MARCUS UKAEGBU V. MARK NWOLOLO
In the Supreme Court of Nigeria
Friday, January 23, 2009
Case Number: SC. 126/2002
DAHIRU MUSDAPHER, JUSTICE SUPREME COURT
GEORGE ADESOLA OGUNTADE, JUSTICE SUPREME COURT
IKECHl FRANCIS OGBUAGU(Lead Judgment), JUSTICE SUPREME COURT
PIUS OLAYIWOLA ADEREMI, JUSTICE SUPREME COURT
SAEFULLAH MUNTAKA-COMMASSIE, JUSTICE SUPREME COURT
1 MARCUS UKAEGBU
2. UKAEGBU NWADIKE
3. GEORNERIUS ELESHl UKAEGBU
4. JOHN UKAEGBU
MARK NWOLOLO(for himself and on behalf of the Egbereuri Family of Umuezike-Umunagbo, Ihitte Mbaise)
FAILURE TO PROOF IDENTITY OF LAND:
“In the case of Salu v. Madam Egeibon (1994) 6 SCNJ. (Pt.11) 223, it was held that failure to establish boundaries of land in a claim for declaration of title or statutory right of occupancy, the proper order to make is one of dismissal. The case of Chief Imah & anor. v. Chief Okogbe & anor (1993) 9 NWLR (Pt.316) 159, was referred to. (it is also reported in (1993) 12 SCNJ. 52. See also the cases of Okedare v. Adebara & 2 ors. (1974) 6 SCNJ. (pt.11) 254 @ 265 per Adio, JSC. (of blessed memory) and Olusanmi v. Oshasona (1992) NWLR (Pt.245) 22@ 36; (1992) 6 SCNJ. 282. In other words, land to which a declaration is to attach must be sufficiently and satisfactorily identified. See the case of Ezeokeke & ors. v. Uga & ors. (1962) 1 ANLR (Pt.3) 482, 484. In the case of Alhaji Elias v. Chief Oma-Bare (1982) 1 ANLR (Pt.1) 70 @ 86, Obaseki, JSC, stated that before a declaration of title to land is granted, there must be credible evidence describing and identifying the land with certainty.” Per Ogbuagu, JSC
How binding are pleadings:
“it is a long established principle of law that a party is bound by his pleadings, the Respondent having failed to plead and/or give evidence of the root of title of Egbereuri and/or Agbugbuo that should have been the end of his case.” Per Ogbuagu, J.S.C.
Power of an appellate court to consider a substantial point of law arising on the record suo motu even when not raised by appellant:
“…it is now firmly established that an appellate court, will and can, on its own motion, consider a substantial point of law arising on the Record, even though it is/was not included as one of the grounds of appeal, nor referred to by the/an Appellant at the hearing before a lower court.” Per Ogbuagu, JSC.
When an apellate court can interefere in the decision of trial Judge:
“it is trite law that a court of appeal should not lightly reverse or disturb the view or conclusions of a trial Judge, based on credibility of witnesses .” Per Ogbuagu, JSC.
Effect of weak evidence of plaintiff:
“Where the evidence is unsatisfactory, the judgment should be in favour of the defendant on the ground that it is the plaintiff who seeks relief, but has failed to prove that he is entitled to what he claims.” Per Ogbuagu, J.S.C.
F. OGBUAGU, J.S.C. (Delivering the Judgment by the Court): This is an appeal by the Defendants/Appellants against the decision of the Court of Appeal, Port-Harcourt Division (hereinafter called “the court below”), allowing the appeal of the Plaintiff/Respondent and setting aside the Judgment of the Imo State High Court sitting at Aboh-Mbaise and delivered by Nsofor, J. (as he then was), dismissing the Plaintiffs/Respondent’s Suit No. HAM/19/82 in respect of a piece or parcel of land. The court below, ordered a retrial of the case before another Judge of the High Court of Imo State,
“who should visit the locus in quo to make it easy to resolve the conflict in the traditional histories of the parties in respect of the land in dispute and also to know the true position of the land in Exhibit 2”.
Dissatisfied with the said decision, the Appellants have appealed to this Court on three (3) Grounds of Appeal. Without their particulars, they read as follows:
“GROUND ONE: Error in law:
The learned Justices of the Court of Appeal erred in law when they held as follows:
“In the present case, I have no iota of doubt in my mind that the learned trial judge erred in law and misdirected himself when in spite of the conflicts in the traditional evidence offered by the parties he went ahead to prefer the testimony of the Respondents oblivious of the test laid down in the case of Kojo vs. Bonsie”.
