(2007) LCN/3750(SC)

In the Supreme Court of Nigeria

Friday, May 11, 2007

Case Number:SC. 387/2001

























“However, it is settled law that for the plaintiff to succeed in a claim of title to land, he must establish, with certainty, the identity of the land he claims. This is usually done by calling, as witnesses, those with whom the plaintiff shares common boundaries as well as witnesses to trace the boundary marks along the boundary of the land in dispute in addition to tracing his root of title to the said disputed land”. (Per W.S.N. ONNOGHEN, JSC)


“It is settled law that in an action for declaration of title or right of occupancy to a piece or parcel of land, the plaintiff must succeed on the strength of his case and not on the weakness of the defence though in an appropriate case where the case of the defence supports that of the plaintiff, the plaintiff is entitled to take advantage of same in establishing his claim”. (Per W.S.N. ONNOGHEN, JSC)


C.M. CHUKWUMA-ENEH, JSC  (Delivered by Judgment of the Court ): In this case the appellants before this Court were the defendants at the trial Customary Court. The plaintiffs (the respondents here) in their claim at the trial Customary Court have claimed as follows: “(1) Declaration of Customary Right of Occupancy to the piece or parcel of land known as and called ‘Ukwu Wite’ lying and situate along Ihie and Obitti Road in Ohaji. (2) Two thousand Naira (N2,000.00) general damage for trespass. (3) An injunction restraining the defendants their agents and or servants from any further acts of trespass or interferences with the said plaintiffs land.” At the trial the parties and their witnesses gave evidence and the trial Court undertook a visit to the locus in quo. Evidence was taken at the locus. Both counsel to the parties addressed the trial court and in a reserved judgment the trial court dismissed the plaintiffs’ case. Dissatisfied with the decision the plaintiffs appealed to the Imo State Customary Court of Appeal. It heard the appeal and set aside the decision of the trial Customary Court given  in favour of the defendants. Dissatisfied with the decision the defendants have appealed to the Port Harcourt Division of the Court of Appeal that is, the Court below which unanimously dismissed their appeal. The court below in the concluding part of its judgment from page 20 last paragraph to page 22 LL 1 – 12 held thus: “The main issue concerns the complaint that the court below erroneously gave judgment for the respondent when the latter had failed to prove their root of title. With respect, there is a misconception here. It has been seen that the real issue before the Court was the location of the boundary between the parties. Each party agreed that the land beyond the boundary claimed by it belonged to its opponent. The question of root of title did not, therefore, arise. All that the plaintiffs were obliged to do to establish that the boundary was where they claimed it to be. The evidence before the Court showed that the appellants made the respondents swear that the boundary was where they claimed it was. The evidence was also more consistent with the claim by the respondents that the swearers survived than the contrary claim by the appellants. The law is that were traditional arbitration is resorted to and the parties agree to be bound by the decision and on the basis of the understanding one side makes the other take an oath, the side that made the other take the oath will not be allowed to resile from the understanding. See Oparaji v. Ohami (1999) 9 NWLR (pt.6.18) 290 at 304, per Iguh, J.S.C. The Court below clearly stated the correct position of the law when it said that “once the Oath is taken and won or lost the issue at stake is res judicata and binds the parties.” On the whole, subject to what I have said with regard to the order fixing boundary between communities the appeal fails as it lacks merit. The decision of the Court below allowing the appeal by the respondents before us is affirmed.  The order fixing boundary between the Ihie and Obitti communities is set aside. In its place I make the order that Nwite, the spot where the respondents took the oath, shall be the boundary between the appellants and the respondents.” The defendants (appellants) still dissatisfied with the decision have finally appealed to this Court by a Notice of Appeal filed on 22/01/2006. Seven grounds of appeal have been raised therein. The parties in compliance with the Rules of this Court have filed and exchanged briefs of argument. The (defendants) appellants have filed the appellants’ brief of argument on 3/12/2001. With the leave of court they filed and served an amended appellants’ brief of argument, deemed properly so filed and served on 17/1/2005. From the seven grounds of appeal the appellants have formulated five issues for determination and they are as follows “1. Was the lower court right to have excused the proof of root of title by the plaintiffs for the reasons which it gave in the judgmen 2. Was the lower court correct to have concluded that it was for the purpose of establishing the location of the boundary that oath was administered? 