IKECHUKWU NWUDE v. OBIORAH NWUDE & ORS
(2019)LCN/13732(CA)
In The Court of Appeal of Nigeria
On Thursday, the 1st day of August, 2019
CA/E/181/2013
JUSTICES
IGNATIUS IGWE AGUBE Justice of The Court of Appeal of Nigeria
CHINWE EUGENIA IYIZOBA Justice of The Court of Appeal of Nigeria
ABUBAKAR SADIQ UMAR Justice of The Court of Appeal of Nigeria
Between
IKECHUKWU NWUDE Appellant(s)
AND
1. OBIORAH NWUDE
2. CHISOM NWUDE
(Defending by his Guardian
Ad litem ESTHER NWUDE)
3. NWITO NWUDE Respondent(s)
RATIO
WHETHER OR NOT A COURT MUST CONFINE ITSELF TO THE ISSUES RAISED BY PARTIES
Generally, a Court ought to confine itself to the issues raised by the parties in the determination of matters. However, where the issues are pluralized, or fragmented, or couched in such a manner as to obscure the crucial and real issues that would properly, adequately and finally determine the dispute, the Court would be entitled to distill such or other issues from the Grounds of Appeal filed. In such a situation, the Court of Appeal has the power and discretion to formulate issues from the Grounds of Appeal, which will determine the vital question between the parties. See KALU V UZOR (2006) 8 NWLR (PT. 981) 66. PER UMAR, J.C.A.
WAYS OF ESTABLISHING PROOF OF TITLE OF OWNERSHIP TO LAND
Over the years, the law has crystallized in this jurisdiction that title to land may be proved by 5 main methods as laid out in the case of IDUNDUN & ORS V. OKUMAGBA (1976) LPELR-1431 (SC). I am a bit perturbed as to which of the different versions of the story of the Appellant?s root of title I am to believe. The Appellant in paragraph 3 of his Further Amended Statement of claim relied on traditional history and inheritance as his root of title to the property in dispute. The Appellant averred in paragraph 3 as follows:
?Late Nwobu Nwedu inherited as of right, according to Awka native law and custom the piece of land situate at former No. 198 Enugu Road, now designated as No. 200 Zik Avenue Awka which includes the area marked plots 2 and 3 as shown in the sketch plan. Late Obuewke Nwudi gave the said areas to Nwobu Nwude. Late Madam Umerah Nwude initially objected because the area including the portion given to the plaintiff was used by Umuogbunu village as a burial ground for the daughters (Umuokpu). But the late Nwude Mgbeke told late Umerah Nwude that the land suited her because of her wicked nature and mischievous (sic). (Underlining mine for emphasis). PER UMAR, J.C.A.
WHETHER OR NOT A PARTY CLAIMING TITLE TO LAND BY INHERITANCE MUST PLEAD FACTS RELATING TO THE FOUNDING OF THE LAND IN DISPUTE
The Supreme Court and this Court following the doctrine of stare decisis have stated in a plethora of authorities that a party claiming title to land by inheritance must plead facts relating to the founding of the land in dispute, the person(s) who found the land and exercised original acts of possession and the intervening owners through who the land has devolved from the original founder to the present. See IROAGBARA V UFOMADU (2009) LPELR-1538 (SC) AT 15 (C-E); IKPAMAKU V MAKOLOMI (2011) LPELR-4513 (CA) AT 21-22 (G-C). PER UMAR, J.C.A.
WHETHER OR NOT PARTIES ND THE TRIAL COURT ARE BOUND BY THE PLEADINGS RAISED BY PARTIES
It is trite law that where a case is brought before the Court by pleadings and issues are joined on the pleadings filed by both parties, issues must be tried and settled in the pleadings. See WIRI & ORS. V. WUCHE & ORS (1980) LPELR ? 3498 (SC) AT 18 (A). It is also trite that parties and the trial Court are strictly bound by the pleadings and issues raised by the parties in their pleadings. Their case succeeds or fails on the basis of their pleadings and evidence led. See ETIM V. CLASEN VENTURES & ORS (2011) LPELR ? 3827 (CA) AT 18-19 (G-D). PER UMAR, J.C.A.
WHETHER OR NOT A PLAINTIFF WHO SEEKS DECLARATION OF TITLE TO LAND MUST LEAD CREDIBLE EVIDENCE TO THAT EFFECT
The law is trite that a Plaintiff who seeks declaration of title to land must lead credible evidence to that effect and must rely on the strength of his own case. See UKAEGBU & ORS. V. NWOLOLO (2009) LPELR-3337 (SC); KALU V AGU & ORS. (2014) LPELR-22849 (CA). PER UMAR, J.C.A.
