MRS. NGOZI UWAHIANRI & ANOR v. MR. SOLOMON CHUKWUMA ONYEMAIZU & ANOR (2017)

MRS. NGOZI UWAHIANRI & ANOR v. MR. SOLOMON CHUKWUMA ONYEMAIZU & ANOR

(2017)LCN/9499(CA)

In The Court of Appeal of Nigeria

On Wednesday, the 15th day of February, 2017

CA/OW/11/2012

RATIO

EVIDENCE: MEANS OF PROVING TITLE TO LAND
In fact, the reverse of what the trial Court looked for, appears to be the case here, as what the trial Court sought should be expected only where evidence of traditional history fails, or where the traditional evidence given is inconclusive or challenged. In that situation, recourse is had to other means of proving the title claimed, like reference to acts of recent history eg, ownership/possession, to determine which party has a better title. See the case of Kojo II Vs Bonsie (1957) 1 WLR 1223; (2001) Vol. 86 LRCN 1492, where it was held:
“where there is conflict in traditional history, one side or the other must be mistaken, yet both may be honest in their belief. In such a case, demeanour is little guide to the truth. The best way to test the traditional history is by reference to the facts in recent years as established by evidence, by seeking which of the two competing histories is more probable. In the case of Enyinnaya Vs Otikpo (2015) LPELR 25529, this Court held:
“Where there is conflict in traditional histories The Rule in Kojo II Vs Bonsie (Supra) is only applicable, where the traditional histories (evidence) recounted by the two sides are both probable, or are conflicting and inconclusive, and a recourse is therefore had to other means, like acts of ownership and/or possession, to determine which party has a better title.” See Etim & Ors Vs Umoh & Anor. (2014) LPELR 22730. It was also held in that case of Enyinnaya Vs Otikpo (Supra):
“It should also be said that if the Plaintiffs traditional history fails or is adjudged inconclusive, while that of the defendant is conclusive and strong, there is no room to resort to acts of recent years, to assist in resolving conflict, as there is no conflict in the circumstances PER ITA GEORGE MBABA, J.C.A.

EVIDENCE: EFFECT OF BURDEN OF PROOF UNCHALLENGED OR ADMITTED BY DEFENCE
The law is that, where the evidence of the Plaintiff is unchallenged, or admitted by the adverse party, the Plaintiff can take the benefit of same and his case will be established on a minimal of proof. See SUU Vs Jobak Nig. Ltd (2012) LPELR 9932 CA. (2012) 49 WRN 53, where this Court relied on the case of Network Security Ltd Vs Dahiru (2008) ALL FWLR (pt.419) 475 at 498 to say that:
“In an action for declaration of title to land, trespass and injunction, the burden or onus of proof is always on the Plaintiff who must rely on the strength of his own case and not on the weakness of the defendants case, to show that he is entitled to the reliefs he claims. The exception is that where a defendant based his case on facts which support the Plaintiffs case, the latter can use the facts which support his case to establish his own case.” Adesanya Vs Otuewu (1993) 1 NWLR (pt.270) 414; Sanusi Vs Ameyogun; Odukwe Vs Ogunbiyi (1998) 8 NWLR (pt.561) 339; Osho Vs Ape (1998) 8 NWLR (pt.562) 492; Omokanye & Anor. Vs Adini & Anor. (2012) LPELR 7934 CA; PER ITA GEORGE MBABA, J.C.A.

JUSTICES

MASSOUD ABDULRAHMAN OREDOLA Justice of The Court of Appeal of Nigeria

ITA GEORGE MBABA Justice of The Court of Appeal of Nigeria

TUNDE OYEBANJI AWOTOYE Justice of The Court of Appeal of Nigeria

Between

1. MRS. NGOZI UWAHIANRI

2. EKESINACHI UWAHIANRI

(Substituted by the order of the Court made on 30th October, 2014) – Appellant(s)

AND

1. MR. SOLOMON CHUKWUMA ONYEMAIZU

(for himself and as representing ISRAEL ULONNAM ONYEMAIZU family of UMUANGA AMAKAMA, UMUAHIA SOUTH L.G.A.)

2. MR. CHIBUIKE NWOKO/CHIBUIKE ORJI

(for himself and as representing UMUARU family Family of OBIZI AMAKAMA in UMUAHIA SOUTH) – Respondent(s)

ITA GEORGE MBABA, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of Abia State High Court in Suit No. HU/105/2006, delivered on 23/6/2011 by Hon. Justice A.K. Ogwe, wherein the learned trial Court dismissed the claims of the plaintiffs in its entirety.

