JUSTINA ANORUO NZE v. DENNISON ONYEACHUGWO (2013)

JUSTINA ANORUO NZE v. DENNISON ONYEACHUGWO

(2013)LCN/6047(CA)

In The Court of Appeal of Nigeria

On Friday, the 22nd day of March, 2013

CA/PH/353/2006

RATIO

WHETHER FAILURE TO FILE A REPLY TO REBUT AN AVERMENT IN A STATEMENT OF DEFENCE WILL AMOUNT TO ADMISSION

I refer the case of MOBIL V. ASUAH (2001) 30 WRN 25 AT 39 – 40 where the Court of Appeal thus held:
“It is also the law that in general it is not necessary for a plaintiff to file a reply of his only intention in doing so is to deny any allegations that the defendant may have made in the statement of defence.”
“There is no general proposition of law that failure to file a reply to rebut an averment in a Statement of Defence which does not contain a Counter-Claim is tantamount to an admission. Where the defendant by his pleading, sets out a case which cannot be met by mere denial, it is a matter of utmost prudence if not necessary to file a reply.” Per. PHILOMENA MBUA EKPE, J.C.A.

LAND LAW: WAYS OF PROVING TITLE TO LAND BY PRODUCTION OF A VALID DOCUMENT

It is however trite that one of the recognized ways of proving title to land is by production of a valid document in evidence of the grant. This does not however mean that once a claimant purchases an instrument of grant, he is automatically entitled to that property which the instrument purports to grant. When such an instrument is produced and relied upon, it inevitably carries with it the need for a court to inquire into and ask certain relevant questions such as:
(a) Whether the document is genuine and valid.
(b) Whether the document has been duly executed, stamped and registered.
(c) Whether the grantor has the capacity and authority to make the grant.
(d) Whether the grantor is the rightful owner of the property he purported to grant and
(e) Whether it has the effect claimed by the holder of the instrument. Per. PHILOMENA MBUA EKPE, J.C.A.

COURT: THE DUTY OF THE TRIAL COURT TO EVALUATE THE EVIDENCE PLACED BEFORE IT

In the case of OTUKPO V. JOHN (2012) 7 NWLR (PT. 1299) 357 AT 365 the Supreme Court clearly stated thus: “It is the duty of the trial court to evaluate the evidence placed before it and to ascribe probative value thereto. An appellate court can only intervene where the trial court fails to evaluate evidence properly.” The trial court however is duty bound to see, hear and access witnesses as well as documents as to decide whether or not the witness is to be believed and also what weight to attach to documents which are presented in court. Where the trial court has discharged that responsibility, the appellate court will not interfere with such findings unless they are shown to be perverse, unsupported by evidence. See the cases of; 1. Agbi v. Ogbe (2006) 11 NWLR (Pt.990) 65 2. Sha v. Kwan (2000) 8 NWLR (Pt. 670) 685 3. Fagbenro v. Arobadi (2006) 7 NWLR (Pt. 978) 172. Per. PHILOMENA MBUA EKPE, J.C.A.

FAMILY LAND: REQUIREMENTS FOR THE VALID SALE OF FAMILY LAND

In the face of these challenges to the sale, it becomes fatal that the Appellant could not call any of them and therefore a mere receipt signed by some non-family members cannot stand in the face of viva voce evidence in a customary transaction. Also the transaction being sale under native law and custom would require as prerequisite, evidence of persons who actually witnessed the sale and handing over of the said land to the Appellant. I refer to the case of GAJI V. PAYE (2003) 12 MJDC 76 AT 93. The Author B.O. Nwabueze, in his book “The Nigerian Land Law” at page 344 cited the cases of COLE V. FOLAMI (1956) SC 66 and that of ERINOSHO V. OWOKOWAN (1965) NWLR 479 (SC). Stated: “the presence of witnesses who saw the actual handing over of the property is a necessary precondition of a valid sale under customary law.” In other words, those who purportedly sold the land to the appellant had no right to sell as the property was not theirs to dispose of. Per. PHILOMENA MBUA EKPE, J.C.A.

LAND LAW: PLEADING ROOT OF TITLE WHEN RELYING ON TRADITIONAL EVIDENCE

Again a party relying on traditional evidence must plead his root of title. In addition, he must show who his ancestors were and how they came to own and possess the land which was eventually passed to him. Equally, where a person traces the root of his title to a person or family, he has a duty to establish how the person or family also came to have the title vested in him. I refer to the cases of OKOKO V. DAKOLO (2006) 14 NWLR (PT. 1000) 401; YUSUF V. ADEGOKE (2007) 11 NWLR (PT. 1045) 332. Per. PHILOMENA MBUA EKPE, J.C.A.

TRADITIONAL EVIDENCE: POSITION OF THE LAW WHEN PLEADING ROOT OF TITLE TO A THIRD PARTY

Once a party pleads and traces the root of his title to a particular person or family, that party in order to succeed must establish how that person or family derived his or her title to such land. He must in other words also plead and prove the title of the person from whom he derived his alleged ownership of the land in dispute. In the instant case, the plaintiff/Respondent was saddled with the onerous responsibility of pleading and proving geneology – a claim of devolution of the property in question right back to the original owner. Per. PHILOMENA MBUA EKPE, J.C.A.

