KUROBO SAMESI v. MICAH IGBE & ORS
(2011)LCN/4516(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 3rd day of May, 2011
CA/PH/262/2003
RATIO
TITLE TO LAND: WAYS BY WHICH A CLAIMANT OF TITLE TO OR OWNERSHIP OF LAND MAY ESTABLISH HIS TITLE
Now, the law allows a claimant of title to or ownership of land to do so in any of the five recognized ways. These are by traditional evidence; production of duly authenticated documents of title; by positive acts of ownership extending over a sufficient length of time, by acts of long possession and enjoyment of the land, and by proof of possession of connected or adjacent land in circumstances rendering it probable that the owner of such connected or adjacent land, would in addition, be the owner of the land in dispute. The law considers establishment of the plaintiffs’ title through any of the five ways a sufficient proof of his ownership see: Ayoola v. Odofin (1984) 11 SC 120, Adesanya v. Adesounmu (2000) 6 SC (Pt.11) 18, Nkada v. Obiano (1997) 5 NWLR (Pt.5O3) 31 at 34, Nkwo v. Iboe (1998) 7 NWLR (Pt.558) 358 and Kyari v. Alkals (2001) FWLR (Pt.60) 1481. PER MUSA DATTIJO MUHAMMAD, (OFR) J.C.A.
TRADITIONAL HISTORY: NATURE OF THE BURDEN OF PROOF ON A CLAIMANT PLEADING EVIDENCE OF TRADITIONAL HISTORY FOR ITS ROOT OF TITLE
Learned Respondents counsel is right in his submission that the Appellants who rely on traditional history for their root of title have the burden of not only properly pleading that history but leading evidence on it. The history succeeds on its merits standing alone in the absence of a competing account from the other side. The account must also not break down due to its own internal conflict. The traditional history is accepted by the court on the basis of its strength and cogency. A traditional account that prevails is always such that contain the name of the plaintiffs, ancestor who founded the land and the names of those others who came after him to whom the land devolved up to the last successor(s). It is incumbent for the claimant to specifically plead and lead evidence systematically on the facts of what his ancestor did to actualize the founding of the land in dispute. The history as pleaded and established must leave no unexplained gaps or linkages between the original founder, his successor and the claimant. see Aikhiobare v. omoregie (1976) 12 SC and Akanbi v. Salawu (2003) 13 NWLR (Pt.838) 637. PER MUSA DATTIJO MUHAMMAD, (OFR) J.C.A.
DUTY OF COURT: DUTY OF THE COURT WHERE THE PARTIES RELY ON TRADITIONAL EVIDENCE IN PROVING OWNERSHIP OF THE LAND IN DISPUTE
Where both the plaintiff and defendant, as in the instant case, anchor their case on traditional evidence in proving ownership of the land in dispute, the courts duty, which has, in the foregoing, been discharged, is to weigh their evidence on an imaginary scale and determine which evidence is weightier and resultantly more preferable. see Ibikunle v. Lawani (2007) 3 NWLR (Pt. 1022) 580 and Idundun v. okumagbe (1976) 9 – 10 SC 337. PER MUSA DATTIJO MUHAMMAD, (OFR) J.C.A.
PLEADINGS: WAYS BY WHICH A PARTY MAY DENY THE AVERMENTS IN HIS OPPONENT’S PLEADING; WHETHER FOR AVERMENTS IN PLEADINGS TO CONSTITUTE A TRAVERSE, IT IS ESSENTIAL THAT THE CASE PUT FORWARD BY THE DEFENDANT CONFLICTS ON MATERIAL PARTICULARS WITH THAT PUT FORWARD BY THE PLAINTIFF
This court restated the principle in Union Bank of Nigeria Plc v. Jeric Nigeria Ltd. (1998) 2 NWLR (Pt.536) 63 thus: “A party may deny the averments in his opponent’s pleading expressly or by necessary implication. A denial is said to be express when a party meets the averments in his opponent’s pleadings frontally or specifically by stating that he does not admit the pleaded fact. A denial by implication arises when a party in his pleadings sets up facts which are inconsistent with those in his opponent’s pleading or which belie them. For instance, if a plaintiff pleads that he was in Lagos all day yesterday and his opponent pleads that the plaintiff was in Jos all day yesterday, there is an implied denial of the plaintiff’s averment… For averments in pleadings to constitute a traverse, it is not necessary that every paragraph of the statement of claim should be specifically denied. That may be done but what is essential is that the case put forward by the defendant conflicts on material particulars with that put forward by the plaintiff and thus puts the different material averment in issue.” See also Audu v. Gufa (2004) 4 NWLR (pt.8 64) 463; Ajao v. Alao (1986) 12 SC 193, and Balogun v. UBA Ltd. (1992) 6 NWLR (Pt.247) 336. PER MUSA DATTIJO MUHAMMAD, (OFR) J.C.A.