The plaintiffs, now Appellants, had sought the following reliefs from the Court below, as per their writ of summons, filed on 15/5/2006:

1) A declaration that the plaintiffs are entitled to the statutory Right of occupancy in respect of each portion of lands subject matter of this suit, namely: 4 portions of Okporoama land, 5 portions of Okpuaja land, 7 portions of Apu-ene land, 6 portions of Uzo Afrika land, 1 portion of Azu-Oba land, 2 portions of ihiahia Nkwota land and 4 portions of Okpula Umuanga land which are variously located at Umuanga Village, Amakama Olokoro, Umuahia South Local Government Area of Abia State.

2) An order commanding the Defendant and his people, their heirs, servants and or workmen, assigns and successors in title to respect, obey, abide by or accept the Customary sharing of the landed estate of Onyemaizu Awazie among

his surviving male children which was completely done between 1959 and 1962 by the Amala Umuaga Amakama Olokoro.

3) An Order permanently restraining the Defendant and his people, their heirs, servants, workmen, assigns and successors in title from trespass or further trespass to the portions of land, subject matter of this suit.

4) The Sum of N1,000,000.00 (one million Naira) being general damages for trespass.?

The 2nd Defendant (now 2nd Appellant) was joined in the Suit on 31/3/2009, at the instance of Plaintiffs. While the 1st Defendant filed a defence and defended the suit, the 2nd Defendant did not. At the end of the trial the trial Court, on the Issue one, considered by the Court said:

There was evidence of sharing from 1959, but there was no proof of who got what; none of the documents tendered by the Claimants established the sharing and who got what. By their case, Claimants rely on traditional evidence to prove their declaration of title claim. As I said above, since there was no clear proof of the sharing and what Jeremiah got. (sic) It cannot be said that they have proved their case on that heading. The Claimants must

succeed on the strength of their case and not on the weakness of the defence. Though the defence Counsel did this case with some measure of aloofness and almost being non-committant, that will not assist the Claimants See page 160 of the Records of Appeal

On Issue 2, the trial Court said:

?I hold that there is no evidence apart from the mere ipse dixit of CW1 that the enumerated lands are: ?ala Ndiehie? and how they became same. In view of the fact that Jeremiah Onyeamaizu was the family head at the time of redemption, there should be some evidence that proves that the redemptions were in his personal capacity. Of course, I had also stated that the particulars of the sharing as to who got what share were not proved.? (page 161 of the Records)

On Issue 3, the trial Court held:

?In view of my findings in the two Issues above, this issue is resolved against the Claimants. In the final analysis, I find that the case put forward by Claimants is presumptuously weak and falls short of the standard of proof required in such cases; The Suit must fail and I hereby dismiss it in its entirety.? (Page

161 of the Records)

Dissatisfied with the above holdings, Appellants filed their Notice of Appeal on 13/7/2011 and raised four (4) grounds of Appeal, as per pages 162 to 165 of the Records of Appeal. They filed Amended Brief of Arguments on 16/9/15 which was deemed duly filed on 30/9/15.

In their brief, Appellants donated the following 4 issues for the determination of the appeal:

1) Whether the original claimants proved their claim of title by traditional evidence but were denied judgment by the learned trial judge through improper evaluation of the evidence before him (Issue 1)

2) Whether the learned trial Judge wrongly applied the law or whether he applied the wrong law in reaching his decision in the suit to the prejudice of the Appellants. (Ground 2)

3) Whether the learned trial judge ascribed probative value to the material evidence laid by the original Claimants in support of their claim of title when no regard was had to evidence laid that sharing of common/family lands of late Onyemaizu Awazie, forebear of the parties (except 2nd Defendant) was completely done in 1959 through 1962. (Ground 3)

4) Whether the learned

trial Judge considered fully in his judgment the status of the 2nd Defendant when he made no findings or no pronouncement concerning the 2nd Defendant vis a vis claims of the original claimants and evidence laid by their witnesses. (Ground 4).

The 1st Respondent filed his Brief on 30/9/2015 and adopted the 4 Issues donated by Appellants for the determination of the appeal.

Appellants filed a Reply brief on 8/7/2016. (The original claimants were substituted by this Court on 30/10/14, upon their demise, with the Appellants on record).

The Appeal was heard on 18/1/2017 when parties adopted their briefs.

Arguing the appeal, Chief M.I. Ucheji (who settled the brief for Appellants) arguing Issue 1, submitted that Appellants had proved their title by their uncontradicted traditional evidence, led at the trial.