3. Was the presence or otherwise of Nwite shrine on the land in dispute not an issue before the Customary Court of Appeal of Imo State and did the lower Court Act rightly by allowing an interference of a finding of fact by the trial court in this action? 4. Was the lower court right when it held that the trial court did not properly evaluate the evidence led at the trial? 5. Was the lower court right to have struck out an issue properly submitted to it for determination and did that not amount to a denial of fair-hearing?” Two issues for determination have been formulated by the respondents (plaintiffs) in the respondents’ brief of argument. They read as follows: PAGE| 4 “(a) whether there is a valid appeal in the instant case (b) whether the lower Court was right to have excused the proof of title in a matter in which the main issue between the parties was the exact location of the exact point on the boundary land where the respondents took the Oath.” The pleaded facts and evidence of the plaintiffs’ (respondents) and their witnesses have shown that the defendants (appellants) the people of Obitti town trespassed into the plaintiffs’ community land situate at Obitti/Ihie Road, known and called “Ukwu Nwite” belonging to plaintiffs of Umudegwe Umuoka Ihie. According to their story they used to give out to the defendants (appellants) farm lands on the land in dispute and they would present a goat and wine to the plaintiffs yearly until 1972 when it became known that the defendants’ people attempted to sell a portion of the land and had to be restrained and consequently they had to be asked to quit the land. From then the plaintiffs (respondents) have refused to grant farm lands to the defendants any more. The plaintiffs had all the same to complain to the police (when the defendants refused to quit the land) who handed the matter to one Chief Amadi Nwugha and others for settlement; The arbitrators recommended Oath taking for the Ihie people, that is, the plaintiffs and the defendants people produced the juju sworn by the plaintiffs and survived their oath for the traditional one year, that is, 1973 to 1974 which incident was duly celebrated. The plaintiffs have stated in their evidence that the Oath was taken at Nwite shrine for the purpose of fixing the boundary between the parties. The defendants according to the plaintiffs eventually left the land but some time in 1986 they re-entered the land again hence this action and the reliefs as claimed above. The 1st defendant (appellant) – Michael Odunze of Umuanyanwu Obitti stated the facts on the part of the defendants. The land in dispute he stated is known as “Okwu-Ogwu-ala” PAGE| 5 belonging to Umuanyanwu from their ancestors who deforested it. Their boundary neighbours included Umugwaa and Umuadom. They have common boundary with the plaintiffs at Ovu. The plaintiffs entry of the land about 1973 he contended was resisted hence they (the plaintiffs) complained to the police. The dispute was referred to native tribunal to settle. In the event Oath taking was recommended; the plaintiffs took the oath produced by the defendants. Four of the plaintiffs’ people took the oath none of them survived the traditional one year – 1973 to 1974. And the defendants had to remove the beacons planted in the land by the plaintiffs because of that they commenced this action. (Further facts will come out in the body of the judgment). The appellants arguing issues 1 and 2 in their brief of argument have submitted that since this suit originated from a Customary Court that there is need to examine the evidence of the parties at the trial particularly, PW 1, PW2 and DW1 in this case to ascertain the issues and the nature of the dispute between the parties. See Chukwunta v. Chukwu & Ors. 14 WACA 341; Nkwo & Ors v. Uchendu & Anor. (1996) 3 NWLR (pt.434) 1 at 10. It is submitted on the evidence of PW1, PW2 and DW1 that the parties have been disputing over ownership of land and not on the narrow issue of the location of their boundary per se. Even then, it is also contended that fixing of boundary as such between communities is not a matter within the jurisdiction of Customary Courts and in this respect they have submitted that nothing is to be presumed in favour of the jurisdiction of an inferior Court. And have relied on Edict No.7 of 1984 or Section 14, 3rd Schedule to the Customary Court (Amended) Edict No.10 of 1986 – the Sources of the instant Customary Court’s Jurisdiction and Attorney General Lagos State v. Dosumu (1989) 3 NWLR (pt.III) 552, to submit that no such jurisdiction to fix boundary between communities is vested in the instant Customary Court. On the relevance of proving boundary in land dispute, firstly, it is contended that in proving ownership of land that a plaintiff must prove as a matter