ABUBAKAR SADIQ UMAR, J.C.A. (Delivering the Leading Judgment): This appeal is against the decision of the Anambra State High Court, Awka Judicial Division, delivered by C.O. Nweke J. on the 8th day of May, 2012.
BRIEF FACTS OF THE CASE
The brief facts that led to the institution of this appeal are that by a Further Amended Statement of Claim dated the 17th day of January, 2012 the Appellant as Plaintiff in the Court below instituted this action, the subject of this appeal against the Respondents as Defendants, jointly and severally claiming against them the following reliefs to wit:
i. Declaration that the LAST WILL AND TESTAMENT OF MADAM UMERAH NWUDE DATED 27TH SEPTEMBER 1989 is null and void to the extent where it refers to compound allegedly knows as and called ?NGULU BE UMERAH NWOBU NWUDE? and the six rooms storey building including one under construction which the deceased bequeathed to the four sons of Nwobu Nwude according to Awka native law and customs shown in Plan No. EP/AN635/89 dated 7/8/89 attached to the last Will and Testament of Madam Umerah Nwude and to set aside every averment in the Will and
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Testament touching on the said compound and building therein.
ii. Declaration that the compound and all the building within the compound are properties of Late Nwobu Nwude according to Awka native law and custom and any partitioning thereto must be in accordance with the said custom.
iii. Declaration that the plaintiff is the first and eldest son of Late Nwobu Nwude entitled to inherit the compound and buildings thereto according to Awka native laws and custom of inheritance and the plaintiff is the one to partition the rest among the other sons of the deceased Nwobu Nwude if he so desires.
iv. Injunction restraining the Defendants, their agents, servants, privies, persons claiming for or under the Defendants or acting on instruction from partitioning the said compound and building or collecting rents therefrom or doing anything that will prejudice or jeopardize the interests and rights of the Plaintiff.?
?
The case of the Appellant as gleaned from his averments in his further amended statement of claim at pages 299 ? 306 is that the property in dispute known as No. 200 Zik Avenue Awka but formerly known as 198 Enugu Road Awka
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belonged to his father late Nwobu Nwude but that at the death of the said Nwobu Nwude who predeceased his mother, the Appellant?s grandmother made a will whereby she partitioned the said property amongst the male children of her late son Nwobu Nwude. It is also the case of the Appellant that his grandmother claimed that the property belonged to her as she bought same with her own money. However, the Appellant who is the first son of the said Nwobu Nwude claimed that his paternal grandmother had no right to devise the said property by Will as the property belonged exclusively to his late father and that he as the first son has the sole right according to native law and custom of Awka to inherit the property from his late father and deal with same according to the Awka native law and custom.
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The case of the Respondents as contained in their Amended statement of defence dated 20th October, 2009 and filed on the 21st of October, 2009 (see pages 212 ? 223 of the record) is that late Umerah Nwude, the mother of the said Nwobu Nwude had a right to deal with the property as she did since she bought the property in dispute with her own money.<br< p=””
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The Appellant called eight (8) witnesses in support of his claims while the Respondents called three (3) witnesses. Counsel to both parties filed and adopted written addresses. In its considered judgment, the Court dismissed the Appellant?s claim in its entirety.
The Appellant dissatisfied with the said judgment invoked the appellate jurisdiction of this Honourable Court vide an original Notice of Appeal dated 23/7/12 and filed on 6/8/12 containing two grounds of appeal. The said Notice of Appeal was subsequently amended by an Amended Notice of Appeal dated 10/4/16 and filed on 25/4/16 this time containing four grounds of appeal. The four grounds of appeal without their particulars are as follows:
?GROUND ONE?
The learned trial judge misdirected himself in law when on resolving the second Issue adopted by the Court, she concluded as follows:
…with the state of the pleadings, the reliefs sought, and the evidence led in the case, my view is that this is a claim for title to land as argued by the learned counsel to the defendants?
?GROUND TWO?
The learned trial judge erred in
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law in law by dismissing the suit when ordinarily based on her findings she ought to have entered judgment in favour of the Appellant fully having proved his case.
?GROUND THREE?
The learned trial judge erred in law in upholding the claimed/alleged property rights of the Testator (Madam Umerah Nwude) in the cause.
?GROUND FOUR?
The learned trial judge erred in law in failing to reach any determination on the Appellants inherited possessory Right over the subject property under the customs and traditions of Awka Town Community.
In line with the rules of this Honourable court, parties filed and exchanged their respective briefs of arguments. The Appellant?s brief of argument was filed on 8/8/2016 but deemed properly filed and served on 17/1/2018. The said brief was settled by J.H.C Okolo, S.A.N. The Respondents? brief of argument was filed on 2/11/2017 but deemed properly filed and served on 17/1/2018. The said brief was settled by F.O. Anyanugbu Esq.