DECLARATORY RELIEFS: WHETHER DECLARATORY RELIEFS ARE GRANTED ON THE BASIS OF ADMISSIONS OF AN ADVERSARY
It is trite, as again correctly held by the lower court, that declaratory reliefs are never granted on the basis of admissions of an adversary. The dictum of Obasaki JSC in Bello v. Eweka (1981) 1 SC 101 at 102-103 aptly cited with approval by the lower court is indeed very instructive. It reads:- “Where the court is called upon to make a declaration of a right it is incumbent on the party claiming to be entitled to the declaration to satisfy the court by evidence not by admission in the pleadings of the defendant that he is entitled. The necessity for this arises from the fact that the court has discretion to grant or refuse the declaration and the success of a claimant in such an action depends entirely on the strength of his own case and not in the weakness of the defence.” The foregoing authority remains good law and binds this court as well. PER MUSA DATTIJO MUHAMMAD, (OFR) J.C.A.
JUSTICES
MUSA DATTIJO MUHAMMAD Justice of The Court of Appeal of Nigeria
EJEMBI EKO Justice of The Court of Appeal of Nigeria
TUNDE OYEBANJI AWOTOYE Justice of The Court of Appeal of Nigeria
Between
KUROBO SAMESI Appellant(s)
AND
MICAH IGBE & ORS Respondent(s)
MUSA DATTIJO MUHAMMAD, (OFR) J.C.A. (Delivering the Leading Judgment): This is an appeal by the Plaintiffs against the judgment of the Rivers State High Court dated 30th December 1994 dismissing in its entirety the claim against the Defendants. As indorsed on the writ dated 8th December and issued on 29th December 1973 and paragraph 12 of the plaintiffs’ amended statement of claim, the claim against the Defendants is for declaration of title, damages for trespass and injunction over the land in dispute. Let me briefly state the facts of the case that gave birth to the appeal.
The plaintiffs claim is over the parcel of land they call Iginama- Toru-Ugbo, a name derived from the claimants’ principal juju, Iginamu, on the land. Ossiama River, otherwise called Iginamatoru, runs through the land in dispute as well as plaintiffs’ villages of Ondewari and Okpotuwari. The two villages, plaintiffs assert, were founded by Okpotu and Onde. It is plaintiffs’ case that these two had allowed Defendants precursor, Egwe, to settle to the south of Okpotuwari village. Egwe settled first at Ikolighaguyo and then at Amabiriyo areas along Ikebiri creek off the Iginamotoru.
These settlements, inhabited by defendants’ predecessors, is the land in dispute which the plaintiffs aver form part of the area founded by Olodi the founder of the Olodiama Clan. It is their further case that the clan now consists of the following communities: Ikebiri, Ikeremo, Okpetuwari, Ondewari and Olugbubiri. The settlements derived their respective names from Ike, Ikeremo, Okpetu, Onde, and Ohigbo all Olodi’s children. The communities share common boundaries.
Defendants’ case, on the other hand, is that the land in dispute, Apiebou, is a communal bush situate at Iginamotoru creek in the present day Bayelsa State. It forms part of the farm land they own and peacefully possess and enjoy from time immemorial. They farm, fish, let out and carry out all manner of work without let or hindrance from the plaintiffs or any other. The land in dispute is delineated in defendants plan No. JTR 85LD. It is defendants’ case that they are descendants of Olodi, the founder of Oladiama clan. Olodi had eight children from three wives. The children include Korosori Korosori the founder of Korokorosei settlement. Six other settlements were founded by Olodi’s other children with the seven villages constituting the Olodiama’s Clan. The children who founded the six other settlements are Tebi, Ike, Ikeremo, Biri Ikeingbie, Okpetu, Onde and Ohigbo. They founded Tepidaba, Ikebiri, Ikeighe Biri, Okpetuwari, Ondewari and Ohugbobir settlements respectively. Ekeremo left the creek and found his settlement in Patani in Delta area.
On Olode’s death his son Korosori Korosori left for Anyonabiri and finally settled at the present Kokorosei settlement. Igina, one of the earliest descendants of Korosori Korosori founded the Iginamatoru settlement, the land in dispute. He lived at the spot called Iginama and the entire creek, Iginamatoru, was named after him. Igina’s descendants including the Defendants have exercised maximum and uninterrupted acts of ownership over their land which they cultivated, carved and peddle, weave mats and baskets, fish in ponds and lakes as well as let parts out to Ibibio tenants, It is also Defendant’s case that an Ekowe Native Court had decided over the land in dispute in 1923 in case No.592/23 and a Divisional Officer had thereafter advised parties to keep to the boundaries defined for them.
The plaintiffs called six witnesses to prove their case while the defendants called five. At the end of the trial which included the lower court’s visit to the locus in quo, the court disbelieved plaintiffs’ case and dismissed their entire claim. Being dissatisfied, they have appealed on an amended Notice containing fifteen grounds.
Parties have filed and exchanged their briefs of argument which, at the hearing of the appeal, they adopted and relied upon. The four issues distilled at paragraph 2.1 of the Appellants’ brief reads:
“i.) Did the learned trial Judge follow in this case the correct procedure as laid down by law for visits to locus in quo, if not, are his findings based on the said visit sustainable in the circumstances this case?
(Grounds 4 and 15 Appellants Grounds of Appeal)
ii.) Was the learned trial Judge right when he held that the averment in paragraph 7 of the Amended statement of Defence to the effect that the Defendants “are not in a position to deny the traditional history of Olodiama clan as averred” by the Plaintiffs did not amount to an admission of the said traditional history pleaded by the Plaintiffs?