[the underlining that of the Learned counsel for the Appellants]
GROUND TWO: Error in law:
The learned Justices of the Court of Appeal erred in law when they held that the issue of whether the Land in dispute in this case is the same as that litigated upon in 1948 could only be resolved by a visit to the Locus in quo.
GROUND THREE: Error in law:
The Court of Appeal erred in law in not affirming the judgment of the High Court by holding that the learned trial judge did not evaluate the evidence of the parties before dismissing the case of the Plaintiff/Appellant/Respondent”.
The facts of the case briefly stated, are that in an Amended Statement of Claim, the Respondent who sued in a representative capacity, in paragraph 13 thereof at page 36 of the Records, claimed as follows:
“(a) Declaration of Title that the piece of land called “ORU UHU EGBEREURI” is the Property of the Plaintiff.
(b) N1,000.00 (one thousand naira) being damages for trespass.
(c) Perpetual Injunction restraining the Defendants and or their Agents from entering the said land”.
Pleadings were filed and exchanged by the parties together with their respective Survey Plan showing the features, boundaries and extent of the land stated to be in dispute. Exhibit 1 – is the plan of the Respondent while Exhibit 4, is the plan of the Appellants. At the hearing, both parties relied on traditional history of inheritance and acts of possession. The traditional history/evidence of the Respondent in-chief, are at pages 76 -79 and that of the Appellants in-chief, are at pages, 92 – 95 of the Records. After the hearing and addresses of the learned counsel for the parties, the learned trial Judge in his Judgment, dismissed the Respondent’s case. The Respondent’s appeal to the court below, was successful, hence the instant appeal.
When this appeal came up for hearing on 27th October, 2008, both learned counsel for the parties, adopted their respective Brief. While Ekemaru, Esq., of counsel for the Appellants, adopted their Brief and urged the Court to allow the appeal, Nlemedim, Esq, of Counsel for the Respondent, urged the Court to dismiss the appeal. Thereafter, Judgment was reserved till to-day.
The Appellants have formulated three (3) issues for determination, namely:
“(1) Whether the Court of Appeal, Port-Harcourt Division was right in its conclusion that the learned trial Judge was wrong in preferring the testimony of the Respondents herein Appellants to that of the Plaintiff herein Respondent in view of the pleadings and evidence led and documents tendered before the High Court by the parties and their witnesses?
(2) Whether the Court of Appeal was right in holding that the Learned trial Judge was wrong in not visiting the locus in quo before delivering its judgment in spite of the contradictions in the case of the plaintiffs/Appellants/Respondents.
(3) Whether the Court of Appeal was right in its conclusion that the learned trial judge did not evaluate the evidence of the parties before ordering a retrial of the case before another judge”.
On their part, the Respondent, has formulated two (2) issues for determination namely:
“(a) Whether the Court of Appeal was wrong in holding that the learned trial judge misdirected himself when in spite of the conflicts in the traditional evidence offered by the parties (that is, the two traditional histories did not agree) he went ahead to prefer the testimony of the Respondents (in the court below) oblivious of the test laid down in the case of KOJO V. BONSIE.
(b) Whether the Court of Appeal was right in making an order of retrial of the suit before another judge in the High Court of Imo State who should visit the locus in quo?
I will deal with issue (1) of the Appellants together with issue (a) of the Respondent which are in substance, the same although differently couched. In dealing with the said issue, I consider in my respectful view, pertinent, to reproduce the material pleadings of the parties in their respective pleadings. In the Amended Statement of Claim, these are paragraphs 3, 6, 7, 8,10 -13. They read as follows:
“3 The extent and dimensions of the land in dispute is clearly shown in Plan No. MEC.2712/77 filed together with this Statement of Claim.
4 The land in dispute belongs to the plaintiff. The plaintiff is in possession. The land devolved on the plaintiff by inheritance through his ancestors.
5 The land originally belonged to Egbereuri – the great grand father of the plaintiff. After Egbereuri died, it devolved on Agbaere who farmed on the land without interruption. When Agbaere died, the land devolved on Nwololo – the father of the plaintiff. When Nwololo died, the land devolved on Mark Nwololo and his brother- the present plaintiff.