Counsel relied on the evidence of CW1 and CW2, which he said, were conclusive and never rebutted; he said that the evidence of CW1 and CW2 were not cross-examined; that failure of Respondent to cross-examine the CW1 and CW2, who gave evidence on traditional history, was fatal to the allegation of joint/common ownership of

the disputed lands as alleged by the 1st Respondent. Counsel said that the 1st Respondent admitted or conceded the fact that there was complete sharing of the landed estate of Onyeamaizu Awazie by the fathers of 1st Defendant and the claimants, and that the claimants owned parts of the lands in dispute, got from the sharing of the said estate of Onyemaizu Awazie. Counsel relied on the evidence of DW1 (1st Defendant), even though DW1 claimed the sharing was done between 1953 and 1955, whereas claimants said it was done between 1959 to 1962.

Counsel also said the Respondents failed to give evidence of their traditional history, but rather relied on that of the Claimants. He argued that failure of the trial judge to follow its findings on the traditional evidence by the Appellants, and rather held for the Respondent, who had admitted the evidence of claimants and conceded to the sharing of the land, occasioned a miscarriage of justice; Counsel said that the trial Court relied on unsubstantiated unreliable and unsupportable pledge and redemption story, of the 1st Defendant in reaching its decision, without comparing the same with correct pledge story of the

claimants and their witnesses; that in civil cases, the burden of proof is on the party who asserts the affirmative of an issue. He relied on the case of Odukwe vs Ogunbiyi (1998)6 KLR (Pt.67)1523.

Counsel said that by not following his specific findings on specific issue of traditional evidence in his judgment, the trial judge merely embarked on speculations or mere conjecture devoid of proper evaluation (Obasi vs Merchant Bank (2005) 21 NSCQR ? 275, ratio 4).

He argued that it is a miscarriage of Justice when the Court fails to follow, in its judgment, specific findings made on the traditional evidence led; that the trial judge failed to advert himself to the evidence of the parties or failed to properly evaluate the evidence of the parties, after DW1 had admitted or conceded the sharing. He added that the trial judge rather relied on its findings on unpleaded facts and unsubstantiated evidence of DW1 during cross examination, which were unsupportable. Counsel referred us to the evidence of 1st Defendant on pages 49, 57 and 58 of the Records and submitted that a trial judge has a duty, not only to evaluate evidence in a case, but also to do

so, adequately, and make appropriate findings of facts; failure to do so, that Appellate Court can disturb such findings for being perverse. He relied on Wilson vs Oshin (2000) 13 KLR (Pt.106) 2729; Osho vs Ape (1998) 6 KLR (pt.67) 1571.

Counsel submitted that though a plaintiff, has to succeed on the strength of his own case, it was held in the case of Akinola vs Oluwa (1962) 2 All NLR 224, that the case of the Defendant can support the case of the Plaintiff. He relied on the case of Chidiak vs laguda (1964) NWLR 123 to say that the trial Court has a duty to consider the case of both parties.Mogaji & Ors vs Odofin & Ors. (1978) 314 SC 91, Woluchem & Ors Vs Gudi & Ors (1981) 5 SC 291.

Counsel urged us to interfere with the findings of the trial Court; that the evaluation of the evidence by the trial Court was perverse. Kazeem vs Mosaku (2007) 29 NSCQR 254. He relied on the five ways of proving title to land and submitted that the trial Court failed to apply the principles in the case of Idundun & Ors vs Okumagba & Ors (1976) 9 ? 10 SC 227; Odogwu vs Onochie (2002) 8 NWLR (Pt.769) 254.

He urged us to interfere and reverse the

decision of the trial Court, relying on Yusuf vs Adegoke & Odetunde (2007) 30 NSCQR 269, Adah vs NYSC (2004) 19 NSCQR 220, Oyadare vs Keji (2005) 21 NSCQR 58, saying that Appellants had proved their case by credible evidence which Respondents did not controvert.

On issues 2 and 3, which Appellants Counsel argued together, Counsel said that in reaching its decision, the trial Court relied, heavily, on the cited case of David Fabunmi vs Abigail Ade Agbe (1985) 1 NWLR (Pt.299); but that the trial Court had agreed with the evidence of traditional history led by CW1, which findings did not, however, inform the judgment of the Court. Counsel argued that the trial Court, having made findings accepting the traditional evidence of the claimants, who are not of the same parents with the Defendants, should not have relied on other conditions or circumstances to sway it in the belief that claimants had proved root of title.

