JEROME ANELE & ORS. V. NWACHUKWU NJOKU & ORS.
(2013)LCN/5836(CA)
In The Court of Appeal of Nigeria
On Thursday, the 10th day of January, 2013
CA/PH/128/92
RATIO
PROCEDURE: ATTITUDE OF THE APPELLATE COURT TOWARDS DWELLING ON TECHNICALITIES
In the case of Akande vs. Ajani [1989] 3 NWLR (Pt. 111) 511 at 545 the Supreme Court, per Nnaemeka- Agu J.S.C observed as follows:
“Now, by a long line of decided cases, this court as well as the Court of Appeal has reiterated the fact that pursuant to the principle that it will always lean in favour of doing substantial justice in a case rather than hanging on technicality, it will not re-open a procedural irregularity that has been waived at the instance of a party who could have raised the point timeously.
This principle was recently re-affirmed by this court in the case of Nneji & Ors. vs. Chukwu & Ors. [1988] 6 S.C.N.J. 132 at pages 138-140 per Wali, JSC.”
Also, in the case of Noibi vs. Fikolati (1987) 1 NWLR (Pt. 52) 619 at 632, it was held that where a party consented to wrong procedure at the trial court and in fact suffers no injustice, it would be too late to complain on appeal that a wrong procedure was adopted.
Thus, where as in the instant case an action proceeded by an irregular procedure and a defendant did not complain but took active part therein, he cannot later be heard to complain and take advantage of the irregularity. See also, Nasco Management Services Ltd. Vs. B.N. Amaku Transport Ltd. (1999) 1 NWLR (Pt. 588) 576 at 588, Ibeanu vs. Ogbeide (1994) 7 NWLR (Pt. 369) 697 at 716 and Adegoke Motors Ltd. vs. Adesanya (1989) 3 NWLR (Pt. 109) 250. PER MOJEED ADEKUNLE OWOADE, J.C.A.
LAND LAW: WHO DOES THE LAW ASCRIBE POSSESSION OF LAND TO WHERE TWO PERSONS CLAIM TO BE IN POSSESSION OF LAND
But, where two persons claim to be in possession of a piece of land at the same time, the law ascribes possession to one with better title. There can be no such thing as concurrent possession by two persons claiming adversely to each other. See, Awo Yoolu vs. Aro (2006) 4 NWLR (Pt.971) 481. Put in another way, where title is in issue by two claimants to possession of land, the law ascribes possession to the claimant with better title. PER MOJEED ADEKUNLE OWOADE, J.C.A.
LAND LAW: THE WAY OF TESTING THE TRADITIONAL HISTORY OF PARTIES
The position of the learned trial Judge conforms with the principle laid down in the case of Kojo vs. Bonsie (1957) 1 WLR 1223 at 1226, where it was held that “the best way to test the traditional history of the parties is by reference to the facts in recent years as established by evidence and seeing which of the two competing histories is the more probable.”
The Supreme Court in approving Kojo vs. Bonsie (supra) took a similar view in Akpapuna vs. Nzeka (1983) 7 SC 1 at 22 in similar circumstances and also in the cases of Ayowale vs. Ogunbiyi (1986) 2 NWLR (Pt. 24) 626 and Chukwueke vs. Nwankwe (1985) 2 NWLR (Pt. 6) 195.
The principle in Kojo II vs. Bonsie (supra) establishes that where there is conflict of traditional history, one side or the other must be mistaken, yet both may be honest in their belief. In such a case, demeanour is not the guide to the truth. The best way is to test the traditional history by reference to the facts in recent years as established by evidence and see which of the two competing histories is more probable. The principle offers a guideline when a court is evaluating the evidence as to which of the versions of the evidence on two conflicting histories is more probable in a pleaded traditional history as their source of title.
The principle should not be applied where a plaintiff relies on acts of ownership spanning several years as his root of title. See, Balogun vs. Akanji (2005) 10 NWLR (Pt.933) 394 SC., Odofin vs. Ayoola (1984) 11 SC 72. PER MOJEED ADEKUNLE OWOADE, J.C.A.
JUSTICES
MOJEED A. OWOADE Justice of The Court of Appeal of Nigeria
HARUNA S. TSAMMANI Justice of The Court of Appeal of Nigeria
TIJJANI ABUBAKAR Justice of The Court of Appeal of Nigeria
Between
1. JEROME ANELE (For himself and on behalf of Umukara Family Uboma)
2. GREGORY DURUJI
3. NWELIWE AJUOGU Appellant(s)
AND
1. NWACHUKWU NJOKU
2. JULIUS OZOJI
3. BERNARD OZOJI
4. SIMEON ITODU
5. CLEMENT IHEGBU
6. OBASI EKERE
7. SYLVESTER OKORIE
8. WILSON OGU (For himself and as representing Umuchiaku Family Lowa Uboma) Respondent(s)
MOJEED ADEKUNLE OWOADE, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of S.A. Okoroafor J. in consolidated Suit No. HME/37/82 and HME/66/82 delivered on 15/5/90.
The land dispute between the people of Umukara of Izinomi Uboma and the Umuchiaku of Lowa Uboma had been on before the Nigerian Civil War which took place between 1966 – 1970.
The various existing actions by the Umukara culminated into Suit No. HME/37/82, where the people of Umukara sued the Umuchiaku over a long stretch of land containing a Northern and Southern portion or two pieces of land separated by the Dimeke stream known as “ALA ISIORIE UMUKARA” and “ALA OCHA or ALA OCHA UMUKARA”
The relevant pleadings for Suit No. HME/37/82 are the further Amended Statement of Claim dated 14/11/1983 and filed on 18/11/1983 and the Amended Statement of Defence dated 29/11/77 and filed on 4/2/77.
The Umuchiaku people by Suit No. HME/66/82 also claimed for declaration trespass and injunction from the Umukara over the same stretch or pieces of land, but which they now called “Alike Umuchiaku” and “Alaocha Umuchiaku” respectively.
The relevant pleadings for Suit No. HME/66/82 are the Amended Statement of Claim dated 28/2/1984 and the Amended Statement of Defence dated 30/10/1983.
The two Suits were consolidated with the plaintiffs in Suit No. HME/37/82 that is Umukara as plaintiffs and the plaintiffs in Suit No. HME/66/82 that is Umuchiaku as Defendants. From the pleadings, the plaintiffs traced their genealogy over the land in dispute to their ancestor Ukara, through Chebe to Oriaku and Ekezie whereby they had exercised various acts of ownership and possession.
They also made reference to settlement or arbitration between the parties on two occasions. The first was decided in their favour. And the second also turned in their favour because the defendants (Umuchiaku) did not produce “Juju” for ten members of the plaintiff’s family to swear on the appointed date. The plaintiffs pleaded on account of the said arbitration that the defendants are estopped from claiming the land.
The defendant’s case is that the land in dispute was founded from time immemorial by their ancestor – Chiaku. That Chiaku as well as Akara, the ancestor of the plaintiffs descended from one Okatta. That while Chiaku founded the land (including the land now in dispute) Akara, founded his own settlement to the North-East of the land in dispute, where the main homesteads of the plaintiffs family of Umukara are still found till this day.
The defendants traced their title to the time of Chief Ekere who on account of Christianity granted plaintiffs Ekezie a portion of land in “Alaocha Umuchiaku”. That all the plaintiffs trace their residence at “Alaocha Umuchiaku of Chief Ekere for easy attendance at CMS Church Umuchiaku.
The defendants pleaded further that the Divisional Officer and the Chairman of the Okatta Community Council could not resolve the dispute due to the intransigence of the plaintiffs family of Umukara who rather turned round to sue the defendants in Okigwe.
The 1st plaintiff Onuoha Njoku testified and called four(4) other witnesses. The defendants called three (witnesses) in support of their case.