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The Appeal was taken on the 23/5/2019 wherein counsel to the parties adopted their respective briefs and made oral adumbration in respect of
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their various postures and contentions in the appeal.
Learned counsel to the Appellant in his brief distilled three (3) issues for the determination of this appeal to wit:
i. Whether on the pleadings/evidence canvased in the suit the lower Court was right in holding that the claim put before the Court for determination was for ?Title to Land simpliciter
ii. If yes, whether on the evidence canvassed the lower Court was right in ascribing ownership of the subject property to Madam Umerah Nwude, with the absolute unfettered rights to effect the dispositions contained in her Will and last Testament? (GROUNDS 1 & 4).
iii. Did the failure of the said lower Court?s appreciation of the case not occasion a total miscarriage of justice in the verdict arrived at (Grounds 2 & 3).
Counsel to the Respondents on his part distilled 2 issues for determination thus:
i. ?Whether the appellant proved that No. 200 Zik Avenue Awka (formerly No. 198 Enugu Road Awka) was the personal property of his late father Nwobu Nwude and established Nwobu Nwude?s root of title.
ii. Whether the testator, Umerah
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Nwude, had the capacity in law to devise the property No. 200 Zik Avenue, Awka the way she did?
I have painstakingly read through the pages of the record of appeal before this Honourable Court and the adopted briefs of argument of counsel in support of their various contentions and postures in this appeal. The issues for determination canvassed respectively by the parties are well examined and considered. Generally, a Court ought to confine itself to the issues raised by the parties in the determination of matters. However, where the issues are pluralized, or fragmented, or couched in such a manner as to obscure the crucial and real issues that would properly, adequately and finally determine the dispute, the Court would be entitled to distill such or other issues from the Grounds of Appeal filed. In such a situation, the Court of Appeal has the power and discretion to formulate issues from the Grounds of Appeal, which will determine the vital question between the parties. See KALU V UZOR (2006) 8 NWLR (PT. 981) 66.
In effect of the above, I consider the issues stated below as being apt and germane for the determination of the instant appeal:
?
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i. ?WHETHER ON THE PLEADINGS/EVIDENCE CANVASED IN THE SUIT THE LOWER COURT WAS RIGHT IN HOLDING THAT THE CLAIM PUT BEFORE THE COURT FOR DETERMINATION WAS FOR ?TITLE TO LAND SIMPLICITER
ii. ?WHETHER ON THE EVIDENCE CANVASSED, THE LOWER COURT WAS RIGHT IN DISMISSING THE CLAIMS OF THE APPELLANT?
ISSUE ONE
On issue one, learned counsel to the Appellant made reference to issues distilled in the Appellant?s final written address at the Court below and submitted that the claim of the Appellant at the trial Court is not that his immediate late father Nwobu Nwude inherited the property in dispute from his own father (i.e. the Appellant?s grandfather) but that the said property was given to the late Nwobu Nwude by Obuekwe Nwude (the Appellant?s grandfather). It is the contention of counsel that issues on the pleadings regarding the words used, ?GRANT? and ?INHERITANCE?, was in no way a contradiction so long as it is appreciated that the Appellant?s father Nwobu received the property as settlement portion from the Appellant?s grandfather and later his own father founded his
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Homestead thereon which on his own father?s death now transmitted to him as the eldest son under the tenets of Awka Town Tradition and Custom. Counsel submitted that the trial Court?s failed to appreciate the Appellant?s claims hence the perception of the Court in dwelling on the existing authorities relative to the legal considerations for a grant of declaration of title to land ending with a dismissal of the Appellant?s claims on that score alone.
Counsel submitted that the same Court held in its judgment that Section 18 of the Anambra State Actions Law on 12 years Limitation period in respect of straight actions for recovery of land was inapplicable for the reason that the suit was merely not one based on declaration simpliciter but rather on issues pertaining to succession of inheritance under the extant customs/tradition of Awka Town.
I have perused the Respondents brief of argument and no argument was proffered as to whether the Court below was right to have held that the claims of the Appellant was that of a declaration of title to land simpliciter.
?
RESOLUTION OF ISSUE ONE
It is trite law that where a case
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is brought before the Court by pleadings and issues are joined on the pleadings filed by both parties, issues must be tried and settled in the pleadings. See WIRI & ORS. V. WUCHE & ORS (1980) LPELR ? 3498 (SC) AT 18 (A).