Counsel submitted that proof of any of the five ways of proving title suffices for declaration of title. He relied on the case Iroagbara vs. Ufomadu (2007) 18 NSCOR 222; Idundun vs. Okumagba & Ors (1976) 9 -10 SC 227. Counsel added that

even where the trial Court failed to make findings on traditional evidence led, which was found to be conclusive, the Appellate Court can make a finding on it. He referred us to the evidence led by the Appellants and witnesses in respect of traditional history and said that it was compelling, direct/straight (as held by the trial judge), conclusive and uncontradicted; that the evidence was succinct on how the disputed lands devolved on them through inheritance; and the evidence was direct on the sharing, which evidence was unassailable, as against that of the 1st Respondent and his witnesses; he said that the evidence of recovery or redemption of lost lands (Alandichie) was direct and supportable by credible documentary or oral evidence of CW1, CW2 and CW3; that the Defendants did not deny the traditional evidence of the customary law principle of Alandichie on which claimants adduced oral and documentary evidence to show that it existed and was relevant in this case. Counsel asserted that the claimants clearly relied on the strength of their own case, and that they proved title, based on their traditional evidence, which was conclusive.

Counsel said

that the trial Court can rely on evidence of one witness, such as the CW1, whose evidence the Court found to be direct or straight and in line with the pleadings and relief sought (the law does not require a million witnesses), if the one witness is found to be compelling, uncontradicted, credible and conclusive; he said that proof in civil cases is on the preponderance of evidence, and once this onus of proof is discharged, as in this case, the party claiming declaration, is entitled to judgment in his favour.

On Issue 4, Counsel said that the 2nd Respondent was joined on account of his trespass and adverse claim to 4 portions of Okporoama land, but he did not join issues with the claimants, filed no brief and did not defend the suit; that at the trial, CW1, CW2 and CW3 gave evidence which were not contradicted on the issue; that 2nd Respondent had therefore admitted the evidence and the trial Court should have acted on the uncontradicted evidence. He relied on the case of Okorocha vs. Akor (2003) 6 FR 42 Osasona vs. Ajayi (2004)18 NSCQR 409.

Counsel urged us to resolve the Issues for Appellants and allow the appeal.

Counsel for the

1st Respondents, C.U.C. Imo Esq. (who settled the Brief), observed that the Claimants? Counsel had successfully applied to foreclose the defence, thus, CW1 and CW2 were not cross examined in their evidence of traditional history, which the 1st defendant had denied ? See page 16 of the Records. Counsel said the traditional history was nothing other than the purported ?lost land? of the family; that the claimants failed to establish; he said that it was the father of the 2nd Claimant (who was a younger brother of the father of the 1st defendant) and who did not even know their father, (Onyemaizu) nor their grandfather (Awazie), who would have exclusive knowledge of the ?lost land?. He said that it was not just a portion of land, but a long list of pieces of land claimed to have been pledged away by Awazie Onyebu; that when claimants? Counsel cross examined 1st defendant, true answers (which Counsel did not expect) were given by 1st defendant; that 1st defendant was a party to the redemption of the so called ?lost lands? and his late father Ulonnam Onyemaizu was the person who pledged same. Counsel said not

even CW2 who was a maternal uncle of the 2nd Claimant, had a better story.

Counsel said that, in the circumstances, the claimants, who were not cross examined on their doubtful evidence, lost what they thought to have gained from their application for ?foreclosure?, when their Counsel cross examined 1st Defendant (an old man, quite at home with his facts about his family property). Counsel said the trial Court required the evidence by 1st Defendant for his imaginary scale in the principle of Mogaji & Ors vs. Odofin & Ors (1978) 4 SC 91 at 93 ? 98; that the trial Court was right when he declined to declare title for the Claimants, based on their traditional history, which the Court referred to as ipse dixit, relying on the David Fabunmi?s case (1985) 1 NWLR (Pt.2) 299.

Counsel submitted that, the 2nd Claimant, by holding on to the title to the ?lost land?, resisted sharing; that it was surprising the 2nd Claimant was even relying on acts of ownership and exclusive possession to sue for trespass, damages, and injunction; That the Court required both a proof of what was awarded from the sharing pleaded and

proof of the trespass to entitle the Claimants to damages and injunction. Counsel added that the multitude of authorities cited by Appellants, to condemn the judgment, were not applicable.

Counsel also submitted that the Records of Appeal does not contain the extraneous matter which Appellants alleged the Court based its decision on; rather that the Records was clear that 1st Defendant had denied, in the pleadings, the alleged ?lost lands?; he said that the traditional history was correct and acceptable, excepting that issue of ?lost land?.

Counsel also relied on the explanation by 1st Defendant to the effect that the unshared portions of land were shareable; that, the reasons they were not shared included the fact that the father of Appellants, where 1st Defendant was family head, had refused sharing the land with the children of Ulonnam Onyemaizu, because they were grandsons, not direct son, as Appellant; that the second reason was that by custom the portions of land in the possession of Onyemaizu?s widow were not shared, and the third was that his father, Ulonnam, who pledged some portions of the land, like

Okporoama, to solve the trouble caused by Jeremiah, remained unshared until redeemed. (However, he (DW1) said this Okporoama lands were eventually redeemed by the family; that the said Okporoama lands were pledged to the 2nd Defendant whom Appellants joined as party in the suit) Counsel said the 2nd Defendant did not testify, and filed no process in the suit, because he did not know why he was joined.

