OBINALI ISIOHIA & ORS v. NATHANIEL ELECHI
(2018)LCN/11935(CA)
In The Court of Appeal of Nigeria
On Thursday, the 12th day of July, 2018
CA/OW/228/2010
RATIO
LAND LAW: TRADITIONAL HISTORY OF TITLE TO LAND
“In the case of Eze & 7 Ors Vs Atasie & Ors (2000) LPELR 1190 SC said:
”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, having been accepted by the Court on its merits, either as standing alone without any competing story, or where any other story is seen to be unreliable and completely rejected, there is no need to show recent acts of ownership. The traditional history is then accepted on its strength and cogency. This is what the authorities have established, that where evidence of traditional history is not contradicted, or is not in conflict with another that was set up, and is found by the Court to be cogent, it can support a claim for declaration of title, without further requirement. See Olujebu of Ijebu Vs Oso, the Eleda of Eda (1972) 5 SC 143 at 151; Aikhionbare Vs Omoregie (1976) 12 SC 11; Iriri Vs Erhurhobara (1991) 2 NWLR (Pt.173) 252.
Conversely, if the history fails, the Plaintiff cannot abandon his pleading and rely on acts of ownership over a long period of time, numerous and positive, which is only available to support title based on immemorality i.e. time beyond human memory, which is one of the ways of proving title, but it is separately and distinctly alleged, nor can he be permitted to rely on any recent acts of possession and ownership to back his claim for title. See Mogaji Vs Cadbury Nig. Ltd (Supra) at page 341; Balogun Vs Akanji (1988) 1 NWLR (Pt.70) 301. See again the case of Ayorinde Vs Kuforiji (2007) 4 NWLR (Pt.1024) 341 at 368 earlier reproduced in page 12 of this judgment.” PER ITA GEORGE MBABA, J.C.A.
JUSTICES
AYOBODE OLUJIMI LOKULO-SODIPE 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. OBINALI ISIOHIA
2. ODINKEMERE AZURUIBE
3. JAMES MADUBUIKE
4. NWAJOBI NKESI Appellant(s)
AND
NATHANIEL ELECHI 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. HS/7/2008, and HS/9/2008 (Consolidated), delivered by Hon. Justice Obisike Oji on 24th April 2009, wherein the learned trial judge entered judgment for the Defendant in Suit No. HS/9/2008 and dismissed the Plaintiffs Suit – HS/7/2008.
At the trial Court, the Plaintiff in HS/7/2008 (now Appellant) had sought the following reliefs (as per writ of summons of 6/5/2008):
(1) A declaration of title that the plaintiffs are entitled to the Statutory right of occupancy over all the piece or parcel of land traditionally known as and called ‘Ala Ehuri’ situate at Umuasua in Isuikwuato Local Government Area of Abia State.
(2) An order of this Court compelling the Defendant to surrender or give up the said piece or parcel of land to the plaintiff
(3) N100,000.00 (One Hundred Thousand Naira) damages for the Defendant’s unlawful trespass.
(4) Perpetual injunction restraining the defendant from further trespass or in the land.
Upon service of the suit on the Defendant, he, in turn, filed his Suit HS/9/2008 against the plaintiffs claiming, as follows:
(1) A declaration that the plaintiff is entitled to the statutory right of occupancy of all that piece or parcel of land known as and called ‘OHO ITU’ situate at Umuasua in the Isuikwuato Local Government Area.
(2) An Order of this Honourable Court compelling the Defendants to surrender or give up the said piece or parcel of land to the plaintiff.
(3) N500,000.00 damages for the defendants’ acts of trespass on the ‘OHO ITU’ land now in dispute.
(4) A perpetual injunction restraining the defendants’ from further claim/possession or entry into the said land.