It is also trite that parties and the trial Court are strictly bound by the pleadings and issues raised by the parties in their pleadings. Their case succeeds or fails on the basis of their pleadings and evidence led. See ETIM V. CLASEN VENTURES & ORS (2011) LPELR ? 3827 (CA) AT 18-19 (G-D).
I have perused the entire pleadings of both parties; there is no doubt that that the issue of the ownership of the property in dispute was joined between the parties. It was in realization of the fact that issues were joined on the ownership of the property situate, lying and being at No. 200 Zik Avenue Awka (formerly No. 198 Enugu Road Awka) that the Respondents formulated the second issue for determination in his final address at page 235 of the record. The second issue so formulated by learned counsel to the Respondents in his final written address (see pages 233 ? 253) before the Court below is:
?Whether
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the plaintiff has proved that No. 200 Zik Avenue Awka (formerly No. 198 Enugu Road Awka) was the personal property of his late father Nwobu Nwude and established Nwobu Nwude?s root of title.?
Exercising his right to file his final written address, learned counsel to the Appellant also filed his final written address at the Court below and at page 261 of the record, counsel distilled the below stated issue as one of his issues for the determination of the rights of the parties at the Court below:
?Under the operative customs and traditions of the Awka Town Community, who as between the plaintiff?s father, late Nwobu Nwude, and his late Mother Madam Umerah Nwude is the rightful owner of the said property
The Court below considered this issue and resolved same against the Appellant. The first grouse of complaint of counsel to the Appellant is that the trial Court did not appreciate the claims of the Appellant and treated the issue as if it was that for a declaration of title to land despite having held that Section 18 of the Anambra State Actions Law on 12 years Limitation period in respect of straight actions for
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recovery of land was inapplicable for the reason that the suit was based on issues pertaining to succession of inheritance under the extant customs/tradition of Awka Town.
In addressing this issue, permit me to reproduce the relevant excerpts of the Appellant?s pleadings at the Court below. The Appellant averred in paragraph 8, 9 and 16 of the Further Amended Statement of claim that:
8. Late Nwobu Nwedu inherited as of right, according to Awka native law and custom the piece of land situate at former No. 198 Enugu Road, now designated as No. 200 Zik Avenue Awka which includes the area marked plots 2 and 3 as shown in the sketch plan. Late Obuewke Nwudi gave the said areas to Nwobu Nwude. Late Madam Umerah Nwude initially objected because the area including the portion given to the plaintiff was used by Umuogbunu village as a burial ground for the daughters (Umuokpu). But the late Nwude Mgbeke told late Umerah Nwude that the land suited her because of her wicked nature and mischievous (sic).
9. However additional piece or parcel of land situate at Umudioka known as (Ahaofuye) was also given to the said Nwobu Nwude to quell late Umerah
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Nwedu?s storm over the demised land. Only the piece of land where plot 4 is located on the said plan in this case was bought by madam Umerah Nwude with the money sent to her by late Nwobu Nwude who was then at Enugu doing hotel business before the civil war in Nigeria. Late Nwobu Nwude purchased the piece of land described and demarcated in Plan No. EP/AN635/89 of 7/8/89 attached to the first will and testament of late Madam Umerah Nwude. There was no house or any structure on the land before and immediately after the Nigerian civil war.
16. Late Nwobu Nwude did not inherit his father?s compound because according to Awka native law and custom, he was not the first son (okpala). Late Nwodu Nwude sold a piece of land in Awka which he received as Ani obu and used the money realized from the land sale to erect a storey building to the knowledge, approval and support of his mother, Madam Umerah Nwude. The plans of all the houses at former No. 198 Enugu Road (now No. 200 Zik Avenue Awka) were prepared at late Nwobu Nwude?s request and were paid for by late Nwobu Nwude.?
After the Court below considered the pleadings of both parties
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and the evidence led on the ownership of the property in dispute, the Court at pages 398 ? 399 of the record held as follows:
?In the instant case the plaintiff in paragraph 8 of his amended statement of claim pleaded that the late Nwude Nwobu inherited as of right, according to Awka native law and custom the piece of which includes the area marked plots 2 and 3 as shown in the sketch plan. In paragraph 29 (ii) and (iii) of the said Amended Statement of Claim the plaintiff also sought declaration that the said compound and all the buildings are properties of late Nwobu Nwude and also a declaration that the plaintiff being the 1st son of the said late Nwobu Nwude is the person entitled to inherit the said compound and all the buildings thereto. With the state of pleadings, the reliefs sought and the evidence led in this case, my view is that this is a claim for title to land as argued by the learned counsel to the defendants. I do not agree with the argument of the learned Counsel to the plaintiff when he argued in paragraph 3.31 on page 4 of his final written address thus:
?On the contrary however no scintilla of any issue
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pertaining to the declaration of title to land arose anywhere on the pleadings which is founded on the parties inheritance rights under the custom/traditions of Awka Town.?