(Ground 11 Appellants grounds of Appeal).
iii.) Did the learned trial Judge adopt the correct approach in his evaluation of the evidence in this case; if not, are the findings of the learned trial Judge sustainable?
(Grounds 2, 3, 5, 6, 8, 9, 10, 12, 13 and 14, Appellants Grounds of Appeal).
iv.) Upon a proper evaluation of the evidence, are the plaintiffs not entitled to judgment in this case?
(Grounds 1 and 7 Appellants’ Grounds of Appeal).”
At page 3 of the Respondents’ brief of argument, the following three issues have been formulated as having arisen for the determination of the appeal.
3.1 whether the Learned Trial Judge properly evaluated the evidence adduced by the parties at the trial before dismissing the Appellants’ claim?
3.2. Whether the averment in paragraph 7 of the amended Statement of Defence amounts to an admission of the traditional history pleaded by the Appellants?
3.3. Whether the Learned Trial Judge was right in his findings based on the visit to the locus in quo?
Respondents’ three issues seem to be the critical issues on the basis of which the appeal is to be effectively determined. The first of these three issues clearly subsumes Appellant’s 3rd and 4th issues which query the lower court’s evaluation of evidence. Respondent’s 2nd and 3rd issues appear identical to Appellants 2nd and 1st issues respectively.
Under the 1st issue, (Respondent’s 1st issue which subsumes Appellant’s 3rd and 4th), learned Appellants counsel relies inter alia on Ebba v. Ogodo (1984) 4 SC 84 at 102 -104, Atta v. Ezeanah (2000) 11 NWLR (Pt.678) 363, Elewuju v. Onisaodu (2000) 3 NWLR (Pt.647) 95, Adegoke v. Adibi (1992) 1 NWLR (Pt.242) 419 and Lion Building v. Shadipe (1976) 12 SC 135, and submits that the lower court’s judgment being perverse, this court is empowered to interfere and make its correct findings from the pleadings and evidence of parties. In particular, the lower court’s findings at pages 119 – 120 of the record on plaintiffs/Appellants traditional history are wrong. Appellants, it is argued, in paragraph 4 of their amended statement of claim pleaded the traditional account of their title on which PW5 particularly testified. The court’s findings on this, learned counsel submits, does not emanate from the evidence on their pleading and as a matter of law needs to be reconsidered by this court. The lower court’s further finding on Appellants acts of ownership and possession at pages 125 – 126 of the record is equally unacceptable. The court’s conclusion that PW2 had admitted that defendants own number of villages on the land in dispute is erroneous. Learned counsel refers to the evidence of the very witness at page 46 of the record and contends that the testimonies of DW1, DW3 and DW4 the lower court preferred to PW2’s evidence does not provide such a basis if viewed against the background of Respondents pleadings in paragraph 5 of the amended statement of defence.
As a whole, learned Appellant’s counsel invites that the pleadings of both sides, and the oral and documentary evidence they adduce be considered which consideration and application of the principles in Kalio v. Woulchem (1985) 1 NWLR (Pt.4) 610, Ezeenwusi v. Okoro (1993) 5 NWLR (Pt.294) 478 and Mogaji v. Odofin (1978) 4 SC 91 will force a resolution of the first issue in favour of the appellants resulting in allowing the appeal as well.
Responding, learned Respondents’ counsel contends that the Appellants in relying on traditional history needed to go the extra mile to establish through their witnesses who founded the land and how, the devolution of the land as founded from one generation to the next and on to the plaintiffs. The Appellants failure to do so even through PW5, their star witness, disentitles them to the declaration of title they seek. Learned counsel supports his submission with the decisions in Ogun v. Asema (2002) 4 NWLR (Pt.756) 208, Ezeokonkwo v. Okeke (2002) 11 NWLR (Pt.777) 1, Mogaji v. Calbury (Nig) Ltd. (1985) 2 NWLR (Pt.7), Anyanwu v. Mbara (1992) 5 NWLR (Pt.242) 386, Irolo v. Uka (2002) 14 NWLR (Pt.786) 195 at 232 and Osuji v. Ogualasi (2002) 16 NWLR (Pt.792) 136.
In further response, learned counsel submits that unlike the Appellants the Respondents traditional history as averred to in their pleadings and evidence is clearly stronger, more cogent and straight forward. Learned counsel urges that this court ignores Appellant’s incomplete traditional history. He cites and relies on Omoreigie v. Iduglemwariye (1985) 2 NWLR (Pt.541) L2, Ezeokonkwo v. Okeke (1991) 13 NWLR (Pt. 173) 331 at 338, Odofin v. Ayoola
(1984) 11 SC72 and Salami v. Oke (1987) 4 NWLR (Pt.63) 1.
The evidence the Plaintiffs/Appellants proffer on their acts of ownership and/or possession over the land in question is virtually nonexistent and, if at all, manifestly unreliable. The lower court, learned Respondents counsel contends, has meticulously evaluated the evidence of both sides and arrived at the right conclusions. It will be wrong for this court to substitute its own views on the evidence of parties rather than affirm the court’s decision on same. Learned counsel submits that the issue be resolved against the Appellants.
