NTOE EDET ETIM OMIN & ORS v. USANG ITA ETIM & ORS(2002)

NTOE EDET ETIM OMIN & ORS v. USANG ITA ETIM & ORS

(2002)LCN/1262(CA)

In The Court of Appeal of Nigeria

On Wednesday, the 10th day of July, 2002

CA/C/31/98

 

JUSTICES

DENNIS ONYEJIFE EDOZIE   Justice of The Court of Appeal of Nigeria

SIMEON OSUJI EKPE   Justice of The Court of Appeal of Nigeria

SULE AREMU OLAGUNJU   Justice of The Court of Appeal of Nigeria

Between

 

NTOE EDET ETIM OMIN & 3 OTHERS (For themselves and as representing ?Ikot Omin Calabar?) Appellant(s)

AND

USANG ITA ETIM & 24 OTHERS Respondent(s)

OLAGUNJU, J,.C.A. (Delivering the Leading Judgment): The appeal is from the decision of Ita, J., of Calabar Judicial Division of the Cross River State High Court, dismissing the appellants’ claims for trespass on Ikot Omin land, N50,000 damages and perpetual injunction restraining the respondents ‘from continuing or repeating the acts’ of trespass.
Upon the parties’ pleadings, the bone of contention was whether as claimed by the plaintiffs, the land in dispute is the communal property of Ikot Omin people or as contended by the defendants/respondents, it is the property of the family of the 1st defendant/respondent, who deforested the land in dispute, which through the line of succession devolved upon him after his father’s death. At the trial, the argument wound round the custom regulating the acquisition and ownership of land in Ikot Omin and the typical types of tenure known to the customary law of the area. After examining the pleadings of the parties and the evidence led thereon the learned trial Judge held that he was ‘not satisfied that the plaintiffs (had) proved their case’ and dismissed the plaintiffs’ action.
Dissatisfied with that decision the plaintiffs/appellants filed a notice of appeal with 7 grounds of appeal including an omnibus ground from which the following 7 issues were formulated in the appellants’ brief of argument:
“1. Whether root of title to land was established in the community by the plaintiffs and if so did the onus shift to the 1st defendant to prove individual land holdings by deforestation of communal land?
2. Whether the learned trial Judge properly evaluated the evidence of the parties by placing same on an imaginary scale to see which was heavier before making findings of fact on them?
3. Whether it was necessary to substantiate evidence of customary grant of land to the original 1st defendant for residential purpose by the Ntoe with the consent of principal members and family heads by documentary evidence?
4. Whether exhibits 4 and 2 are not in support of communalland tenure system in Ikot Omin?
5. Whether the learned trial Judge was right in formulating an issue not raised in the pleadings or supported by evidence?
6. Whether the plaintiffs proved their case on the preponderance of evidence?
7. Whether the learned trial Judge was right in regarding the amendment of the amended statement of defence as correction of a typographical error and in line with evidence that had been given?”
Judging from the substance of the complaints in the grounds of appeal with their prolix particulars, I find the number of issues formulated to be wordy and overblown for I can see practically no difference between issues 2 and 6 anymore than I can see as nothing, but sheer elongation of issues 1 and 2 their co-existence with issues 3 and 4 for the very concept of placing evidence on an imaginary scale involves the entire plenitude of the adequacy of evidence on the root of title and substantiating evidence of grant of customary tenure by the overlord which calls for examination, per force, of evidence of communal land tenure in Ikot Omin. Therefore, in order to obviate repetitiveness of matters which are necessary to be examined, it has been found necessary to harmonise the 7 issues formulated by the appellants with the 3 issues formulated by the respondents that have the distinctive feature of conciseness. To this end, issues 1, 2, 3 and 6 in the appellants’ brief of argument would be taken together with issue (1) formulated by the respondents in their brief which reads:
“Whether the appellant, by the evidence available to the trial court established a root of title in the Community to ground their claim for trespass and injunction.”
Similarly, issues 5 and 7 in the appellants’ brief would be examined along with issue (ii) formulated by the respondents contending
“Whether the findings made by the trial Judge were grounded on a proper evaluation of the evidence before him.”
Issue 4 in the appellants’ brief is co-extensive with issue (iii) in the respondents’ brief of argument canvassing “Whether the trial Judge rightly rejected or refused to act on exhibits 2 and 4”. and they will be taken together.
Arguing issue one against the background of the material facts in the statement of claim and the testimonies of the appellants’ two top witnesses, learned Counsel for the appellants traced the history of Ikot Omin as having been founded by the plaintiffs/appellants’ ancestors, who came from Mbakang near Cameroun and were the first to settle on the land in dispute’. He narrated the land-owning system in Ikot Omin where, according to him, ‘land is owned communally, but individuals may however, deforest and use farmlands’ emphasizing the overriding interest of ‘the town’ which may withdraw such farming or users’ rights if the interest of the town so demands.