At the close of the case and Addresses by counsel, the learned trial Judge gave a considered judgment contained from pages 197 – 206 of the record.
The learned trial Judge concluded first, that the arbitration pleaded by the plaintiffs does not bind the parties as it was contingent on something which is to happen and that did not happen. The arbitration judgment he said, is no judgment.
At pages 255 – 206, the learned trial Judge further found as follows:
“The evidence adduced in this case shows that Alaocha and Alaisiorie are in dispute. I believe the traditional history adduced by the defendants that Alaocha was a piece of land which Ekere granted Ekezie. I am satisfied and do find as a fact that the people of Umukara have a piece of land called Alaocha which is different from Alaocha which is in dispute. The defendants in the consolidated suit cannot sue for trespass in respect of Alaocha, which was granted to Ekezie by Ekere their ancestor. Until the land reverted to them. They cannot sue for perpetual injunction.”
The learned trial Judge continued:
“I believe the evidence of DW2 that Alike Umuchuaku is different from Alike Umukara and that the plaintiffs built latrine on the portion of Alike Umuchuaku and cut economic trees on it. This is not denied. He has land boundary with the people of Umuchiaku that is the defendants at Alike, Dimeke stream forms the boundary between Alike of the defendants and Alaocha Umukara.
It is this piece of land which is in dispute. The plaintiffs call it Alaisiorie. The plaintiffs have no defence. The plaintiffs have not adduced convincing evidence that they are the owners of Alaike. I therefore give judgment for the defendant in the consolidated against the plaintiff for title and perpetual injunction. I also give judgment for the defendants for the sum of N100 general damages.
I make no order as to costs each party to bear its own expenses.”
Dissatisfied with this judgment the Plaintiff/Appellant filed a Notice of Appeal before this court on 11/6/90.
By leave of this court, the Appellants filed a second further Amended Notice of Appeal containing 11 grounds of appeal dated 31/10/98 on 2/11/98.
The relevant briefs of argument for this appeal are as follows
(i) Amended Appellants brief of Argument dated 30/10/08 and filed on 12/11/08 – settled by C.C. Okoroafor, Esq.
(ii) Amended Respondents brief of Argument dated 6/3/09 and filed on 18/3/09 – settled by R.A. Igbudu, Esq.
(iii) Amended Reply to the Respondents brief of Argument – settled by C.C. Okoroafor, Esq.
Learned senior counsel for the Appellants nominated five(s) issues for determination in this appeal. They are:
“(i) Whether the judgment to the respondents who were the defendants in the consolidated Suit, who were plaintiffs in Suit No. HME/66/82 was valid.
(ii) Whether grant of injunction and damages for trespass against the Appellants who were in possession was proper in law.
(iii) Whether the learned trial Judge did not misplace the onus of proof by placing same on the Appellants who were in possession.
(iv) Whether the conclusion of the learned trial Judge that the native arbitration, conceded by both parties to have taken place, was not binding on the parties was correct.
(v) Whether on the preponderance of evidence the Appellants ought not have succeeded in their claims.”
Learned counsel for the Respondents adopted the issues formulated by the Appellants. Before then the Respondents raised sundry issues as to the incompetence of the appeal by way of preliminary objection.
On the first point of preliminary objection, learned counsel for the Respondents contend that at the end of the whole trial, the Appellant failed to prove the representativeness of his action by failing to prove the authority of the Umukara family or the approval of the said purported authority by the court. Counsel submitted that the Appellants must be deemed to have prosecuted his said Suit No. HME/37/82 in a personal capacity.
Also, that though he (the Appellant) and all the other five defendants were sued personally in Suit No. HME/66/82, none of the others defended at all, neither did they seek for leave nor were they authorized to defend in a representative capacity.
Counsel referred to the cases of Chapman vs. CFAO (1943) 9 WACA 181 at 182, Adegbite vs. Lawal (1948) 12 WACA 394 at 399 Onwunalu vs. Osademe (1971) 1 All NLR Vol. 1 14 at 17 and submitted that since their whole case was predicated on a personal capacity and at variance with their pleadings, their said appeal is incompetent.
On this first point of preliminary objection, learned senior counsel for the Appellants contends that it is only the plaintiffs and/or the class of people being represented who can question the representative capacity of the Appellants. That, the Respondents are incompetent to challenge the representativeness of the Appellants. Counsel said, it is trite law that only the persons represented can opt out of and/or challenge the representation. He referred to the case of Amadike vs. Governor Imo State (1993) 2 NWLR (Pt.275) 302 at 315, Atanda vs. Olanrewaju (1988) 4 NWLR (Pt.98) 394 at 409 and Onyemanze & Ors. vs. Okoli & Ors. (1973) 3 ECSLR (Pt. 1) P.150.
Counsel submitted that at the trial of the Suit, Onuoha Njoku as PW1 at page 96 in his evidence in chief stated the capacity in which he brought the action. He (PW1) further stated that the trial court gave him approval to bring the action against the defendants in a representative capacity.
Learned senior counsel for the Appellants submitted that all the processes in the Suit (Suit No. HO/42/72) from 1972 till the consolidation and through its journey till date have the plaintiff as suing “for himself and on behalf of Umukara family in Okigwe Judicial Division.”
Counsel submitted that the proceedings in the court determine whether the case was fought or conducted in a personal or representative capacity. That, the failure to obtain leave to sue in a representative capacity does not vitiate the validity of the action.
Counsel referred to the cases of Ojapo vs. Sunmonu (1987) 2 NWLR (Pt. 58) 578 and Anabaronye vs. Nwakaihe (1997) 1 NWLR (Pt. 482) 374 and submitted that even if an order for leave is not specifically sought it will be presumed that leave to sue in that capacity was given where:
(a) The title and the statement of claim reflect that capacity,
(b) The suit was prosecuted in that capacity to judgment;
(c) Judgment was give for or against the plaintiff in that capacity.
Learned senior counsel for the Appellants further referred to the cases of Diibe vs. Nwakozo (1986) 5 NWLR (Pt. 41) 315 and Walter Wiri vs. Godwin Wuche (1980) 1- 2 SC 12 at 19 and said the capacity in which the Appellants fought the case was not challenged by the Respondents at the trial court. And, that a party who has not challenged the capacity in which the plaintiff instituted the action cannot do so on appeal.
Learned senior counsel for the Appellants has provided a full answer to the first point of objection raised by the Respondents, to wit: that the capacity in which the Appellant fought the case was not challenged at the trial court and therefore the Respondents cannot do so on appeal.
See: Dilibe vs. Nwakozor (1986) 5 NWLR (Pt. 41) 315 and Walter Wiri vs. Godwin Wuche (1980) 1 -2 SC 12 at 19.
I must add that the Respondent’s ground of objection as to the representative capacity of the Appellants is also not a ground relating to the competence of the appeal and could only have been entertained if at all as a ground in a cross-appeal but is not entertainable as a ground of preliminary objection to the appeal. Respondent’s first point of preliminary objection is accordingly overruled.
Learned counsel for the Respondents also attacked Grounds 3 and 6 of the Appellants grounds of appeal on the ground that as they present misapplication of law to established facts, they are properly speaking grounds of law and are incompetent as misdirections on facts.
In reaction to the above, learned senior counsel for the Respondents submitted that the particulars of the alleged error or misdirection determines whether the ground is that of law or of fact and not what the parties ascribed to it.
Misdirection, counsel said can be on a point of law or an issue of fact. He referred to the cases of Ojeme vs. Momodu 11 (1983) 3 SC 173 at 211, Udeze vs. Chidebe (1990) 1 NWLR (pt. 125) 141 at 162, Atuyeye vs. Ashamu (1987) 1 NWLR (Pt. 49) 267 at 282, Nwadike vs. Ibekwe & Ors. (1987) 4 NWLR (Pt. 67) 723.