The learned trial judge continued at page 402 of the record as follows:
?I have reproduced the above 3 paragraphs of the pleadings that tended to show how the plaintiff derived his title to the property in dispute. In my view it is necessary to establish how the plaintiff derived his title to the property in dispute since there exists a divergent claim that the property belongs to Madam Umerah Nwude who went ahead to devise the said property by a Will.?
I am of the opinion that despite the fact that the Appellant?s claims at the Court below were carefully couched in such a way that would appear that the Appellant was challenging the propriety of the disposition of No. 200 Zik Avenue Awka (formerly No. 198 Enugu Road Awka) by Madam Umerah Nwude in her last Will and Testament dated 27th September 1989, it is crystal clear that going by the pleadings of the parties and the evidence led at trial, the parties have vehemently joined issues with respect of
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the ownership right attached to the property in dispute. While the Appellant claimed that the property in dispute solely belonged to his late father thereby tracing his root of title to father and the father?s predecessors, the Respondents set a defence by claiming that the property in dispute belonged to Madam Umerah Nwude to the exclusion of any other persons.
I do not agree with learned counsel to the Appellant that the trial Court did not appreciate the claims of the Appellant and treated the issue as if it was that for a declaration of title to land despite having held that Section 18 of the Anambra State Actions Law on 12 years Limitation period in respect of straight actions for recovery of land was inapplicable for the reason that the suit was based on issues pertaining to succession of inheritance under the extant customs/tradition of Awka Town. The learned senior counsel to the Appellant misconceived the purport of the trial Court?s application of Section 18 of the Anambra State Actions Law.
It is important to state that at the Court below, the parties in their final addresses joined issues on the fact that the claims of the
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Appellant was statute barred having been brought 14 years after the cause of action arose and which was at variance with the provisions of Section 22(2) of the Actions Law Cap 3 of the Revised Laws of Anambra State 1991. The Court in resolving this issue found for the Appellant and held that the Appellant?s claim having been predicated on title to land derived from customary law is not affected by limitation of action.
Finally on this issue, I hold that although the reliefs sought by the Appellant in the Court below were couched in a manner that makes it appear as merely seeking a declaration with respect of the propriety of the disposition of No. 200 Zik Avenue Awka (formerly No. 198 Enugu Road Awka) by Madam Umerah Nwude in her last Will and Testament dated 27th September 1989, the Court below saw through the trick and rightly came to the conclusion that title to land was hidden therein. I do not understand how the Appellant would want the Court to decide on the propriety of the disposition of the said property in the Last Will and Testament of Late Madam Umerah Nwude when the ownership rights on the said property is strongly in contention between
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the parties. Premised on the forgoing, I hereby resolved this issue against the Appellant.
ISSUE TWO
?Whether on the evidence canvassed, the lower Court was right in dismissing the claims of the Appellant?
On this issue, learned counsel to the Appellant made reference to the testimony of DW1 and DW2 and submitted that in the circumstance both on the pleadings and evidence the defence put nothing whatsoever against the solid evidence of the Plaintiff with regard to the plaintiffs right under the customary law of Awka for the custody, management and control of the subject property as the eldest male inheriting those rights from his late father. Counsel submitted further that the pleading put forward in the aforestated paragraph 8 of the Amended Statement of Defence was clearly unsubstantiated in evidence.
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Counsel submitted further that there was evidence from PW1 who was the Local Government Principal Rating and Valuation officer that the official records in their office shows that the property in dispute is registered in the name of the Ikechukwu Nwude (i.e. the plaintiff) and that the registration was made by his late father Nwobu
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Nwude in his name in 1978. Counsel submitted further that the evidence raises the presumption of advancement in favour of the plaintiff as his eldest male child. Counsel referred this Honourable Court to the case of ROBERT V WILSON (1962) LLR 39.
Learned counsel to the Appellant analyzed the defence of the Respondents at the Court below and submitted that the evidence of DW1, DW2 and DW3 which seek to establish that the property in dispute was purchased by the Madam Umerah Nwude (deceased) in accordance with native law and custom of Awka people in the presence of witnesses along with the performance of the customary rites thereto and stating the names of the 5 separate Vendor families could not evoke or sustain a joinder of issues in that regard putting the ownership of the property as a matter for determination.