He underlined the role of Ntoe or Head of the Town in the operation of land systems, as one who ‘holds communal lands in trust for the community and can only alienate or grant land to individuals with the consent of principal members and family heads’.
In exercising that power, the appellants granted land to tenants for farming or building houses and also granted land to Government establishments and the subsidiary of a limited liability company.
The beneficiaries of the grant, according to the learned Counsel, included ‘the original 1st defendant’, i.e the predecessor-in-title of the 1st respondent, who was granted the land on which he built his house by the appellants though, he later trespassed on neighbouring lands by making grant of land to others when he had no right to do so. The learned Counsel switched over to summarise the material facts of the statement of defence and the evidence led thereon and argued that the 1st respondent, who testified that the land in dispute was not granted to him by the community, but was an inheritance from his ancestors through his father did not lead evidence to prove the customs, but only relied on exhibits 8, 9 and 10 to show that the 1st appellant ‘granted land to people in his individual or personal capacity’. He contended that the 1st respondent, who admitted that there was communal lands in lkot Omin did not show how those lands came to be communal and reasoned as if individual could merely acquire title to land by deforesting the land ‘without recourse to the community’.
On that review of the parties’ pleadings and evidence he submitted that the appellants had established that the land in Ikot Omin is owned communally and had established further that land can only be granted to individuals by the Ntoe and the principal members of the community on behalf of the community. Since the respondents have also admitted communal ownership of some land in Ikot Omin, he further submitted, the onus is on the respondents to prove that individuals could acquire land in Ikot Omin ‘which title is not traceable to the community’. He relied on Udeze v. Chidebe (1990) 1 NWLR (Pt.125) 141; (1990) 1 SCNJ 104, 116-117, where the Supreme Court held that the burden is on a person who asserts exclusive possession or ownership against communal ownership to prove it. The argument of learned counsel for the appellants is that the appellants having established a root of title in the land in dispute as vested in the community, it is left to the respondents to establish their claim to exclusive ownership of the land in dispute. The respondents, he agitated, having failed to do so, the learned trial Judge is wrong to have held that the appellants did not establish that there is a root of title in the community. The learned Counsel urged the court, therefore, to resolve issue one in favour of the appellants. On issue 2 in the appellants’ brief of argument, the contention of learned Counsel for the appellants is that the learned trial Judge did not evaluate properly the appellants’ case for failing to place on an imaginary scale the evidence led by the parties to see which is heavier before he made findings of fact. The substance of the argument of the learned Counsel is that after reviewing the pleadings of the parties the learned trial Judge proceeded to evaluate at a great depth the case for the defendants which he used ‘to demolish’ the case for the plaintiffs. By so doing, the learned Counsel contended, the learned trial Judge did not keep to the principle in Mogaji v. Odofin (1978) 4 SC 91, 94-95, about even-handedness that is ensured by placing the case of both parties on an imaginary scale. He further contended that the style of evaluation of evidence adopted by the learned trial Judge also ran counter to the guidelines enunciated in Sanusi v. Ameyogun (1992) 4 NWLR (Pt.237) 527, (1992) 4 SCNJ 177, 187-188, about the proper conduct of evaluation that leads to balancing the interest of both parties. He concluded that by the procedure adopted by the learned trial Judge, the scale of justice was weighed against the plaintiffs/appellants before their case was considered. Thus, the issue on which the parties’ case rested had already been pre-judged as a result of failure to place the evidence of both parties on an imaginary scale as a measure of ascertaining, which evidence is stronger as a sure pointer to where justice of the case lay.
The 3rd issue is germane to the 2nd issue as learned Counsel for the appellants agitated that the learned trial Judge misdirected himself when he rejected the oral evidence of the 1st plaintiff/appellant about the grant of land to the 1st original defendant, because it was not supported by documentary evidence. This, the learned Counsel submitted, ‘is not a proper evaluation of the plaintiffs’ evidence’ which is that the radical title to Ikot Omin is in the community and any title to land is derived from the community’. On this point, the learned trial Judge was in a serious error he concluded.