Grounds 3 and 6 of the Appellants second further Amended Notice of Appeal together with their particulars read as follows:
GROUND THREE
Misdirection of Facts:
The learned trial Judge misdirected himself and failed to appreciate the facts before the court when he held:
“The plaintiffs have not adduced convincing evidence that they are the owners of Alaike.”
Particulars of Misdirection
i. The plaintiff at no time claimed Alaike. Rather the plaintiffs (Appellants) claim one piece or parcel of land the Northern half of which was called Alaisiorie Umukara and the Southern half called Alaocha Umukara.
ii. The plaintiff led evidence of how the land they claimed descended from generation to generation until the present dispute.
iii. The PW2 (Nze Jacob Nduka) and the PW4 (Nze Dennia) Anyanwu who are all members of the Defendants/Respondents village gave evidence in favour of the plaintiff/Appellants.
iv. All the witnesses of the Defendants/Respondents gave evidence to support the Plaintiffs/Appellants claims when -they told the court that the R.C.M Church and School and Orie Market are built by the plaintiffs on the plaintiffs land called Alaisiorie.
v. Another witness of the Defendants/Respondents gave evidence of the boundary between the plaintiffs (Umukara) village and the Defendant (Umuchiaku) village in accordance with the plaintiffs plan Exhibit ‘B’
GROUND SIX
The learned trial Judge misdirected himself on the facts before the court when he believed that Ekere of the Respondents granted the land in dispute to Ekezie of the Appellants in 1916 when there were overwhelming evidence to the contrary.
Particulars of Misdirection
i. It was shown that the said Ekezie of the Appellants lived and died on the land in dispute. Ekezie in his life time granted various parts of the land in dispute to various persons including the people of the defendant’s village.
ii. Several generations before Ekezie lived and died on the said land.
iii. The Umukara village of the Plaintiffs/Appellants and the Umuchiaku village of the Defendants/Respondents are two separate villages with clear boundary marks which still exists.
In the case of Nwadike vs. Ibekwe (supra) at page 723, Nnaemeka-Agu JSC held that “In our system in which the Judge and the jury are one, a misdirection occurs when the judge misconceives the issues, whether of fact or law or summarized the evidence inadequately or incorrectly”.
The complaint of the Appellant in each of grounds 3 and 6 of the second Further Amended grounds of Appeal is that the trial Judge failed to direct himself properly as to the facts of that aspect of the Appellants case.
I therefore agree with the learned counsel for the Appellants that grounds 3 and 6 relate to competent grounds of misdirection.
The second ground of preliminary objection by the Respondents is also overruled
Having overruled the two grounds of preliminary objection, the Respondents Notice of preliminary objection is dismissed.
On Issue No. 1, learned senior counsel for the Appellants reiterated that in the court below two suits were consolidated namely HME/37/82 wherein the Appellants in this appeal were plaintiffs, and HME/66/82 wherein the Respondents herein were plaintiffs.
Counsel submitted that, though consolidated for the purpose of convenience in hearing, the two suits each retains its separate identity for the purpose of dismissing or granting the reliefs sought by each party in their own suit.
That, consequently, when the learned trial Judge gave Judgment for the defendants in the consolidated suit (page 206), he was granting the relief sought by the plaintiffs in Suit No. HME/66/82 as contained in the Amended Statement of Claim filed by the Respondents in this appeal which reliefs are at page 183 of the records.
Counsel submitted that the original named plaintiffs in Suit No. HME/66/82 were Godwin Ekere and Willfred Echendu, for themselves and as representing Umuchiaku family of Lowa Uboma. That, at page 78 is a motion for extension of time within which to file pleadings by the Respondents, and which the parties remained unchanged.
That, on 2nd July, 1984, case was adjourned to 27th September and 2nd October 1984 (page 98). But, that, at page 102 of the record is an ex-parte proceeding for leave to sue in a representative capacity and substitution of parties under Order 4 Rule 3 and Order 36 Rule 7 of the High Court Rules of Eastern Nigeria (then applicable). The application was granted and names of Jonas Ozoji and Wilson Ogu were substituted as plaintiffs in Suit No. HME/66/82, this, he said, was on 10th July 1984.
Counsel submitted that any proceeding to amend the content of an existing process which was already served on the opposite party ought to be on notice to that party as failure to do so would amount to breach of the rule of audi alteram partem.
On this, counsel referred to the case of Skenconsult vs. Ukey (1981) 12 NSCC 1 at 17 and the provision of Order 36 Rule 1 of the High Court Rules of Eastern Nigeria (applicable to Imo State).
Counsel submitted that the provision of Order 36 Rule 1 of the High Court Rules of Eastern Nigeria (applicable to Imo State) clearly envisage a motion on notice notwithstanding that the Respondents application for substitution was fused into an application to sue in a representative capacity.
Counsel referred to the case of A-G Oyo State vs. Adigun (1987) 1 NWLR (Pt. 53) 678 at 709 and submitted that all processes bearing the names of Jonas Ozoji and Wilson Ogu as plaintiffs are void since the names are in law non-existent the process of their introduction into the proceeding being void.
This, he said, includes the statement of claim in HME/66/82 and all proceedings including the judgment as they relate to HME/66/82 as there are no valid plaintiffs to the suit.
A court, said counsel, cannot give a valid judgment based on an invalid proceeding. The trial Judge, he said, was in error when at page 206 he granted the reliefs sought by the Respondents in their statement of claim with void plaintiffs
On Appellants Issue No. 1, learned counsel for the Respondents submitted that both parties and their counsel were aware, before the substitution, of the death of both Godwin Ekere and Wilfred Uchendu, the plaintiffs in HME/66/82. That, on 7/6/84, at page 96 of the record, Godwin Ekere 1st defendant in HME/37/82 and 1st plaintiff in HME/66/82 were reported dead. That, notwithstanding the information on record, the Appellants and their counsel opened their case ad commenced their evidence. Again on 2/7/84, (page 98) the said plaintiffs in HME/66/82 were again absent and reported dead in the presence of Appellants and their counsel, and were fully aware of the death of these plaintiffs but took no initiative to seek their substitution.
Learned counsel for the respondents referred to the provision of Order 36 Rule 1(1) of the High Court Rules of Eastern Nigeria, Cap. 61, Laws of Eastern Nigeria 1963 applicable to Imo State, which provides that where any party to the suit dies, “any person interested” may obtain from the court any order requisite for curing the defect, or enabling or compelling proper parties to carry on the proceedings. This substitution, said counsel, the Appellants should have done since it was open to “any person interested” to do so. But, rather opened their case, leaving the option open only to Respondents, which they (Respondents) did on 10/7/84 immediately after .the matter was adjourned to 27/5/84 for further hearing.
On the question of notice to the other party after substitution, learned counsel for the Respondents submitted that the order of substitution was validly made ex-parte. That, the paramount intendment of Order 36 Rule 1(2) supra, is that either party should be aware of the death and substitution of a dead party and this position was complied with in this case.
Counsel submitted that though the order was not formally served on the Appellants, they were fully aware of the substitution.
That on the said adjourned date 27/9/84 and on the subsequent dates 10/1/85, 17/4/85, 8/5/95, 4/6/85, 19/7/85, 30/10/85, 20/1/86, 12/3/86, until Appellants closed their case, Appellants and their counsel and the substituted plaintiffs continued to appear at the trial without objection from Appellants.
That, in fact Wilson Ogu, the 2nd plaintiff was the star witness in the Defendant’s/Respondent’s case and was exhaustively cross-examined by the Appellants counsel in the presence of both parties without objection (Pp. 162 – 163).
Counsel submitted that the Plaintiff s/Respondent’s Amended Statement of Claim on which leave to file and serve was granted on 10/4/84 was served on Appellants with the substituted plaintiffs to reflect the substitution granted on 10/7/84.