Now, the law allows a claimant of title to or ownership of land to do so in any of the five recognized ways. These are by traditional evidence; production of duly authenticated documents of title; by positive acts of ownership extending over a sufficient length of time, by acts of long possession and enjoyment of the land, and by proof of possession of connected or adjacent land in circumstances rendering it probable that the owner of such connected or adjacent land, would in addition, be the owner of the land in dispute. The law considers establishment of the plaintiffs’ title through any of the five ways a sufficient proof of his ownership see: Ayoola v. Odofin (1984) 11 SC 120, Adesanya v. Adesounmu (2000) 6 SC (Pt.11) 18, Nkada v. Obiano (1997) 5 NWLR (Pt.5O3) 31 at 34, Nkwo v. Iboe (1998) 7 NWLR (Pt.558) 358 and Kyari v. Alkals (2001) FWLR (Pt.60) 1481.
In the instant case the Appellants by paragraphs 4, 5, 6, and 7 of their amended statement of claim rely on traditional history as the root of their title to the land in dispute. Along with other paragraphs, the Appellants further rely on their various acts of ownership and/or possession over the land in dispute in asserting their title.
Although the Respondents did not counter-claim, in joining issues with the Appellants, they also relied on traditional history and their acts of ownership and/or possession over the land in dispute as roots of their title to the land also.
Appellants grouse under the 1st issue is with the lower court’s findings in respect of their traditional account as well as the evidence of the various acts of ownership and/or possession exercised by them in relation to the land in dispute. The Appellants insist that they have satisfied the requirements listed by the law to entitle them to the declaration they seek by these methods. Have they? I think not Learned Respondents counsel is right in his submission that the Appellants who rely on traditional history for their root of title have the burden of not only properly pleading that history but leading evidence on it. The history succeeds on its merits standing alone in the absence of a competing account from the other side. The account must also not break down due to its own internal conflict. The traditional history is accepted by the court on the basis of its strength and cogency. A traditional account that prevails is always such that contain the name of the plaintiffs, ancestor who founded the land and the names of those others who came after him to whom the land devolved up to the last successor(s). It is incumbent for the claimant to specifically plead and lead evidence systematically on the facts of what his ancestor did to actualize the founding of the land in dispute. The history as pleaded and established must leave no unexplained gaps or linkages between the original founder, his successor and the claimant. see Aikhiobare v. omoregie (1976) 12 SC and Akanbi v. Salawu (2003) 13 NWLR (Pt.838) 637.
In the case at hand, an examination of the pleadings and evidence of the Appellants convinces one that they have not discharged the burden the law places on them. Indeed, going by the historical account the respondents pleaded and supplied evidence thereon, the reasons for the lower court’s preference of the Respondents account and the rejection of Appellants traditional history readily manifest themselves.
Beyond pleading in paragraph 5 of their amended statement of claim that they are descendants of Olodi whose children founded the olodiama’s clan, own and possess the land in dispute from time immemorial, the Appellants neither pleaded nor led evidence on what acts of the founders of the land in dispute constituted the founding and the particulars of the intervening owners through whom they now claim. It is therefore idle for the Appellants to insist that they have, in their circumstance, established their claim on the basis of their traditional history. see Akinloye v. Eyiyola (1968) NWLR 92, Eze v. Atasie (2000) 10 NWLR (pt.676) 470 and onwugbufor v. okoye (1996) 1 NWLR (Pt.424) 252.
The lower court has demonstrated full grasp of the principles of law involved and admirably applied them in its determination of the traditional account of which of the two sides it should prefer when at page 118 of the record it states:-
“In this regard one guiding principle of law is that in a claim for title to land based on traditional history the party relying on it must in order to succeed, plead and lead evidence of:
(a) how his ancestor derived title to the land in dispute.
(b)The person or persons who founded the land and exercised the original acts of possession and
(c)The persons on whom title in respect of the land has devolved since its first founding…. This involves proof of lineage from the alleged founder of the land to the property claiming to derive title by inheritance.”
The court continued at page 119 of the record of appeal thus:
“Both parties claim Olodi the founder of the Olodiama clan to be their ancestor. But none of them pleaded and proved their lineage from olodi as required…The plaintiffs failed to prove their genealogy from Olodi. The evidence of their lineage stopped at Onde and okpotu. The line of succession from these two people to them is missing…”
The court concluded on this aspect of the case at page 121 of the record as follows:-
“In view of the failure of both sides to properly plead and prove their genealogy from Olodi and my preference of the Defendant’s version on the source of the name Iginamatoru, the plaintiffs cannot be said to have adduced such credible evidence of traditional history to entitle them to succeed in this mode of proof..”
I cannot agree more. In the absence of detailed pleadings and evidence as to who their ancestors were, how they came to own and possess the land in dispute and pass same to them, the Appellants were doomed to fail from the word go. See Olokotintin v. Sarumi (2002) 13 NWLR (Pt.784) 307 and Okoko v. Dakolo (2006) 14 NWLR (Pt.1000) 401.