Issue 6 is, in substance, an embellishment of issues 1 and 2 for emphasis as learned Counsel for the appellants, gave a resume of the complaints in those two issues and submitted for the umpteen times that the plaintiffs/appellants having established that the land in dispute belongs to the community of Ikot Omin the defendants/respondents upon whom the burden of proof lies did not discharge the burden of contradicting the plaintiffs/appellants’ evidence. He argued that mere production in evidence of lease agreements entered into between the 1st plaintiff/appellant and others is not sufficient to discharge the burden that rests on the defendants/respondents to meet the plaintiffs/ appellants’ case. For these he relied on the Supreme Court’s decisions in Udeze v. Chidebe supra, at pages 120-121, 122, and Ogboni v. Oja (1996) 6 NWLR (Pt.454) 272, (1996) 6 SCNJ 140, 159, from which he produced in extenso, the views of that court on the shift of burden of proof on the defendant of exclusive possession or ownership once it is established by the plaintiff that the land in dispute is owned communally. With the defendants/respondents’ failure to discharge that burden it is the contention of the learned Counsel that the plaintiffs/appellants had proved their case on the preponderance of evidence.
Replying to the submissions on behalf of the appellants, learned Counsel for the defendants/respondents began with the correction that contrary to the contention by the appellants the respondents’ case before the trial court both on their pleading and the evidence led thereon is that ‘there are 3 land tenure systems in Ikot Omin’, namely, ‘counsel, family and individual land holding’. He explained that the respondents’ case is that ‘land deforested by a family or individuals belongs to that family or individual and the community has no hand in those land’.
On the proof of the plaintiffs/appellants’ claims, the learned Counsel argued that their action being in trespass and injunction raising the issue of title to the land, the evidence of tradition adduced by the plaintiffs/appellants are inconclusive. This is because, the learned Counsel further argued, ‘though the plaintiffs pleaded their root of title… they never led any evidence to show how or who their ancestors were or how the land was founded to make its ownership communal. All they assert is that land ownership in Ikot Omin is communal and nothing more’. He submitted that the trial court found the appellants’ mere declaration of the appellants over the land in dispute, to be an insufficient proof of their title to the land in dispute and urged this court to uphold that finding of fact.
As regards the application of the decision in Udeze v. Chidebe supra, upon which learned Counsel for the appellants relied, the learned Counsel submitted that for a party to be a beneficiary of the presumption stated in that case, the party must first of all establish through credible and cogent evidence that the root of title rests with the community’. That onus of proof, the learned Counsel contended, the plaintiffs/appellants did not discharge. He, therefore, submitted that since the appellants did not discharge the onus of proof no burden could have shifted to the defendants/respondents and that by implication the defendants/respondents do not have a duty to answer the plaintiffs/appellants’ claims craving in aid the Supreme Court’s decision in Dike v. Okoloedo (1999) 10 NWLR (Pt.623) 359, 364. The learned Counsel urged this court not to disturb the findings of fact by the trial court that the appellants did not establish their root of title to the land in dispute as that conclusion was reached after a thorough examination of the evidence led on the facts pleaded by the parties.
On evaluation of evidence by the learned trial Judge, learned Counsel for the respondents debunked the contention on behalf of the appellants that, the learned trial Judge strained his review of the evidence and its evaluation in favour of the respondents in violation of the principle in Mogaji v. Odofin supra, and contended that since there is sufficient evidence to support the view of the learned trial Judge on his findings, the issues raised by the appellants on that point is neither here nor there. The learned Counsel reviewed the material facts in the appellants’ statement of claim on which the respondents joined issue in their pleading with the evidence led by the parties at the trial and pinpointed the areas of the judgment where evidence on material facts were evaluated by the learned trial Judge.