Also, that on 10/5/85 (Pp.110 – 114), the said substituted plaintiffs Jonas Ozoji and Wilson Ogu filed a motion of interim injunction with affidavit sworn to by Wilson Ogu against Appellants to which Onuoha Njoku (sole plaintiff in the cross-action HME/37/82 swore a counter-affidavit, again, without objection to the substitution of Jonas Ozoji and Wilson Ogu, the new Plaintiffs/Appellants.
Counsel submitted that the law on substitution becomes clearer by reference to Order 36 Rules 5, High Court Rules of Eastern Nigeria (supra) which provides that ” in the case of the death of sole plaintiff, or sole surviving plaintiff, the court may on the application of the legal representative of such plaintiff, enter the name of such representative in the place of such plaintiff in the suit, and the suit shall thereupon proceed.
Counsel further referred to Halsbury’s Laws of England, 1859 Edition, (2nd Edition), volume 30 Section 16 of the High Court Law Cap. 61, Laws of Eastern Nigeria (supra) RSC, Order 17 Rule 2, to submit that an ex-parte order for substitution can be made and granted even after judgment.
Learned counsel for the respondents submitted that in the case of Noibi vs. Fikolati, (1987) 1 NWLR 619, the Supreme Court distinguished the case of Skenconsult vs. Ukey (1981) 1 SC (supra) and held that a party cannot be heard to later complain about an irregular procedure to which he has acquiesced
And, that in Adebayo vs. Shonowo (1969) 1 All NLR 176, the Supreme Court held that a wrong procedure was no more than an irregularity which would not render the proceedings a nullity.
Learned counsel for the Respondents submitted that failure to serve the Appellants with the valid ex-parte order of substitution amounted at most to an irregularity which could not vitiate the proceedings since they (Appellants) were fully aware and acquiesced in the substitution and acted on it right from the moment they continued giving evidence without objection in the presence of the substituted party and by proceeding with the trial to its conclusion.
From the facts on record and as demonstrated by the counsel to the parties more especially the learned counsel for the Respondents, I think it is rather late in the day for the Appellants to now complain of lack of notice of the substitution of the dead plaintiffs in Suit No. HME/66/82.
The provision of Order 36 Rule (1) of the High Court Rules of Eastern Nigeria (then applicable in Imo State) does not necessarily envisage a motion on notice as suggested by the learned senior counsel for the Appellants. But Rule (2) of the provision implies that any court order so obtained must be served on the other party to the proceedings. Order 36 Rules 1 and 2 read as follows:
“1. Where after the institution of a suit any change or transmission of interest or liability occurs in relation to any party to the suit, or any party to the suit dies or becomes incapable of carrying on the suit, or the suit in any other way becomes defective or incapable of being carried on, any person interested may obtain from the court any order requisite for curing the defect, or enabling or compelling proper parties to carry on the proceedings.
2. But any person served with such an order may within such time as the court in the order directs, apply to the court to discharge or vary the order.”
Obviously in all the circumstance of the case, even when the Appellants were not formally served with the notice of order of substitution as envisaged under the provision of Order 36 Rule (2\ (supra) the Appellants acquiesced in and consented to the constructive notice by the respondents by their participation without objection in the trial to the conclusion of the trial of the consolidated suits in the lower court.
In fact, by raising this issue belatedly at the appellate court, the Appellants are deemed to have waived their rights.
In the case of Akande vs. Ajani [1989] 3 NWLR (Pt. 111) 511 at 545 the Supreme Court, per Nnaemeka- Agu J.S.C observed as follows:
“Now, by a long line of decided cases, this court as well as the Court of Appeal has reiterated the fact that pursuant to the principle that it will always lean in favour of doing substantial justice in a case rather than hanging on technicality, it will not re-open a procedural irregularity that has been waived at the instance of a party who could have raised the point timeously.
This principle was recently re-affirmed by this court in the case of Nneji & Ors. vs. Chukwu & Ors. [1988] 6 S.C.N.J. 132 at pages 138-140 per Wali, JSC.”
Also, in the case of Noibi vs. Fikolati (1987) 1 NWLR (Pt. 52) 619 at 632, it was held that where a party consented to wrong procedure at the trial court and in fact suffers no injustice, it would be too late to complain on appeal that a wrong procedure was adopted.
Thus, where as in the instant case an action proceeded by an irregular procedure and a defendant did not complain but took active part therein, he cannot later be heard to complain and take advantage of the irregularity. See also, Nasco Management Services Ltd. Vs. B.N. Amaku Transport Ltd. (1999) 1 NWLR (Pt. 588) 576 at 588, Ibeanu vs. Ogbeide (1994) 7 NWLR (Pt. 369) 697 at 716 and Adegoke Motors Ltd. vs. Adesanya (1989) 3 NWLR (Pt. 109) 250.
Issue No. 1 is resolved against the Appellants.
On Issue No. 2, learned senior counsel for the Appellants submitted that from the state of pleadings of the parties, the Appellants were clearly in possession of the land in dispute. That, by their pleadings, the respondents conceded that the Appellants were in possession of Alaocha but claimed that it was by virtue of a grant from Ekere of the respondents to Ekezie of the Appellants in 1916.
Counsel submitted that the learned trial Judge also found that the Appellants were in possession of ALAOCHA when he held that the Respondents could not sue Appellants for trespass over ALAOCHA until there was a reversion of same from the Appellants to the Respondents.
Learned senior counsel for the Appellants submitted that in respect of Alaisiorie land, the Respondents conceded in evidence through D.W.2 that the R.C.M. Church and the Orie Market are on the land of Umukara (Appellants). These were built by the Appellants.
Learned senior counsel for the Appellants submitted that trespass is a tort against possession and that it is contradictory, after holding that the respondents could not sue for trespass in respect of Alaocha land, the trial Judge went ahead to grant injunction and damages to the Respondents without distinguishing to which land the award related. This decision is therefore presumed to include Alaocha.
Counsel submitted that the decision amounts to granting reliefs sought by the respondents in their Amended Statement of Claim against the Appellants who are on the pleading and evidence in possession.
On Issue No. 2, learned counsel for the Respondents submitted that from the pleadings each party claimed a declaration of title to two pieces of land. The Appellants claimed title to the two piece or parcels of land they called Alaisiorie Umukara and Ala Ocha Umukara, while Respondents claimed declaration of the two pieces of land comprising Alike Umuchiaku and Alaocha Umuchiaku. That the pleading and evidence of the respondents with regard to Alaocha Umuchiaku is clear. That, with the advent of the CMS Church in 1916 in Umuchiaku which was the only Christian Church in the area, Chief Ekere converted citizens from neighbouring communities including Umukara (of the appellant) and encouraged their ancestor Ekezie to attend his church and made him a committee member of his said CMS Church so that the said Ekezie migrated from his Umukara (Appellants) Community to the Northern of the two pieces of land in dispute on the Okpetere Road. This was after he Ekezie had complained to Chief Ekere (Respondents ancestor) of the difficulties of traveling over the long distances from the original Umukara. Chief Ekere then brought Ekezie into Alaocha Umuchiaku and permitted him to put up a house there to make it easier for him to attend church services therefrom. The respondents, according to counsel also testified that all the people of Umukara who live on e part of Alaocha are the descendants of the said Ekezie (page 164) and traced their residence on Alaocha to the permission granted to Ekezie their ancestor by Chief Ekere.
He submitted that it is also the pleadings and evidence of both parties that they live on Alaocha, although appellants deny that they were put thereon by the respondents. That, the learned trial Judge was therefore right when he held that respondents could not sue the appellants over Alaocha until there was a reversion of the area granted to the Appellants by the Respondents.