The Appellants further challenge the lower court’s inference from its finding on the subsidiary issue on the source of the name of the land in dispute at page 118 of the record. Where the court held as follows:-
“Both parties agreed in their pleadings and plan that the Ossiama river on both sides of which the land in dispute is located is also called Iginamatoru. They however joined issues as to the source of the name Iginamatoru. The plaintiffs case as contained in paragraph 4 of the statement of claim is that their ancestor Olodi had a juju called Iginamo on the right bank of the river. In his lifetime Olodi appointed his two sons Oligbo and Onde the Priest and cupbearer respectively of the juju and that it was after this juju which was the principal juju of the plaintiffs that the river was called Iginamatoru, and the lands on both sides Iginamotoru Ogbo. The defendants denied this case of the plaintiff… that any juju existed. On this issue of the source of the name Iginamotoru, I do not fancy anything which makes the story of the plaintiffs more probable because (1) the evidence about Olodis appointment of Olugbo and Orde was incompatible with the custom of the people and (2) of the absence of any juju priest, juju shrine and/or any other concrete evidence establishing that the juju once existed.
Rather, the version of the defendants that Igina a son of the founder Korokorosei founded a settlement along the river which settlement became known as Iginama and that the river was therefore also named Iginamatoru appear even more probable.”
Appellants, disagreement with the foregoing findings is certainly misconceived. Where both the plaintiff and defendant, as in the instant case, anchor their case on traditional evidence in proving ownership of the land in dispute, the courts duty, which has, in the foregoing, been discharged, is to weigh their evidence on an imaginary scale and determine which evidence is weightier and resultantly more preferable. see Ibikunle v. Lawani (2007) 3 NWLR (Pt. 1022) 580 and Idundun v. okumagbe (1976) 9 – 10 SC 337. The lower court’s inferences in this regard are clearly beyond reproach.
The Appellants further queried the lower court’s findings on the two other methods they relied upon as their root of title. That too must equally fail.
The Appellants had in paragraphs 4 and 7 of their amended statement of claim pleaded acts of ownership and possession. They also tendered Exhibit B, a survey Plan to support the averments in their pleading. The features in Exhibit B, Appellants evidence of ownership and/or possession of the land in dispute, include farms, gutters juju shrines fish ponds and old settlements of Baraseigha, Ondewari, Akpobira Gongan, and Gonwei Egie. My examination of the testimonies of pw1, pw4 and pw5 on record and, same has been admirably also summarized by the lower court at page 23 of the print record, does not reveal any reference to the features the Appellants averred to in their pleadings and depicted in Exhibit B. On the other hand, the features contained in Exhibit M, the survey plan tendered by the Respondents have been dwelt upon by DW1, DW3 and DW4 in their testimonies.
They told the court that respondents have been in actual physical occupation not only of the lands in dispute but also the surrounding lands. Under cross examination, PW1 admitted Respondents’ occupation of the land in dispute when at page 46 of the record he testified as follows:-
“I know a number of Korokorosei villages along the Iginimotoru. The few I know are called Bebekere village, Agolighere, Apinagbere and Ayapayegbere. There are also Bazighagbere of Korokorosei people. On the Oligbobiri side after the villages, there are Korokorosei farms but they own those farms because their mother came from Olugbobiri.
There is no boundary between Korokorosei and Olugbobiri ….. There is a canal dug by the Korokorosei people from the iginamatoru to join the Sangana. The canal is on the land in dispute.”
PW3, in his evidence in chief at page 47 of the record, further strengthens Respondents case thus:
“The area we surveyed in Exhibit B is a thick bush. The Plaintiffs showed us features in the land the area which is the cause of action.
The area verged blue is the Osiama River, The Plaintiffs showed us an area which they say was given to the Korokorosei people. The area in dispute is verged yellow in Exhibit B.
we saw tapping camps, in the area verged brown; they belong to the Korokorosei people.
On the west is land of the Korokorosei people.
we also saw tapping camps scattered all over the area. They were said to belong to the Korokorosei people. Apart from the camps there were no building areas.”
The lower court on its visit to the Locus in quo identified most of the features on the land in dispute testified upon by Dw1, Dw3, Dw4 in the foregoing as conceded to by PW1 and PW3. Given all these, it is not surprising that the court concluded at page 127 of the record thus:
“On the whole it is my consideration that the onus of proof still remains with plaintiffs. For them to be entitled to the judgment of this court in this case the Plaintiff’s must either adduce such credible evidence of traditional history as to make their traditional history more probable than that of the defendants and/or adduce such evidence of acts of ownership and possession numerous and positive enough to lead to the inference that they are the owners of the land in dispute. In this case having regard to the evidence of traditional history of the plaintiffs which I did not consider to be stronger than that of the defendants and the defendants strong evidence of acts of ownership and possession of the land in dispute, I hold that the plaintiffs have failed to discharge the burden of proof placed on them. It is my conclusion that the claim of the plaintiffs failed in its entirety and is accordingly dismissed.”
The court’s foregoing decision remains unassailable. Having drawn from the pleadings and evidence of parties and in complete compliance with relevant principles, the decision cannot justifiably be dubbed perverse and interfered with, For these reasons, the first issue is hereby resolved against the Appellants.
