MR. PAUL AGBOR v. MRS. HELEN AGOM
(2013)LCN/6378(CA)
RATIO
BINDINGNESS OF PLEADINGS ON PARTIES
Parties are bound by their pleadings. The court itself is as much bound by the pleadings of the parties as they are themselves. Once a party has admitted the existence and validity of certain facts by his pleadings, and, since one of the objects of pleadings is to ascertain what facts are agreed at the close of pleadings, evidence need not be led to prove such facts and the trial court would be right to accept the agreed facts as established without proof. A court of law is therefore entitled to give judgment based an admission by a party if the admission is relevant to the facts in issue. See: Salmatu v. Biba (1975) NNLR 176; Salawu v. Yusuf (2007) 5 S.C. 35: Agidigbi v. Agidigbi (1992) 2 NWLR (PT 221) 98.
The Supreme Court per Aniagolu, JSC (of blessed memory) in Owosho & Ors v. Dada (1984) NSCC 568 said:
“And a fact is deemed to be admitted if it is neither specifically denied nor denied by implication, having regard to other facts averred in the pleadings. A plaintiff’s averments of facts must be met by the defendant frontally and categorically. The rules of pleadings do not allow a defendant to be hedgy or evasive in his answers to the facts averred by the plaintiff. Once he refuses to meet the facts directly – either by admitting or by denying them, except, of course, where he is not in a position to admit or deny by reason of the matter, f or example, being peculiarly within the knowledge of the plaintiff – he is token to have admitted them.
The matter was put clearly by this Court in Messrs. Lewis and Peat (N.R.I) Ltd. v. A. E. Akhimien (1976) 7 S.C. 157: (1976) 1 All N.L.R. (Pt.1) 460 where Idigbe, J.S.C., in giving reasons for the judgment of the Court, stated the principle of 465 to p.466 thus:
“When as a result of exchange of pleadings by parties to a case a material fact is affirmed by one of the parties but denied by the other, the question thus raised between the parties is an ‘issue of fact’. We must observe, however, that in order to raise on issue of fact in these circumstances there must be a proper traverse; and a traverse must be made either by a denial or non-admission either expressly or by necessary implication. So that if a defendant refuses to admit a particular allegation in the statement of claim, he must state so specifically; and he does not do this satisfactorily by pleading thus: ‘defendant is not in a position to admit or deny (the particular allegation in the statement of claim) and will at the trial put the plaintiff to proof. As was held in Harris v. Gamble (1878) 7 Ch. D. 877 a plea that “defendant puts plaintiff to proof amounts to insufficient denial; equally a plea that the ‘defendant does not admit correctness’ (of a particular allegation in the statement of claim) is also an insufficient denial – see Ruffer v. Tregent (1879) 12 Ch. D. 758.” Per ONYEKACHI A. OTISI, J.C.A.
In The Court of Appeal of Nigeria
On Wednesday, the 3rd day of July, 2013
CA/C/205/2009
JUSTICES:
MOHAMMED LAWAL GARBA Justice of The Court of Appeal of Nigeria
JOSEPH TINE TUR Justice of The Court of Appeal of Nigeria
ONYEKACHI A. OTISI Justice of The Court of Appeal of Nigeria
Between
MR. PAUL AGBOR – Appellant(s)
AND
MRS. HELEN AGOM
(Suing for herself and as representing Children of Late Uko Utogor of Ishibori, Ogoja) – Respondent(s)
JOSEPH TINE TUR, J.C.A. (Delivering the Leading Judgment): The respondent filed three separate suits in the High Court of Justice of Cross River State holden at Ogoja, namely,HJ/17/2003; HJ/18/2003 and HJ/20/2003. Suit No. HJ/20/2003 filed on 17th day of March,2003 is now the subject matter in this appeal. In the course of the proceedings the three suits were consolidated. In each of the consolidated suits the respondent claimed in a representative capacity from the appellant and others, title to the land in dispute. The learned trial Judge heard evidence and delivered judgment on the 4th day of February,2009 in favour of the respondent as follows:
“I therefore order as follows per the respective Defendants.
FIRST DEFENDANT,JOSEPH ANYIM SUIT No. HJ/20/2003
I adjudge him a trespasser on the land in dispute.
Judgment for the plaintiff.
1. I declare that the plaintiffs are entitled to the deemed right of occupancy of the land and the four rooms house lying and situated (sic) at Ushi-Utamte, Igoli Ogoja more particularly known and called “Uko Utogols compound, Ushi-Utamte.”
2. I declare that the plaintiffs are entitled to the land and property called “Uko Utogor’s compound” as the rightful inheritors of the estate in accordance with Nkim custom.
3. I declare that the six rooms foundation started in the land by the Defendant is without leave, license (sic) and authority of the plaintiffs,the rightful owners.
4. On the sum of N500,000.00 general and aggravated damages, I, in consideration of family connection in this matter award a nominal sum of N5,000.00 (Five thousand Naira) only.
5. An order of perpetual injunction hereby issues under my seal and hand restraining the defendant by himself, his workers, agents, servants, successors, privies and assigns from further entering or attempting to enter into the piece and parcel of land in dispute lying and situate at Ushi-Utamte village, Igoli-Ogoja to do any acts in violation of the plaintiffs’ exclusive title thereof.
6. Parties to bear their costs.
This is my judgment in Suit No. HJ/20/2003.
Sgn. Hon. Justice Michael Edem, 2nd February, 2009.”
In Suit No.HJ/17/2003 his Lordship made the following pronouncement in favour of the respondent:
“2ND DEFENDANT, AUGUSTINE ELLAH IN SUIT
NO. HJ/17/2003
I adjudge him a trespasser on the land in dispute.Judgment for the plaintiff.
1. I declare that the plaintiffs are entitled to a reversion to them of the entire land with four rooms compound called “Uko Utogor’s compound” Ushi-Utamte as their inheritance in accordance with Nkim custom as children of their deceased father late Uko Utogor.
2. I scale down the sum of N500,000.00 as aggravated damages to N1,000.00 (One thousand Naira) nominal damages still in consideration of family connection since he did not gate-crash into the property but was misleadingly brought in by a family member,1st defendant.
3. Parties to bear their costs.
This is my judgment in Suit No. HJ/17/2003.
Sgd. Hon. Justice Michael Edem, 2nd February, 2009.”
In respect of Suit No. HJ/18/2003 the learned trial Judge concluded as follows:
“3RD DEFENDANT, PAUL AGBOR IN SUIT No. HJ/18/2003.
I adjudge him a trespasser on the land in dispute. Judgment for the plaintiff.
1. I declare that the plaintiffs are entitled to a reversion to them of the entire land with four rooms compound called “Uko Otogor’s compound” Ushi-Utamte as their inheritance in accordance with Nkim custom as children of their deceased father late Uko Utogor.
2. Though I have seen from Exhibit “5” an extensive damage done by him, but still in the interest of family connection I scale the N500,000.00 special, general and aggravated damages down to N1,000.00 (One thousand Naira) nominal damages in consideration of the fact that he did not gate-crash into the property but was misleading brought in by a family member, 1st Defendant.
3. Parties to bear their costs.
Sgd. Hon. Justice Michael Edem, 4th February, 2009.”