of sine qua non his entitlement to the land by one of the five ways listed in the case of Idundun v. Okumagba (1976) 9/10 SC 227; Kodlinye v. Odu (1935) 2 WACA 331; Bello v. Eweka (1981) 1 SC 101 & Eleme v. Akenzua (2000) 13 NWLR (pt.683) 92. The point is taken that in so doing that the plaintiffs must establish the boundaries of the land being claimed with certainty as they are seeking a declaration of title to the land in dispute; if they are to succeed. See Oladipupo v. Olanyan (2000) 1 NWLR (pt.642) 536. In the instant case it is contended that it is wrong for the lower court to hold that it is to establish the boundary line between the parties that the Oath was taken in this case at Nwite. This conclusion they have submitted is perverse as it has not been supported by evidence rather that it was administered in the claim and counter-claim of the parties as to the ownership of the land in dispute and not as a positive evidence as to boundary fixture. The appellants have contended even then that the Respondents have failed to establish a defined and recognised boundary between the parties on the preponderance of evidence in their favour if they have to succeed on the strength of their case, that is, in discharge of the onus of proof cast on them on the issue of establishing their boundary. In other words the appellants have failed to prove their case even on the narrow issue of establishing their boundary. On issue 3, the appellants have alluded to a misunderstanding of the questions on which the parties have fought the case leading to a misdirection of the court below that is, as to whether firstly, Nwite is the place where the oath was administered and secondly, Nwite is a boundary feature as both questions have not been proved in so far as these questions have been raised as issues before the Imo State Customary Court of Appeal. The appellants have therefore argued that the misunderstanding of the questions on which the parties have fought the case has occasioned a miscarriage of justice, to warrant the appellants asking the court to examine the issues under section 22 of the Supreme Court Act with a view to resolving them. PAGE| 7 The appellants have suggested that it is therefore wrong for the Imo Customary Court of Appeal to have reversed the findings of fact of the trial court that Nwite as boundary feature must exist on the ground and as much-talked about spot where the said Oath was taken. It is posited that the trial court after having visited the locus rightly dismissed the appellants’ case on those questions. On the Imo State Customary Court of Appeal having upturned these findings of fact of the trial Court the appellants have denounced the same, as it has not been shown that the findings of the trial court are perverse in any way. See Cooperative Development Bank Plc v. Joe Golday Co. Ltd. (2000) 14 NWLR (pt.688) 506, 534-535. On the question that the lower court has even found without evidence that Nwite shrine no longer existed, it is submitted that the lower court having so found it should have interfered and restored the findings of fact by the trial court which has been wrongly and improperly reversed by the Customary Court of Appeal as it has occasioned a miscarriage of justice. Issue 4 is on non-evaluation of evidence by the trial court vis-à-vis the Customary Court of Appeal intervening to perform that duty. This follows from issue 3 above. It is submitted that the intervention has been made without adverting to the implications of cases like Ekpa & Ors v. Utong & Ors (1991) 6 NWLR (pt. 197) 218 as the principle is trite that the decisions of Customary Courts must be rationalized on the basis of common sense and not on failure, to comply with some technical Rules. The trial court has been charged to have made adverse findings of fact on Nwite as a Shrine and where oath was taken without evaluating the evidence that is, by ascribing probative value to the evidence and placing the same in the imaginary scale to determine in whose favour the balance of probability has tilted see Ogunleye v. Oyewole (2000) 14 NWLR (pt.687) 290 at 302. PAGE| 8 Issue 5 is whether a miscarriage of justice has been occasioned where an issue submitted for determination has been erroneously deemed abandoned when no such thing ever happened as the appellants have relied on all the issues identified for determination in their brief of argument. They have not withdrawn Issue 2(b). However, the lower court at p.214 of the record observed thus: “Chief Eze Duru Iheoma ……. He however, informed us orally that he was withdrawing Issue (b) and all the arguments based on it. They were accordingly struck out.” and so, it is submitted that that issue has not been considered. The appellants framed issues 2(a), (b) and (c) as at p. 163 of the record. The appellants have contended that as a condition for recognising arbitrations at Customary law it must be shown that the parties voluntarily submitted their disputes to the non-judicial