With regard to Alaisiorie claimed by appellants, Learned Counsel for the Respondents submitted that it is true that part of it as claimed by Appellants in their brief (page 7 paragraph 3.02c) was conceded in evidence by respondents through DW2, that the RCM Church and Orie (Market) are on the land of Umukara, which is not disputed by Respondents and is not part of the Alaike claimed by Respondents. That DW2 Wilson Ogu who was substituted for the original plaintiffs in HME/66/82, Godwin Ekere and Wilfred Uchedu, clearly stated that he was present when the land was given by Ekere to Ekezie (page 168) and that he knew where the said Ekezie lived (Ocha Umukara) before he came to the land granted to him. Counsel submitted that the survey plans of the respondents Exhibits C and D clearly show that the area of land called Alaisiorie and claimed by the appellants is not co-terminus with the area of land called Alaike Umuchiaku and claimed by the respondents.
On this, counsel referred to the case of Aromire v. Awoyemi (1972) 2 SC 1 (supra).
He submitted that the learned trial Judge rightly said that Respondents could not sue for trespass in respect of Alaocha land in which Appellants were in lawful possession as tenants. That it can therefore only be understood that his grant of N100 general damages for trespass can only be with regard to Alaike Umuchiaku since respondents could not sue for trespass in respect of their Alaocha land by virtue of the grant made to Appellants ancestor Ekezie by Respondents ancestor Chief Ekere.
Counsel submitted further that the learned trial Judge was also right in giving Judgment to the defendants (respondents) in the consolidated Suit against plaintiffs (appellants) for title and perpetual injunction in respect of the two disputed pieces of land since both reliefs were predicated on the ownership of the respondents and could not be vitiated by the grant of tenancy to appellants in respect of Alaocha Umuchiaku only.
It seems to me that the complaint of the appellant in relation to issue No.2 cannot be sustained from the evidence on record or on grounds of law. The evidence on record in respect of Alaocha is that both parties were in possession (occupation) of Alaocha, the respondents claimed that the Umukara in Alaocha are there consequent on the permission granted Ekezie by Ekere but clearly Umukara are not in exclusive possession of Alaocha notwithstanding their denial of grant of land to their ancestor Ekezie by the respondents ancestor Ekere.
As in the instant case, there can be concurrent possession by two persons or more to the same piece or land. See Oyebamiji vs. Fabiyi (2003) 12 NWLR (PT.834) 271 Nnubia vs. A.G. Rivers State (1999) 3 NWLR (PT.593) 82. Okupe vs. Ifemebi (1974) 2 SC 97.
But, where two persons claim to be in possession of a piece of land at the same time, the law ascribes possession to one with better title. There can be no such thing as concurrent possession by two persons claiming adversely to each other. See, Awo Yoolu vs. Aro (2006) 4 NWLR (Pt.971) 481. Put in another way, where title is in issue by two claimants to possession of land, the law ascribes possession to the claimant with better title.
In the instant case, the learned trial Judge accepted and preferred the evidence that Ekere of Umuchiaku granted a portion of Alaocha to Ekezie of Umukara. The learned trial Judge recognized that Umuchiaku could not claim for trespass from Umukara because of the lawful occupation of Umukara of the portion of Alaocha granted to Ekezie by Ekere but was right, as title arose, to have granted title and perpetual injunction to the Respondents on Alaocha. lssue No.2 is resolved against the Appellants.
In issue No. 3, learned senior counsel for the Appellants alleged that the learned trial Judge misplaced the onus of proves of title by placing same on the appellants who were in possession of the lands in dispute. That, in his Judgment, the learned trial Judge held:
“The plaintiffs have not adduced convincing evidence that they are the owners of Alaike”
Counsel said the Plaintiffs referred to above are the Appellants in this appeal. That, the Appellants never claimed title to Alaike land. That, in respect of Alaisiorie, the learned trial Judge after listening to evidence said.
“Dumeke stream forms the boundary between Alaike of the defendants and Alaocha Umukara. It is this piece of land that is in dispute. The plaintiffs call it Alaisiorie”
Learned senior counsel for the Appellants submitted that from the pleading and evidence particularly evidence of DW2, Wilson Ogu under cross-exanimation, it was the appellants who gave the Alaisiorie land to the R.C.M Church to build Church and School.
That, from the above state of pleadings and facts before the Court, it is clear that the case proceeded on the basis that both Alaisiorie and Alaocha which the court said were the two pieces of land in dispute were in possession of the Appellants. Learned Senior counsel for the Appellants then invoked the provision of section 146 of the Evidence Act cap. 112 LFN 1990 and argued that it is the Respondents who affirmed that the appellants were not the owners of Alaisiorie (Alaike) and Alaocha Umukara that have the burden of proving that the Appellants (in possession) are not the owners of land
Counsel furthered that in the Judgment, the learned trial Judge stated.
“The plaintiffs have no defence.
The plaintiffs have not adduced convincing evidence that they are the owners of Alaike”
Counsel considered it noteworthy that the court had identified Alaike as being the name given by the Respondents to the piece of land which the appellants call Alaisiorie.
Learned Senior counsel for the Appellants referred to the case of Duru vs. Nwosu (1989) 4 NWLR (Pt. 113) 24 at 43 and submitted that it is clear that the learned trial Judge placed the onus on the Appellants to prove their right over a piece of land of which they had possession. And that it is this misplacement of onus that led to a wrong appraisal of the case and the ultimate judgment to the Respondents.
Learned counsel for the Respondents on the other hand submitted that the appellants Third issue (2c) is premised on the assumption by appellants that “parties agreed that the plaintiffs (appellants) were in possession of the lands in dispute” This, counsel said, was never so. That in fact respondent’s evidence (page 164) is that “trouble between the children of Ekezie and we (Chief Ekere) started about five years before the Nigerian Civil war. The Church called RCM Umukara (appellants) built a latrine in Alaike Umuchiaku and they cut palm trees, cassava stick and other trees on the land. That caused the trouble between us and them and my people asked Godwin Ekere to sue them in the name of Umuchiaku”.
Counsel submitted that nowhere in the pleading and evidence of DW2 Wilson Ogu, spokesman for the Respondents, even under cross-examination, did Respondents concede that Appellants were in possession of the two pieces of land in dispute. That, rather, under cross-examination (page 165) the said DW2, Wilson Ogu stated that Orie (Market) Umukara land, but that no where throughout the proceedings did Respondents claim the portions of land where these features were situate.
He submitted that Wilson Ogu started under cross-examination (page 165) that the RCM church and school are built on Alaocha Umukara land which is along the road leading from Nkwo Alaike to Okpetere. This, he said, was also the case which the said Wilson Ogu DW2 admitted under cross-examination.
Counsel submitted that even the Appellants spokesman, Onuoha Njoku in his evidence-in-chief (page 97) conceded that his people live in Alaocha claimed by him, while Alaisiorie is a farm land. That, Appellants also admit that not the whole piece of land they called Alaisiorie is called Alike Umuchiaku. There is a boundary, as the whore of the piece of land called Alaisiorie by Appellants is not disputed by Respondents who admitted that the RCM Church and School is not disputed by them.
He said that Appellants also admit (page 106) that the whole of Alaisiorie is not in dispute and that the Respondents are also in possession of Alaocha in dispute but claim to be Respondents landlords.
Appellants, said counsel, cannot therefore argue that the trial proceeded on the basis that Alaisiorie (part of which Respondents called Alaike Umuchiaku) and Alaocha were conceded to be in the possession the Appellants.
Counsel submitted that it was indeed part of the Respondents case that the Appellants had their own Alaike umukara (stony land) not in dispute in this case and that in the area (Uboma) many communities such as the Appellants community and Umuzi, Umunobi, Umuodoma, Umuike, each has its own Alaike land while Appellants came to dispute the Alaike of Respondents.