He recalled the latitude allowed to a trial Judge in assessing evidence of witnesses as expounded in Igbodim v. Obianke (1976) 9- 10 SC 179, 192. He submitted that what is important in evaluating evidence is that the court must consider all the evidence produced and place them on an imaginary scale, which he submitted the learned trial Judge did before he arrived at the decision on appeal. He pointed out two findings of fact from the judgment to show that the learned trial Judge was painstaking and submitted that the fact that the decision of the trial court goes against the appellants cannot be twisted to support an argument that there is a breach of the principles governing evaluation of evidence. In particular, the principle in Mogaji v. Odofin supra, which he contended the learned trial Judge scrupulously observed. The learned Counsel concluded that the plaintiffs must succeed on preponderance of evidence led in the case as expounded in Woluchem v. Gudi (1981) 5 SC 291, and that with the poor quality of the evidence adduced by the appellants they cannot beat a retreat from the clich’E9 that the plaintiff must succeed on the strength of his own case and not on the weakness of the case for the defendant. With that he urged the court to resolve the issue on evaluation of evidence in favour of the respondents.
The main plank of the arguments of the learned Counsel revolves round whether the plaintiffs/appellants established title to the land in dispute so as to shift the burden of proof on the defendants/respondents as contended by learned Counsel for the appellants or whether as argued by learned Counsel for the respondents, the plaintiffs/appellants did not make out a prima facie case to warrant the defendants/appellants being called upon to answer. In resolving that point, learned Counsel for the appellants has called in aid that principle in Mogaji v. Odofin supra, that points the measure of evidence in support of the case of the parties by placing the two sets of evidence on an imaginary scale with a view to determining which is weightier as an index of the side that is entitled to judgment.
Both from the pleading of the appellants, in particular paragraphs 2 to 4 thereof, and the evidence led thereon the appellants’ claim is based on traditional history though the appellants who claimed to be ‘owners in possession’ also relied on the exercise of the acts of ownership over the land in dispute which is obvious from paragraph 6 of their statement of claim and the evidence led thereon.
Thus, on the origin of the settlers on the present day Ikot Omin averred in paragraph 2 of the statement of claim, the respondents who in paragraph 2 of their further amended statement of defence, on page 153 of the record, made a general traverse did not deny the appellants’ claim that their ancestors came from Mbakang near the Cameroons: see rules 9, 13 and 14 of Order 25 of Cross River State High Court (Civil Procedure) Rules, 1989, and Lewis & Peat (N.R.I) Ltd. v. Akhimien (1976) 1 All NLR (Pt.1) 460; and Owosho v. Dada (1984) 7 SC 149.
But important hiatus in the pleading and evidence of the appellants are the names of the first settlers and how the practice of communal ownership evolved. These are very vital in a claim based on traditional history. It is not enough as the evidence by the appellants shows to say that a person or group of persons settled in a particular place. Their names and the relationship of their descendants claiming through them are material particulars that must be proved. Equally, important is the history of how the land tenure evolved from the practice of the ancestors. These are the material details which a plaintiff seeking reliefs for trespass and injunction in which title to the land in dispute is put in issue must establish. On this point learned Counsel for the respondent is on a strong wicket, when he submitted that mere declaration by the appellants that the land in dispute is a communal land of Ikot Omin people is insufficient to prove the title of the appellants to the land in questions. The learned Counsel is equally right in his submission that the Supreme Court’s decision in Udeze v. Chidebe supra, is of no avail to the appellants. For a plaintiff to claim the benefit of the presumption in that case that shifts the burden of proving exclusive ownership on the defendant, the plaintiff must first prove that the land, the subject-matter of the dispute, is, indeed, a communal land as a condition precedent. The claim by the appellants that the land in dispute is a communal land, being one based on ipse dixit of the appellants which is not supported by evidence the further submission by the learned Counsel that the respondents have no burden of proof to discharge is equally well taken as it will become clearer presently.
As regards the postulate of an ‘imaginary scale’ to the twig of which learned Counsel for the appellants hangs to vilify the judgment of the court below it is one sad misconception of the law by the learned Counsel. The doctrine enunciated by the Supreme Court in Mogaji v. Odofin supra, is the test of how to gauge the comparative strength of the evidence of parties to an action. It posits the weighing of evidence adduced by both sides to a dispute on an imaginary scale with a view to verifying which side is weightier in probative terms, that is to say, in terms of the ‘quality’ rather than the ‘quantity’ of the evidence: see Onwuka v. Ediala (1989) 1 NWLR (Pt.96) 182,208.
With respect to learned Counsel for the appellants, his argument that evaluation of the evidence of the parties is lopsided and, therefore, offends against the rule in Mogaji v. Odofin supra, is begging the question for if the rule evolved from that decision is concerned with the weighing and balancing evidence of the parties it is a rule that comes into play only after it must have been first established that there is evidence on either side of the scale to be weighed and balanced. Until that condition is first satisfied it is idle to complain of non-compliance with that rule.