Under the 2nd issue, it is argued that following Respondents’ admission of the traditional history of the Appellants the lower court is wrong to have refused the Appellants judgment, Appellants’ historical account allegedly admitted by the respondents is as contained in paragraph 5 of the Appellants amended statement of claim while the Respondents’ alleged admission is as contained in paragraph 7 of the amended statement of defence. Paragraph 7 of the statement of defence, learned Appellants counsel contends, being an improper traverse and ineffective denial constitutes an admission in law. Counsel relies on Lewis & peat (N.R.I) Ltd. v. Akhiemien (1976) 1 ALL NLR (pt. 1) 460 at 465; Owosho v. Dada (1984) 7 SC 149 at 164, Ezeokonkwo v. okeke (1991) 2 NWLR (Pt.173) 331 at 339, Atolagbe v. Shorun (1985) 1 NWLR (Pt. 2) 360 and order 33 of the Rivers state High court (civil procedure) rules 1980 and urges that the issue be resolved in their favour and judgment entered for the Appellants.
Learned Respondents counsel countered by submitting that paragraph 7 of the respondents’ amended statement of defence does not by any standards constitute an admission of the historical account contained in paragraph 5 of the Appellants amended statement of claim. counsel submits that an examination of the two paragraph and consideration of the decisions in, inter-alia, Bello v. Eweka (1981) 1 SC 101, Motunwase v, Sorungbe (1985) 5 NWLR (Pt.92) 101, and Mosheshe General Merchant Ltd (1987) 1 NWLR (Pt.55) 110, will indicate the lower court’s finding on the issue at page 121 of the record.
Like the lower court, I am not persuaded by Appellants’ arguments on this issue. I share the very reasons advanced by the court below as reiterated by learned Respondents counsel on why the Appellants position must fail.
Firstly, certainly paragraph 7 of Respondents amended statement of defence does not constitute an admission of the traditional account of the Appellants root of title as contained in paragraph 5 of the latter’s amended statement of claim. In Lewis Peat (NRI) Ltd. V. Akhimien (supra), a case cited and relied upon also by learned Appellants counsel, the Supreme Court elaborately considered what constitute an acceptable method of traverse by a defendant. The Apex court in that case answered the question whether or not a defendant can deny an allegation of fact contained in the plaintiffs’ statement of claim by pleading that he is not in a position to admit or deny same and that he would put at the trial put the plaintiff to proof of the fact. The court also considered the effect of a general denial on material allegations of fact.
In the case, the Appellants had averred in their statement of claim to be a registered trading company. The Respondent in his statement of defence stated that he was not in a position to admit or deny that averment but would put the appellants to the strictest proof thereof.
The court held firstly that a traverse must be made either by denial or non-admission either expressly or by implication. If a defendant refuses to admit a particular allegation in the statement of claim, he must state so specifically. Essential allegations must thus be specifically traversed as general denial of material allegations of fact may be in appropriate and insufficient. The apex court concluded as follows:
“we think the definition of the expression ‘issue’ in Howell’s case Howell v. Dering (1915) 1 K.B. 54 is indeed germane to the contentions of learned counsel in this appeal. One needs only take a close look at the pleadings in this case to be satisfied that by paragraphs 1 to 3 of his statement of defence, the respondent at most made a half-hearted attempt to question the corporate existence of the appellant company; he did not succeed in raising an issue of fact on the allegation of corporate existence. Had he succeeded in doing this by a specific denial of the relevant averment in the statement of claim and So, Successfully made the question ‘an issue of fact’ it cannot seriously be contended that the question So raised amounts to ‘an issue’ within the definition of the expression in Howell’s case. The respondent in admitting that he is a trade customer of the appellants company from whom he has received cash advances for purchases of rubber lumps, and having asserted that he has delivered lumps to the value of the cash advances received by him cannot seriously contend that the corporate existence of the appellants company is ‘an issue’ in the case in hand. Surely, the question in the case in hand is: has the defendant supplied sufficient or any rubber lumps as should entitle him to enough commission to offset the total cash advances allegedly outstanding against him in the books of the company? In other words, does he or does he not owe the appellants the sum of N1,637.31 allegedly outstanding against him?”
This court restated the principle in Union Bank of Nigeria Plc v. Jeric Nigeria Ltd. (1998) 2 NWLR (Pt.536) 63 thus:
“A party may deny the averments in his opponent’s pleading expressly or by necessary implication. A denial is said to be express when a party meets the averments in his opponent’s pleadings frontally or specifically by stating that he does not admit the pleaded fact. A denial by implication arises when a party in his pleadings sets up facts which are inconsistent with those in his opponent’s pleading or which belie them. For instance, if a plaintiff pleads that he was in Lagos all day yesterday and his opponent pleads that the plaintiff was in Jos all day yesterday, there is an implied denial of the plaintiff’s averment… For averments in pleadings to constitute a traverse, it is not necessary that every paragraph of the statement of claim should be specifically denied. That may be done but what is essential is that the case put forward by the defendant conflicts on material particulars with that put forward by the plaintiff and thus puts the different material averment in issue.”
See also Audu v. Gufa (2004) 4 NWLR (pt.8 64) 463; Ajao v. Alao (1986) 12 SC 193, and Balogun v. UBA Ltd. (1992) 6 NWLR (Pt.247) 336.