6 Part of the land in dispute was given to the entire Umunagbo Community fora “juju shrine notably “Amadioha” by the great grand father of the plaintiff Egbereuri Agbugbuo. Ever since then in acknowledgment of the ownership of that land the various juju priests of “Amadioha” up to the present priest give to the plaintiff’s family the first part of any animal slaughtered in the shrine which first falls to the ground when the animal is killed.
7. The plaintiff has as his neighbours on the land in dispute boundaries with Isaac Nwoko, Ukanwa Njoku, Louis Opara and Vincent Nwololo. The plaintiffs have no common boundary with the defendants – John Anyanwu Chukwu, and Daniel Ihuoma are those who have common boundary with the defendants.
8. The plaintiff and members of his family have always exercised maximum acts of ownership over the land in dispute including harvesting the palm fruits, swaying timber on the land, selling several trees on the land without challenge either from the defendants or any one else.
10. On 1 1/3/1948 when one Nwaimo Nwanguma who was then the “Juju Priest” ofAmadioha felled an Iroko on this land. Egbereuri’s children took action against him in Itu Native Court. The Court found for Egbereuri’s children. Among those who took the action then, the only one alive now is Vincent Nwalolo. Ukaeabu Dike testified in that case for the plaintiff’s family. Ever since then the plaintiff and members of his family have continued to farm on the land and have exercised maximum acts of ownership over the said land without the defendants or any one challenging them. The Certified copy of the said Proceedings and Judgment in suit No. 128/48 shall be tendered and founded upon and the plaintiff shall extensively rely on this Judgment.
11. On or around the 8th day of December 1975, the defendants without the plaintiff’s consent or that of any member of his family entered the land in dispute and sawed an “Awo” tree belonging to the plaintiff and members of his family. The defendants removed the timber. This is the cause of the present action.
12. In the past, the plaintiff and members of his family have sold timber trees on the land in dispute to the following people without any challenge either from the defendants or any one else; Patrick Ugwo. Iheanakaram of Umuokeri Ihitte bought from the plaintiff “Akpuru trees”, Uhi trees, and Akwakwa trees”. John Anvanwu Chukwu – the present juju priest of “Amadioha” previously bought “Amuma trees” from the plaintiff’s family on the land in dispute.
The plaintiff and members of his family asked the defendants to return the Timber they removed from their land but they refused to do so In the Statement of Defence, they are as follows:
13. The defendants deny paragraph 3 of the Statement of claim and state that the extent and dimensions of the land in dispute is (sic) shown in Plan No. ECIS. 196/78 filed with this statement of defence, wherein it is verged red. The land in dispute is bounded on the East, West, North and South by the land of UMUDlKE FAMILY, the defendants’ family. The defendants have no boundary with the plaintiff who comes from UMU EGBEREURI, people who have boundary with UMUDIKE are: (I note that the names of the families having the said boundary, are pleaded).
The entire extent of the Umudike family land within which is the land in dispute is in the plan afore-mentioned verged Yellow.
4. The defendants shall rely on all the features in their plan particularly and the position of the piece or parcel of land subject matter of a dispute between the Egbereuri family and Nwaimo Nwanguma in 1948.
5. The defendants, deny paragraph (sic) 4,5,6, 7, 8, 9, 10, 11,12, 13 of the statement of claim
6. The land in dispute is the bona fide property of the defendants from time immemorial and as such they are deemed to be entitled to the customary right of occupancy thereof by virture (sic) (meaning virtue) of the Land Use Decree No. 6 1978.
7. The land in dispute devolved on the defendants as hereinafter pleaded:- Okemkpere Olehie owned the land many generations ago, farmed on it and exercised maximum acts of ownership thereon without any let or hindrance from the plaintiff or any one else. After him his son Chinaka Okemkpere succeeded him in title. Thereafter Ohakpo Chinaka inherited the land after whom came Dike Ohakpo. When Dike Ohakpo died, Nwaelighobi Dike stepped into his shoes and on his demise Ukaegbu Dike took over. Ukaegbu Dike is the 2nd defendant in this suit. The 1st, 3d and 4th defendants are his children.
8. Ever since the land in dispute devolved on the 2nd defendant he and his children and brothers have been farming on it and harvesting all economic crops on the land and were at all material times in the possession of the land in dispute and exercised maximum acts of ownership………
9. Some time in December 1975 a branch of an Awo tree on the land fell off. The 2nd defendant asked his son the 1st defendant to arrange for its sawing and sale. In the process the forestry commission contravened him and he paid a fee of N5.