This point is made much more clearer by the rider to the application of the rule at page 94 of the Report of the case where the court, per Fatai- Williams, JSC, as he then was. Qualified the application of the rule thus:
“Of course, the procedure set out above will be unnecessary if the plaintiff’s case is patently bad that no reasonable tribunal could possibly act upon it. In such a case, the trial Judge will dismiss the plaintiff’s claim without calling upon the defence.” (Italics mine)
The level of performance by the plaintiff that will justify the trial court in dismissing his case brevi manu without calling on the defendant to enter upon his defence was explained by the Supreme Court in Duru v. Nwosu (1989) 4 NWLR (Pt 113) 24, 41, as where the plaintiff has not made out a prima facie case.
The rider to the application of the rule in Mogaji v. Odofin supra, as explained with reference to the establishment by the plaintiff of a prima facie case in Duru v. Nwosu, supra logically brings into play the application of the doctrine of ‘burden of proof’ as an index of when a prima facie case can be deemed to have been made on a set of pleaded facts and the evidence led thereon.
Burden of proof is described by section 135 of the Evidence Act as the duty imposed on one who asserts facts to prove the existence of the facts.
Applying the law as in the above exposition to the conclusion earlier reached on the plaintiffs/appellants’ pleading and the evidence led thereon, it seems to me a wishful thinking for learned Counsel for the appellants to expect that a prima facie case can be held to have been made in a situation where the plaintiffs/appellants who relied on the traditional history to establish their title to the land in dispute do not know or failed to disclose the names of their ancestors and neither pleaded nor led evidence on how the tradition of the customary system of communal ownership of land evolved. That casual disposition appertains more to ‘adventurers’ for which serious legal business has no room to accommodate.
One other fall-out of the permissive approach by the appellants to the proof of their title to the land in dispute is the combination of separate and exclusive modes of proof. The appellants who relied on traditional history to establish their case also pleaded and led evidence of possession and acts of ownership over the land in dispute. That, in law, is indefensible. Five ways of proving the root of title to land are enunciated in Idundun v. Okumagba (1976) 1 NMLR 200. They include proof by traditional history and acts of possession and exercise of ownership. The five methods are mutually exclusive.
Thus, in an action for declaration of title to land which is also applicable to action for trespass and injunction of this particular type in which title to the disputed land is put in issue where a plaintiff pleads a root of title but fails to prove it, he cannot be allowed to substitute the root of title that has failed with acts of possession on the rationale that in such a case the root of title pleaded is the fons et  origo, i.e. the foundation and origin of the plaintiff’s title: see Balogun v. Akanji (1988) 1 NWLR (Pt.70) 301, (1988) 2 SCNJ (Pt.1) 104. 125-126; and Fasoro v. Beyioku (1988) 2 NWLR (Pt.76) 263, (1988) 4 SCNJ 23, 29. Spiced up with some aroma of flourish, it has been graphically put that ‘when the root of title pleaded ceases to stand, the stems and branches will fall with the root: see Odofin v. Ayoola (1984) 15 NSCC 711, 731. For a clarification of when under the exceptional circumstances created by the rule in Kojo II v. Bonsie (1957) 1 WLR 1223, 1226, acts of possession and ownership may be allowed to resolve evidence of conflict in traditional histories, see Mogaji v. Cadbury Nigeria Ltd. (1995) 2 NWLR (Pt.7) 393, (1985) 16 NSCC (Pt.11) 959, 990-991.
The argument of learned Counsel for the appellants on issue One, whether the appellants proved their root of title to the land in dispute, has taken a hard knock and must be answered in the negative. That ineluctably answers in the negative the consequential question of whether the onus of proof has shifted to the respondents, who in the relays of duty have no legal burden to discharge until the appellants satisfied the minimal burden of establishing their title.
Similarly, issue two, whether in evaluating the evidence at the trial the doctrine of weighing the evidence of the parties on an imaginary scale was observed, was severely battered. on this point, let me say that the appellants having failed to make a prima facie case within the meaning of that expression in Duru v. Nwosu supra, at pages 41 and 53, and with no evidence of any probative value to be led to the imaginary scale there was nothing to be submitted for weighing and balancing: see Sanusi v. Amayogun supra. Therefore, on a sober assessment of the evidence adduced by the appellants at the trial, I hold that the rule in Mogaji v. Odofin supra, as restated in Duru v. Nwosu supra, does not apply to this case. In consequence, issues 1 and 2 as well as issues 3 and 6 in the appellants’ brief of argument and issue One and Two in the respondents’ brief of argument are all resolved against the appellants.