Counsel submitted that the learned trial Judge found from the evidence “that Alike Umuchiaku is different from Alike Umukara (of Appellants) and that Appellants built latrine on a portion of Alike Umuchiaku (of Respondents) cut economic trees on it, this is not denied”.
The learned trial Judge, according to counsel, then went on to find that “the plaintiffs (Appellants) had no defence and has not adduced convincing evidence that they are the owners of Alike (Umuchiaku)”.
The Respondents, said counsel, neither concede that Appellants were in possession of Alike or of Alaocha (except over the portion granted to Ekezie, Appellants ancestor) and so the provision of Section 146 of the Evidence Act on possession which was the sole foundation of Issue No. 3 is not applicable.
By the same token, said Respondent’s counsel, the principle relied upon by Appellants in Duru vs. Nwosu (1989) 4 NWLR (Pt.113) at 24 is not applicable.
That, the learned trial Judge on the evidence found that the Appellants were not in possession of the Alike of the Respondents and in possession only of a portion of the other piece of land (Alaocha) based on the grant by the Respondents ancestor, he did not misplace the onus of title on the Appellants who were adjudged trespassers in one piece (Alaike) and lawful tenants in the other (Alaocha) piece of land.
In deciding Issue No. 3, it is obvious that there were some misinterpretation of facts by the learned senior counsel for the Appellants.
The evidence led by the parties only show that the Appellants were in possession of a portion of Alaocha consequent on the grant to Ekezie by Ekere. The Appellants were not and were not held to be in possession of Alaike (Umuchiaku).
The Appellant’s Survey Plan Exhibit B, included the portion of land called …….Alaike (Umuchiaku) in their claim of their own Alaisiori. The learned trial Judge never held that Alaike (Umuchiuaku) is the same piece of land as appellants Alaisiorie. The truth is that the area of land which the respondents called Alaike is a portion of the land that the Appellants called Alaisiorie. The learned trial Judge was not wrong when he observed at page 206 that:
“Dimeke stream forms the boundary between Alaike of the defendants and Alaocha Umukara. It is this piece of land that is in dispute. The plaintiffs call it Alaisiorie”
Now, the respondents never disputed the appellant” claim to Alaisiorie including the RCM Church, School and the Orie (Market) but contends that the Appellants now lay claim to their own Alaike (Umuchiaku) as part of their Alaisiorie.
Thus, again, the learned trial Judge properly evaluated the evidence and indeed appreciated that the Appellants claim of Alaisiorie cannot include respondents Alaike (Umuchiaku)’ and therefore held:
“The Plaintiffs have no defence. The plaintiffs have not adduced convincing evidence that they are the owners of Alaike”
From the above holding of the learned trial Judge, it is recognized that the Respondents are in possession of Alaike. Therefore, if any of the parties would invoke the provision of section 146 (now section 143) Evidence Act 2011, it is the Respondents who are undisputedly in possession of Alaike. For example even PW3, appellants witness Paul Anyanwu separated respondents Alaike from appellants Alaisiorie. At page 130 – 131 in Examination in Chief, he said.
“The stream call (sic) Dimeke separates Alaocha and Alaisiorie. These two portions of land belong to the plaintiffs. Alaike land belongs to Umuchiaku”.
Section 146 now 143 of the Evidence Act 2011 states that:
“When the question is whether any person is owner of anything of which he is shown to be in possession the burden of proving that he is not the owner is on the person who affirms that he is not the owner.”
In the instant case, the burden of proving that the respondents Umuchiaku is not the owner of Alaike lies with the appellants. The learned trial Judge was thus right to have held that the appellants did not prove that Alaike (Umuchiaku) belongs to them.
There was no misplacement of burden of proof as suggested by the learned senior counsel for the Appellants. What happened here is that the respondents were able to prove their title to Alaike (Umuchiaku) over and above the larger expanse of land which the Appellants described as Alaisiorie and therefore entitled to a declaration of title in respect of Alaike land in dispute, the title and boundaries of which they proved with their survey plans. Exhibits C and D.
See: Ezeokonkwo v. Okeke (2002) 11 NWLR (Pt.777) 1 SC.
Issue No.3 is resolved against the appellants.
On issue No. 4(2D) learned senior counsel for the appellants submitted the appellants averred in paragraph 19 of their further Amended statement of claim that both parties submitted to an arbitration by the chairman of the then community council and some co-opted elders. That the occasion of the arbitration was also pleaded which was that the respondents should produce Juju for the appellants to swear failing which the land belongs to the appellants. That in response, the Respondents in paragraph 18 of the Amended statement of defence accepted that such arbitration was instituted but that it did not hold as Appellants were not co-operative.
Counsel submitted that with the state of pleadings, the issue that arose to be determined was whether the arbitration took place and reached a decision since, the appellants who were alleged not to have co-operated were relying on the arbitration.
Counsel submitted that whether the respondents consented or not was not in issue since no such non-consent or rejection of the decision was pleaded.
He submitted that rather, while cross-examining the PW1, counsel for the Respondents put questions to the pw1 suggesting that it was the appellants who refused to swear for the respondents. This cross-examination, counsel said is not in accord with the pleadings of the respondents on the issue. Further, evidence of the decision was given by Nze Denis Anyanwu, PW3 who was a member of the panel who tendered the decision of the panel as Exhibit.
Counsel submitted that in dealing with this issue the learned trial Judge observed that from the pleadings it was true that the respondents were asked to produce Juju for the appellants to swear, but they, Respondents, failed to do so and the arbitrators awarded the land to the appellants.
Counsel submitted that by the above observation, the learned trial Judge had upheld the appellants case on arbitration and rejected the respondents case that no decision was reached due to the un-co-operative attitude of the Appellants. Rather unfortunately, said counsel, the learned trial Judge then veered off the issues brought before him by the parties and added.
“I am of the view that this Judgment does not bind the parties as was contingent on something which is to happen and this did not happen” This is no Judgment”.
Counsel submitted that the learned trial Judge went out of the realm of the case brought before him by the parties and decided on an issue which he raised by himself.
The appellants, said counsel averred and proved that there was an arbitration and a decision which was that if the Respondents did not bring Juju for the appellants to swear the land would become that of the appellants. That, the respondents countered that there was no arbitration as the appellant refused to cooperate but abandoned that position at the hearing by asking question on the decision itself.
He submitted that the only issue open for decision was whether an arbitration that produced a decision was held. Counsel submitted that PW3 and Exhibit C provided the answer. The only option open to the learned trial Judge was to apply the Judgment as an estoppel to the Respondent.
Counsel referred to the cases of Orizu V. Anyagbunam (1978) 1 LRN 216 at 213 and Idika vs. Erisi (1988) 2 NWLR (Pt. 78) 563 at 575 to buttress the point that a trial Judge has no competence to go outside the realm of the case brought before the parties. He added that a native arbitration is binding on the parties so long as there was consent or submission.
He referred to the cases of Altu vs. Ikewibe (1991 ) 3 NWLR (Pt 180) page 385. Nwuka vs. Nwaeche (1993) 5 NWLR (Pt.293) P.295.
Counsel submitted that since respondents did not claim that they withheld Consent, the Court of Appeal is urged to do what the trial court ought to have done, that is apply the Judgment, as binding on the parties.
In response to Appellants issue No. 4, learned counsel for the respondents made reference to the pleadings of both parties on the arbitration issue.
He submitted that even Appellants PW1 under Cross-examination admitted that it was the Chairman of the Okatta Council (page 124) who made peace move in respect of the land and that both sides came to court when the peace move failed, and that their proceedings were recorded. (page 210).
He submitted that there is no evidence that both sides agreed to be bound by the decisions of the attempted settlement which consent is fundamental to the validity of an arbitration. He referred to the case of Ehueme vs. Zakari (1972) 2 ECSLR (Pt. 2) at 631.