Counsel submitted further that against the backdrop of the Appellant?s confrontation on the issue of purchase claimed, the Respondents at the Court below advisedly abstained from tendering that receipt evidencing the purchase in the course of the Defence case which came thereafter. Counsel submitted that the provisions of
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Section 167(d) of the Evidence Act ought to be invoked against the Respondents in this regard. Learned counsel to the Appellant submitted that the Appellant?s evidence were not anywhere effectively challenged, coming through PW1?PW8. Their evidence according to counsel clearly establishes positive acts of possession in the plaintiff?s late father Nwobu Nwude, spread over 1970?1980 until his death, were all seemingly discounted as irrelevant.
Counsel submitted that under the percepts of Awka Town Community traditions, even where the property is proved to have been purchased by Umerah Nwude, the same would automatically enure to her only male child Nwobu Nwude, thereby denying her rights of disposition by Will as was attempted. Counsel referred this Honourable Court to the case of EZEOKAFOR V PAUL MBAH & ORS (1975) 5 U.I.L.R (PT. 11) 162. Counsel made heavy weather on the customary law restrictions on the testamentary freedom of Madam Umerah Nwude referring this Court to the cases of LEWIS V BANKOLE (1908) 1 NLR 82; SALAKO V SALAKO (1965) LLR 136.
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On the whole, counsel submitted that the Appellant?s case was foisted on
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these considerations and the Court below failed to appreciate that. Counsel to the Appellant also submitted that all the compelling pieces of evidence of exclusive possessory rights established in the suit in favour of the Appellant?s late father, supported by Exhibits G & H at page 333 and 334 proclaiming the Ozo Awka Traditional Council interpretation of custom of Ofor na Alor Rites of Awka Community, when put against the mere ipse dixit defence claims of the ownership of the property in dispute with the total failure of the Respondents to weigh in on the requisite scale of justice, ought to confer and predicate the Appellant every right to a verdict in his favour on that issue.
In response to the submissions and arguments above, learned counsel to the Respondent submitted that in paragraph 29 of the Statement of claim, the Appellant prayed the Court below for a declaration of title to land in his reliefs No 2 and 3. Counsel submitted further that the burden is on the Appellant to establish his entitlement to the land based on the strength of his own case and not on the weakness of the defence. On the principles of law governing the grant or
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refusal of declaration of title to land, counsel referred this Honourable Court to the notorious case of IDUNDUN V OKUMAGBA (1976) 9 ? 10 S.C 227. Counsel submitted further that if a party is relying on traditional evidence in proving his title to land, he must plead and prove not only who founded the land but how he founded it and the particulars of intervening owners through whom he claims. He referred this Honourable Court to the case of UKAEGBU V NWOLOLO (2009) 3 NWLR (PT. 1127) 194 (SC).
It is also the submission of counsel that where a party gives contradictory evidence of his history of ownership of the land in dispute, his cause should fail and that the grant of a declaratory relief cannot be based on admission or default of defence of the defendant.
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Counsel submitted further that applying the above legal principles to the pleading and evidence of the Appellant in the instant case, it is obvious that the Appellant failed miserably to shoulder the burden placed on him by law and that it is either the Appellant?s pleading is deficient or that his evidence is irreconcilably contradictory, illogical or absurd. Counsel submitted that
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the contradictions shows that either the Appellant does not know his root of title or he is not telling the Court the truth and these are sufficient to destroy the Appellant?s case. Counsel submitted that the Appellant abdicated his duty of proving his root of title to the land and that the Appellant made irreconcilable differences as to his root of title in his statement of claim and also in the evidence adduced during trial.
On the capacity of Madam Umerah Nwede to devise the property in dispute the way she did, counsel to the Respondents submitted that since there is no contest regarding the validity of the Will and that since the testator?s testamentary capacity was also not challenged, then the Appellant?s ground of attacking the Will is that the Awka customs disables a woman from devising a landed property because by that custom a woman cannot own land, even when it is established that she personally acquired same. Counsel submitted further that the existence of such custom was not pleaded and that from the evidence of DW1 and DW2, the said custom does not exist.
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It is also the submission of counsel that assuming but without
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conceding that there is a custom to that effect, it would be unconstitutional and void on ground of being discriminatory against women and an interference with their fundamental right to own immovable property. Counsel referred this Honourable Court to Section 41(1) (a) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended). Counsel referred this Court to the case of ASIKA V ATUANYA (2008) 17 NWLR (PT. 1117) 448 AT 515 ? 516 (PARA. H ? E) and submitted that the decision of the Court re-emphasized that customary laws and statutory provisions cannot in any way render the constitutional provisions nugatory.
On the whole, counsel urged this Court to dismiss the Appellant?s appeal.