10. On Sunday morning the 2nd defendant saw people from Umuegbereuri cutting down an Awo tree in the land in dispute and challenged them. He later reported the matter to Aboh-Mbaise Police Station who latter (sic) referred the parties back to the Amalas for civil settlement”.
From paragraph 6 above of the Amended Statement of Claim, it could be seen that the Respondent pleaded their root of title from one AGBUGBUO who was most likely, the father of EGBEREURI – the great grand father of the Respondent and members of his family. But in his evidence in-chief at page 76 of the Records, P.W.1 testified inter alia, as follows:
“The land in dispute belonged originally to Egbereuri. He is dead. On the death of Egbereuri, the land passed over to Agbaere who was the son Egbereuri. Agbaere is since dead. Consequent upon the death of Agbaere, the “Oru Uhu Egbereuri” land devolved on Nwololo who is my father. Nwololo’s father was Agbaere. My father (Nwololo) is since deceased. The land has descended on me and the other descendants of Egbereuri following the death of my father (Nwololo).
I am prosecuting this action for myself and on behalf of the other members of the family Egbereuri”.
For purposes of emphasis, it is noted by me that in the said paragraph 6 (supra) the following appear inter alia:
“Part of the land in dispute was given to the entire Umunagbo Community for a “juju’ shrine notably “Amadioha” by the great grandfather of the Plaintiff Egbereuri Agbugbuo”.
If therefore, Egbereuri had a surname Agbugbuo, it is not averred how their said land in dispute, came to be originally owned by Egbereuri. Was it by inheritance from his father Agbugbuo or if not, was it by gift, conquest, sale, grant, deforestation etc. or how? I or one may ask. The said land could not have come from the blues to Egbereuri. I say this because, it is now settled that where title is derived by either grant, sale, conquest or inheritance, etc., the pleading, should aver facts relating to the founding of the land in dispute, the person or persons who founded the land and exercised original acts of possession. See the cases of Piaro v. Chief Tenalo & ors. (1976) 12 S.C. 31 (3). 34: and A. Oio v. Primate E.O. Adeiobi & ors. (1978) 3 S.C. 65. just to mention but a few. Thus, if the pleaded root of title is not established by evidence, it will be a futile exercise to go to the issue of possession or acts of ownership. See the cases of Fashoro & Anor. v. Bevioku & 2 Ors. (1988) 2 NWLR (Pt. 76) 263 (a). 271: (1988) 4 SCNJ. 23 and Alhafi Are & Anor. v. Ipave & Ors. (1990) 2 NWLR (Pt.l32)296(d,30h (1990) 3 SCNJ. 181 and many others.
I note that under cross-examination at page 81 of the Records, P.W.1 stated that the land belongs to him and that it descended on him through Egbereuri. I repeat, there is no evidence how the land came to be owned originally by Egbereuri or how it was founded by him.
In the case of Chief S.A. Lawal & ors. v. Alhaji Olufowobi & ors. (1996) 12 SCNJ. 376 @. 384. Kutigi, JSC (as he then was, now CJN), stated that the plaintiffs were bound to have pleaded who founded the land, how it was founded and the particulars of the intervening owners through whom they claim. The cases of Akinloye & Anor. v. Eyiyiola (1968) NMLR 92: Olujinle v. Adeagbo (1988) 2 NWLR (Pt. 75) 238 , (it is also reported in (1988) 4 SCNJ. 1 and Adejumo & Ors. v. Ayantegbe (1989) 3 NWLR (Pt. 110)47 (it is also reported in (1989) 6 SCNJ. 76 were cited or referred to. See also the cases of Anyanwu v. Mbara & Anor. (1992) 5 NWLR (Pt.242) 386 (a), 403: (1992) 23 NSCC (Pt.2) 107 @ 777: (1992) 6 SCNJ. (Pt.l) 22 (a), 55: Onwugbufor & 2 Ors. v. Okoye & 3 Ors. (1996) 7 NWLR (Pt.424) 252: (1996) 1 SCNJ. 1: (1996) 34 LRCN 7. per – Iguh, JSC; Amobi v. Amobi & 2 Ors. (1996) 9-10 SCNJ. 207 (a), 228: Ezekiel Nnaji & 3 Ors. v. Chief Chukwu & 7 Ors. (1996) 12 SCNJ. 388 @ 397 – per Ogwuegbu, JSC and Anabaronye & 3 ors. v. Nwakaihe (1997) 1 SCNJ. 161 (3). 168 – per Adio, JSC. and so many other decided authorities too many to mention. In the case of Nkado & 2 Ors. v. Obiano & Anor. (1997) 5 SCNJ.33 – per Onu, JSC, it is stated that where there is no such evidence, the plaintiff fails in his action for declaration. The cases of Da Coste v. Ikani (1969) 1 All NLR 191: Piaro v. Tenalo (supra) @ 41; Kalio v. Woluchem (1985) 1 NWLR (Pt.4) 610 (a). 628 and Udeze & 2 ors. v. Paul Chidebe & 4 Ors. (1990) 1 NWLR (pt.125) 141 @. 160. (it is also reported in (1990) 1 SCNJ. 104) were cited therein.
