge failed to give due consideration to the evidence of all the witnesses and all the issues canvassed by the defendants/Appellants because of his erroneous conclusion that the defendants/Appellants admitted the claims of the Plaintiff/Respondent. I hold that this appeal has merit. It is hereby allowed.
The judgment of the High Court of Enugu State, Enugu Judicial Division delivered on the 9th day of June, 2014 Coram Nwobodo J., in suit No.E/168/2011 is hereby set aside. In its place, the claims of the Respondent are dismissed. I make no order as to costs.
MISITURA OMODERE BOLAJI-YUSUFF, J.C.A.: I have read the draft of the lead judgment of my learned brother, CHINWE EUGENIA IYIZOBA, J.C.A. I agree that this appeal has merit. By his own pleadings, the respondent admitted that his father’s land called Okpuhu-Acholla is separate and distinct from the communal land called Ngwusiji. He also by paragraphs 7 and 8 of his statement of claim already reproduced in the lead judgment admitted that he joined what he referred to as off cuts from the communal land to the potion of his father’s land partitioned to him. He did not plead or lead evidence of what entitled him to join ‘the off cuts’ to his own land.
It is important to state that the respondent did not file composite plan to show the boundary of the communal land as demarcated by the survey made in 2003 and “the off cuts” relation to his own Survey made in 2008. In any case, the appellants pleaded and led evidence that the demarcation of boundary with various families did not cover the boundary with the respondent’s family and that is why the process of demarcation continued. The respondent never claimed “the off cuts” were part of his father’s land. The respondent’s claim is ridiculous and vexatious. I too allow the appeal. I abide by the consequential orders made in the lead judgment.
ABUBAKAR SADIQ UMAR, J.C.A.: I had the opportunity of reading in advance, the well-considered judgment of my learned brother, Chinwe Eugenia lyizoba, JCA just delivered.
However, in delivering my opinion on the lead judgment of my brother, I wish to add that the law has been long settled that the burden of proof in a claim for declaration of title to land lies on the plaintiff, who generally must rely on the strength of his own case and not on the weakness of the defendant’s case. See WOLUCHEM V. GUDI (1981) SC 291, PIARO V. TENALO (1976) 12 SC 31.
In this case, the Respondent who was the plaintiff at the trial Court had the burden to prove that he is entitled to the declaration which he sought and he was required to discharge this burden of proof on preponderance of evidence. The Respondent failed to surmount this hurdle and as rightly by my learned brother in his lead judgment, a person Claiming title to land cannot by merely tendering a perimeter plan without particulars and expect the burden to shift to the Defendant to adduce evidence to show that he is not the owner of the land.
The trial Court therefore erred when it held in its judgment at pages of 230-231 of the Records that:
“Now it seems to me that the practice which is acceptable is that where a plaintiff brings an action claiming a piece of land as his own, and files a plan of the land, it is the duty of the defendant to show that the land does not belong to the plaintiff. It is not the province of the defendants to argue that some other piece of land apart from the One claimed by the plaintiff is the one in dispute.”
In a claim for declaration of title to land, the law is trite that a party who claims such remedy in Court must prove his case with cogent and uncontradicted evidence that remains credible and reliable.
It is obvious that the Respondent did not prove his claim for declaration of title to the land which is in controversy and for the above reasons and of course the detailed ones adumbrated in the lead judgment, I too, therefore, find merit in this appeal and I accordingly allow same. The judgment of the trial Court is hereby set aside. I abide myself by the consequential orders.
Appearances:
DR. G.C. OBIORA-ONYIA, Esq., with him, C.C. OJI-OGBONNA ESQ.For Appellant(s)
PROF. Z.C. ANYOGU with him, C.I.ACHU ESQ.For Respondent(s)