The two suits were consolidated on the application of the Respondent, and so the plaintiffs in HS/7/2008 remained the plaintiffs in the consolidated suits, while the Defendant in HS/7/2008 (and plaintiff in HS/9/2008) remained the Defendant. Of course, it was bad advice to file a separate suit (HS/9/2008) in the circumstance, when all that the Defendant, needed to have done was to raise a counter-claim in the HS/7/2008, as they appeared to be contesting for the same land, though they called it different names.
After hearing the consolidated Suits, the trial Court, upon considering the evidence and addresses of Counsel said:
”What the plaintiffs have done in this case is to leave the land they claimed at large. And should they get judgment on such undefined area, they would unleash such judgment on all the owners of the land in that area, brandishing their judgment as their warrant. That is not what justice intends to work out.
It is surprising that the plaintiff can imagine that they can come to Court, claiming land they made no attempt to identify and hope to succeed. That must be a tall day dream. Their case must fail and I accordingly dismiss same.
The defendant in his claim has relied on traditional history and acts of possession in proof of his case. I agree with the plaintiffs’ Counsel that the defendant left gaps in his evidence of traditional history, which make his traditional history prima facie unreliable.”
On the part of the plaintiff, I have held that their traditional history failed in the critical area that would have made the defendant their caretaker. Where the traditional history of the party is unsatisfactory and he is able to establish any other of the modes of proofs of title to land, that will avail him. As I said, the defendant, also relied on acts of possession and enjoyment of the land in dispute. The plaintiffs agree that the defendant is in possession.
That in itself does not automatically mean that the defendant’s case will succeed. What it does is to shift the onus on the plaintiffs to show better title and once they are able to show the defendant’s case will collapse. See Fabunmi Vs Agbe (1985)1 SE 28; Jiaza Vs Bamgbose & Anor (1999)5 SCNJ 167? The Supreme Court in Balogun Vs Akanji (supra) (1988) 2 SC 199) at 238 – 239, graphically captured the matter thus:
”Anyone who pleads Acts of Possession as his Root of Title is really relying on the presumption that possession is 9/10 of the law and that he who is in possession is presumed by Section 145 of the Evidence Act. Cap 52, 1958 to be the owner and that the onus of proving that he is not the owner is on the person who affirms that he is not the owner. Looked at logically and critically a person pleading Acts of Possession as his root of title is simply saying …I do not knew how I got the land. All I know is that I have been in possession and have exercised various positive acts of possession. Now you prove that I am not the owner?. The defendant led evidence of cultivating the land, in dispute and reaping the economic trees on it. He specifically led evidence of harvesting for timber, the Iroko trees on the land. He was not challenged on this. The Plaintiffs led evidence that it was defendant who pointed out the boundaries for them when PW2 wanted to build in that area.”
The defendant’s case in the Suit in which he is plaintiff: HS/9/2008 succeeds
(See pages 97 to 99 of the Records of Appeal).
That is the judgment Appellants appealed against, as per the Notice of Appeal on pages 100 to 107, filed on 21/5/2009, disclosing 5 grounds of Appeal. Appellant filed their Brief of argument on 27/3/2017, and distilled the following 3 issues for the determination of the appeal:
(1) Whether the learned trial judge was right when he held, inter alia, that ‘the result is, that when the traditional evidence of the plaintiff upon which they have built their case is examined, it is clear that this cannot hold together’ (sic) Grounds 3 and 5.
(2) Whether the proof of identify of the land in dispute is in issue? Grounds 1 and 2
(3) Whether the Defendant/ Respondent who is, the plaintiff in suit No: HS/9/2008 in the consolidated Suits proved his Root of Title to the land in dispute? Ground 4
The Respondent filed his brief of argument on 31/3/2011 and distilled 3 issues too for the determination of the appeal, namely:
(1) Whether the identity of the land in dispute was in issue before the Honourable trial Court.
(2) If the answer to issue (a) is yes, Whether the Honourable trial Court was wrong when it held the appellants did not identify the land in dispute.
(3) Whether the respondent, that is the Plaintiff in Suit No. HS/9/2008 proved his case on the pleadings and evidence before the Honourable trial Court to warrant the declaration granted him.