LAND LAW: WAYS OF PROVING TITLE TO A PIECE OF LAND

It is however trite that a party may prove title to a piece of land in any of the following five ways:-
(a) By traditional evidence;
(b) By documents of title;
(c) By various acts of ownership, numerous and positive, and extending over a length of time as to warrant the interference of ownership;
(d) By act of long enjoyment and possession of the land;
(e) By proof of possession of adjacent land in circumstances which render it probable that the owner of such land would in addition be the owner of the disputed land.
I refer to the cases of IDUNDUN V. OKUMAGBA (1976) 9 – 10 SC 227; ATANDA V. AJANI (1989) 3 NWLR (PT.111) 511. Per. PHILOMENA MBUA EKPE, J.C.A.

LAND LAW: RECOGNIZED METHODS FOR PROVING A CLAIM BASED ON TRADITIONAL HISTORY OR EVIDENCE

JUSTICES

JOHN INYANG OKORO Justice of The Court of Appeal of Nigeria

PHILOMENA MBUA EKPE Justice of The Court of Appeal of Nigeria

HARUNA SIMON TSAMMANI Justice of The Court of Appeal of Nigeria

Between

JUSTINA ANORUO NZE Appellant(s)

AND

DENNISON ONYEACHUGWO Respondent(s)

PHILOMENA MBUA EKPE, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of N.O. Adigwe J. of the High Court of Owerri and delivered on the 16th day of May 2005.
The Appellant was the defendant in the lower court and the judgment was in favour of the Plaintiff/Respondent whereby the judge granted all the reliefs sought by the plaintiff.
Dissatisfied with the said judgment the Defendant/Appellant has now brought this appeal. The reliefs sought by the Plaintiff in the lower court were as follows:
1. N1,000.00 being damages for trespass to the plaintiff’s parcel of land known as and called “ALA NWOKWU” in the plaintiff’s possession situate at Umungada Irete within the jurisdiction of this court.
2. An injunction restraining the defendant by herself, servants, and/or agents from committing further acts of trespass on the said land.
The brief facts of the case are thus:
The land in dispute known as “ALA NWOKWU” is a portion of a larger parcel of land situate at Umungada Irete in the jurisdiction of this court. The plaintiff’s claim is that the land in dispute was a gift made to him by the plaintiff’s father, Chukwunyere about 40 years prior to the commencement of this suit. The plaintiff also claims that his own father inherited the land from his/plaintiff’s grandfather Onyeachugwo a descendant of one Ogbuehi Akuzuo the father of Onyeachugwo and Okenwa. He then called 3 witnesses to buttress his claim.
The defendant on the other hand claims that the said land known as “ALA NWOKWU” is family land belonging to the plaintiff’s larger family known as Umuogbuehi. That the said land was in 1975 sold to her by the head of the Umuogbuehi family by name Michael Okenwa and other principal family members and was issued with a receipt which she tendered at the lower court as Exhibit C.
Both parties tendered survey plans in the lower court and these were each admitted in evidence by consent of both parties. In 1977 the Appellant started to dig a building foundation on the said land and the Respondent with members of his family closed up the foundation. The appellant again started to erect a wall on the land and again the Respondent pulled it down and the matter went to court. When the matter was finally decided in favour of the Respondent, he proceeded to build on the land and in response, the Appellant challenged his presence on the land which resulted in the case in the high court which the judge decided in favour of the Respondent, hence this appeal.
Both parties agreed on the two issues for determination which were distilled from the 9 grounds of appeal formulated by the Appellant in his amended notice of appeal. The grounds of appeal shorn of their particulars are as follows:
Ground One
The learned trial Judge erred in law when he failed to attach any probative value to exhibit C which was the receipt issued by the principal members of the plaintiff’s family for the sale of the land in dispute to the defendant on the ground that exhibit C was not a registered instrument.
Ground Two
The learned trial Judge erred in law when he entered judgment in favour of the plaintiff whose testimony on record was fundamentally inconsistent with his pleadings on the very important issue of his root of title.
Ground Three
The learned trial Judge erred in law when he held the defendant liable in trespass when she was in customary physical possession of the land antebellum.
Ground Four
The learned trial Judge misdirected himself on the case as put before him by the parties which misdirection occasioned a miscarriage of Justice when he held as follows:
“The plaintiff in support of his case called two additional witness (sic) the PW2 ad PW3. (sic). While the defendant in support of her case on purchase tendered Exhibit ‘C’, the receipt she claimed was given to her. It is unfortunate for the defendant that inspite of the insistence of the plaintiff that the land belonged to him a member of Umuogbuehi the defendant did not call any witness to buttress her claim to sale.
The defence of the defendant that she bought the land from the family through the head of the family and other principal members of the family is not supported by evidence by any witness from Umuogbuehi family. The defence amounts to a plea of jus terti ie a plea of a third party as a defence. Jus terti is not a defence to an action in trespass.”
Ground Five
The learned trial Judge erred in law when after considering the statement by the Supreme Court in the case of Egesimba v. Onwuzurike (2003) 13 WRN 78 at 104 – 105 to the effect that when a defendant by his pleadings sets out a case which cannot be met by mere denial, it is a matter of utmost prudence if not a necessity to file a reply, still held that it was not necessary for the plaintiff to file a reply in this case.
Ground Six
The learned trial Judge erred in law when he applied evidence of unpleaded facts in the determination of the case instead of expunging them from the record.
Ground Seven
The learned trial Judge erred in law by entering judgment in favour of a plaintiff who had failed to discharge the Onus placed on him by law.
Ground Eight
Judgment was against the weight of evidence on record.
Ground Nine
The learned trial Judge erred in law when he held
‘I therefore accept the traditional history of the plaintiff in view of the fact that there is no challenge to it except the claim of the defendant that she bought from Umuoghuehi family. I believe the plaintiff and disbelieve the defendant.”
The Appellant raised four issues for determination which have been adopted by the Respondent and the issues are as follows:
ISSUE ONE
Whether in the face of specific averments of facts in the statement of defence a reply to the Statement of Claim was not necessary.
ISSUE TWO
Whether in law Exhibit C has no probative value in proof of purchase of land.
ISSUE THREE
Whether the Plaintiff discharged the burden of proof placed on the Plaintiff by law to entitle him to judgment.
ISSUE FOUR
Whether the trial Judge was right in not dismissing the suit…
The Appellant filed its brief of argument on the 4th day of April 2012 while the Respondent whose brief was dated the 13th day of April 2012 also filed on the same day. This appeal shall however be determined on the four issues formulated and adopted by both parties and argued in their respective briefs of argument.
Issue One – Whether in the face of the specific averment of defence, a reply thereto was not necessary. Learned counsel for the Appellant submitted that the trial Judge at page 56 of the record specifically concluded thus:
“In this case it is not necessary to file a reply.”
Counsel argued that the learned trial Judge placed much reliance on the evidence of unpleaded facts proffered by the plaintiff and his witnesses. That at page 52 of the record, learned counsel for the plaintiff had submitted that the plaintiff had filed no reply to the Statement of Defence because it was not deemed necessary. Counsel had equally submitted that a plaintiff needs to file a reply to a Statement of Defence only on the following two occasions.
(a) When the plaintiff decides to raise fresh issues in order not to take the defence by surprise.
(b) When there is a counter-claim.
That when learned counsel for the plaintiff referred to the case of EGESIMBA V. ONWUZURIKE (2003) NWLR VOL 13 PG.73 AT 104-105, the learned trial Judge relied on the above case and submission of non-necessity to file a reply without considering the time purport of the above exceptions and the dictum quoted in the judgment at page 66.
Learned counsel further submitted that the conclusion of the trial judge is improper with regard to the Statement of Defence filed in the case and that though the Rules of Court provides for implied traverse, it does not deviate from the position of the law that relevant facts in any case are only those facts that are pleaded. Again counsel argued that in the Egesimba’s case which the learned trial Judge relied on, the Supreme Court while upholding the rule of implied traverse cautions thus:
“Where the defendant by his pleading sets out a case which cannot be met by mere denial, it is a matter of utmost prudence if not necessity to file a reply.”
Learned counsel again referred to the defendants pleadings in the lower court at paragraphs 7, 8 and 11 of the Statement of Defence and pages 17 – 18 of the record and submitted that with the averments therein being completely absent in the Statement of Claim, the plaintiff was bound in the instant case to file a reply if he intended to lead evidence of defence since leading evidence of unpleaded facts would go to no issue and would be liable to be expunged. Counsel then concluded on that issue that the learned trial Judge’s conclusion that filing reply was unnecessary is erroneous and that such error misled the court into giving probative value to evidence of unpleaded facts. He then urged the court to allow grounds five and six of the grounds of appeal and resolve this issue in favour of the appellant.
In his reply, learned counsel for the Respondent stated that the claims of the Respondent as plaintiff in this suit are for damages for trespass and injunction. That the Respondent’s claim in the court below pertained to the fact that he was in possession before the Appellant trespassed on the land. That the statement of claim also alluded to facts of plaintiff’s various acts of possession on the said land and also pleaded were efforts made by the plaintiff at warding off the defendant when she trespassed onto his land by closing the foundation and demolishing the building in order to show that he was in possession before the defendant trespassed into the land. Learned counsel further opined that issues were joined when the defendant in various paragraphs of the pleadings set up a defence in traverse of the averments in the statement of claim. That proof by evidence is therefore required to resolve the issues joined. In a further submission by counsel for the Respondent he stated that the defendant in her defence pleaded jus tertii to the effect that though the plaintiff is in possession of the land, the land actually belongs to the family of Umuogbuehi and not the plaintiff. He referred the court to page 16 para. 6 of the record and categorically stated that a reply to the above averment was unnecessary.
Learned counsel further referred to ORDER 25 Rule 10 OF THE IMO STATE HIGH COURT (Civil Procedure) Rules 1988 which were extant at the time of this suit in the High Court. Counsel also referred the court to the case of EGESIMBA v. ONWUZURIKE (2003) 13 WRN 78 AT 104 & 105 where the Supreme Court at para. 35 of page 105 stated thus:
“I may further add, as held in a number of cases, that a plaintiff is entitled to lead evidence on a point raised in the defendant’s pleading.”
Learned counsel also referred to the case of AKPADIAHA V. OWO (2000)8 NWLR (PT. 669) AT 453 where this court clearly stated:
“There are authorities in support of the proposition that facts pleaded in the statement of defence may be rebutted by the plaintiff in oral evidence at the trial without the plaintiff pleading in a reply the facts constituting the rebuttal.”
Counsel again submitted that the appellant on her part failed to join issues with the Respondent in the court below as to possession and ownership as her defences were mere admissions and that the land belongs to a third party, that is the larger family of Ogbuehi Akuzuo of which only the Plaintiff/Respondent and not the Appellant is a member. He further referred to pages 23 and 26 of the records where the Respondent traced his root of title to Ogbuehi Akuzuo.
He further referred to the case of MOBIL V. ASUAN (2001) 30 WRN 25 AT 39 – 40 where the Court of appeal thus stated:
“It is also the law that in general it is not necessary for a plaintiff to file a reply if his only intention in doing so is to deny any allegations that the defendant may have made in the statement of defendant.”
That the Respondent effectively traversed all the issues raised by the Appellant all through the oral testimonies of the Respondent and his witnesses as well as the evidence which emanated from the appellant in cross-examination and therefore a reply became unnecessary. Learned counsel further referred to the case of BAKARE & ANOR V. IBRAHIM (1973) 6 SC. 205 where the Supreme Court held thus:
“Although the defendant traversed the salient issues of ownership of the land in dispute, the defendant did not put the fact in issue as between the parties before the court, rather the defendant averred that the land belonged to a third party.”
Counsel therefore concluded that a reply was not necessary as rightly held by the trial court and urged this court to so hold and resolve the issue in favour of the Respondent.
On Issue Two – Whether in law Exhibit ‘C’ has no probative value in proof of purchase of land, learned counsel for the Appellant referred to page 65 of the record where the trial Judge noted as follows:
“The defence of the defendant that she bought the land from the family of the plaintiff through the head and other principal members of the family is not supported by evidence by any witness from Umuogbuehi family.”
That the learned trial Judge held this view in spite of exhibit C. Counsel further stated that the above view held by the trial court shows that the learned judge did not regard Exhibit ‘C’ as evidence from members of that family even thought it was signed by family head, Michael Okenwa and two other principal members. Counsel also referred to S. 76 of the Evidence Act which states thus:
“All facts except the content of documents may be proved by oral evidence.”
That oral evidence was thus not necessary to prove exhibit ‘C’ which was admitted without objection from the Plaintiff/Respondent and the trial Judge’s preference for oral evidence had no legal basis under the Evidence Act and Rules of Court.
Learned counsel further submitted that the trial court had a duty to ascribe probative value to every legal and properly admitted evidence before it, particularly when such evidence has no challenge or rebuttal from the other party. Also that the trial court’s reason for overlooking exhibit C as a non-registered instrument is not tenable in law. Counsel again submitted that while a registerable instrument, if not registered, may not be admissible in evidence, a receipt for payment for land is admissible as evidence of transaction in which there was consideration. He then cited the case BAMIDELE V. DAUDA (2001) 1 FWLR (PT. 38) 908 AT 911 and urged the court to resolve issue 2 in favour of the Appellant.
Replying the submissions of the Appellant, learned counsel to the Respondent reiterated the fact that in the circumstances of this case, Exhibit ‘C’ a purported receipt for the payment of money, is of no probative value in this case, and the court below was right in not ascribing any probative value to it even though it was adequately considered. That contrary to the submissions of the Appellant, Exhibit ‘C’ was vehemently challenged by the Respondent who brought the initial action and claimed that he owned the land and also pleaded facts disclosing acts of possession before the Appellant/Defendant trespassed unto the land.
Counsel however clearly stated that even though Exhibit ‘C’ was correctly admitted by the trial court as being relevant to the case, the learned trial Judge was right in not attaching any weight to it. See S. 92(1) of the Evidence Act Cap. 112 LFN 1990. He thus quoted S. (92) (1):
“In estimating the weight, if any, to be attached to a statement rendered admissible as evidence by this Act, regard shall be had to all the circumstances from which any inference can reasonably by drawn as to the accuracy or otherwise of the statement, and in particular to the question whether or not the statement was made contemporaneously with the occurrence or existence of the facts stated, and to the question whether or not the maker of the statement had any incentive to conceal or misrepresent facts.”
Learned counsel in a further submission stated that the purported transaction being sale under native law and custom does not require writing as prerequisite evidence of witnesses who were present at the sale and the handing over of the said land to the defendant and failure to produce such evidence of witnesses becomes fatal to the case. I refer to the case of GAJI V. PAYE (2003) 12 MJSC 76 AT 93, OGUMBAMBI V. ABOWAB (1951) 13 WACA 222.
That the receipt of payment Exhibit ‘C’ without more cannot stand alone to prove a sale under customary law. He further stated that the Defendant/Appellant failed to produce any of the witnesses who she claimed she paid money to in order to prove payment for the said land. Counsel then cited the Supreme Court cases of COLE V FOLAMI (1956) SC 66 and ERINOSNO V. OWOKONRAN (1965) NMLR 479(SC) as cited by B.O. Nwabueze in his book titled Nigerian Land Law at pg. 334 thus:
“That the presence of witnesses who saw the actual handing over of the property is a necessary precondition of a valid sale under customary law.”