body as laid down by the Supreme Court in Agu v. Ikembe (1991) 3 NWLR (pt.180) 385 at 408 also in Onwuanumkpe v. Onwuanumkpe (1993) 8 NWLR (pt.186). In this instance, it is opined that the Instant arbitration panel being obligated to report its decision to the Police, the appointor of the panel that such an arbitration panel is not cognizable at customary law. They also posit that the lower court having been misdirected on this issue has failed to appreciate the error in the Imo State Customary Court of Appeal taking the stance it took in reversing the trial court’s findings on this issue. The appellants have finally urged the Court to allow the appeal, set aside the decision of the lower Court and restore the judgment of the trial Customary Court. I now proceed to look at the respondents case in their brief. On Issue one of the respondents’ brief of argument they have raised the question of a valid appeal in this case. Under this heading the respondents have contended by way of preliminary objection without filing any notice to that effect that by virtue of the admission in paragraph 2 of the Notice of Appeal at p.225-LL2-5 of the record that on the PAGE| 9 pronouncement by the lower Court as to the exact spot where the boundary between the parties lies, that the instant grounds of appeal filed by the defendants/appellants as well as the argument proffered thereon have thus become invalid. This admission it is further contended is as encompassed in ground 7 of the additional grounds of appeal as at page 160 of the record under the heading: “ERROR in Law” and it reads: “The lower appellate Court exceeded its jurisdiction when it ordered that the boundary between Ihie Community and Obitti Community is the place where the path was taken called Nwite and thereby caused a miscarriage of justice.” It is the respondents’ case that in the circumstances the lower Court having answered the foregoing ground 7 in the words as at p.221 of the record thus: “The order fixing boundary between the Ihie and Obitti Communities is set aside. In its place I make the order that Nwite, the spot where the respondents took the oath, shall be the boundary between the appellants and the respondents” that is, the foregoing order of the lower Court having pulled the Rug from underneath the complaint as per ground 7 which otherwise is the crux of the appeal, there is no longer any live issue in contention in the appeal in this court. They however, have admonished that on Ajide v. Kelani (1985) 3 NWLR (pt.12) 248 that the appellants have to maintain a consistent case and prove it. The respondents, have therefore, posited that from the above abstract there is an admission that the dispute is over the exact boundary spot between their respective parcels of land where the oath was taken. To further buttress the submission in this regard the respondents have referred to and relied on the appellants’ submission at p. 134 LL 8-10 of the record where it is submitted that:  “since the dispute was as to boundary there was duty on appellants (now respondents) to prove boundary conclusively.” Again, it is argued that having so admitted that the question contested by the parties has been narrowed down to whether the parties own the land up to the boundary point called “Nwite” in accordance with the oath of 1973 taken by the respondents as per the foregoing abstract that the appellants cannot now resile therefrom. See Esangbedo & The State (1989) 4 NWLR (pt. 113) 57 at 67 also see Queen v. Ohaka (1962)1 ANLR 505. It is upon this note that the respondents have urged the Court to uphold the preliminary objection and dismiss the appeal. Before I come to the alternative arguments submitted on the Issues raised in the appeal in the event of over-ruling the foregoing objection I think I should dispose of this objection; at first, I thought of doing so preremptorily as it has no merit whatsoever. I now go on to examine the preliminary objection which the respondents have taken in this case by contending that the notice of appeal filed in this case by the appellants is invalid ab initio and so, that there is no competent appeal before this Court. The precise terms of the objection as set in paragraph 4.01 of their brief of argument reads as thus: “It is our contention that there is no appeal before this Court or simply put by virtue of the admission in paragraph 2 of the Notice of Appeal at page 225 line 2 – 5 of the record of Appeal accepting the decision of the lower Court as to the exact spot where the boundary line between the parties, the grounds of appeal and the argument thereon are invalid.” The foregoing to say the least is anything but a properly constituted objection in any sense of the term. All one can make out of the respondents’ submissions on the objection is that the appellants cannot be permitted to change their case on appeal, which otherwise is a continuation of the case put forward in the Court below. In other words, the appellants  have not been