Being aggrieved Mr. Paul Agbor with the leave of this Court, filed a Notice of Appeal against the decision delivered by his Lordship in Suit No. HJ/20/2003 on 30th July, 2009.
Four grounds accompany the Notice of Appeal. The Appellant’s brief of Argument was filed on 11th January, 2010 but deemed properly filed and served on the respondent on 23rd February, 2011. The respondent’s brief of argument was also filed out of time on 20th January, 2011 but deemed properly filed and served on the appellant on 23rd day of February, 2011. When the appeal came up for hearing on 9th day of April, 2013 each Counsel adopted their respective briefs of argument. The learned Counsel to the appellant set out the following issues for determination in the brief:
“1. Whether the learned Judge made a correct approach to the evidence led by the parties by granting a declaration of title to land in favour of the respondent when the identity of the land is unknown. (Grounds 1 & 4).
2. Whether the learned Judge properly directed himself as to the burden of proof having regard to the nature of the issues placed before him, in particular, evidence of tradition and acts of possession canvassed by the defendants in their pleadings and evidence (Grounds 3 & 5).”
The respondent’s learned Counsel identified the same issues for determination as follows:
“1. Whether the learned Judge made a correct approach to the evidence led by the parties by granting a declaration of title to land in favour of the respondent when the identity of the land is unknown.
2. Whether the learned Judge properly directed himself as to the burden of proof having regard to the nature of the issues placed before him, in particular, evidence of tradition and acts of possession canvassed by the defendants in their pleadings and evidence.”
ISSUE ONE:
On issue one the learned Counsel to the appellant submitted that the respondent did not establish with certainty the identity of the land claimed. That this should have been done by the calling of boundary men as witnesses in addition to tracing the root of title to the disputed land. Counsel submitted that where the respondent failed to do so, the Court should dismiss the claim. Learned Counsel referred this Court to the evidence of the respondent (PW3) at the trial Court where she testified as follows:
“… I am asking for ownership trespass and an injunction. The land is very large, but not having surveyed, I cannot tell the Court the extent.”
See page 111 lines 29-34 of the printed record.
Learned Counsel cited the following authorities in Support of his argument, namely, Odunze v. Nwose (2007) 13 NWLR (Pt.1050) 35; Udeze v. Chidebe (1990) 1 NWLR (Pt.124) 141 at 159 and Ogedengbe v. Balogun (2007) 9 NWLR (Pt.1039) 380 at 393 to show that the boundaries of the land in dispute had to be proved by the respondent at the trial. That though the respondent referred to the land in dispute as “Uko Utogor Compound” in paragraph 3 of the statement of claim, the appellant had denied same in paragraphs 8 and 9 of the statement of defence hence the need to prove that which had been disputed. Counsel drew the Court’s attention to the evidence of Chief Joseph Inyombe Cyril Igbe (Pw3) who represented the Ukamusha Community that had allegedly given the land in dispute to the respondent’s late father as follows:
“CROSS EXAMINATION BY 1ST AND 3RD DEFENDANTS
The land was given to the father of the plaintiff in the late 50s. I cannot remember the exact year. The land was given to Akpotu Igbaji. No record. There are no written records including that of Akpotu Igbaji.
I was not in the delegation. I do not know the quantum of the land allocated to the plaintiff’s father by Ukamusha Community, some of the boundary neighbours are dead.”
(See page 99 lines 3-10 of the printed record).
Counsel argued that not being a member of the delegation that gave land to the late father of the respondent, Pw1’s evidence constituted hearsay, citing Awuse v. Odili (2005) 16 NWLR (Pt.952) 416 at 447. In such a case the evidence need not be controverted but should have been expunged from the records. Counsel relied on Buhari v. Obasanjo (2005) 2 NWLR (Pt. 910) 241 at 301 to urge this Court to resolve issue one in favour of the appellant.
The learned Counsel to the respondent replied that the identity of the land claimed by the respondent was never in dispute. The parties knew the land and admitted this in their respective pleadings. What the appellant denied was the name of the land, namely, “Uko Utogor’s Compound” situate in Ushi-Utamte. But the appellant did not proffer any other name. Counsel referred to paragraphs 6 and 9 of the statement of defence filed by the appellant. Besides the appellant had admitted the land and its situs to be at Ushi-Utamte. Issues were not joined on the identity of the land in the pleadings. Reference was made to Ogbu v. Wokoma (2005) 7 SCNJ 299 at 302; Jimoh v. Akande (2009) 18 WRN 1 at 28; Ezukwu v. Ukachukwu (2004) 7 SCNJ 189 at 206 and Adelusola v. Akinde (2004) 5 SCNJ 235 where it was held that in a declaration of title to land its identity is in issue only when the defendant raises it as a defence in the pleadings. Besides, a survey plan is not a sine qua non in a declaration of title to a land dispute, citing Owie v. Ighiwi (2005) 1 SCNJ 236; Ogun v. Akinyelu (2004) 12 SCNJ 196 and Akpabue v. Ogu (1976) 6 SC 63. The Court was further referred to the evidence of the 1st defendant Joseph Anyim at page 126-127 of the printed record to show that the witness admitted knowledge of the land in dispute. Counsel cited Section 75 of the Evidence Act, 2004 and Ojukwu v. Onwudiwe (1984) 1 SCNLR 247 at 284 as showing that an admission once made requires no further proof. It was also contended that the evidence of Pw1 was not hearsay. Pw1 was only rendering evidence as to how the land had devolved from Ukamusha Community to the respondent’s father as original lessees. The witness did not need to be at the spot to lead evidence of traditional history, citing T.R.T.D.A. v. Nkume (2002) 8 WRN 73 at 74-76 and 81-82.
It was argued that the case of Awuse v. Odili (supra) cited by learned Counsel to the appellant was an election matter and therefore inapplicable to the facts before this Court. Learned Counsel contended that since the identity of the land was not in dispute, what is admitted needs no further proof, citing Unilorin v. Adesina (2009) 25 WRN 97 at 105; Aliyu Balogun v. Shittu Labiran (1988) 3 NWLR (Pt.80) 66 and Onyeaka Onwu v. Ekwubiri (1966) 1 All NLR 34 to support the submission. Learned Counsel urged that issue one should be resolved in favour of the respondent.
I shall start by having regard to the pleaded facts as to the relationship between the respondent and the appellant. Paragraphs 1-3 of the statement of claim plead as follows:
“1. The plaintiff is the first daughter of Late Uko Utogor born for him by Madam Mogbo Uto. She is married and she is a local restaurant operator (Mama put). She is also a farmer. She resides at Ikaptang, Ishibori, Ogoja.
2. The plaintiff states that she sues in representative capacity. At the hearing the authority to prosecute given by her other siblings shall believed upon and is pleaded.
3. The defendant is the elder sister to Late Uko Utogor. She is a widow and was married to Late Papa Ugbut Alada. She is a farmer and resides at “Uko Utogor’s Compound Ushi-tamte, Igoli-Ogoja,”
The appellant and the 3rd defendant filed a joint statement of defence and made the following admissions:
“1. Save and except as hereinafter expressly and specifically admitted, the 1st and 3rd defendants, deny each and every allegation of facts as contained in the plaintiff’s statement of claim as if each had been set out in seriatim and specifically traversed.
2. The plaintiff filed suit No. HJ/17/2003 against the 3rd defendant and filed HJ/18/2003 against 1st and 3rd defendants jointly and HJ/20/2003 against the 1st defendant alone.