It also cited the case of TAIWO V. OGUNSANYA (1967) NMLR 375 where this court thus stated:
“That since the Appellant was unable to produce any witness who saw the actual handing over of the land to him, we are unable to hold that there was a sale to him under native law and custom.”
Learned Respondent’s counsel reiterated the fact that the Appellant did not call any witness even though the youths whom she relied on are still extant in the community and thus a mere receipt without more cannot convey a better title to the defendant in a sale of land under native law and custom. In a further argument, counsel stated that the Appellant in her statement of defence mentioned some principal family members who purportedly sold the land to her stating thus in her evidence in chief:
“I bought the land from Michael Okenwa, Peter Okenwa and Nathan Okenwa.”
Respondent’s counsel however debunked the above statement arguing that the respondent and his witnesses who are members of the Umuogbuehi family had categorically told the court below that Nathan Okenwa, Ebeneze Ojeni and Emmanue Ogbuebele who executed Exhibit ‘C’ as members of the Umuogbuehi family do not come from that area and are definitely not members or principal members of the Umuogbuehi family. That Michael Okenwa whom the Appellant relied on was not the head of the family as he had an elder brother, Mathias Okenwa who in the presence of Michael Okenwa had ordered members of their family to close up the foundation dug by the Appellant. Counsel then concluded that the Defendant/Appellant not being a member of the family could not have identified the head or principal members of the family at that time. He further concluded that a mere receipt of purchase signed by non-members of the family cannot stand in the place of viva voce evidence in a customary transaction and that the trial court was right in not ascribing any weight at all to such a receipt. He then urged the court to resolve this issue in favour of the respondent.
In Appellant’s reply brief, learned counsel submitted that oral evidence is unnecessary for the proof of contents of a document. He referred to S. 125 of the Evidence Act 2011 and also the case of BIJOU V. OSIDORONWO (1992) 6 NWLR (PT. 246) 463 AT 469. It is further submitted by counsel that Exhibit ‘C’ speaks for itself and does not require oral evidence particularly since the customary transaction has been reduced into writing and thus has moved away from the traditional customary evidence.
Issues 3 and 4 have been argued together by both parties in their respective briefs of argument since they are interrelated.
-Whether the Plaintiff discharged the burden of proof placed on him to entitle him to judgment.
-Whether the trail Judge was right in not dismissing the suit.
Learned counsel for the Appellant argued that the Plaintiff in the lower court did not plead or lead evidence of traditional history which includes names of successive users of the land all within human memory. That the only fact pleaded by the Plaintiff was that the land in dispute was personal to the Plaintiff up to his father and grandfather and no more. He further argued that it was the defendant who pleaded communal ownership in her statement of defence a fact which was agreed upon even by Plaintiff/Respondent. That the implication of it is that the court below had found against the exclusive ownership as claimed by the plaintiff. Learned counsel concluded on that point that where a Plaintiff contradicts the root of title pleaded in evidence, a trial court has no option than to dismiss the suit. He referred to the case of OHIAERI V. AKABEGE (1992) NSCC vol. 23 147 AT 148.
Learned counsel again submitted that the defendant presented a better case as she pleaded that the land had not been partitioned and that she bought the land in 1975 when Michael Okenwa was the head of Okenwa family and thus corroborated by the evidence of PW2. Appellant then urged the court to resolve these issues in favour of the appellant.
In reply to the argument on the above issues, learned counsel for the Respondent submitted that the Respondent as Plaintiff in the lower court claimed damages for trespass and injunction. That a party claiming damages for trespass and injunction has a duty to satisfy the court that at the time of the alleged trespass, he was in possession of the particular portion of the land in respect of which the trespass was committed. He referred to the case of BABALOLA V. ALAMOROKO (2001) 30 WRN 56 AT 10 – 15. Counsel further argued that the Plaintiff pleaded and adduced credible evidence of possession before the invasion of his privacy by the Defendant/Appellant. That he built various houses on the land at different times since 1950, and also gave oral evidence of his root of title which the defendant admitted even though she is not a member of that family.
Learned counsel opined that it is the law that when both parties have agreed on a particular matter in their pleadings such matter need no further proof and the court should accept such an agreed fact as established without further proof. He referred to the cases of A.G. FEDERATION V. A.G OF THE 36 STATES (2002) 5 MJSC, OMOREGBE V. DANIEL LAWAL (1980) 34 SC 108 AT 119. He also cited the case of OWHONDA V. EKPECHI (2003) 49 WRN 1 AT 14 where the Supreme Court stated thus:
“A person who is able to prove exclusive possession can maintain an action in trespass against any person, unless such a person can prove better title to the land.”
Learned Respondent’s counsel further submitted that the appellant’s admission at page 16 of the record that the Respondent is in possession of the land adjacent to the land in dispute senses the presumption in S. 46 of the Evidence Act to the effect that:
“Acts of possession and enjoyment of land may be evidence of ownership or of a right of occupancy not only of the particular piece or quantity of land with reference to which such acts are done, but also of other land so situated or connected therewith by locality or similarity that what is true as to the one piece of land is likely to be true of the other piece of land.”
Counsel also discountenanced the defence of jus tertii as unavailing the defendant who pleaded that the Plaintiff had built houses not on his one land but on land belonging to a third party i.e. the Umuogbuehi family.
He further cited the case of NNADOZIE V. OMESU (1996) 5 NWLR PT 4411 AT 127 A – G. where this court advised on the correct procedure which is for the defendant to join the family as co-defendant in the suit, which the defendant had failed to do . Again that the Plaintiff/Respondent proved absolute possession by promptly warding off a trespasser and closing up the wall and foundation she had started to erect. That the Appellant’s trespassory acts amounts to mere occupation which act cannot be protected by S. 146 of the Evidence Act cap. 112 LFN 1990. On the issue of the survey plans tendered by both parties, counsel submitted that both the Appellant and the Respondent were ad idem as to the boundaries of the land. Counsel concluded that the learned trial Judge was therefore right in basing his decision on the admitted facts in the pleadings of the parties and the admissions of the defendant in her defence. He further concluded that the Plaintiff had proved beyond doubt that he was in possession and that he had discharged the burden placed on him to entitle him to judgment. The learned trial Judge was therefore right in not dismissing the suit.
On issue No. 1, whether in the face of the specific averment of defence a reply thereto was not necessary, the Appellant’s counsel has deemed it most expedient for the other party to have filed a reply while the Respondent on the other hand categorically stated that a reply was not necessary considering the state of pleadings before the court. The learned trial Judge cited the case of EGESIMBA V. ONWUZURIKE (2003) 13 WRN 78 AT 104 – 105 where the Supreme Court held as follows: to the family of Umuogbuehi particularly Ogbuehi Akazuo, and the defendant had also admitted that fact in her pleadings).
In paragraph 9 of the statement of defence the Appellant admitted para. 7 of the statement of claim both of which state clearly that the plaintiff is a descendant of Oguehi Akazuo. Issues have thus been joined and thus there is no need to file a reply as no new facts have been raised by the Appellant/Defendant.
I refer the case of MOBIL V. ASUAH (2001) 30 WRN 25 AT 39 – 40 where the Court of Appeal thus held:
“It is also the law that in general it is not necessary for a plaintiff to file a reply of his only intention in doing so is to deny any allegations that the defendant may have made in the statement of defence.”
“There is no general proposition of law that failure to file a reply to rebut an averment in a Statement of Defence which does not contain a Counter-Claim is tantamount to an admission. Where the defendant by his pleading, sets out a case which cannot be met by mere denial, it is a matter of utmost prudence if not necessary to file a reply.”