Counsel also submitted that the evidence of 1st Respondent did not disclose or admit complete sharing of the Estate of Onyemaizu Awazie. He urged us to resolve the issues against the Appellants and to dismiss the Appeal.

RESOLUTION OF THE ISSUES

I think the four Issues, distilled by Appellants, for the determination of this Appeal are inter-related and central on one and the same issue, namely, whether the Claimants had proved their claims of rights to the portions of land they claimed, as per their traditional history (evidence), but were denied judgment, because the trial Court improperly evaluated the evidence adduced before him?

?That appears to be Appellant?s Issue one, and the summary of all the other issues. Thus, whether the

trial judge wrongly applied the law in reaching his decision (Issue 2), or failed to ascribe probative value to the material evidence led by Claimants (Issue 3), or failed to consider, fully, in the judgment, the status of the 2nd Defendant, when he (Judge) made no findings or pronouncement concerning the 2nd Defendant (Issue 4), appear to be intertwined in the single issue, as reframed, above.

Appellants had insisted that they led clear, consistent and unchallenged conclusive traditional evidence on their root of title to the lands in dispute, which the trial Court accepted in its findings, and which the 1st Respondent even admitted, and had also admitted the sharing of the Estate of Onyemaizu Amazie; but that, the trial Court failed to advert its mind to the evidence of the parties, or to, properly, evaluate the same, and rather relied on unpleaded facts and unsubstantiated evidence to give judgment against them (Appellants), occasioning miscarriage of justice.

The learned Counsel for Appellants while summarizing the evidence led at the trial by the parties had stated, as follows, on pages 129 to 131 of the Records of Appeal:

i. The CW1 and

CW2 gave evidence (written statement on oath) and they were not cross examined by the Defendants or their Counsel and, in fact, the 2nd Defendant did not defend the suit.

ii. The CW1 testified to the effect that the landed estate of Onyemaizu Awazie (his grandfather) were completely shared between their late father, Jeremiah Uwahianri Onyemaizu, and the father of the 1st Defendant, late Israel Ulonnam Onyemaizu between 1959 and 1962. The CW1 relied on the Exhibit ?J? which is diary of events of late Jeremiah Onyemaizu, made between 1958 and 1959, which exhibit was never impeached. CW1 also relied on his family history.

iii. In his own testimony, CW2 Mr. Otuonye Mathew, a native of Umuokoroukwu village, Amakama Olokoro and a maternal relation of the claimants and the 1st Defendant also confirmed that he knew, through family history as told him by his father, that the common landed inheritance of the claimants and the 1st Defendant from the landed estate of late Onyemaizu Awazie were completely shared between the fathers of the claimants and the 1st Defendant between 1959 and 1962 by the Amala Umuanga amakama. His evidence on the said

sharing between 1959 and 1962 was also not impeached.

iv. The evidence of CW1 and CW2, with regard to the period of the said sharing, were in line with the pleadings of the claimants in their Further Amended Statements of Claim as well as in their Reply to Statement of Defence of the 1st Defendant, and their said evidence were never impeached.

v. In his own testimony the DW1 (1st Defendant) gave evidence that the said sharing of the common landed estate of Onyemaizu Awazie was done between 1953 and 1955. He was the sole witness who gave evidence on his date of the said sharing between 1953 and 1955. DW2 and DW3 never gave evidence on the alleged sharing done between 1953 and 1955.

vi. The DW1 gave evidence that he mentioned to the Amala Umuanga (who also conducted the purported sharing between 1953 and 1955) in 1981 when his late father?s landed estate was shared between him and his male siblings, that there were common landed inheritance in the landed estate of Onyemaizu Awazie left unshared, which lands he claimed to be among the lands subject matter of this suit. DW1 stated on cross-examination on 30/6/2010 that DW2 was one of the people

of Amala Umuanga who were present and witnessed the sharing of his late father?s landed estate in 1987 and who heard and witnessed when he mentioned to the said Amala Umuanga that there remained unshared some common landed inheritance in the estate of Onyemaizu Awazie.

vii. In his Statement on Oath, dated 28/6/2010, the said DW2 (David Igbodike Apugo) did not state that he witnessed the sharing of late Israel Ulonnam Onyemaizu (DW1?s late father) landed estate in 1981 or at any other time and, on cross examination, on 9/11/2010, he also stated that he was not aware of the sharing of the said estate. The evidence of DW1, materially contradicted the evidence of DW2 on the left over lands, which do not exist, as the DW2 denied his presence and any knowledge of any complaint of DW1 to the Amala Umuanga of any existing left over common landed inheritance.

viii. There is no doubt that the said sharing of the landed estate of Onyemaizu Awazie was completely done between 1959 and 1962 and there was no left over, as given in evidence by CW1 and CW2 respectively.