3. This suits by order of court were all consolidated. This statement of defence of the 1st and 3rd defendants is based on the statement of claim filed in HJ/18/2003 as the issues are the same in the statement of claim filed in HJ/20/2003.
4. The 1st and 3rd Defendants aver that paragraph 1 of the statement of claim is correct.
5. The 1st and 3rd defendants aver that paragraph 2 of the statement of claim is false. This suit is brought by the plaintiff personally without any authority to sue in a representative capacity. Late Uko Utogor had three wives with seven children in all. In all the plaintiff and her sister are only two from their mother’s womb. The other children from the other wives especially Peter and Paul Uko who are residing in Lagos are against this suit. They had severally dissociated themselves from this suit and urge on the plaintiff to discontinue this suit. The greedy and avaricious nature of the plaintiff would not let reason prevail. The plaintiff is put to strict proof of these averments.
6. The 1st defendant admits paragraph 3 only to the extent that she is the elder sister to late Uko Utogor, farmer and widow but she denies that the land in question where she resides is called “Uko Utogor’s compound” at Ushi-tamte, Igoli-Ogoja.
7. The 3rd defendant admits paragraph 4 of the statement of claim.
8. The 1st defendant admits paragraph 5 only to the extent that the late father to the plaintiff who was her younger brother had a compound at No.9 Ntol Mgbeje Street Igoli-Ogoja (with two houses) where he lived with his wives and children and denies that he planted coconuts, palm trees, plantain and sugar cane at Ushi-tamte land. The few wild palms at Ushi-tamte land were not planted by anybody.
9. The 1st defendant denies that the land at Ushi-tamte is called “Uko Utogor’s compound”. She further denies that his late younger brother Uko Utogor acquired the land at Ushi-tamte. The 1st defendant built houses on the land. The plaintiff’s claim is false and she is put to strict proof.”
10. In further answer to the above paragraph, the 1st defendant avers that, the land lying and situate at Ushi-tamte Street Igoli-Ogoja was the landed property or Mr. Akpotu Igbaji who was the brother to the 1st defendant’s mother Madam Ugair Amah. Mr. Akpotu Igbaji was the first person that founded and settled on the parcel of land for farming purpose from time immemorial.
11. The 1st defendant states that upon the death of Mr. Akpotu Igbaji, her mother Madam Ugair Amah inherited the land. She states that herself and her two younger brothers namely; Mr. Uko Utogor and late Udam Utogor were staying with their mother on that parcel of land. The 1st defendant states that upon the death of their mother she inherited that land in question in accordance with Nkim custom, which is hereby pleaded and took care of Uko Utogor and Udam Utogor until they grew up and settled on their personal land. The land acquired by Mr. Uko Utogor was No. 9 Ntol Mgbeje Street Igoli-Ogoja while Udam Utogor traveled abroad.
12. The 1st defendant denies with vehemence the averments in paragraph 7 of the statement of claim and states that the plaintiff’s father Uko Utogor never put in tenants or collected rents from the premises at Ushi-Utamte houses. The 1st defendant states that she built the house at Ushi-Utamte when she was a caterer at Holy Child Secondary School, Ogoja and ably assisted by her husband papa Ugbut Alada. The 1st defendant states that she put in tenants therein and collects rent for her up keep.”
The respondent next pleaded in paragraphs 4-6 of the statement of claim reads as follows:
“4. The plaintiff states that their late father in his lifetime had two compounds No. 9 Ntol Mgbeje Street Igoli-Ogoja (with two house) where he lived with his wives and children and a large expanse of land with a four room house where he collected rents. On the Ushi-Utamte land he planted coconuts, palm frees, bananas, plantain, and sugar cane.
5. The land at Ushi-Utamte called “Uko Utogor’s Compound” was acquired on or about 1955 when he was a young man. He initially built his first house there, a round mud hut roofed with grass – where he first resided with his first wife Madam Mogbo Uto, mother to the plaintiff and her younger sister Ugoma Uko. When the hut got burnt, the plaintiff’s father built a four room house roofed with zinc.
6. The plaintiff’s late father stayed there a little while, and upon building No.9 Ntol Mgbeje Street, Igoli-Ogoja he left Ushi-Utamte. He put in tenants and was collecting rents. The rents receipt Booklet stamp shall be founded upon and pleaded.”
The Joint statement of defence of the appellant (1st defendant) and the 3rd defendant admits the above pleading as follows:
“7. The 3rd defendant admits paragraph 4 of the statement of claim.
8. The 1st defendant admits paragraphs 5 only to the extent that the late father to the plaintiff who was her younger brother had a compound at No. 9 Ntol Mgbeje Street, Igoli-Ogoja (with two houses) where he lived with his wives and children and denies that he planted coconuts, palm trees, plantain and sugar cane at Ushi-tamte land. The few wild palms at Ushi-tamte land were not planted by anybody.”
The effect of the pleadings in paragraphs 7-8 of the Joint Statements of Defence is that the appellant admitted that the late father of the respondent acquired the land in dispute in 1955 where he built No.9 Ntol Mgbeje Street, Igoli-Ogoja and lived with his family. The only denial is that the late father planted the economic trees pleaded in paragraph 5 of the statement of claim. That is to say there is no dispute as to the identity of No.9 Ntol Mgbeje Street, Igoli – Ogoja where the respondent’s father built two houses and lived with the family. In spite of the clear and unambiguous admission of the facts pleaded in paragraphs 4 and 5 of the respondent’s pleading the appellant made a summersault or U-turn by pleading as follows:
“9. The 1st defendant denies that the land at Ushi-tambe is called Uko Utogor’s Compound. She further denies that his late younger brother Uko-Utogor acquired the land at Ushi-tamte. The 1st defendant built houses on the land. The plaintiffs’ claim is false and she is put to the strictest proof.”
10. In further answer to the above paragraph, the 1st defendant avers that, the land lying and situate at Ushi-tamte Street, Igoli-Ogoja was the landed property of Mr. Akpotu Igbaji who was the brother to the 1st defendants mother Madam Ugair Amah. Mr. Akpotu Igbaji was the first person that founded and settled on the parcel of land for farming purpose from time immemorial.
11. The 1st Defendant states that upon the death of Mr. Akpotu Igbaji, her mother Madam Ugair Amah inherited the land. She states that herself and her two younger brothers, namely, Mr. Uko Utogor and late Udam Utogor were staying with their mother on that parcel of land. The 1st defendant states that upon the death of their mother she inherited that land in question in accordance with Nkim custom, which is hereby pleaded and took care of Uko Utogor and Udam Utogor until they grew up and settled on their personal land. The land acquired by Mr. Uko
Utogor was No.9 Ntol Mgbeje Street, Igoli-Ogoja while Utogor traveled abroad.
12. The 1st defendant denies with vehemence the averments in paragraph 7 of the statement of claim and states that the plaintiff’s father Uko Utogor never put in tenants nor collected rents from the premises at Ushi-Utamte houses. The 1st defendant states that she built the house at Ushi-Utamte when she was a caterer at Holy Child Secondary School, Ogoja and ally ably assisted by her husband Papa Ugbut Alada. The 1st Defendant states that she put in tenants therein and collects rent for her upkeep.”