To begin with, a reply is categorized as the defence of a plaintiff to either the counter-claim of the defendant or to new facts raised in his defence to the Plaintiffs Statement of Claim. I refer to the case of OSHODI v. EYIFUNMI (2000) 7 SC PT. 11 145.
In this case, the defendant did not counter-claim. The Respondent had sued for damages for trespass and injunction and pleaded facts pertaining to possession which the Appellant had traversed in her statement of defence while joining issues. Both parties however led evidence to resolve these issues. The defendant also in her defence pleaded jus tertii to the effect that the said land in dispute belongs to the family of Umuogbuehi. The Plaintiff in his pleadings had stated that he belonged to the family of Umuogbuehi. Like I stated earlier, no counter- claim was filed by the Defendant/Appellant and so any further pleadings by way of a reply by the Plaintiff is unnecessary if the sole purpose is to deny the averments in the statement of defence. I can safely say at this juncture that all through the oral testimonies of the Plaintiff/Respondent and his witnesses as well as the evidence that emanated from the Defendant/Appellant in cross- examination, the respondent had effectively traversed all the issues raised by the Appellant and a reply was therefore rendered unnecessary. I referred also the case of ISHOLA V. S.G.B. (NIG.) LTD. (1997) 2 NWLR (PT. 488) 405. In the light of the foregoing I agree with the decision of the trial court that the case of the defendant has been adequately met by all the denials of the Plaintiff in his pleadings and also in cross-examination and therefore a reply is no longer necessary. I therefore resolve this issue in favour of the Respondent.
Issue No. 2, Whether in law, Exhibit ‘C’ has no probative value in proof of purchase of land. This is entirely hinged on the authenticity or otherwise of exhibit ‘C’. It is the claim of the Appellant that Exhibit ‘C’ is the receipt obtained for the money paid for the purchase of the land in dispute. The learned trial Judge did not ascribe any probative value to it. At page 65 of the record, his remarks were thus:
“The defence of the defendant that she bought the land from the family of the Plaintiff through the head of the family and other principal members of the family is not supported by evidence by any witness from Umuogbuehi family.”
There are however, relevant considerations where a claimant for title to land can rely on a document of title. It is however trite that one of the recognized ways of proving title to land is by production of a valid document in evidence of the grant. This does not however mean that once a claimant purchases an instrument of grant, he is automatically entitled to that property which the instrument purports to grant. When such an instrument is produced and relied upon, it inevitably carries with it the need for a court to inquire into and ask certain relevant questions such as:
(a) Whether the document is genuine and valid.
(b) Whether the document has been duly executed, stamped and registered.
(c) Whether the grantor has the capacity and authority to make the grant.
(d) Whether the grantor is the rightful owner of the property he purported to grant and
(e) Whether it has the effect claimed by the holder of the instrument.
The issue here is not whether the document is genuine and valid or even whether it was duly stamped and registered. I think the crux of the matter here is whether the grantor had the capacity and authority to make the grant. The Appellant claimed that the land was sold to her by Michael Okenwa, Peter Okenwa and Nathan Okenwa for the sum of N130.00 in 1975. It was also her evidence that she paid N100 to the youths to placate them for the sale of the land to her. In her evidence in chief the Defendant/Appellant stated thus:
“I bought the land from Michael Okenwa, Peter Okenwa and Nathan Okenwa.” See para. 25 page 44 of the records.
Meanwhile, PW3 in his evidence in chief clearly stated thus:
“Michael Okenwa could not have sold the land which belongs to the Plaintiff to her. The principal members of Umuogbuehi family should know where there is a proposal to sell any portion of Umuogbuehi family land.”
The forgoing piece of evidence in the trial court must have weighed heavily on the mind of the learned trial Judge to influence his decision to treat Exhibit ‘C’ with levity. In the case of OTUKPO V. JOHN (2012) 7 NWLR (PT. 1299) 357 AT 365 the Supreme Court clearly stated thus:
“It is the duty of the trial court to evaluate the evidence placed before it and to ascribe probative value thereto. An appellate court can only intervene where the trial court fails to evaluate evidence properly.”
The trial court however is duty bound to see, hear and access witnesses as well as documents as to decide whether or not the witness is to be believed and also what weight to attach to documents which are presented in court. Where the trial court has discharged that responsibility, the appellate court will not interfere with such findings unless they are shown to be perverse, unsupported by evidence. See the cases of;
1. Agbi v. Ogbe (2006) 11 NWLR (Pt.990) 65
2. Sha v. Kwan (2000) 8 NWLR (Pt. 670) 685
3. Fagbenro v. Arobadi (2006) 7 NWLR (Pt. 978) 172.
In this case, the Appellant did not call any witness to support her claim. She merely tendered her purported receipt of purchase without more. It is my view that a mere receipt without any corroborative evidence to support it cannot convey a better title to a defendant in a sale of land under native law and custom. The appellant also failed to call any witness particularly any of the principal family members or even any of the youths who were present at the time of the sale. In the face of these challenges to the sale, it becomes fatal that the Appellant could not call any of them and therefore a mere receipt signed by some non-family members cannot stand in the face of viva voce evidence in a customary transaction. Also the transaction being sale under native law and custom would require as prerequisite, evidence of persons who actually witnessed the sale and handing over of the said land to the Appellant. I refer to the case of GAJI V. PAYE (2003) 12 MJDC 76 AT 93. The Author B.O. Nwabueze, in his book “The Nigerian Land Law” at page 344 cited the cases of COLE V. FOLAMI (1956) SC 66 and that of ERINOSHO V. OWOKOWAN (1965) NWLR 479 (SC).
Stated: “the presence of witnesses who saw the actual handing over of the property is a necessary precondition of a valid sale under customary law.”
In other words, those who purportedly sold the land to the appellant had no right to sell as the property was not theirs to dispose of. The learned trial Judge was therefore right not to have ascribed any weight at all to exhibit ‘C’. I therefore resolve this issue also in favour of the Respondent against the Appellant.
Issues 3 and 4 have been argued together by both parties and I shall also do likewise in reaching a decision in this appeal. The two issues are: Whether the plaintiff discharged the burden of proof placed on him to entitle him to judgment and whether the trial Judge was right in not dismissing the suit.
A party claiming damages for trespass and injunction has a duty to satisfy the court that at the time of the alleged trespass, he was in possession of the particular portion of the land in respect of which the trespass was committed. I refer to the case of BABALOLA V. ALAMOROKO (2001) 30 WRN 56 AT 10 – 15. The Respondent as plaintiff claimed damages for trespass and injunction. The plaintiff pleaded and adduced credible evidence of the facts alluding to possession of the land and also how and when he came into possession as well as his predecessors in title.
Again a party relying on traditional evidence must plead his root of title. In addition, he must show who his ancestors were and how they came to own and possess the land which was eventually passed to him. Equally, where a person traces the root of his title to a person or family, he has a duty to establish how the person or family also came to have the title vested in him. I refer to the cases of OKOKO V. DAKOLO (2006) 14 NWLR (PT. 1000) 401; YUSUF V. ADEGOKE (2007) 11 NWLR (PT. 1045) 332.
The Respondent at page 5 of the records in his pleadings had traced his root of title to a common ancestor by name Ogbuehi Akazuo. In paragraphs 6 and 7 of the Respondent’s statement of claim, he stated thus very clearly and concisely:
“The land in dispute and the entire land verged yellow was a gift made to the plaintiff by his father Chukwunyere about 40 years ago. Chukwunyere, the father of the plaintiff acquired the land from his own father, Onyeachugwo. One Ogbuehi Akazuo was the ancestor of the plaintiff. The said Ogbuehi Akazuo was the father of Onyeachugwo and Okenwa.”
Once a party pleads and traces the root of his title to a particular person or family, that party in order to succeed must establish how that person or family derived his or her title to such land. He must in other words also plead and prove the title of the person from whom he derived his alleged ownership of the land in dispute. In the instant case, the plaintiff/Respondent was saddled with the onerous responsibility of pleading and proving geneology – a claim of devolution of the property in question right back to the original owner.
In a declaration of title to land, the onus is on the plaintiff to prove his ownership of the property and that burden never shifts.