Arguing the appeal on 11/6/2018, Appellants’ Counsel, Chief F.O. Onyebueke, on Issue 1, submitted that the law is trite and settled that there are now five recognized ways by which ownership of land may be established, and one of such is to adduce credible traditional evidence. He relied on Atanda Vs Ajani (1989) 3 NWLR (Pt.111) 511; Nwokorobia Vs Nwogu (2009) 172 LRCN 41.
Counsel said that Appellants had relied on traditional history as their root of title and had pleaded the same, who founded the land, how it was founded and the particulars of the intervening owners through whom Appellants claimed; he said that that evidence before the trial Court was lucidly and consistently in line with their pleadings. He referred us to the evidence of PW1 and the case of Osafile Vs Odi (1994) 2 NWLR (Pt.325) 125; Nkado Vs Obiano (1997) 500 LRCN 1045; Nwokorobia Vs Nwogu (2009) 172 LRCN 41.
Counsel urged us to hold that the traditional history of the Plaintiffs was straight forward, consistent, concise and uncontradicted; that there was no gap or inconsistency defying explanation. He relied on Lebile Vs Trt – CSCZN (2003) 11 WRN 1 at 14. Counsel also referred us to the evidence of PW3 on page 37 of the Records; PW2 and PW4 – page 39 of the Records.
In the light of the above, Counsel urged us to hold that Appellants’ title to the land in dispute at the trial Court was succinct and impressive and presented by the PW3 and PW4; that the trial Court erred when it found that the traditional evidence of the Plaintiffs did not hold together. He said that the findings of the trial Court was perverse, erroneous and unsupported by the evidence adduced.
Counsel further argued that the trial Court had accepted the traditional evidence of the Appellants, but only had problems when it (the Court) appeared to have misdirected itself that ‘the Plaintiffs’ witnesses did not support their case on the critical condition upon which the Plaintiffs’ ancestor, Liolio is alleged to have allowed defendant’s ancestor, Nnanna Ogbu, to remain on the land’ and the finding that ‘the reason for alleged relocation of the Plaintiffs’ ancestor Liolio, was also not proved.’
Counsel said that those findings of the trial Court were perverse and occasioned miscarriage of justice. He said that traditional evidence of the Appellants were satisfactory and urged us to so hold. He added that the trial Court appeared to have believed the traditional evidence on the Appellants that the land was theirs, but would have wanted them, Appellants, to satisfy the trial Court as to the reasons their ancestor Liolio, had relocated from the land in dispute!
Counsel submitted that any discrepancy on the relocation of Liolio was not fatal and could not, in any way, affect or disturb the veracity of the cogent, concise and consistent, uncontraditory traditional history of the Appellants. He relied on the case of Ngene Vs Igbo (2000) 75 LRCN 451, on the appropriate exercise of discretion of Court in grant of declaration to land.
On Issue 2, whether identity of the land in dispute was in issue, Counsel answered in the negative. He said that they had described the land in dispute with reasonable degree of certainty and precision such that its identity was not in doubt. He relied on Otanma Vs Youdubagha (2006) 134 LRCN 362 at 380 – 381. He also relied on Akinterinwa Vs Oladunjoye (2000) 6 NWLR (Pt.659) 92 to say that where area of land in dispute is well known to the parties, the question of same not being really proved, does not arise. See also Kyari Vs Alkali (2001) 87 LRCN 2096.
Counsel referred us to paragraph 34 of Appellants pleading that ‘the land in dispute is well known to both parties, who can very well dispense with the need for a survey plan to adequately describe the same.
He also relied on paragraphs 26, 30, 29 and 32 of their pleadings, as well as paragraph 35A of the defence pleadings, where he said:
”Notwithstanding the fact that both parties know the land in dispute very well, there is still the need for a survey plan as the matter is before the High Court.”