Counsel submitted further that the Chairman and members of the Okatta Community Council being Government officials in law, that is persons clothed with the exercise of quasi Judicial function could not make binding orders.
He referred to the case of Inyang vs. Essien 2 FSC 39.
Counsel submitted that the written record of the purported arbitration is contained at page 213 of the record.
That, therein it stated “after hearing from the two parties, we decided on swearing of oath on Juju by Umukara people No. to swear 10 men date of swearing Wednesday 12th May 1971 at 9am.”
Counsel submitted that the said judgment did not state the place to which the juju should be brought or the 10 men who should swear on it nor did the judgment state what would happen in the event of the Juju not being brought, or the 10 men refusing or failing to swear.
Learned counsel for the respondents submitted that there was no decision by Chairman of the Okatta Community Council and his councilors as suggested by the Appellants neither is there any “decision which was that if Respondents did not bring juju for the Appellants to swear, the land would become that of the Appellants” in the judgment Exhibit A at page 213 of the record.
Counsel said, it is also false, as submitted in Appellant’s brief that learned trial Judge held or found that it was true that the arbitrators awarded the land to the Appellants. That, at page 205 the learned trial Judge merely stated that “I am told that the arbitration looked into the case and asked the defendants to produce juju for the plaintiff to swear but they did not do so and the arbitration awarded the land to them” but did not accept this evidence.
Counsel submitted that unfortunately, the said evidence was not contained in or substantiated by the written judgment of the purported arbitration panel, which was silent on the ownership of the disputed two pieces of land Alaike and Alaocha.
The learned trial Judge, said counsel was therefore right in holding that the judgment of the purported arbitration was not binding on the parties since it was inconclusive and contingent on a future event and the arbitrators did not record their decision on the failure of the contingency.
Counsel submitted that under the best evidence rule, Section 93 and 96 of the Evidence Act 1990, the recorded judgment of the panel Exhibit A is the best evidence of the decision and not the evidence of PW4 the councilor.
He submitted that the case of Idika vs. Erisi (1988) 2 NWLR (Pt. 76) 563 relied upon by the learned senior counsel for the Appellants is inapplicable because both sides did not canvass victory in an arbitration. That, rather, in the present case, the Respondents denied the arbitration pleaded by Appellants which the learned trial Judge rightly held as incompetent and which Appellants conceded was inconclusive (see page 124).
In deciding Issue No. 4, there is no doubt that what the Appellants termed arbitration was at best an inconclusive intervention, an aborted peace move between the parties and clearly not a valid or competent arbitration.
Exhibit ‘A’ the proceedings of the said arbitration contained from pages 207 – 213 of the record of appeal speaks for itself. It did not record a decision. It so to say deferred its decision on the subject to oath taking by juju. For whatever reasons, the oath taking never took place.
The learned trial Judge was therefore right to hold that the purported arbitration was inconclusive, as it were, contingent on the occurrence of an event and therefore not a binding judgment between the parties. It goes without saying that having reduced the content of the purported arbitration into writing vide Exhibit ‘A’ the content could no longer be varied, altered added to or contradicted by oral evidence. See Section 128 (1) of the Evidence Act 2011.
Meanwhile, contrary to the assertion of the appellants, there is nothing in Exhibit A which shows that the purported arbitration ever gave a decision, a valid decision, not to talk of one in favour of any of the parties to the case.
In relation to the instant case, there are two important points on the application of the provision of Section 128 of the Evidence Act 2011. First, it excluded oral evidence of the contents of documents.
See Lagos Timber & Co. Ltd. Vs. C.A.A. Tit Kombe (1943) 17 N.L.R 14., Nwabuoku vs. Ottih (1961) All N.L.R. 487, F.S.C.
Secondly, and subject to the exceptions under the section, oral evidence will not be allowed for the purpose of contradicting, altering, adding to or varying the contents of a document. See: Colonial Development Board vs. Joseph Kamson (1955) 21 N.L.R. 75.
Issue No. 4 is resolved against the Appellants.
On Issue No. 5 (2e) learned senior counsel for the Appellants submitted that it is trite that civil cases are determined on the balance of probabilities based on the preponderance of evidence.
The trial Judge in his judgment, said counsel held that the plaintiffs have not adduced enough evidence that they are the owners of Alaike. That, in so holding the learned trial Judge contradicted his earlier conclusion as to what was in dispute before him. That, according to his Lordship, “The evidence adduced in this case shows that Alaocha and Alaisiorie are in dispute”. Alaocha and Alaisiorie are the pieces of land claimed by the Appellants in their Amended Statement of Claim.
Counsel said, Appellants never claimed Alaike. It was the respondents that claimed Alaike. It was the conclusion of the learned trial Judge that Alaike is what the Appellants call Alaisiorie.
Counsel submitted that the learned trial Judge has clearly adjudged Alaocha the property of the Appellants, when he said,:
“Dimeke Stream forms the boundary between Alaike of the defendants and Alaocha Umukara. It is this piece of land that is in dispute the plaintiffs call it Alaisiorie.”
Counsel submitted that the learned trial Judge having adjudged Alaocha Umukara not in dispute following his earlier conclusion (which is not conceded) that Alaocha was a piece of land granted Ekezie of the Appellants by Ekere of the Respondents ought to have granted the declaration and injunction sought by the Appellants over Alaocha Umukara.
Counsel submitted further that since the learned trial Judge had held that Alaisiorie of the appellants was the same as the Alaike of the respondents there was need to evaluate the evidence of both parties on the piece of land.
Counsel referred to the cases of Kate Enterprises Ltd. vs. Daewoo Ltd. (1985) 2 NWLR (Pt. 5) 110, Onyemaechi vs. Nwonmuo (1992) 9 NWLR (Pt.265) 372 that the learned trial Judge having failed to evaluate evidence before him before reaching conclusions, the court of Appeal is urged to do so.
Counsel submitted in respect of Alaisiorie that apart from the traditional history and acts of ownership given in evidence by PW1 and other witnesses of the Appellants, the PW2 who was believed by the learned trial Judge gave evidence on Alaisiorie which was favourable to the Appellants.
That, under cross-examination, DW2 testified that R.C.M. Church founded by Ekezie of the Appellants was built on Araisiorie Umukara. This, he said corroborated the evidence of pw1, that his family gave the rand to the School and Church to build the School and Church.
Counsel submitted that evidence clearly showed that the Orie Market and the R.C.M. church and School were established by Ekezie, and that the said Ekezie died before the Women’s riot.
Counsel submitted that the learned trial Judge did not disbelieve and did not reject the evidence of PW1 and PW4. Also, that in the instant case, while the Appellants pleaded and red evidence of their genealogy, the respondents faired to do as what they pleaded did not show any nexus between Ekere who they claimed made a grant to the Appellants ancestor, Ekezie, and either Chiaku or Ukara, or between Ekere and the Respondents.
He submitted that the Respondents having failed to show an unbroken lineage to the original owner from whom they claimed faired on the question of traditional history. That, there was also no basis for the conclusion of grant by Ekere to Ekezie as there was overwhelming evidence to the contrary on record.
Counsel submitted that where both parties to a dispute over rand base their claim on traditional history, the side wins which present a better evidence of traditional history. He said the Appellants evidence of traditional history through first plaintiff, Onuoha Njoku was very clear and uncontradicted.
Finally, on this issue, learned senior counsel for the Appellants submitted that an evaluation of evidence proferred by the parties on traditional history and acts of ownership would tilt the imaginary scare of justice. He urged us to hold that the Appellants as plaintiffs in Suit No. HME/37/82 proved their case not only on Alaocha Umukara but also on Alaisiorie Umukara and were entitled to declaration and injunction sought by them.