There is also no gainsaying the fact that the plaintiff to succeed must rely on the strength of his own case and not on the weakness of the defendant’s case except when the evidence adduced by the defendant clearly supports the claim of the plaintiff in the case.
It is however, imperative to examine the evidence tendered by the respondent in the trial court in an attempt to discharge the burden placed on him by law. The Respondent produced three witnesses including himself who testified as PW1, PW2 and PW3.
The Respondent testified as PW1 and claimed that members of Ogbuehi Akazuo family lived in Ala Nwokwu and any member who wished to build was allocated land to do so in Ala Nwokwu. Under cross-examination, he stated that his father Chukwunyere Onyeachugwo was once the head of Ogbuehi Akazuo family. PW2, Cornelius Osuoha Okenwa also testified as a member of the Umuogbuehi family stating that the land in dispute belongs to the plaintiffs father Onyeachugwo and that the plaintiff is in possession of the land. PW3, Gabriel Onyeachugwo also testified and stated as the elder brother of the plaintiff, that their father had given the land in dispute to the plaintiff
It is however trite that a party may prove title to a piece of land in any of the following five ways:-
(a) By traditional evidence;
(b) By documents of title;
(c) By various acts of ownership, numerous and positive, and extending over a length of time as to warrant the interference of ownership;
(d) By act of long enjoyment and possession of the land;
(e) By proof of possession of adjacent land in circumstances which render it probable that the owner of such land would in addition be the owner of the disputed land.
I refer to the cases of IDUNDUN V. OKUMAGBA (1976) 9 – 10 SC 227; ATANDA V. AJANI (1989) 3 NWLR (PT.111) 511.