In view of the admissions in paragraphs 7-8 of the joint statement of defence can it be seriously contended by the appellant that there was no certainty as to the identity of the land in dispute? I do not think so. The statement of claim pleads the extent and boundaries of the land in dispute as follows:
“22. The plaintiff states that “Uko Utogo’s Compound” Ushi-Utamte, Igoli-Ogoja is bound as follows:
North: By coconut and Mr. Asu’s house.
South: Late Sampson Uguge Uyan’s Compound.
East: Swamp land with vegetables farms.
West: An unnamed road off Bansara Street, Igoli-Ogoja.
23. The commons features to the North East down to South-East is a swamp land and palm frees, sugar cane, plantain and bananas planted at random. To the south are palm frees up to the south west of the plot. The land which has an ackward shape measures 300 feet by 500 feet with the four rooms house centrally located.”
The appellant’s joint statement of Defence with the 3rd defendant responded as follows:
“22. The 1st and 3rd defendants deny paragraphs 21, 22 and 23 of the statement of claim. In further answer to the said paragraphs the 1st and 3rd Defendants state that they did not destroy the crops stated in the paragraphs as no such crops existed on the land is at the time the 3rd Defendant took possession of the land except for few wild palms. The plaintiff is put to strict proof of it.”
The appellant’s pleading was a general denial of the boundary men and the features along the common boundaries of the disputed land. That the land in dispute measures about 300 feet by 500 feet is not denied. The fact that the 3rd defendant took possession at the time there existed a “few wild palms” on the land is admitted in paragraphs 22 of the joint statement of defence.
The law is well settled that it is not enough to plead that “the defendant is not in a position to admit or deny, etc” a material and specific fact. See Ajani v. Okusaga (1976) 1 FWLR 188 at 193; Lewis & Peat v. Akhimein (1976) 7 SC 157; Benson v. Otubor 1 All NLR (Pt.1) 43, Bullen & Leak on Precedents, 3rd edition, page 436 and Mandillas v. Apena (1969) 1 All NLR 390 at 393. This general traverse amounts to an admission of a specific fact and is deemed to be admitted if it is neither specifically denied or admitted by implication. See Folami v. Cole (1986) 2 NWLR (Pt.22) 367 and Adimora v. Ajufo (1988) 3 NWLR (Pt.80) 1. The implication of paragraphs 7 and 8 of the Joint Statement of Defence is that the appellant and the 3rd defendant agreed that “the land in dispute” or “in question” was acquired by the respondent’s father in 1955 when he was a young man. The land comprised No.9 Ntol Mgbeje Street, Igoli-Ogoja with two houses. That the late father of the respondent also had a large expanse of land upon which he had a four room house where he used to collect rent. The land is located or is situate at Ushi-Utamte. The late father of the respondent planted coconuts, palm trees, bananas, plantain, and sugar cane. The further implication is that the land in dispute at Ushi-Utamte is called “Uko Utogor’s Compound”. Ownership and possession of the land in dispute or in question was conceded to the respondent’s late father. The acts of ownership and possession extended to when the respondent’s late father acquired the land in 1955 as a young man and started living there.
In Atolagbe v. Shorun (1985) 4 SC 250 Obaseki, JSC held at page 253 that:
“… Unless a specific allegation of fact is traversed specifically, a pleading that ‘the defendant is not in a position to admit or deny is likely to be construed as placing no burden of proof on the plaintiff unless by implication from the other paragraphs of the statement of defence the averment can be taken as having been denied.”
At page 265 of the judgment Coker, JSC held that:
“The primary function of pleadings is to define and delimit with clarity and precision the real matters in controversy between the parties upon which they can prepare and present their respective cases and upon which the Court will be called upon to adjudicate between them. It is designed to bring the parties to an issue on which alone the Court will adjudicate between them. The law reports are replete with decisions dating very many years backs, that a party is bound by his pleading and cannot go outside it to lead evidence or rely on facts which are extraneous to those pleaded. See Alhaji Karimu Lemomu & Ors. v. Hadji Noah All-Balogun & Ors. (1975) 1 All NLR 30 at p.40.”
The foundation for challenging the identity of the land in dispute is to be laid in the statement of defence. In Owosho v. Dada (1984) 7 SC 149 Aniagolu, JSC held at page 164 that:
“…the rules of pleadings do not allow a defendant to be hedgy and evasive in his answers to the facts averred by the plaintiff. Once he refuses to meet the facts directly-either by admitting or denying them… he is taken to have admitted them.”
The identity of the land including the boundaries and features and the boundary men were clearly pleaded in paragraphs 22-23 of the statement of claim but not traversed in paragraph 22 of the Joint statement of defence. There is no dispute about the identity of the land in dispute in the pleadings. In addition to the authorities cited by the respondent’s learned Counsel, see also Fatuade v. Onwoamanan (1990) 3 SCNJ 200 and Ezeudu v. Obiagwu (1986) 2 NWLR (pt.21) 200 at 211. In view of the admissions by the appellant and the 3rd defendant in paragraphs 7 and 8 of the Joint statement of defence the appellant cannot at the same time make a U-turn or summersault further by pleading in paragraphs 11-12, and 28-29 as follows:
“11. The 1st Defendant states that upon the death of Mr. Akpotu Igbaji, her mother Madam Ugair Amah inherited the land. She states that herself and her two younger brothers, namely, Mr. Uko Utogor and late Udam Utogor were staying with their mother on that parcel of land. The 1st defendant states that upon the death of their mother she inherited that land in question in accordance with Nkim custom, which is hereby pleaded and took care of Uko Utogor and Udam Utogor until they grew up and settled on their personal land. The land acquired by Mr. Uko
Utogor was No.9 Ntol Mgbeje Street, Igoli-Ogoja while Utogor traveled abroad.
12. The 1st defendant denies with vehemence the averments in paragraph 7 of the statement of claim and states that the plaintiff’s father Uko Utogor never put in tenants nor collected rents from the premises at Ushi-Utamte houses. The 1st defendant states that she built the house at Ushi-Utamte when she was a caterer at Holy Child Secondary School, Ogoja and ably assisted by her husband Papa Ugbut Alada. The 1st Defendant states that she put in tenants therein and collects rent for her upkeep.
28. The 1st and 3rd defendants aver that the plaintiff was not in exclusive possession of the land as at the time the 1st defendant leased it to the 3rd defendant.
29. The 1st and 3rd defendants shall rely on Ishibori custom of inheritance to prove that the 1st defendant is entitled to the land in question. The Ishibori chiefs and elders arbitrated in this matter and resolved in favour of the 1st defendant. Members of the arbitration committee shall be called to testify in proof of the decision.”
After all the phrase “the disputed land” or the “land in question” simply means that which is claimed by the plaintiff and the defendant. See Akintola v. Solanu (1986) 2 NWLR (Pt.24) 598 at 621. In Atanda vs. Ajani (1989) 6 SCNJ (Pt.2) 193 Craig, JSC held at page 209-210 that:
“I think it should be clearly understood that the identity of a piece of land is one thing, whilst the structures on the land are a totally different matter. A plaintiff may give unsatisfactory evidence about the structures on his land or about the acts of ownership performed on the land. But such evidence need not necessarily affect the physical identity of the plan which was admitted in evidence (without objection) and the land was known to both parties. Apart from this, it seems to me that the disputed land was known to both parties. Witnesses for the parties gave evidence about the number of houses on the land, some said there were four, whilst others said there were eleven. Even if the trial Judge rejects the evidence of any of these witnesses on this point, this, in my view, would not affect the identity of the disputed land which had been clearly demarcated on a survey plan Exhibit “A” and which was tendered by a licensed surveyor.”