Counsel urged us to hold that on the account of the foregoing, that the findings of the trial Court that the Appellant did not identity the land in dispute was wrong; that it was erroneous for the trial Court to hold and act on that holding:
”In this case, the parties disagreed on virtually everything from the name of the land in dispute through the identity of the land” what the Plaintiffs have done in this case is to leave the land they claim at large (Pages 92 and 97 of the Records).
Counsel argued that Appellant did not leave the land they claimed at large. He also said that it is not unusual for parties laying claims to land to call the land by different names. Still, on the identity of the land, Counsel referred us to the evidence of PW2 (page 9 of the Records):
”When I entered to clear the land, the defendant saw me and expressed happiness as that would lead to opening up the area, and pointed out to me the boundaries of the land. When I later heard that his children have gone into the land to build, I challenged him whether that was not the land he showed me the boundaries, why did he allow his children to enter there? He then told me, it is not what he told me then that they are talking about now.”
Counsel said that on account of the totality of the pleadings and evidence in HS/7/2008, the area of the land in dispute was well known to the parties; that issue of identity of the land did not arise.
On Issue 3, whether a Plaintiff who failed to prove the root of title, as pleaded, can rely on long possession or acts of ownership.
Counsel answered in the negative. He said that the Respondent who was Plaintiff in HS/9/2008; that the trial Court had agreed with Appellants’ Counsel that the traditional history of respondent (Plaintiff in HS/9/2008) was most unreliable. See page 97 of the Records.
Counsel said that this was because, having relied on Ekwedike as the founder, under cross examination, DW4 conceded to the traditional history of the Appellant, that every land in Umuasua was founded by Asua. Therefore, he said, the traditional history of the Respondent was built on falsehood.
Counsel, said that instead of dismissing the claim of the Respondent, the trial Court did the unthinkable, and said:
”Where the traditional history of a party is unsatisfactory and he is able to establish any other modes of proof of title to the land, that will avail him.” See page 97 of the Records.
Counsel said that was not a correct statement of the law and relied on Owhonda Vs Ekpechi (2003) 17 NWLR (Pt.847) 326 at 344 – 345:
”A Plaintiff who claims a declaration of title to land but fails to discharge the burden of proving his root of title to the land as pleaded by him cannot be entitled to the declaration sought. He cannot also fall back on long possession and acts of ownership to prove title, because he must first prove a valid root of title to be able to rely on acts of ownership or long possession.”
Counsel also relied on Ayorinde Vs Kuforiji (2007) 4 NWLR (Pt.1024) 341 at 368:
”A party who relies on a known root of title must prove that root of title and cannot rely on acts of possession in proof thereof. Also, where a party pleads possession derived from a particular root of title, where he fails, he will not be allowed to turn round and base his case on possession, derived from another root of title.”
Counsel urged us to resolve the issue against the Respondent, saying that Respondent having failed on his root of title, Ekwedike, cannot be allowed to rely on the root of title to Asua, as admitted by DW4, or for long possession and/or acts of ownership.
He urged us to resolve all the Issues for Appellant and to allow the appeal.
The Respondents’ Brief was settled by M.N. Nwokenta Esq. On his issue one (which was issue 2 in the Appellant’s brief), Counsel said the identity of the land in dispute was in issue, and he reproduced the various averments of the parties to buttress that submission. He relied on the case of Archibong Vs Ita (2004) 2 NWLR (Pt.858) 590 at 626 on what to do where parties disagree on the identity of the land in dispute.
On their Issue 2 – whether Appellants had discharged the onus of proof of the identity of the land in dispute, Counsel answered in the negative. He said Appellant, woefully, failed in that regard; that what Appellant sees as sufficient description and identification of the land in dispute, is found at paragraph 34 of their pleading, that the land in dispute is well known to both parties; Counsel said that was not sufficient description or identification of the land in dispute.
He relies on Dada Vs Dosunmu (2006) 18 NWLR (Pt.1010) 134 at 139 to say that the primary duty on a Plaintiff, who comes to Court to claim a declaration of title to land, is to show the Court, clearly, the area of land to which his claim relates, so that the land can be identified, with certainty. He also relied on Auta Vs Ibe (2003) 13 NWLR (Pt.837) 274.