A party who hinges his claim of declaration of title to land on traditional history must establish how his ancestor, the original owner, acquired the land; that, whether by settlement, conquest or grant. A claim predicated on traditional history or evidence must be proved by any of the recognized methods, and traditional evidence adduced must be cogent, uncontradicted evidence that must also be conclusive, if the party is to succeed. I refer to the cases of AIKHIONBARE V. OMOREGIE (1976) 12 SC 11: KODILINYE V. ODU 2 WACA 336; EBOHA V. ANAKWENZE (1967) SCNLR 97 referred to (P. 165, paras. C-E).
To begin with, the Respondent has traced his root of title by traditional evidence of PW2 and PW3 as clearly stated earlier. It is also in evidence that the Respondent had been on the land in dispute known as Ala Nwokwu for 40 years before the advent of the Appellant. He has also carried on various acts of possession and enjoyment of the land by building and farming on the said land.
Another point to consider is the fact that the Appellant at para. 6 page 16 of the record admitted that the Respondent is in possession of the land adjacent to the land in dispute and this unequivocally raises in favour the presumption in S. 46 of the Evidence Act to the effect that
“acts of possession and enjoyment of land may be evidence of ownership not only of the particular piece or quantity of land with reference to which such acts are done, but also of other land so situated or connected therewith by locality or similarity that what is true as to the one piece of land is likely to be true to other piece of land. I refer to the cases of OWHONDA v. EKPECHI (SUPRA) AT PAGE 19, LINES 5 – 15 IDUNDUN V. OKUMAGBA (2002) 20 WRN 127 AKINDE V. ADELUSOLA (2002) 15 WRN 31 AT 45 – 46 LINES 40 -5.”
Again, the Appellant’s defence of jus tertii does not avail him. The Appellant admitted that the houses of the Respondent were built on Umuogbuehi land which had been proved belonged to the ancestors of the Plaintiff/Respondent. Regard should also be had to the fact that the Respondent is not a member of that family and would not be quite conversant with the inner workings of the said family being an outsider.
In the final analysis it is my most humble opinion that the Respondent has discharged the burden of the requirement of a better right to possession both in his pleadings and in credible evidence. These issues 2 and 3 are therefore resolved in favour of the Respondent as the trial Judge was right in not dismissing the suit.
Consequent upon the foregoing, the judgment of the High Court of Justice Imo State delivered on the 16th day of May 2005 is hereby affirmed. The Respondents claim at the trial court is also allowed.
Accordingly, this appeal is hereby dismissed. There shall be no order as to costs.