In the instant case, the Appellants had averred their traditional history in respect of the land in dispute in paragraph 5 of their amended statement of claim that reads thus:-
“The plaintiffs are descendants of Olodi, the founder of olodiama clan. He had two wives by name Ibomokeduba and Iboloegbere. The first wife had two sons, Ike and Ikeromo and they founded Ikebiri and Ikeremo respectively. The second wife had four sons called Diri- Ikeingha, Okpetu, Onde and Olugbe. These also founded Ikeinghenbiri, Okpotuwari, ondewari and olugbobiri respectively. But Ikeremo in due course, left his father and went to the Mid-west (Bendel state) where he founded a settlement called Ikeromo. The rest of the children remained with their father olodi, lived in their founded settlement as afore-mentioned and these settlements constitute what is now known as olodiama clan. The Plaintiffs are the descendants of olodi and his said five sons who are the aborigines and founders of the olodiama clan and owners in possession of the land in dispute from time immemorial. Evidence will be lead to show at the trial that ondewari has a common boundary with Olugbobiri. The boundary point is called Biniyomo Bieyomo Ovuefiye. There are lives trees (boundary trees) to demarcate the boundary; known as “Aku Trees, Kubgo Trees and Disi Trees.
There is also a common boundary between the ondewari and onyoma along the stream; there is a date palm and a hill to make this boundary.”
The Respondents met the Appellants by pleading in paragraph 7 of their amended statement of defence thus:
“The Defendants are not in a position to deny the Traditional History of Olodiama Clan as averred in paragraph 5 of the Amended Statement of Claim. The Defendants will at the trial also show that they are also descendants of Olodi the father of Korokorosei and the founder of Olodiama. Infact Olode married three wives the first wife as Taribi a daughter of Oporoza who begat the first son who was called Korokorosei memory of the several places his father Igo settled in course of journeys from ILE IFE to Olodiama. The village Korokorosei is named after the founder Korosori Korosori who was the eldest son of Olode. Olode first settled at a place called Tariboama then to Amakiri now Amabiriyou where he died and was buried. After the death of Olode his son Korosori Korosori left for Anyomabou in the same creek. He later moved on to Tariboama again which is the present site. This Korokorosei is linked with her sister villages in the clan Olode as Olode is the father of Ikenyi Okpotu, Onde Olugbo, Ike Tebitaba, and Ikere. The Olodiama Clan consists of seven villages “Korosori Korosori Founded Korokorosei, Ike founded Ikeinghabiri ;Okpotu founded Okpotuware; Onde founded Ondewari; Olugbo founded Clugbobiri; Ike founded Ikebiri; Tebi founded Tenidaba.
The Defendants deny that there is a common boundary with Ondewri and Olugbobiri and that the boundary point is called Biniyamu the Defendants deny all other averments in the said paragraph of the Amended Statement of Claim and will put the Plaintiffs to strictest proof thereof.”
It is clear that in the foregoing pleading beyond stating that they are not in a position to deny the traditional history the of Olodiama clan as averred to in paragraph 5 of the amended statement of claim, the Respondents have also stated such other material facts which clearly stand in conflict with those put forward by the Appellants. On the authorities, this clearly constitute an effective denial of the essential or material allegations in Appellants’ pleading. It is not, as rightly submitted by learned Respondents counsel, an admission and the lower court is very alert to this position when it correctly held at page 121 of the record thus:
“…….the defendants in the same paragraph 7 asserted that they are also descendants of Olodo and their immediate ancestor Korosori korosori who founded Korolorosei was the very first son of Olodi. The defendants cannot therefore be held to have admitted paragraph 5 of the statement of claim which excludes them as descendants of Olodi.”
It is however the lower court’s further finding at page 122 of the record that even if averments contained in paragraph 7 of respondents amended statement of defence constitute an admission, the admission does not relieve the Appellant of proving their case.
It is trite, as again correctly held by the lower court, that declaratory reliefs are never granted on the basis of admissions of an adversary. The dictum of Obasaki JSC in Bello v. Eweka (1981) 1 SC 101 at 102-103 aptly cited with approval by the lower court is indeed very instructive. It reads:-
“Where the court is called upon to make a declaration of a right it is incumbent on the party claiming to be entitled to the declaration to satisfy the court by evidence not by admission in the pleadings of the defendant that he is entitled. The necessity for this arises from the fact that the court has discretion to grant or refuse the declaration and the success of a claimant in such an action depends entirely on the strength of his own case and not in the weakness of the defence.” The foregoing authority remains good law and binds this court as well. It also resolves the 2nd issue in favour of the Respondents.
Finally, Appellants’ complaint under the 3rd issue need not necessarily engage much of our time further. Learned Appellants counsel urges us to allow the appeal because of the lower court’s breach of the principles relating to court’s visit to the locus-in-quo. The only material on this in the entire record of Appeal is at pages 124 – 125 of the record where the court in the course of its judgment and in relation to the visit stated:-
“It is pertinent at this juncture refer to the court’s visit to the locus-in-quo at which the defendants identified to me such features at the Dahadiowei juju shrine, the camp close to it and the Bunu land all shown on their plan.
With regard to camps none was shown to me.
But they showed me the sites of Odogugbene and Apinagbene and although these villages were no longer in existence the defendants showed me crops like bread fruit trees, mango trees and coconut trees indicating that these villages existed. On this question of whether Odogugbene and Apinagbene of the defendants once existed the evidence of DW2 Gbiki Ikieghe from Olugbobiri is significant. He confirmed the existence of defendants villages in the area including Ainagbene which lies within the area in dispute. I therefore find as a fact that on the land in dispute the defendants Koro korosei people had the villages of Odogugbere and Apinagbene.”