It seems to me that this crucial fact, did not occur to the learned counsel for the Appellants and the learned trial Judge or the court below. If it had, then it means that the Respondent, abandoned his said pleading or that his evidence was/is not supported by the pleading. Either way, since it is a long established principle of law, that a party is bound by his pleadings, the Respondent having failed to plead and/or give evidence of the root of title of Egbereuri and/or Agbugbuo, that should have been the end of his case. See the cases of National Investment & Properties Co. Ltd v. Thompson Organization Ltd. & Ors. (1969) NMLR 99: Emegokwue v. Okadizbo (1972) (1) NMLR 192: (1973) 4 S.C. 113: (1973) 3 ECSLR 267: Chief Ibanea & Ors. v. Chief Usanga & Ors. (1982) 1ANLR (Pt.l) 88 (3). 99: (1982) 5 S.C. 103 (a). 124 & 125: Akpapuna & Ors. v. Nzeka II & Ors. (1983) 7 S.C. 1 (a). 25 and two many others.
Of course and this also settled, when an attempt to prove a root of title fails, acts of possession based on that root of title, cannot, sustain a claim for title. See the cases of Ayoola v. Odofin (1984) 2 S.C. 120: Ndukwe v. Acha (1985) 5 S.C 28 @ 38-39 and Dodo Dabo v. Alhaji Abdullahi (2005) 2 SCNJ. 76: (2005) 2S.C. (Pt.l) 75. just to mention but a few.
I am obliged to deal with the above point, because, I note in the Respondent’s Brief, in shifting the burden of proof of traditional evidence on the Appellant’s, at paragraph 3.05 the respondent, referred to the pleadings in the Statement of Defence and the evidence on traditional evidence and then in paragraph 3.08 thereof, it is stated inter alia, as follows:
“Arising from the evidence of traditional history offered by the DW1 on behalf of the Appellants, it can be seen that the Appellants did not establish the name of the original owner of the land In dispute (i.e. the land of the Defendants/Appellants) through whom they claimed……… serious gaps and Is Illogical. The Appellants’ case at the trial ought to have been dismissed or discountenanced. Mogaji v. Cadbury (Nig.) Ltd. (1985) 2 NWLR (Pt. 1) 393 at 395. In view Of the clear and strong evidence of traditional history offered by the Respondent at the trial, the Appellants had the evidential burden to rebut same which they failed to do as their traditional history was anything but satisfactory or credible”.
It can be seen from the above, that the learned counsel for the Respondent, is aware and knows, about the requirement of the law as regards the proof of traditional history, in a claim for declaration of title to land.
I have also dealt with this point, because, it is now firmly established that an Appellate Court, will and can, on its own motion, consider a substantial point of law arising on the Record, even though it is was not included as one of the grounds of appeal, nor referred to by the/an Appellant at the hearing before a lower court. See the cases of Okokon Inua v. Eke E.N. Bassey Asuquo (1961) ANLR 576 (a), 577 – per Idigbe, JSC.(of blessed memory); Ogbonna Nwangbo v. Nwojiji (Alo 1972) 2 ECSLR 359 C 361: Ex-Parte Markham (1969) 343 page 150 and Knight v. Haliwell (1974) L.R.9 QB. 416.
Now, the first question I will ask is, was the identity of the land claimed by the Respondent, .clearly and satisfactorily established by him?