But the trial Court, in its findings stated as follows, on pages 156:

?On that 29/4/2010 when CW1 concluded his evidence in chief, though 1st defendant was present in Court, he was unrepresented by Counsel and did not cross examine the witness, Chief Ucheji applied that the cross examination of CW1 be fore-closed and it was granted. CW2? then testified by adopting his deposition. Ucheji also applied for his cross examination to be foreclosed as 1st Defendant could not cross examine him, and it was granted

But on pages 159 and 160 of the Records, the trial Court said:

?Chief Ucheji submitted that CW1 and CW2 gave evidence that the estate of Onyemaizu Awazie were completely shared between the fathers of Claimants and 1st Defendant between 1959 and 1962. He relied on Exhibit ?J? which he said was not impeached. CW2?s evidence was based on family history. Let me start with Exhibit J. That exhibit is a Diary of events written in Igbo language which is not the language of the Court. The Claimants did not say what pages they relied on. They did not interpret the recordings into English language, the language of the Court. Apparently, they expected me to read and interpret

the contents of the said book. Unfortunately, I cannot do that; therefore I hold that Exhibit J proved nothing and goes to no issue?

It is true that Defendant did not cross examine CW2. The effect is that their evidence is unchallenged. But what is the effect of that in a declaratory action, should I accept their unchallenged evidence as proof of title? The law is trite that declaratory reliefs are not granted on the admission of parties, but on legal proof. In other words, the unchallenged evidence of CW1, notwithstanding, Claimants must prove their case See the case of David Fabunmi vs Abigail Ade Agbe (1985) 1 NWLR (Pt.2) 299.?

Whereas, the trial Court was perfectly in order, when he held that a Plaintiff does not have to rely on admission by defendants to establish declaratory reliefs sought, as the Plaintiff still has a duty to prove his case on the strength of his own case, I do not think that situation and the case of Fabunmi vs. Agbe (supra) applied to this case, whereof the Appellants? case was founded on traditional history, and the trial Court had accepted the traditional history (evidence), presented by the Appellants

as unchallenged; that ?CW1 gave the only direct evidence of the sharing, and the land being by their own by inheritance?; that ?There was evidence of sharing from 1959, but there was no proof of who got what, none of the documents tendered by claimants established the sharing and who got what. By their case, claimants rely on traditional evidence to prove their declaration of title claim. As I said above, since there was no clear proof of the sharing and what Jeremiah got, it cannot be said that they have proved their case on that heading.?

With due respect to the learned trial Judge, I think the above findings and holdings were fraught with conflicts and inconsistencies, which resulted in perversion. He had held that ?there was evidence of sharing in 1959 but no proof of who got what? and later somersaulted to say ?none of the documents tendered by claimants established the sharing That can not be correct or logically sound!

Of course, where evidence of traditional history is cogent, unchallenged and conclusive, in a case, there is no need to seek for other supporting evidence or documents to

establish the claims disclosed by the traditional history.

In fact, the reverse of what the trial Court looked for, appears to be the case here, as what the trial Court sought should be expected only where evidence of traditional history fails, or where the traditional evidence given is inconclusive or challenged. In that situation, recourse is had to other means of proving the title claimed, like reference to acts of recent history eg, ownership/possession, to determine which party has a better title. See the case of Kojo II Vs Bonsie (1957) 1 WLR 1223; (2001) Vol. 86 LRCN 1492, where it was held:

?where there is conflict in traditional history, one side or the other must be mistaken, yet both may be honest in their belief. In such a case, demeanour is little guide to the truth. The best way to test the traditional history is by reference to the facts in recent years as established by evidence, by seeking which of the two competing histories is more probable.?

In the case of Enyinnaya Vs Otikpo (2015) LPELR 25529, this Court held:

?Where there is conflict in traditional histories? The Rule in Kojo II Vs Bonsie

(Supra) is only applicable, where the traditional histories (evidence) recounted by the two sides are both probable, or are conflicting and inconclusive, and a recourse is therefore had to other means, like acts of ownership and/or possession, to determine which party has a better title.” See Etim & Ors Vs Umoh & Anor. (2014) LPELR ? 22730.