RESOLUTION OF ISSUE TWO
Having resolved issue one against the Appellant and holding that the reliefs sought by the Appellant are touching on declaration of title to land, I shall therefore seek to determine whether the trial Court was right in dismissing the claims of the Appellant.
Over the years, the law has crystallized in this jurisdiction that title to land may be proved by 5 main methods as laid out in the case of
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IDUNDUN & ORS V. OKUMAGBA (1976) LPELR-1431 (SC). I am a bit perturbed as to which of the different versions of the story of the Appellant?s root of title I am to believe. The Appellant in paragraph 3 of his Further Amended Statement of claim relied on traditional history and inheritance as his root of title to the property in dispute. The Appellant averred in paragraph 3 as follows:
?Late Nwobu Nwedu inherited as of right, according to Awka native law and custom the piece of land situate at former No. 198 Enugu Road, now designated as No. 200 Zik Avenue Awka which includes the area marked plots 2 and 3 as shown in the sketch plan. Late Obuewke Nwudi gave the said areas to Nwobu Nwude. Late Madam Umerah Nwude initially objected because the area including the portion given to the plaintiff was used by Umuogbunu village as a burial ground for the daughters (Umuokpu). But the late Nwude Mgbeke told late Umerah Nwude that the land suited her because of her wicked nature and mischievous (sic). (Underlining mine for emphasis)
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After claiming that his father?s root of tittle was by virtue of inheritance in the preceding part of paragraph 3 on
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the one hand, the Appellant went further to state in the same paragraph that his father got the land from his own father by grant. Notwithstanding the contradiction as to the Appellant?s root of title, a community reading of the paragraphs contained in the said Further Amended Statement of Claim would reveal as rightly held by the learned trial Judge that the Appellant was relying on traditional history as his root of title.
The Supreme Court and this Court following the doctrine of stare decisis have stated in a plethora of authorities that a party claiming title to land by inheritance must plead facts relating to the founding of the land in dispute, the person(s) who found the land and exercised original acts of possession and the intervening owners through who the land has devolved from the original founder to the present. See IROAGBARA V UFOMADU (2009) LPELR-1538 (SC) AT 15 (C-E); IKPAMAKU V MAKOLOMI (2011) LPELR-4513 (CA) AT 21-22 (G-C).
?Having gone through the Appellant?s Further Amended Statement of claim and the evidence adduced at trial, it is crystal clear that the Appellant abdicated his duty by failing to prove the persons
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who founded the land and exercised original acts of possession and the intervening owners through who the land has devolved from the original founder to the present. He merely traced his root to his grandfather and his father without more. The learned counsel to the Appellant did not appreciate the fact that although the land upon which the property in dispute was built may be well known to the parties and that the parties may have descended from one common ancestors but that fact without more is not a proof that the Appellant?s father and grandfather were the owners of the land in the face of a contrary claim by the Respondents that the property belongs to the Madam Umerah Nwude, who was the mother of Appellant?s father. In law, the Appellant still had a duty to plead and prove the names of his ancestors who founded the land upon which the property was built neither did he plead nor prove the particulars of the intervening owners through whom he claims. The Court below at page 403 of the record held as follows:
?The plaintiff went to a great extent to plead and show numerous acts of possession and ownership exercise by the late father
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to the plaintiff. These numerous acts of ownership or possession referred to by the plaintiff and his witnesses are not helpful in this case when he has failed to plead and prove his root of title. This is more so when it was not established that the plaintiff?s father lived in the property in dispute all alone but at all material times also lived there with his mother whose will is being challenged and his other wife and children who are defendants in this case. Even if the land in dispute was a grant to the plaintiff?s father, the plaintiff still has the duty to establish his root of title.?
The Court below clearly appreciated and understood the principles of law governing prove of title to land and inheritance and rightly applied same. The Apex Court in the case of UKAEGBU & ORS. V NWOLOLO (2009) LPELR-3337 (SC) held thus?
“…it is now settled that where title is derived by either grant, sale, conquest or inheritance, etc., the pleading should aver facts relating to the founding of the land in dispute, the person or persons who founded the land and exercised original acts of possession. See the cases of Piaro v. Chief Tenalo & ors. ?
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(1976) 12 SC. 31 @ 34; and A. Ojo v. Primate E.O. Adejobi & Ors. (1978) 3 S.C. 65, just to mention but a few. Thus, if the pleaded root of title is not established by evidence, it will be a futile exercise to go to the issue of possession or acts of ownership.?