Is the land stated to be the same as the Native Court Suit in Exhibit 2, the same as the land stated by the Appellants as the land in dispute?
The parties agree that they have no common boundary although they both come from the same Community of Umunagbo. At the expense of repetition but for purposes of emphasis, at the said paragraph 7 of his pleading, the Respondent averred as follows:
“The plaintiff has as his neighbours on the land in dispute boundaries with Isaac Nwoko, Ukanwa Njoku, Louis Opera and Vincent Nwololo. The plaintiffs have no common boundary with the defendants – John Anyanwu Chukwu and Daniel Ihuoma are those who have common boundary with the defendants”.
I note that Louis Opara and Vincent Nwalolo, are members of the Respondent’s family. I also note that the Respondent, did not call any of the alleged boundary men – i.e. Isaac Nwoko and Ukanwa Njoku and John Anyanwu Chukwu. It is only the PW.3 they called. I also note that under cross-examination of Vincent Nwololo – (2nd defendant now deceased) at page 85 of the Records under cross-examination, on oath, stated inter alia:
“We do not share a common boundary with any lands of the defendants”.
He had earlier at the same page, stated inter alia, as follows:
“I know Daniel Ihuoma. The land of the Umu-egbereuri shares common boundary with the land of Daniel Ihuoma. The land of the defendants share common boundary with the land of Daniel Ihuoma on the Nkwo Ala land area”.
Incidentally, the PW.1 had at page 80 of the Records, under cross-examination, stated inter alia, as follows:
“I know Daniel Ihuoma. I had a common boundary with him. Daniel Ihuoma is dead. The land of Daniel Ihuoma which shares a common boundary with the land in dispute is not the land of the defendants on pledge to Daniel Ihuoma. I do not know whether Daniel Ihuoma and the defendants’ family share common boundaries on their respective lands”.
PW3 is the son of Daniel Ihuoma. He is Michael Ihuoma. At page 86 of the Records, he testified on oath inter alia, as follows:
“I know the land in dispute between the parties. I live on my land opposite to the land in dispute. I succeeded to my land (sic) on the death of my father. Live and died on the land(sic).
It is the members of the Umunaegbeuri family whom I see (sic) fern the land in dispute since I was bom.
The defendants have no lands which share common boundaries with the land In dispute between the parties”
Under cross-examination at page 87 of the Records, the following appear inter alia.
“I do not own any land sharing a common boundary with any land of the defendants The defendants own their land at “Ishi Nwa Ala Ike”.
I have noted and reproduced above, the evidence of PW2 where he swore that the land of the defendants, share common boundary with the land of Daniel Ihuoma – (the late father of PW3). The obvious fact, is that the PW3, apart from contradicting the said evidence of PW2, lied when he denied that his land shares a common boundary with the Appellants. Of course, the consequence is that he is an unreliable witness having regard to the fact that at page 97 of the Records, the DW1 maintained that they have common boundary with the land of late Daniel Ihuoma as confirmed by the PW2 at the Southern part of their own land which they assert, is the land in dispute as pleaded in paragraph 3 and called “Nkwo Alake Market Square”. PW3, as double underlined by me above, stated that he lives opposite to the land declared by the Respondent to be in dispute. Thus, worsening the case of the Respondent as to boundary neighbours.
So, from the said pleadings and the said admission, at least of the PW2 under cross-examination, I find as a fact and hold that the land claimed to be the land in dispute by the Respondent and the land the Appellants claimed to be the land in dispute, are different – i.e. they are not the same – they are not one of the same land. I have earlier herein-above, noted that the parties agree that they have no common boundary. In other words, there are two distinct pieces of land. It is not a case of the parties knowing the land in dispute although they call it different names. Of course, it is long settled that there cannot be concurrent possession by two persons claiming adversely to each other. See Amakor v. Obiefuna (1974) 1 All NLR (Pt.l) 119: (1974) 3 S.C. 67 and Jones v. Chapman (1847) 2 Exch. 805.
I will pause here and touch briefly on Exhibit 1 tendered and relied on by the Respondent. A close examination by me, shows that the land of the Appellants described as “UKAEGBU NWADIKE’S land” and stated as “Not in Dispute”, shares a common boundary with the land declared by the Respondent as the land in dispute. Apart from contradicting the evidence by and for the Respondent as partly reproduced by me above, I shall come to Exhibit 1 later in this Judgment when dealing with Exhibit 2 – the “famous” Native Court, case between one Nwaimo Nwanguma and the deceased 2nd Defendant in Suit No. 128/48.