consistent in their case both in the lower courts and here. It is concluded that the main issue contested by the parties in this case all along is that each party owns the land up to the “boundary point called Nwite” where the oath of 1973 was alleged to have been taken by the respondents, howbeit, that the dispute between the parties in this case has been as to the boundary between them and not over ownership of land as is now being contended by the appellants. To amplify the point the respondents have zeroed in on ground 7 of the additional grounds of Appeal at p. 160 of the record to show concisely that the appellants’ complaint therein has been as to delimiting the boundary between the parties; the said ground 7 reads: “The lower Appellate Court exceeded its jurisdiction when it ordered that the boundary between Ihie community and Obitti community is the place where the oath was taken called Nwite’, and thereby caused a miscarriage of justice” I must subjoin here that the two communities of Ihie and Obitti communities mentioned in the foregoing extract not having been parties to the suit at any stage of the proceeding and whereas the parties have not pretended to be their respective representatives in the instant suit the two communities have otherwise been wrongly, indeed irregularly co-opted into the suit hence the appellants’ complaint as in ground 7 before the Court below that the Customary Court of Appeal has acted outside its jurisdiction. I do not see how this can amount to an admission on the issue of boundary in this case. The respondents have however, referred to p. 221 of the record to contend that the pronouncement by the Court below therein has resolved the appellants’ complaint as per ground 7 thus putting the issue of boundary between the parties to rest and beyond contention and I quote: “the order fixing boundary between the Ihie and Obitti communities is set aside. In its place I make the order that Nwite, the spot where the respondents took the oath, shall be the boundary”. In this wise, it is argued by the respondents that the complaint encompassed in ground 7 of the additional grounds of Appeal having thus been resolved in favour of the appellants they cannot now shift their grounds by contending that it is ownership of land that has been the gist of the dispute between them, not delimitation of the boundary between them. It is on this premise that the respondents have taken the instant abjection to the Notice of Appeal and have urged that the appeal be struck out in lumine. With respect, the respondents have in the process appeared to have argued their case in the appeal under the guise of preliminary objection. I do not see how the contention being put forward here by the respondents has remotely affected the validity of the Notice of Appeal in this case. The appellants have not reacted to the objection in any way not even by filing a reply brief for what is worth nor have they adverted their attention to the objection not even in their Amended Appellants’ brief of argument filed latter in time to the instant respondents’ brief of argument. However, that default on the appellants’ part does not ipso facto imply that the objection has to be sustained without more. Nor is the Court precluded from considering the merit and demerit of the objection, for overruling the purpose for it or sustaining it. See Otuwuyi v. Adeyemi (1990) 4 NWLR (pt.147) at 746. To raise an objection by way of issue for determination as in this instance is not only novel in that issue for determination and preliminary objection under our Rules do not have a common meeting ground. How to initiate an objection against an appeal is fully covered in the Rules. Preliminary objection strictly speaking runs counter to the intendment of issues for determination in the claims before the courts in the sense that it aborts, indeed forecloses the hearing of the case in lumine and if upheld terminates the case; it PAGE| 13 automatically puts an end to the case without determining the rights of the parties thereto, while issue for determination presupposes that the case is, all things being equal, on course for hearing. An issue for determination is a combination of facts and the law on a particular point which when decided affects the fate of the appeal. Onifade v. Ofayiwole (1990) 7 NWLR (pt.161) 130 SC. It must relate to the grounds of appeal. See Momodu v. Momoh (1991) 1 NWLR (pt.169) 608 SC. The two are more or less strange bedfellows; and so, for a preliminary objection to be dressed in the garb given to it here is strange and improper. The instant objection is not an objection in any sense of the term as what and what the respondents are objecting to here are still at large and may be contended in the main appeal. A notice of appeal being an initiating process in every appeal process is so crucial in the appeal process as a writ of summons is in ordinary civil actions that a party

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