Issues Five and Seven in the appellants’ brief of argument in respect of which, I adopt all the points canvassed in issues one and two in the appellants’ brief of argument to which are germane the argument in respect of issue two in the respondents’ brief cease to be of any avail to the appellants for the substratum of those arguments having collapsed with the resolution of the earlier four issues an elaborate disquisition on the two issues become academic.
Whether the learned trial Judge was right in formulating issue not raised in the pleadings or supported by evidence and whether a wrong interpretation is given to amendment of statement of defence are peripheral and eclipsed by the far-reaching issues that resolving them against the respondents will be a mock solace to the appellants, whose loss on the major issues cannot be mended by the success of these two issues.
That brings me to issue 4 in the appellants’ brief of argument and issue 3 in the respondents’ brief of argument canvassing whether exhibits 2 and 4 are not in support of the communal land system in Ikot Omin. Exhibit 2 is copy of judgment of a local court and exhibit 4 is copy of a memorandum submitted to the Land Use Panel by Qua Clans Assembly committee. Both documents were tendered at the court below as representing opinion of the writers on the land system among the Quas. The argument of learned Counsel for the appellants, on the one hand, is that failure of the learned trial Judge to attach any weight to the documents derogates from the appellants’ case. Learned Counsel for the respondents, on the other hand, points out that regardless of what the two documents purported to declare they are mutually contradictory: whereas in exhibit 2 it is stated that ‘in Ikot Ansa’, Qua Clan, ‘land ownership is not communal’ in exhibit 4 it is stated that ‘in Qua the unit of land control is communal’. The learned Counsel further pointed out that exhibit 9, the agreement entered into between the 1st appellant and another person, does not portray the custom declared in exhibits 2 and 4 as anything binding on the people because the agreement is antithetical to the concept of communal landholding purported to be espoused by the two documents.
Everything considered, including the tenor of the argument of the learned Counsel, I feel that the learned trial Judge who refused to give any weight to exhibits 2 and 4 was acting well within his power under sub-section 92(1) of the Evidence Act, which allows him to determine at his absolute discretion what weight to attach to any document received in evidence depending on the circumstances of the case to which he must have regard. It is not the prerogative of this court to interfere in an authoritarian manner with the exercise of power or discretion by a trial court except on compelling grounds bordering on miscarriage of justice. From the argument of the learned Counsel based on the facts of the case, it has not been shown that the learned trial Judge exercised his discretion to ignore the two document arbitrarily. I am satisfied that the learned trial Judge was operating within his judicial turf and, in legal parlance, acting judicially and judiciously. Indeed, I find this particular issue to be petty and mindless and I resolve it against the appellants.
In conclusion, let me say in parenthesis that at the trial court, this case was conducted by the parties in total oblivion of the Land Use Act, which changed the whole system of landholding in this country since its enactment on 29/3/78. To strengthen its hold in regulating land matters, the Act was incorporated as part of the successive Constitutions of this country within the limit of the affinity of that Act with the Constitution as delimited by Nkwocha v. Military Governor of Anambra State (1984) 1 SCNLR 634, 652. True enough, the Act still allows lands situated outside urban areas of a state to be regulated by the customary law of the area where the land is situated with devolution of authority to the Local Government of each area in administration of land matters. Yet some of the nuances that featured during the trial such as the person in whom land is vested and who exercises the right to allocate land outside family level, do not show an acquaintance with the current dispensation under the Act.
This observation is not intended as a reflection on the learned trial Judge who cannot operate outside the parties’ pleadings and the evidence led to verify the claims. But it behoves the learned Counsel handling this type of matter to enlighten their clients about their limitations under the Land Use act so as to shake off some of their beliefs that have been rendered anachronistic by the Act.
However that may be, the appeal is without an atom of merit. Accordingly, I affirm the judgment of Ita, J., of Calabar Judicial Division of the Cross River State High Court, delivered on 22/9/94 and I dismiss the appeal.
I award N5,000 costs against the appellants jointly and severally.