Learned Appellants’ counsel argues that in the Foregoing, the lower court had relied on its perceptions rather than evidence to arrive at its findings. Such findings that are not based on facts cannot avail the Respondents as to their being in possession of the stated settlements and by extension owning them. Relying on Adeponle v. Ajalebe and another, (1969) All NLR 222 at 22q Enigwe v. Akaigwe (1992) 2 NWLR (Pt.225) 505, Seimograph services Ltd. V. Onokpasa (1972) ALL NLR (Pt.1) 343, Olumolu v. Islamic Trust of Nigeria (1996) 2 NWLR (Pt.430) 253, Aboyeji v. Momoh (1994) 4 NWLR (Pt.342) 646 and Briggs v. Briggs (supra), learned Appellants counsel urges that since the lower court’s breach of the procedure relating to visits to locus-in-quo has in the instant case occasioned miscarriage of justice, it is incumbent that the issue is resolved in Appellants favour and the appeal allowed.
Not surprisingly, learned Respondents’ counsel disagrees, He supports the lower courts’ findings on the occasion of its visit to the locus-in-quo as same has been in compliance with what section 77 of the Evidence Act provides on the issue. Nothing had happened at the locus in qou and the law allows the court to make its personal observations while there without calling for evidence. In any event, since Appellants have not established the injustice they suffered from the court’s breach of procedure, on the authority of Briggs v. Briggs (supra) the issue must be discountenanced by this court. Learned counsel urges that the issue be resolved against the Appellants and the appeal dismissed.
Appellants’ grudges under this issue take them nowhere. They are indeed very idle grouses. Beyond the court’s perceptions which are not open to the parties scrutiny, evidence abound in the testimony of DW2 to sustain the lower court’s inference on Respondents acts of ownership and possession from the existence of these particular villages. It remains the onus of the Appellants burden being claimants of title to the land in dispute, however, to establish that claim and in so doing they cannot rely on the weakness of the Respondents case. Appellants must succeed on the strength of their case! In Onibudo v. Akibu (1982) 7 SC 60, the supreme court stated the principle thus:
“In spite of this obviously unacceptable ‘mistake’ of the defendants, the burden of proof was upon the plaintiffs to prove their title clearly, emphatically and satisfactorily. It may not be an unattainable height requiring mathematical exactitude, but certainly a plaintiff has not yet set himself on the journey of discharging the onus by presenting to court inconsistent and contradictory story based upon inconclusive evidence of family lineage.
The rigours of proof may somewhat have been ameliorated by the opinion of Privy Council in Stool of Abinabina v. Chief Kojo Enyimadu, yet the fact remains that in order to get the court to declare title in a plaintiff, the proof of ownership must be very facts which are cogently satisfactory.”
The very principle has been restated by the Apex Court in Melifonwu v. Egbuji (1982) 9 SC 145 thus:
“I think the rule that in a claim for declaration of title the plaintiff must succeed on the strength of his case and not on the weakness of the defendant’s case is only an extension of the principal rule of evidence law that the burden of proof generally lies on the plaintiff.
The rule has been stated thus whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove those facts (section I34 (now 135) of the Evidence Act).
The rule is intended to regulate trials and to apply to trial court and not to the court of Appeal.”
In the instant case it must be remembered that the Respondents only contested Appellants claim. They did not counter claim. The onus remains that of the Appellants to establish their claim and even if the lower court’s entire findings on Respondents acts of ownership and/or possession of the land in dispute is to be discounted, the Appellants will not be absolved from discharging the burden of proof the law squarely places on them. In the absence of proof of the facts they assert, the Appellants are not, as held by the lower court, entitled to the declaration they seek. In resolving the 3rd issue against the Appellants also, I find no merit in the appeal which I hereby dismiss. The well considered judgment of the lower court dismissing Appellants’ claim is hereby affirmed. Respondents are entitled to costs put at N50,000 against the Appellants.
EJEMBI EKO, J.C.A.: I had the advantage of reading in advance the judgment just delivered by my learned brother, M.D. MUHAMMAD (OFR), JCA. I am in complete agreement that the appeal lacks merits. I have nothing useful to add to the judgment.
Like my learned brother, I also dismiss the appeal and affirm the judgment of the court below delivered on 30th December, 1994 which judgment dismissed in its entirety the suit of the appellants, as the plaintiffs. The decision of the lower court turns largely on traditional history and on competing facts. The evaluation of the totality of the evidence by the lower court is unassailable.
Costs at N50,000.00 shall be, and are hereby, awarded to respondents against the Appellants.
T. O. AWOTOYE, J.C.A.: I have had the opportunity of reading the draft of the judgment just delivered by my learned brother M.D. MUHAMMAD (OFR) JCA.
I am in full agreement with the reasonings and conclusion therein. I have nothing to add.
I abide by the order as to costs as assessed in the lead judgment.
Appearances
E.C. Ukala SAN with J. M. Aseh and M.S. AgwuFor Appellant
AND
Ericonda AmadiFor Respondent