Where there is no dispute as to the length and breath of the land in dispute, the features along the land, and the boundary men as pleaded in paragraphs 22 and 23 of the statement of claim. I do not see how it can be argued that the identity of the land in dispute was an issue. It’s true that the evidence of boundary men may at times be essential and weighty as argued by learned Counsel to the appellant.
But in Balogun v. Akanji (1988) 2 SCNJ (Pt.1) 104 one of the circumstances for calling boundary men was set out in the judgment of the Supreme per Uwais, JSC (as he then was) at page 116 as follows:
“It is pertinent to emphasis that in civil proceedings the standard of proof is based on the balance of probabilities. Therefore a careful comparison between the plaintiff’s evidence on their traditional history and the traditional evidence called by the 1st and 3rd defendant will show that the case made by the plaintiffs is stronger. Not only did they call their boundary men who established their title of the land in dispute but the plaintiffs also proved that their ancestor was not a tenant on the land in dispute and that the land was owned by him. Therefore, as in the words of the learned trial Judge quoted earlier – “it is manifest that where other facts do not detract from the weight of evidence of boundary men which is clear and cogent, the evidence of boundary men carries much weight.” As the evidence on traditional history of the defence was inconsistent and conflicting, and no boundary men were called by them; the learned trial Judge should have believed the traditional evidence of the plaintiffs since in his words “their assertion that the land in dispute belonged to Ojo Sango remained unshaken in Cross-examination” of their boundary men. There was nothing in the totality of the evidence before him which made it unsafe for the learned trial Judge to believe the traditional evidence adduced by the plaintiff.”
The calling of boundary men to testify is to fortify, strengthen or give more weight to the evidence of the claimant in support of his pleaded root of title.
If from the state of the pleadings both parties were not ad idem as to the location and the features along the disputed boundaries, then the land must be described with certainty or by filing a plan. Furthermore, where the parties have lands abutting each other there will be need to show and prove precisely, the features and marks along the common boundaries. See Aro v. Jaja 6 NLR 24; Awote v. Owodunmi (1987) 5 SCNJ 1 at 4-5. Amata v. Modekwe 14 WACA 580; Epi v. Aigbedion (1972) 10 SC 53 at 59 and Nkanu v. Onum (1977) 5 SC 13.
My humble view is that the parties knew the land in dispute from the evidence they adduced at the trial. I resolve issue one in favour of the respondent.
ISSUE TWO:
On issue two learned Counsel submitted that the burden of proving the traditional evidence and acts of possession canvassed in the lower court was not discharged by the respondent. The respondent to succeed must not rely on the weakness of the appellant’s case, citing Gbadamosi v. Dairo (2002) 3 NWLR (Pt. 1021) 282 at 289; Yusuf v. Adegoke (2007) 11 NWLR (pt.1045) 932 at 339. Learned counsel urged that issue two should be resolved in favour of the appellant.
Learned Counsel to the respondent replied that the defendant’s case can support that put forward by the plaintiff, citing Akintola v. Olowu (1962) 1 SCNLR 352; Adeyeye v. Ajiboye (1987) 7 SCNJ 1; Iheanacho v. Ghigere (2004) All FWLR (pt.226) 204 and Edokpolor & co. Ltd. v. Bendel Insurance Co. (1997) 2 NWLR (Pt. 486) 133. Counsel drew this Court’s attention to the evidence of Joseph Ayim (Dw1) at pages 126-127 of the printed record where he testified that he knew the land in dispute. That the land had been subject of adjudication by the Ishibori Community. Patrick Uburuku Oko Utogor was buried on the land in dispute when the late mother of Dw1 was living on the property. Counsel argued that the appellant had filed a defence but failed to lead evidence in support of the pleadings, citing Aro v. Aro (2003) 3 NWLR (Pt.649) 433 at 457. Counsel’s address could not constitute evidence to support the pleadings, argued learned Counsel to the respondent. Reference was made to Obasuyi v. Business Ventures Ltd. (2000) 5 NWLR (Pt.658) 668 at 690; UBA Plc v. ACB (Nig.) Ltd. (2005) 12 NWLR (Pt.939) 232 at 277; Ishola v. Ajiboye (1998) 1 NWLR (Pt.532) 71 and Chukwuekwu v. Olalere (1992) 2 NWLR (Pt.221) 86. Besides, the appellant led contradictory evidence regarding how the property devolved to Late Ushuma Utogor, his late mother. This took away the honour of credibility from the evidence of the appellant, citing Ezenbu v. Ibeneme (2004) All FWLR (pt.223) 1786 at 1792. It was contended that there was no credible evidence of the root of title pleaded by the appellant, citing Ewo v. Ani (2004) All WLR (Pt.206) 1484 at 1488-1489. Where a person leads evidence that the land in dispute was communal property that has to be proved, argued learned Counsel to the appellant. Reference was made to Eze v. Igiliegbe (1952) 14 WACA 61; Atuanya v. Onyejekwe (1975) 3 SC without showing the page; Onowhosa v. Odiuzuo (1999) 1 NWLR (Pt.586) 173. Learned Counsel urged that issue two be resolved against the appellant and the appeal should be dismissed.
I shall start a consideration of issue two by determining whether the evidence relied upon by the parties in the lower Court can be said to constitute traditional evidence in the eyes of the law. See Kojo II v. Bonsie (1957) 1 WLR 1223 reproduced in Privy Council Judgments (2841-1973) by Olisa Chukura SAN 1980 edition, page 668 at 671.
His Lordship described traditional history as that which had been handed down by word of mouth from the forefathers transmitted from generation to generation. This may date back to as far as one hundred years or so. In that case the defendants had enjoyed the profits of the land without interruption for 80 years. Four generations had passed and there was no suggestion that the land was subject of a pledge. The failure of the plaintiff to draw the defendant’s attention to the fact that all these years the land was subject of a pledge negatived the plaintiffs claim to the land in dispute. In Ebu v. Ababio (1957) 2 WALR 55 also reported in judgments of the Privy Council (1841-1973) by Olisa Chukura, SAN it was held that:
“…Traditional evidence has a part to play in actions for declaration of title but there are cases in which a party can succeed even if he fails to obtain a finding in his favour on the traditional evidence.”
In the Stool of Abinabina v. Chief Kojo Enyimadu (1953) 12 WACA 171 Lord Cohen defined traditional evidence at page 172 as:
“… evidence as to rights alleged to have existed beyond time of living memory and proved by linguists or other members of the various tribes concerned – and partly factual as to actual events accruing within living memory.”
In Okonkwo v. Okolo (1988) 1 NSGC 909 at 924 Karibi-Whyte, JSC described traditional evidence at page 149-150 as follows:
“The true basis of and rationale for the admission of oral evidence of such transactions that is they are evidence of customary law, are not in writing and that the parties and witnesses of the transaction are most probably dead or no longer available. Antiquity is one, but not the only of the factors of the transaction that is to be considered. The fact that no witnesses can speak from personal knowledge of the transaction is a most persuasive and relevant consideration – See Alade v. Awo (1975) 4 SC at p.224. The Courts below were right in the view they took of the evidence of the transaction.”