EDOZIE,J.C.A.: I had the privilege of reading in advance, the draft of the lead judgment, just read by my learned brother, Olagunju, JCA, and I agree with his reasoning and conclusion in dismissing the appeal.
The bone of contention is whether the land in dispute was communal as asserted by the plaintiffs/appellants or individually or family owned as contended by the defendants/respondents. The appellants’ claim against the respondent in the court below was for damages for trespass and injunction over the disputed land. It is the law that where a plaintiff claim damages for trespass and injunction and the defendant alleged that the land belongs to him, the plaintiff in order to succeed has to prove not only that he was in possession of the land, when the trespass was committed on it but also, that his own title to the land in dispute is better than that of the defendant. This is because in the circumstance, title to the land in dispute is put in issue. Therefore, in order to succeed, the plaintiff has the burden of proving not only that he was in possession, when the alleged trespass was committed by the defendant but also, that his own title to the land in dispute was better than that of the defendant. See Amakor v. Obiefuna (1974) 3 SC 67; Ogbechie v. Onochie (No.2) (1988) 1 NWLR (Pt.70) 370.
It is also the law that, where two parties lay claim to possession of the same parcel of land, by operation of law possession lie in the party who has better title, see Aromire v. Awoyeni (1972) 1 All NLR (Pt.1) 101 SC; (1972) 2 SC 1; Kareem v. Ogunde (1972) 1 All NLR (Pt.1) 73; Broadline Ent. Ltd. v. Manterey Maritime Corp. (1995) 9NWLR (Pt.417) 1 SC; Idaayor v. Tigidam (1995) 2 NWLR (Pt.377) 359; Title in law superceedes physical possession: Adesanya v. Otuewu (1993) 1 NWLR (Pt.270) 414, (1993) 1SCNJ 77 at 95.
The appellants by their claim as indicated above had the onus of establishing that they had a better title to the land in dispute than the respondents. To this end, they pleaded in paragraphs 2 and 6 of their statement of claim that:-
“2. The land in dispute is the communal property of Ikot Omin. Ikot Omin was founded by plaintiffs’ ancestors who came from Mbakang near the Cameroons and were the first to settle on the land in dispute.
6. As owners in possession, the plaintiffs by themselves and through their ancestors have been exercising maximum acts of ownership over the land in dispute, including giving the land in dispute to people for farming and building of houses…”
As evident from the above averments, the appellants were relying on evidence of tradition to establish their claim. Where a plaintiff by his pleading and evidence relies on traditional history for his root of title to land, he fails or succeeds on that history. If the history succeeds, there is no need to show recent acts of ownership: see Olayebu of Ijebu v. Oso, the Eleede of Ede (1972) 5 SC 143 at 151; F.M. Alade v. Lawrence Awo (1975) 4 SC 215 at 229. Conversely, if the history fails, the plaintiff cannot abandon his pleading and rely on acts of ownership over a long period of time which is one of the ways of proving title but is separately and distinctly alleged, nor can he be permitted to rely on any recent acts of possession and ownership to back up his claim for title. See Balogun v. Akanji (1988) 1 NWLR (Pt.70) 301 at 322; Fasoro v. Beyioku (1988) 2 NWLR (Pt.76) 263 at 273; Eronini v. Iheuko (1989) 2NWLR (Pt.101) 46 at 67; Udeze v. Chidebe (1990) 1 NWLR (Pt.l25) 141 at 160; Obioha v. Duru (1994) 8 NWLR (Pt.365) 631, 645.