It was also held in that case of Enyinnaya Vs Otikpo (Supra):

?It should also be said that if the Plaintiff?s traditional history fails or is adjudged inconclusive, while that of the defendant is conclusive and strong, there is no room to resort to acts of recent years, to assist in resolving conflict, as there is no conflict in the circumstances

In this case, the evidence by PW1 (CW1) (the original 2nd Claimant) which was held to be unchallenged by the trial Court was:

?I sued him (1st Defendant) in a representative capacity over some parcels of land, namely: Okpula Umuifimo or Uzo Africa ? 6 portions, there, Apuene ? 7 portions, Okporoama ? 4 portions, Okpuja ? 5 portions, Azuoba, Iheahiankwota ? 2 portions, Okpula ?

4 portions. The 4 portions of Okporoama were redeemed by my father, Jeremiah, one in 1979, the other 3 in 1985. They were redeemed from 4 different persons? My father was awarded the land? My father got those lands from sharing of their father?s estate with his older brother Israel Ulonna Onyemaizu, the defendant?s father. My father also redeemed some portions that formed part of his estate, which we inherited. The sharing was started in 1959 and concluded in 1962 See pages 82 and 83 of the Records.

PW1 also tendered the receipts or documents that showed the redemption of the Okporoama lands from Oti Nwoko (Exhibit E); from Gbaruka (Exhibit F), from Nwaomangoja Ekeke (Exhibit G); the redemption of some Apuene land by his mother from Ogbauna Obazi (Exhibit H). See pages 84 ? 85 of the Records.

On page 96 of the Records of Appeal, the PW1 said:

?The entire property of Onyemaizu was shared, nothing was left…?

On pages 93 and 94, he had said:

?The sharing took place between 1959 and 1962 ? 4years ? which is the usual sharing cycle. The lands shared were the

lands of their father, Onyemaizu Awazie ? deceased. The two surviving sons buried him. Among the lands in dispute are those my father got, as his share and those he redeemed. His share were four portions at Uzo Africa, at Apuene Six portions, at Opula ? the whole 4 portions, at Opuaja 2 portions, Azuoba, Ihiahiankwota, Okporoama 2 portions. I had been farming on those lands with my father. He also told me the stories and I also have the Diary he kept between 1958 to 1985. I see this Diary shown to me. It is the said Diary. I got it upon his death in 2000. It is part of his estate.? (The said Diary was admitted as Exhibit J).

Of course, the 1st Respondent?s evidence supported the above claims of the Appellant on the sharing of the lands or estate of Onyemaizu Awazie (even though he stated a different period (1953 ? 1955) as the time of the sharing! See page 117 of the Records, where 1st Defendant (as DW1), under cross examination, said:

?The estate of Onyemaizu Awazie was shared in 1953, 1954 and 1955. It is not true the estate was shared in 1959, 1960, 1961 and 1962.?

On pages 114 to 115, DW1 said:

?I know how the estate of my grandfather Onyemaizu Awazie was shared? I know. I carried the wine for my father and his brother after the sharing, when they went to inform Onwukwe Amajo, their relation, to inform them that Umuanga had shared the estate for them. They shared Okporoama land leaving 4 portions, on pledge. They shared Uzo Africa, except one portion on pledge. At Apu-ene, they shared it leaving off 2 portions on pledge. At Ihiahia nkwonta, they shared all except one portion on pledge. At Okpuaja 5 portions ? not shared.?

On whether he knew who got what, DW1 said:

?They were all shared into 2 portions, each? We all have lands at Okporoama. Their father and my father got shares there, as their inheritance at the 1953 sharing. Their father and my father got 5 portions each at Okporoama. The 1st Son will first take a portion before the rest are shared. It is not our custom that a parcel of land pledged by a son after the death of his father is included in the estate for sharing. Rather, it is when it is redeemed or it will be given to the pledger as his share. The pledged parcels are mentioned during the

sharing, but not shared.?

With such evidence on the Records, as x-rayed above, I think it was strange and self-conflicting for the learned trial judge to hold as he did on page 160 of the Records:

?There was evidence of sharing from 1959, but there was no proof of who got what, none of the documents tendered by the Claimants established the sharing and who got what? there was no clear proof of the sharing and what Jeremiah got

That was wrong and perverse, in the light of the evidence, even by DW1 and the findings of the trial Court. The 1st Defendant had admitted the sharing and had stated who got what and even in line with the pleading and evidence of the Appellants, which was never challenged. It is absurd that the trial Court claimed there was no document tendered to show the sharing and who got what, when the Diary it said proved nothing, was also held by the Court as ?Diary of events, written in Igbo language.? Of course, the Diary and other exhibits had been admitted to show the sharing and/or redemption of the lands, without challenge!