JOHN INYANG OKORO, J.C.A.: I read in advance the judgment of my learned brother, Philomena Ekpe, JCA just delivered and I agree entirely with her that this appeal lacks merit and ought to be dismissed. It is unfortunate that the Appellant herein, apart from tendering exhibit C as a receipt to show that she paid money for the land, did nothing else to establish her root of title. No witness was called from the family to show who sold the land to her. None of the youths she purportedly appeased was called as a witness. A mere production of a receipt without more is not one of the five ways a party may prove his title to land. See IDUNDUN v. OKUMAGBA (1976) 9-10 S.C. 227. By law, exhibit C is not a document of title. The appellant ought to have led evidence to show how she became owner of the land.
For me, I agree that the court below was right not to attach any probative value to exhibit C.
Based on the above and other detailed reasons contained in the lead judgment of my learned brother, Philomena Ekpe, JCA, I agree that this appeal is unmeritorious and I join to dismiss same. I abide by the order as to costs.

HARUNA SIMON TSAMMANI, J.C.A.: I had the advantage in reading in draft, the judgment just delivered by my Learned brother PHILOMENA MBUA EKPE; JCA.
My Learned brother adequately considered the pertinent issues that arose for determination in this appeal. I am in complete agreement with his reasoning and conclusion that the appeal lacks merit and should be dismissed.
The evidence of P.W.3 tended to show that the land in dispute is subject of customary tenure. That being so, it is my view that, the Appellant should have called witnesses establishing that consent of the principal members of the family was obtained before the sale. Once it has been established that the land is subject to incidents of family ownership, the onus would be on the purchaser to establish that the necessary consents were obtained at the time he bought. See BABAYEJU v. ASHUMU (1998) 9 NWLR (Pt. 567) p.546, KALIO v WOLUCHEM (1985) NWLR (Pt.4) p.610 MOHAMMED v KLARGESTER (NIG.) LTD (2002) 14 NWLR (Pt.787) p.335 and EJILEMELE v OPARA (2003) 9 NWLR (Pt. 826) p.536. See also OKONKWO v OKONKWO (1998) 10 NWLR (Pt. 571) p.554. It is therefore my view that the tendering of a purchase receipt without evidence that the required consent was obtained is not helpful to the Appellant’s case. Accordingly, the Appellant having failed to call any person who witnessed the transaction was bound to fail. See ADEDEJI v. OLOSO (2007) 5 NWLR (Pt.1026) p.133; OGUNDAJU v MacJOB (2006) 7 NWLR (p. 978) p.148 and ADIKE v. OBIARERE (2002) 4 NWLR (Pt. 758) p.537.
It is for the above reasons and the detailed reasons in the judgment delivered by my learned brother, that I hold the view that the appeal be dismissed. I accordingly dismiss this appeal and affirm the decision of the Court below.
I abide by the consequential order(s) made therein.

Appearances

M.I. Ahamba (SAN), with C.C. Okoroaja, Esq., K.O. Ahamba, Esq; and
O.U. Okajo (Miss),For Appellant

AND

J.I. Ogamba, Esq.For Respondent