In other words, where the radical title pleaded is not proved it is not permissible to support a non-existent root with acts of possession: Chief Odofin v. Isaac Ayoola (1984) 11 SC p. 72 at p. 116. As Obaseki, JSC, graphically put it in Mogaji v. Cadbury Nig. Ltd. (1985) 2 NWLR (Pt.7) 393 at 431:
“It is my opinion that where the root of title is known and pleaded and not lost in antiquity and historical oblivion, the circumstance for any inference of title created by acts of ownership does not arise.”
As already stated, the appellants by their pleadings relied on traditional history to prove their communal ownership of the land in dispute. It is settled law that a plaintiff whose claim is founded on traditional history in proof of a claim for declaration of title to land must plead and establish such facts as:- (a) who founded the land; (b) how he founded the land and (c) the particulars of the intervening owners through whom he claims. Where therefore, the lines of succession is not satisfactorily traced and that line of succession has gaps and mysterious linkage or nexus which are not established, then such line of succession would be rejected: see Dike v. Okoloedo (1999) 10 NWLR (Pt.623) 359; Mogaji v. Cadbury Nig. Ltd. (1985) 2 NWLR (Pt.7) 393; Kupoluyi v. Phillips (2001) 13 NWLR (Pt.731) 736. In the instant case, a careful examination of paragraph 2 of the appellants’ statement of claim set out above where they purported to plead their communal ownership of the land in dispute shows that the averment is grossly deficient as the appellants’ ancestors who allegedly founded the land in dispute were not mentioned nor the successive owners through whom the land devolved on the present appellants. This is a serious defect, for, evidence which tends to supply these omissions must be rejected as being contrary to the pleadings. In the premise, the appellants could not have proved that they have a better title to the land in dispute. It is trite law that, where a plaintiff leads evidence that the land in dispute is communal property, the onus is on the defendant to establish that the land belongs to him exclusively. See Udeakpu Eze v. Igiliegbe (1952) 14 WACA 61; Atuanya v. Onyejekwe (1975) 3 SC 161 at 167; Onowhosa v. Odiuzou (1999) 1 NWLR (Pt.586) 173 at 190. In the present case in hand, the appellants not having made out a prima facie case to establish their communal ownership of the land in dispute, the onus could not shift to the respondents to establish individual ownership of the land in dispute. The court below was right to have dismissed the appellants’ case and there is nothing agitated in the appeal that has persuaded us to reverse that decision.
For the foregoing and the fuller reasons contained in the lead judgment, I, also, dismiss the appeal with all the consequential orders in the lead judgment.

EKPE, J.C.A.: I have read before now, the leading judgment, just delivered, by my learned brother, Olagunju, JCA. I completely, agree with him that the appeal is without merit, and should be dismissed.
I also, dismiss the appeal, and abide by the orders made in the leading judgment ,including the order as to costs.

Appeal dismissed.

 

Appearances

  1. N. ChukwumaFor Appellant

 

AND

  1. E. CobhamFor Respondent

 

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