See also Akwu v. Olubadan-In-Council 14 WACA 523 where the West African Court of Appeal again held at page 527 that:
“…There is no possible doubt in this point: Section 44 of the Evidence Ordinance provides that, where the title to or interest in family or communal land is in issue, oral evidence of family or communal tradition concerning such title or interest is relevant. Moreover, I would draw attention to the Gold Coast Case Stool of Abinabina v. Chief Kojo Enyimadu (1), where the Judicial Committee commented on the importance of traditional evidence in actions for declaration of title. Another case on the point is Kwamina Kuma v. Kofi Kuma (2). It need hardly be pointed out that the weight to be attached to traditional evidence is a matter which is left to the experience and wisdom of the Judge.”
In that case the traditional history as to how the land in dispute was acquired by the plaintiff’s ancestor dated back to 1824. In this appeal the respondent traced her root of title to her late father Uko Utogor who had acquired the land in 1955. There is no pleading as from whom the acquisition was made, namely, Ukumasha Community. The evidence goes to no issue and is expunged from the record. On the other hand the appellant pleaded in paragraph 10 of the Joint statement of claim that the land lying and situate at Ushi-tamte Street, Igoli-Ogoja was the landed property of Mr. Akpotu Igbaji who was the brother to the appellant’s mother Madam Ugair Amah. That Mr. Akpotu Igbaji was the first person that founded and settled on the parcel of land for farming purpose from time immemorial. This contradicts paragraphs 7 and 8 of the Joint Statement of defence and goes to no issue.
The phrase “from time immemorial” means “original ownership, and the acquisition of title several generations ago.” See Emegwara v. Mwaimo 14 WACA 347 at 348; see also Elias v. Suleimon (1923) 12 SC 113 at 116.
Whatever definition one may take of what constitutes traditional evidence it is clear that both parties were not testifying as to facts from their personal knowledge as to how they came to be on the land in dispute. At most one can say that the respondent relied on acts of acquisition and occupation of the land by her late father dating to 1955. In Moukarim v. Coker Privy Council Judgments 1841-1973 by Olisa Chukura SAN, page 973 Lord Hudson held in that case at page 977 that:
“The appellant himself did not rely upon his own documents of title for reasons into which it is unnecessary to enter but relied on his possessory title and in refusing a declaration the learned Judge rightly said that the onus was on the plaintiff to satisfy the Court that the evidence he had led is sufficient to establish his claim and if not satisfied that the onus had been discharged the Court must refuse the plaintiff the declaration even though there is weakness in the case for the defendant.”
In other words a party can rely on his acts of possession and occupation of the land without been able to prove evidence of traditional history provided such evidence satisfies the learned trial Judge to make the declaration. After all even where evidence of traditional history exists, where there are conflicts, to test the competing evidence of tradition, recourse has to be had to the acts of actual user of the land. See Lawal v. Dawodu (1972) 8-9 SC 83 where the Supreme Court held at pages 121-122 that:
“In a case of declaration of title to land, the onus is on the plaintiff to prove by traditional evidence or actual acts of possession or both that he is the owner of the land in dispute. If the evidence of tradition fails and indeed if it is proposed to test the probability of such traditional evidence, recourse must be had to the evidence of actual user and possession of the land in dispute. In the case in hand, the plaintiffs pleaded possession and gave the evidence earlier on set out… The Onibassa of Ibasa, a witness for the defence, confirmed that the plaintiffs’ people are in possession of that portion of the land in dispute on his own boundary, i.e. the south-east. As against all these, the defendant called only one witness, i.e. Gbadamosi Alaka who as (sic) a farmer at Tedi. Then there was the evidence of long possession as given by Ajimuti in Exhibit “K” and that of Alebiosu in Exhibit “L” showing the consistency with which the plaintiffs’ people have always asserted their claims of possession. The learned trial Judge rightly, in our view, made no findings of possession in favour of the defendants but failed, wrongly in our view, to make a finding of possession in favour of the plaintiffs despite the plethora of evidence, indisputable as well as undisputed, manifest in the record. In Lawrence Onyeakaonwu & Ors. v. Ekwubiri (1966) 1 All NLR 32 at p.35, this Court observed, in similar circumstances, as follows:
“Mr. Oputa agreed that Section 145 was against him, and conceded that the onus was on the defendants to prove that the plaintiffs were on the land with the defendants’ permission, but there was no finding in their favour that they were the owners and entitled to turn the plaintiffs out of the land.”
Thus it is conceded that in this case the primary onus of proof on the plaintiffs has been discharged; they have proved sufficient acts of possession to throw the burden of proof on the defendants under Section 145; they have established a prima facie case that they are the owners which the defendants must rebut if they are to avoid judgment for the plaintiffs. So much on the claim for declaration of title.”
The fact that a plaintiff can rely on his ancestor’s acts of occupation and user of the land in dispute dating back to some years in the past, in this case, 1955 is settled by decided authorities.
Having conceded ownership and acts of user in favour of the respondent’s late father dating back to 1955 the presumption in law is as set out in Section 143 of the Evidence Act, 2011 that:
“143 When the question is whether any person is owner of anything of which he is shown to be in possession, the burden of proving that he is not the owner is on the person who affirms that he is not the owner.”
See Laguro v. Toku (1992) 2 SCNJ (Pt. 2) 201; Udeze v. Chidebe (1990) 1 SCNJ 104. Therefore, the onus shifted to the appellant to prove a better title so as to oust the respondent from the land. This is a situation where the appellant’s case, by the admission in paragraphs 7 and 8 of the Joint pleadings supported the case of the respondent. See Oduaran v. Asarah (1972) 1 All NLR (Pt.2) 137. The planting of economic trees such as plantain, banana, coconuts, palm trees and sugar cane or the erection of zinc or mud houses or the burial of one’s loved ones on the land in dispute without objection from the appellant’s late mother all constituted act of enjoyment of the land where the late father of the respondent lived with his wives and children in his lifetime. See Ekretsu v. Oyobebere & Ors. (1992) 11-12 SCNJ (Pt.2) 189 at 205-206, 213-214.