The Appellant counsel made heavy whether on the watery evidence led by the Respondents? witness at the trial in substantiating their defence, I wish to state that no matter how watery or less credible the evidence of the Respondents? witnesses at trial may be, the Appellant?s counsel failed to appreciate the sacrosanct principle governing actions predicated on declaration of title to land. The Appellant?s counsel at the Court below and even in his brief before this Court is misguided as to the nature of his reliefs and how same must be proved. Learned counsel to the Appellant has presented and fought his case right from the trial Court up to this Court as if the Appellant?s action was merely challenging the last Will and Testament of late Madam Umerah Nwude in respect of the property in dispute and nothing more. I am of the opinion that
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this is a misconception as the nature of his claims at the Court below no matter how brilliantly couched are connected to and deeply rooted in an action for the declaration of title to land and the principles of law guiding same shall be applicable. The law is trite that a Plaintiff who seeks declaration of title to land must lead credible evidence to that effect and must rely on the strength of his own case. See UKAEGBU & ORS. V. NWOLOLO (2009) LPELR-3337 (SC); KALU V AGU & ORS. (2014) LPELR-22849 (CA).
I also want to comment on the Appellant?s counsel issue two which complains of whether on the evidence canvassed the lower Court was right in ascribing ownership of the subject property to Madam Umerah Nwude, with the absolute unfettered rights to effect the dispositions contained in her Will and last Testament. I have read with perfect understanding the judgment of the Court below and it is crystal clear that the Court below did not in any way in its judgment make a pronouncement ascribing the ownership of the property in dispute to Madam Umerah Nwude, nor was she clothed with the absolute or unfettered rights to effect the dispositions
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contained in her Will and last Testament as she did. In the absence of a counter-claim by the Respondents, the Court below was circumspect in its decision and merely dismissed the Appellant?s claims for the failure of the Appellant to discharge the onus of proof imposed on him by law and nothing more.
The Appellant counsel however in trying to kill two birds with one stone or get what he could not get under the initial reliefs argued that that even where the property is proved to have been purchased by Umerah Nwude, the same would automatically enure to her only male child Nwobu Nwude, thereby denying her any rights to the disposition by Will as was attempted. In essence, subject to the law and customs of Awka town, her testamentary freedom was limited or curtailed in respect of the said property. It is important to state that the Appellant?s father predeceased his mother. The Appellant?s father as stated in paragraph 6 of the Further Amended Statement of Claim died on the 30/10/1980. The Will and Last Testament of Madam Umerah Nwude was made on 27/9/1989. All things being equal, the Appellant?s father through whom the Appellant
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is claiming cannot inherit from the grave, leaving the testator with no natural heir to inherit her property, hence the decision to distribute same amongst the children of her deceased child.
Looking at this issue from another judicial lens, although, I am not oblivious of the various customary law restrictions on a testator?s testamentary freedom in this part of the world and the Court?s attitude towards the preservation of such cultures provided they are reasonable, however, without ascribing the ownership of the property in dispute to the said Madam Umerah Nwude, I am of the opinion that if a woman buys a property with her personal money to the exclusion of any other person, will it be conscionable to judicially ratify a custom precluding her from disposing same according to her will? My answer is in the negative. Even if there was a custom to that effect, in my opinion, a custom which restricts a person?s testamentary freedom on the basis of gender is unreasonable, repugnant to natural justice, equity and good conscience. I do not agree with learned counsel to the Appellant that since the property would naturally have devolved to
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his the Appellant?s father, then the Appellant was the one entitled to the control the property in dispute being the first son of his father.
On the whole, I find no merit in this appeal. It is hereby dismissed and the judgment of the lower Court, Per C. O. Nweke J. delivered on the 8th day of May, 2012 dismissing the Appellant?s claims is hereby affirmed. Parties shall bear their respective costs.
IGNATIUS IGWE AGUBE, J.C.A.: I had the privilege of reading in advance the Lead Judgment of my Learned Brother A. S. UMAR, JCA; and I find his reasoning and conclusion on the issues distilled for determination impeccable and adopt them as mine. Obviously, a Custom that precludes a Testator from devising her legitimate property just because she is a woman, is not only repugnant to natural justice, equity and good conscience but most unconscionable, primitive, and against public policy.
I lend my voice to my Lord in holding that this Appeal is unmeritorious and same is dismissed. I abide by the order as to costs as made by my Learned Brother.
?CHINWE EUGENIA IYIZOBA, J.C.A.: I read
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before now the judgment just delivered by my learned brother, ABUBAKAR SADIQ UMAR JCA. I agree. I abide by the orders of my learned brother.
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Appearances:
J.H.C Okolo, SANFor Appellant(s)
F.O. Anyanugbu, Esq.For Respondent(s)
Appearances
J.H.C Okolo, SANFor Appellant
AND
F.O. Anyanugbu, Esq.For Respondent