His Lordship, had also reproduced as I have done earlier in this Judgment, some of the material averments or pleadings in the respective pleadings of the parties. In response/re-action to Mr. Okere – learned counsel for the Respondent that the identity of the land in dispute, was not made an issue on the pleadings and that it was a non-issue citing and relying on the case of Nwobodo Ezeudu vs. Isaac Obiewu (1986) 2S.C. 1 (a). 27 – per Oputa, JSC, stated at page 141 of the Records, inter alia as follows:
“But is it really an issue of the identity of the disputed land being made an issue on the pleadings? It seems to me to be a question of whether the plaintiffs could rely on the survey plan (Exhibit 1) describing the land differently and on the facts pleaded in paragraph 7 of the statement of claim also describing the same land differently. Put in other words, is there a complete accord between the description in the pleading and the plan?”
His Lordship, proceeded to look also at the said paragraph 7 (supra) and reproduced the same at page 142 of the Records. After noting that the said paragraph 7 (supra) was denied in paragraph 5 of the Appellants’ Statement of Defence, he took a look at Exhibit 1 (as he was entitled in law to do) and noted that both plans of the parties – i.e. Exhibit 1 of the Respondent and Exhibit 4 of the Appellants, are/were drawn on the same scale. His Lordship, stated that he was looking at both the said pleadings in the said paragraph 7 (supra) and Exhibit 1, in order to see “whether or not the descriptions are in complete accord” Said he thereafter at pages 142-143 of the Records, inter alia as follows:
“A cursory look at Exhibit 1 shows that there is no land shown thereon as belonging to Isaac Nwoko and sharing a common boundary with the plaintiffs’ land In dispute. Neither Is there a land shown on Exhibit 1 as belonging to Ukanwa NJoku and sharing a common boundary with the land in dispute verged Pink on Exhibit 1.” Although paragraph 7 of the Statement of Claim (supra) pleaded that:
“the plaintiffs have no common boundary with the defendants”.
Plan No. MEC/2712/77 (Exhibit 1)does show, ex facie, that the land in dispute shares a common boundary to the south with the “Ukaegbu Nwadike’s land and ‘Daniel Ihuoma’s land” But the evidence by PW.3 is that the defendant have no land sharing a boundary with the land In dispute”.
I agree. I had earlier in this Judgment demonstrated some of these facts as appear in the said paragraph herein.
His Lordship, then continued thus:
“The “compounds of James and Abel Olekamma” are shown on Exhibit 1 as sharing a boundary with the plaintiffs. The evidence of James Olekamma called as D. W.2 was that the land in dispute belonged to the defendants and that his land is “near the land in dispute”.
The compounds of James and Abel Olekamma are reflected on both Exhibit 1 (Plaintiffs’ Plan) and Exhibit 4 (defendants’ Survey Plan) respectively. Based on the visual comparison made, the description of the land in dispute written in paragraph 7 of the statement is not in complete accord with the description of the land in Exhibit 1.
1. There is some merit, therefore, in the submission by the learned defence counsel”.
I also respectfully agree. The above, are borne out from the said Exhibits and Records.
The learned trial Judge, had at page 124 of the Records, posed the question thus:
“Now, apply the principle above (i.e. effect of each party asserting possession of the land). What, then is the live issue, on the pleadings, calling for a decision? It is this. Which party has a bettor title to the land in dispute: the Plaintiff OR the Defendant?
The answer to the above holds the key to any other related side issue”.
His Lordship, proceeded, to look at the evidence before him. He reviewed the evidence of the parties and their respective witnesses at pages 125 to 131 of the Records. On the evidence of DW2 – a 75 year old man, the learned trial Judge, noted at the end of the case of the parties and their witnesses, thus:
“The witness made a good impression on me while in the witness-box”.
He was entitled to say so.
At pages 146 to 147 of the Records, His Lordship inter alia, stated as follows;
“In the present case both Marcus Nwololo (PW1) and Vincent Nwololo (P.W.2) gave evidence of history tracing their root of title to their great grand ancestor Egbereuri. On the other hand, the defendants have equally given evidence of history tracing their root of title to the land in dispute to their great grand ancestor- Okempere Olebie.
“I have considered the two versions of the evidence on the issue. I have weighed the evidence together on that