In Idundun v. Okumagba (1976) 1 NMLR 200 the Supreme Court listed five ways of proving title to a disputed land, three of which I shall refer to:
“Thirdly, acts of the person (or persons) claiming the land such as selling, leasing or renting out all or part of the land; or farming on it or on a portion of it, are also evidence of ownership, provided the acts extend over a sufficient length of time and are numerous and positive enough as to warrant the inference that the person is the true owner (see Ekpo v. Ita, 11 NLR 68)…
Fourthly, acts of long possession and enjoyment of the land may also be prima facie evidence of ownership of the particular piece or quantity of land with reference to which such acts are done (see S.45 of the Evidence Act, Cap 62). Such acts of long possession, in a claim of declaration of title (as distinct from a claim for trespass) are really a weapon more of defence than of offence; moreover under Section 145 of the Evidence Act, while possession may raise a presumption of ownership, it does not do more and cannot stand when another proves a good title (see Da Costa v. Ikomi (1968) 1 All NLR 394, 398)…
Finally, proof of possession of connected or adjacent land, in the circumstances rendering it probable that the owner of such connected or adjacent land would, in addition, be the owner of the land in dispute, may also rank as a means of proving ownership of the land in dispute. (See S.45 of the Evidence Act, Cap 62)…”
Pw1’s evidence should not be read out of context. The witness testified that by the time the father of the respondent acquired the land there was no survey. Prior to 1960 the community will plant a tree to show that the area had been allocated to the person. That the witness could not testify as to the quantum of land allocated to the respondent’s late father by the Ukamusha Community should not be an issue because the extent of the land was not in doubt; it had already been admitted in the joint statement of defence by implication as I had earlier shown when considering issue one. Pw2 testified that in 1965 the respondent’s father built 4 rooms and roofed same with zinc. In 1972 he built another house at No. 9 Ntol Mgbeje Street Igoli -Ogoja. Pw2 was the mason that built the house in 1972. Though the respondent did not plead that her late father acquired the land from Ukamusha Community, Ishibori, Ogoja after giving Cola nut and drinks which goes to no issue, the fact still remained that the respondent’s father had acquired the land around 1955 and had continued to exercise acts of ownership and possession without interruption until the appellant started selling the land in the North and South followed by erecting a six room building which necessitated the institution of this suit against the appellant and the purchasers of portions of the land in dispute. The initial acts of trespass by the appellant is said to have started between March and September, 2003. The respondent (Pw3) testified as follows:
“Madam Ushima Utogor found her way to the land in dispute when she lost her husband M. Ugbut Alade living at Ukamusha Street, opposite Monday Igim Street, Ogoja. My father brought her to come and stay with him at No.9 Ntol Mgbeje Street, Ogoja. Whilst there she was quarrelsome to my late father’s wife. My father sent her to go and stay in his other house on the land in dispute to occupy 4 rooms in the 4-room house. While my father was still collecting rents in the remaining rooms. After the death of my father, she met us who would be collecting rents in the two rooms. We told her to be collecting the rents for her upkeep. We have rent receipt to show our father was collecting rents. This is the stub of the receipts… Exhibit “4” in Nkim custom the children of the deceased inherit their father’s property upon death. These acts were not by my consent. My father also owned other property, 9 Ntol Mgbeje Street, Ogoja. After filing this suit, the defendants continued their acts of trespass…”
See page 106 lines 10 to page 107 lines 1 to 10 of the printed record.
The evidence of Pw3 was not disparaged under cross-examination by the defence Counsel.
As to the boundaries of the land in dispute Pw3 testified as follows:
“My boundary neighbours are north: Mr. Asu’s compound and coconut tree, south, late Samson Uguge Uyan, East a swampy area for cultivation of crops. West an unnmaed road off Bansana Street, Ogoja.”
See page 104 lines 21 to 24 of the printed record.
Learned Counsel to the appellant did not discredit the above evidence by Pw3 under cross-examination. Rather Counsel took umbrage of the evidence of Pw3 when she testified that:
“I am asking for ownership, trespass and an injunction. The land is very large. But not having surveyed I cannot tell the court the exact extent.”
See page 111 lines 29-91 of the printed record.
Counsel argued that the respondent did not prove the extent of the land in dispute. I do not think so. The respondent testified that the land was very large as pleaded in paragraph 4 of the statement of claim. That the land had not been surveyed hence she did not know its extent. Nevertheless, the respondent gave evidence and clearly mentioned the names of her boundary men and the features along the boundaries. Learned Counsel to the appellant did not ask any question to discredit the evidence. Besides, no question was asked by learned Counsel to challenge or disparage the respondent’s evidence as to how the respondent’s late father came to occupy the land in dispute. If the learned Counsel to the appellant had intended to impeach or discredit the evidence of Pw3 he should have done so when she was testifying in the witness box. See Nwobodo v. Onoh (1984) 1 SCNLR 1 at 88.
It is improper for a defendant not to cross-examine a plaintiff on a material point but simply wait to call evidence on it after the plaintiff has closed his case. See Agbonifo v. Aiwereoba (1988) 2 SCNJ 146; Babalola v. The State (1989) 7 SCNJ 127 at 139 and Nkwa v. C.O.P. (1977) NWLR 98 at 103. Therefore the evidence of Pw3 on material issues as to ownership coupled with acts of possession on the disputed land remained unchallenged. Bearing in mind the fact that paragraphs 7 and 8 of the Joint statement of Defence did concede possession of the land in dispute to the respondent’s late father, the onus shifted to the appellant to prove how her ancestor came to be on the land. I am not surprise when his Lordship held at page 185 lines 20 to page 186 lines 1-10 of the printed record as follows:
“When and how did Akpotu Igbaji who he claims owns the land acquired it. Cry beloveth tradition. Cry history. Still on this elusive Akpotu Igbaji, Dw1 said in his evidence in-chief that he “owned the land from time immemorial”. Time immemorial before or during creation? Even then, did the land fall like manna from heaven into his hand?
The Defence itself was quite alerted and at home with the irretrievable all-time low and alarming short-fall in the traditional history or this its witnesses. Hence the Defence’s self-aborted desire to call the Clan Head whom it felt would have supplied all the ominously missing links in the traditional evidence of their Dw3. This is the revisit of the hurried closure of the case by the Defence which I promised. The Clan Head will never come again. The harm is accomplished. There is no repentance in the grave. If two ballot boxes are placed for the traditional history of the plaintiff and that of the Defence, a man who is blind from birth would trace his way to that of the plaintiff from what he heard from the two traditional evidence witnesses.
And so the Defence has woefully failed to prove the traditional history it had asserted.”
The learned trial Judge further held at page 187 lines 26 to page 188 lines 1-7 of the printed record as follows:
“Besides the success from that angel, other pieces of evidence also have positively favourable tale to tell still in respect of the title of the plaintiff. Exhibit “4” is a stub receipt evidencing the collection of rents by the plaintiff’s father over his property in the land in dispute. Interestingly enough, the receipt was tendered without objection.
The 1st Defendant having proved what he is by his own fruit had the incorrigible effrontery to testify that “the plaintiff’s late father never collected rent” in the full glare of Exhibit “4”. The 1st Defendant or indeed any other Defendants, I find and hold tendered nothing having the slightest semblance of title over the disputed property in their favour.”
These findings are supported by the evidence on record. Finally is the holding that:
“Now the hammer as the entire deed had been clinically done by me. I therefore resolve the only issue for determination that as between the plaintiff and the 1st Defendant, the plaintiff has proved and holds a better title to the land in dispute.
The erroneous belief of the Defendants on title over the land in dispute and whatever they did in or on the land in dispute have calamitously collapsed and drowned them in the turbulent water of trespass.
Lacking title, I adjudge the 1st Defendant and by extension the other two Defendants who were claiming under the phantom title paramount of 1st Defendant trespassers on the land in dispute.”
See page 189 lines 20-32 of the printed record.
All these findings are supported by the evidence on record. The appellant has not shown why the findings and conclusions of the learned trial Judge should be set aside.
Findings of fact by a trial Judge should not be interfered with by an appellate Court unless they are perverse or unsound. But the appeal Court will examine the grounds and look at the reasons that led to the conclusions and the inferences drawn from such conclusions. See Balogun v. Akanji (1988) 2 SCNJ 104 at 122; Fashanu v. Adekoya (1974) 6 SC 83 at 91 and Lokoyi v. Oloyo (1983) 8 SC 61. In this appeal I see no good reasons to disturb the judgment of the learned trial Judge.
lssue two is resolved against the appellant.