On Issue No. 5, learned counsel for the Respondents submitted that it was clearly the pleadings and evidence of both parties that two pieces of land were in dispute, one piece which each party called Alaocha, named Alaocha Umuchiaku, after Umuchiaku family of respondents or Alaocha Umukara, after Umukara family of Appellants. That, both parties also at the abortive arbitration before the present suits called the other piece of land Alaike only.
That, it was only in court that Appellants added their small piece of land at Ala Isiorie to the said Alaike (the common name earlier adopted by both parties) and now baptized it Alaisiorie.
Counsel argued, that notwithstanding the new name, it is trite law that it is immaterial by what name a piece of land is called once the identity and location are known. He referred to the case of Aromire vs. Awoyemi (1972) SC 1 (supra).
That, it is immaterial whether at any one stage one of the disputed pieces of land was called Alaike or Alaisiorie, or said to be that of Umukara family or Umuchiaku family, but in dispute.
Once this point is appreciated, said counsel, there can be no confusion as to the name (whether Alaisiorie or Alaike ) used by the learned trial Judge to describe the disputed pieces of land.
That, at page 206, the learned trial judge found as a fact that “Dimeke stream forms the boundary between Alaike of the defendants (Respondents) and Alaocha Umukara, and that it is this piece of land which is in dispute.”
That the learned trial judge had earlier at page 206 found on evidence of DW2 (page 163) “that Alaike Umuchiaku is different from Alaike Umukara” the evidence of DW2 (of Respondents) and their Survey Plans Exhibits C and D, showed that Appellants migrated from their own exclusive Alaike Umukara and Alaocha Umukara to Alaocha Umuchiaku (in dispute) as tenants in 1916 and later trespassed into Alaike Umuchiaku 5 years before the Civil War (DW2, page 164).
Counsel submitted that this evidence was accepted by the learned trial Judge and formed the basis of the judgment in favour of the Respondents.
Further, said counsel, it would be outrageous as contended by Appellants to expect the learned trial Judge to find that Alaocha Umukara into which Chief Ekere of Respondents had put Ekezie of Appellants, not to be in dispute, after Ekezie’s people of Umukara had challenged the title of their landlords, the people of Chief Ekere’s Umuchiaku.
Counsel submitted that it is true that both parties gave conflicting evidence of traditional history both at the abortive arbitration (page 207) thereby inviting question of oath-taking, and also at the trial. The meeting point, said counsel, was when each party claimed to be the landlord of the other. The learned trial Judge resolved the conflict by adopting the principle in Kojo vs. Bonsie (1957) 1 WLR 1223 at 1226.
Counsel said, there were eye witnesses, DW1 and DW2, who were present when Chief Ekere of Respondents granted Ekezie of Appellants “a portion of land at Alaocha Umuchiaku. These pieces of evidence, said counsel, were not denied by Appellants who gave no such evidence in their favour.
Counsel further submitted that the learned trial Judge rightly believed DW2, the eye witness, and that the assessment of the evidence of witnesses seen and heard by the trial court while they testified and their evaluation are matters within the special province of the trial court. And, this is not available to appellate courts, which ought not to substitute its own views for those of the trial court.
He referred to the case of Balogun vs. Agboola (1974) All NLR (Pt. 2) 66.
Counsel urged us to find contrary to the assertions of Appellants, that there was sufficient evidence to justify the judgment of the trial court based on the totality of the evidence before it.
Counsel submitted that the learned trial Judge rightly appraised and evaluated the evidence on the side of the Respondents against those on the side of the Appellants on the imaginary scale before finding of and awarding judgment to Respondents.
None of the five witnesses who testified for Appellants, said counsel, had personal knowledge of the land transactions between the respective ancestors of the parties but two of the three witnesses who testified for Respondents were eye witnesses, knew both Chief Ekere and Ekezie, advised Ekere to bring in Ekezie as tenant and knew the boundaries of the portion of land on which Ekezie was permitted to build his house in 1916. Counsel urged us to resolve the weight of evidence in favour of Respondents.
I have had the privilege of resolving some of the factual issues in relation to lssue No. 5 in my treatment of Issue No. 3.
It is not true as suggested by the learned senior counsel for the Appellants that the Respondents did not trace their genealogy of title to the land in dispute. I would rather agree with the learned counsel for the Respondents that the meeting point in the divergent traditional histories of the parties was when each party claimed to be the landlord of the other. In this respect, the learned trial Judge wisely relied on the evidence of DW1 and DW2 who were eye-witnesses to the grant of the disputed Alaocha land by Ekere of the Respondents to Ekezie of the Appellants to resolve the conflict in the traditional histories of the parties.
The position of the learned trial Judge conforms with the principle laid down in the case of Kojo vs. Bonsie (1957) 1 WLR 1223 at 1226, where it was held that “the best way to test the traditional history of the parties is by reference to the facts in recent years as established by evidence and seeing which of the two competing histories is the more probable.”
The Supreme Court in approving Kojo vs. Bonsie (supra) took a similar view in Akpapuna vs. Nzeka (1983) 7 SC 1 at 22 in similar circumstances and also in the cases of Ayowale vs. Ogunbiyi (1986) 2 NWLR (Pt. 24) 626 and Chukwueke vs. Nwankwe (1985) 2 NWLR (Pt. 6) 195.
The principle in Kojo II vs. Bonsie (supra) establishes that where there is conflict of traditional history, one side or the other must be mistaken, yet both may be honest in their belief. In such a case, demeanour is not the guide to the truth. The best way is to test the traditional history by reference to the facts in recent years as established by evidence and see which of the two competing histories is more probable. The principle offers a guideline when a court is evaluating the evidence as to which of the versions of the evidence on two conflicting histories is more probable in a pleaded traditional history as their source of title.
The principle should not be applied where a plaintiff relies on acts of ownership spanning several years as his root of title. See, Balogun vs. Akanji (2005) 10 NWLR (Pt.933) 394 SC., Odofin vs. Ayoola (1984) 11 SC 72.
Further, more especially in relation to the Alike land in dispute which was included in Appellants Survey Plan Exhibit B and called Alaisiorie, the learned trial Judge had earlier found on the evidence of DW2 (page 163) that “Alaike Umuchiaku is different from Alaike Umukara”.
In other words, it was established that the Appellants have their own Alaike land. lt therefore became easy for the learned trial Judge to accept the evidence of DW2 and the indications in Exhibits C and D, the Survey Plans of the Respondents, that Appellants migrated from their own exclusive Alaike Umukara and Alaocha Umukara to Alaocha Umuchiaku as tenants on or about 1916 and later trespassed into Alaike Umuchiaku.
Before now, the parties had been living peacefully as neighbours. The evidence before the court which it accepted is that trouble on the said land started when Appellants built a latrine on the portion of Alaike Umuchiaku (of Respondents) and cut economic trees on it.
Finally, I say that the Respondents and not the Appellants are entitled to the judgment of the court on the preponderance of evidence.
Issue No. 5 (2e) is resolved against the Appellants.
Having resolved all the five(5) issues in this appeal against the Appellants, the appeal lacks merit and it is accordingly dismissed.
I make no order as to costs.
HARUNA SIMON TSAMMANI, J.C.A: I had the advantage of reading in advance the judgment delivered by my learned brother, M. A. Owoade; JCA.
My learned brother admirably and exhaustively considered all the pertinent issues that arose in this appeal. I am in complete agreement with his reasoning and conclusions thereon. In that respect, I am also of the view that this appeal has no merit and should be dismissed. It is hereby dismissed by me.
TIJJANI ABUBAKAR, J.C.A: I had the advantage of reading before now the judgment just delivered by my learned brother M. A. Owoade, JCA.
I agree with his reasoning and conclusions thereon. I also abide by the consequential orders made.
Appearances
Chief M. I. Ahamba, SAN; with E.N. Ichie, A.C. Anuforom and K.O. Ahamba, Esq;For Appellant
AND
G.C. Okoli, Esq:For Respondent