The law is that, where the evidence of the Plaintiff

is unchallenged, or admitted by the adverse party, the Plaintiff can take the benefit of same and his case will be established on a minimal of proof.

See SUU Vs Jobak Nig. Ltd (2012) LPELR 9932 CA. (2012) 49 WRN 53, where this Court relied on the case of Network Security Ltd Vs Dahiru (2008) ALL FWLR (pt.419) 475 at 498 to say that:

?In an action for declaration of title to land, trespass and injunction, the burden or onus of proof is always on the Plaintiff who must rely on the strength of his own case and not on the weakness of the defendant?s case, to show that he is entitled to the reliefs he claims. The exception is that where a defendant based his case on facts which support the Plaintiff?s case, the latter can use the facts which support his case to establish his own case.” Adesanya Vs Otuewu (1993) 1 NWLR (pt.270) 414; Sanusi Vs Ameyogun; Odukwe Vs Ogunbiyi (1998) 8 NWLR (pt.561) 339; Osho Vs Ape (1998) 8 NWLR (pt.562) 492; Omokanye & Anor. Vs Adini & Anor. (2012) LPELR 7934 CA;

In this case, at hand, as earlier stated, the trial Court had made findings that there was evidence of sharing of the estate of the ancestor of

the parties, and that the respective sides inherited and owned what were shared to them. That findings agreed with the case of the Appellants and was supported by the admission by the 1st Respondent. The Appellants were, therefore, entitled to take advantage of such admission by the Defendant, in further proof of their claim. The holding of the trial Court was therefore perverse and the case of Fabunmi Vs Agbe (Supra), relied upon by it is in-applicable.

It is obvious, the parties knew the identities of the lands they were talking about, having earlier been shared and given to the Appellants and/or redeemed by their father.

I resolve the issue for the Appellants and hold that the Appeal is meritorious. I allow it and set aside the decision of the trial Court, delivered on 23/6/2011. I hereby enter the judgment which the trial Court ought to have entered, in the circumstances for Appellants, namely:

(1) A declaration that the plaintiffs are entitled to the statutory Right of occupancy in respect of each portion of lands subject matter of this suit, namely: 4 portions of Okporoama land, 5 portions of Okpuaja land, 7 portions of Apu-ene land, 6

portions of Uzo Afrika land, 1 portion of Azu-Oba land, 2 portions of Ihiahia Nkwota land and 4 portions of Okpula Umuanga land which are variously located at Umuanga Village, Amakama Olokoro, Umuahia South Local Government Area of Abia State.

(2) An order commanding the Defendant and his people, their heirs, servants and or workmen, assigns and successors in title to respect, obey, abide by or accept the Customary sharing of the landed estate of Onyemaizu Awazie among his surviving male children which was completely done between 1959 and 1962 by the Amala Umuanga Amakama Olokoro.

(3) An Order permanently restraining the Defendant and his people, their heirs, servant, workmen, assigns and successors in title from trespass or further trespass to the portions of land, subject matter of this suit.

(4) The Sum of N500,000.00 (Five Hundred Thousand Naira) being general damages for trespass.?

The 1st Respondent shall pay the cost of this Appeal, assessed at Forty Thousand Naira (N40,000.00) only.

MASSOUD ABDULRAHMAN OREDOLA, J.C.A.: I have had the advantage of reading in draft the lead judgment just

delivered by my learned brother, Ita George Mbaba, JCA. My noble Lord has admirably and commendably dealt with the inter related and central single issue as reframed for determination in this appeal. Indeed and in the said lead judgment, my learned brother, concisely and decisively covered the field. Hence I do not intend to add anything thereto. Thus, I am on the same page with the reasoning and conclusion reached therein which I respectfully adopt as mine. I thereby join my learned brother in adjudging the instant appeal as being meritorious. It is accordingly allowed by me. I also subscribe to the consequential orders made in the said lead judgment of my learned brother, Mbaba, JCA inclusive of the one made with regard to costs.

TUNDE OYEBANJI AWOTOYE, J.C.A.: I had the opportunity of reading the draft of the judgment just delivered by my learned brother I. G. Mbaba (J.C.A.). I entirely agree with his lordship.

The findings of the lower Court on the proof of who got what from the 1959 sharing was clearly against the flow of the evidence before it. This made the decision of the lower Court perverse.

I also resolve the sole issue identified by my learned brother in favour of the appellant. I agree

that the appeal has merit. I also allow it. I abide by the consequential orders (including cost) made in the lead judgment.

Appearances

CHIEF M.I. UCHEJIFor Appellant

AND

G.U.C. IMO, ESQ. for 1st RespondentFor Respondent