On the whole the appeal lacks merit and is dismissed with N50,000.00 cost to the respondent. The judgment of the lower Court is affirmed.
MOHAMMED LAWAL GARBA, J.C.A.: I have read a copy of the lead judgment delivered by my learned brother Joseph T. Tur, JCA, before today. The two (2) issues submitted to the court for decision by the learned counsel for the parties, have been fully considered therein and I agree with the views expressed thereon.
I would emphasise that the parties are clearly not in doubt or dispute about the land in respect of which the case was fought at the High Court.
Generally, the law is that in cases for claims of declaration of title or ownership of land and injunction, a plaintiff has the a primary duty or burden to prove clearly and unequivocally, the precise area to which his claims relate as no declaration would be made on title or ownership and injunction granted in respect of a land unless the boundaries of the area to be affected are ascertained, well known and properly described. See Epi v. Aigbedion (1972) 10 SC, 52, (72) 1 ANLR (2) 370; Idesola v. Ordia (1997) 3 NWLR (491) 17 at 29; Omoregie v. Idugiemwanze (1985) 2 NWLR (5) 41; Adelusola v. Akinde (2004) 5 SC (Pt. II) 71. However, the duty or burden of such proof will not arise where the identity of the land in question was never an issue in dispute between the parties. The issue of identity of a land and so the burden to prove same by a plaintiff would only arise where the defendant clearly raises it in his statement of defence. See Ezendu v. Obiawu (1986) 2 NWLR (26) 208; Fatuade v. Onwoamanen (1990) 2 NWLR (132) 322; Oguri v. Akinkelu (2004) 11 12 SC, 4 at 15; Falomo v. Onakanmi (2006) ALL FWLR (298) 1242.
In the instant appeal, as demonstrated in the lead judgment, the land claimed by the Respondent was known very well to the Appellant who did not in his pleadings make its identity an issue, but rather admitted the pleadings of the Respondent on its description and boundaries. The pleadings and evidence of the parties in the case made it obvious that they know the land in question and so the identity of the land cannot seriously be said to be in dispute or that it is unknown to them as to cast a burden on the Respondent to otherwise prove it. In any case, the pleadings and evidence of the description and boundaries of the land claimed by the,, Respondent have sufficiently been proved by her so as to make its identity certain and undoubtful for the purposes of the claims before the High Court.
In addition, under Section 46 of the 2004 Evidence Act in force at the time of trial, (now section 35 of the 2011 Act) acts of possession and enjoyment of land may be evidence of ownership or right of occupancy of not only of the particular piece or quantity of land with reference to which such acts are done, but also of other land so situate and connected with it by locality such that what is true of one piece is likely to be true of the other piece of land. This is also one of the judicially recognised ways of proving title to or ownership of land in Nigeria as shown in the lead judgment. See Agbara v. Amara (1995) 7 NWLR (410) 712; Adeniran v. Alao (1992) 2 NWLR (223) 350.
Similarly, such ownership or title to land can also be proved by various acts of ownership such as exercised over the land which are numerous and positive and extending over a length of time to warrant the inference of ownership.
The pleadings and evidence of the Respondent that the land was acquired by her father since 1955 and had exercised such acts of ownership during his life time and the Respondent thereafter, was not controverted by the Appellant and so the Respondent was entitled to succeed on her claims. The High Court was right to have entered judgment in her favour and I am in agreement with the conclusion in the lead judgment that this appeal lacks merit. I too dismiss it and affirm the decision of the High Court with costs assessed at N50,000.00 in favour of the Respondent.
ONYEKACHI A. OTISI, J.C.A.: I had the privilege of reading in draft the Judgment delivered by my learned Brother, Joseph Tine Tur, J.C.A. The issues raised in this appeal have been comprehensively addressed by my learned Brother. I agree that this appeal lacks merit, and I also dismiss the appeal.
Parties are bound by their pleadings. The court itself is as much bound by the pleadings of the parties as they are themselves. Once a party has admitted the existence and validity of certain facts by his pleadings, and, since one of the objects of pleadings is to ascertain what facts are agreed at the close of pleadings, evidence need not be led to prove such facts and the trial court would be right to accept the agreed facts as established without proof. A court of law is therefore entitled to give judgment based an admission by a party if the admission is relevant to the facts in issue. See: Salmatu v. Biba (1975) NNLR 176; Salawu v. Yusuf (2007) 5 S.C. 35: Agidigbi v. Agidigbi (1992) 2 NWLR (PT 221) 98.
The Supreme Court per Aniagolu, JSC (of blessed memory) in Owosho & Ors v. Dada (1984) NSCC 568 said:
“And a fact is deemed to be admitted if it is neither specifically denied nor denied by implication, having regard to other facts averred in the pleadings. A plaintiff’s averments of facts must be met by the defendant frontally and categorically. The rules of pleadings do not allow a defendant to be hedgy or evasive in his answers to the facts averred by the plaintiff. Once he refuses to meet the facts directly – either by admitting or by denying them, except, of course, where he is not in a position to admit or deny by reason of the matter, f or example, being peculiarly within the knowledge of the plaintiff – he is token to have admitted them.
The matter was put clearly by this Court in Messrs. Lewis and Peat (N.R.I) Ltd. v. A. E. Akhimien (1976) 7 S.C. 157: (1976) 1 All N.L.R. (Pt.1) 460 where Idigbe, J.S.C., in giving reasons for the judgment of the Court, stated the principle of 465 to p.466 thus:
“When as a result of exchange of pleadings by parties to a case a material fact is affirmed by one of the parties but denied by the other, the question thus raised between the parties is an ‘issue of fact’. We must observe, however, that in order to raise on issue of fact in these circumstances there must be a proper traverse; and a traverse must be made either by a denial or non-admission either expressly or by necessary implication. So that if a defendant refuses to admit a particular allegation in the statement of claim, he must state so specifically; and he does not do this satisfactorily by pleading thus: ‘defendant is not in a position to admit or deny (the particular allegation in the statement of claim) and will at the trial put the plaintiff to proof. As was held in Harris v. Gamble (1878) 7 Ch. D. 877 a plea that “defendant puts plaintiff to proof amounts to insufficient denial; equally a plea that the ‘defendant does not admit correctness’ (of a particular allegation in the statement of claim) is also an insufficient denial – see Ruffer v. Tregent (1879) 12 Ch. D. 758.”
The Appellant in paragraphs 7 and 8 of the Joint Statement of Defence of the Appellant and the 3rd Defendant admitted paragraphs 4 and largely paragraph 5 of the Statement of Claim, which identified the land in dispute; stated its history and initial occupants. Paragraph 22 of the Joint Statement of Defence was merely a general denial of the boundary neighbours of the land in dispute as identified by the Respondent in paragraph 22-23 of the Statement of Claim. I agree that from the pleadings, and indeed the evidence adduced of the trial, the identity of the land in dispute was not in doubt.
For these reasons and for the more comprehensive reasons given in the lead Judgment, I also dismiss this appeal.
I abide with the Order made in the lead Judgment, including the Order as to costs.
Appearances
E. Sani, Esq. For Appellant
AND
G. I. Ugan Esq. For Respondent