Counsel, however, conceded that, where the dimension of land in dispute are known to the parties, the question of proof not being really in dispute, does not arise. He relied on Ogbu Vs Wokoma (2005) 14 NWLR (Pt.994) 118.
Counsel further argued that assuming (without conceding) that the paragraph 35A, wherein the Appellant said the identity of the land was known to both parties, were taken as admission, that identity of the land in dispute was no longer in Issue, that the law is that a claim for declaration of title to land is not established by the admission of parties. He relied on Fabunmi Vs Agbe (1985) 3 SC 28; Eke & Ors Vs Okwaranyia (2001) 4 SCNJ 300 at 322. He asserted that the burden of proof, in a declaratory relief, remains on the Plaintiff who seeks the declaration even when the identity of the land in dispute is definitive and ascertained. He relied on the case of Kankia Vs Maigemu (2003) 6 NWLR (Pt.817) 496 at 503.
On Issue 3, whether the Respondent had proved his case in HS/9/2008, Counsel answered in the affirmative. Counsel argued that assuming (without conceding) that the Respondent left gaps in his historical evidence, and as pleaded, to make the traditional history unreliable, that Respondent had also pleaded and relied on acts of long possession and enjoyment of the land, and proved the same.
Counsel cited the five different ways of proving title to land, relying on Aigbobahi Vs Aifuwa (2006) 6 NWLR (Pt.976) 270 at 275. He said that a Plaintiff is expected to establish one mode of proof, to succeed; that Respondent had pleaded and proved, with credible evidence, acts of long exclusive possession and enjoyment of the land and that warranted the granting of title to him by the trial Court.
He added that Appellant had admitted that Respondent had been in long exclusive possession of the land and has been enjoying the same; that the onus was on the Appellant to prove better title over that of the Respondent. Fabunmi Vs Agbe (1985) 3 SC 28; Adeniran Vs Alao (1992) 2 NWLR (Pt.223) 350 at 357.
He urged us to resolve the Issues against Appellant and to dismiss the appeal.
RESOLUTION OF THE ISSUES
I shall consider this appeal on the issues distilled by the Appellants but in doing so I shall reduce the issues for determination to two, and shall merge the Issue 1 and 2 and rephrase same, as follows:
(1) Was the trial Court correct in its findings that the tradition history by Appellants failed in critical areas and that the identity of the land they claimed was in issue (or at large), thereby dismissing the case of the Appellants (HS/7/2008)
(2) Was the trial Court right when it held that ‘where the traditional history of a party is unsatisfactory and he is able to establish any other modes of proof of title to the land, that will avail him’, relying on that to grant Respondent’s reliefs in HS/9/2008 – that he proved title by long possession and acts of ownership? I shall take the two issues, together.
A brief facts of the case, as stated by the Respondent, is that:
The case of the appellants in the Court below is that the land in dispute ‘Ala Ehuri’ belongs to them. They traced the genealogy of Asua, the great ancestor of Umuasua, to themselves and how the land descended to them from Asua through their various ancestors. They claimed that all these ancestors of theirs on whom the land in dispute descended farmed it and reaped the economic trees on it. They also claimed that when the land descended to their ancestor, Liolio the family stopped sharing it.
Appellants stated that at a point in time, Liolio’s brothers advised him to relocate from the land in dispute to where they were (now) living in Ugwuogu.
The reason for this was inter tribal wars as Ala Ehuri was vulnerable to attack. They claimed that when Liolio was relocating, he handed the land in dispute to one Nnanna Ogbu, whom they claimed had relocated from his original place of abode in Amangwu to where Liolio was living and was settled by Liolio. Nnanna Ogbu, Appellants asserted, is the ancestor of the Respondent through whom the defendant came to be on the land in dispute. Nnanna Ogbu was required by Liolio to be paying him homage over the land in the form of Palm Oil and Palm kernel and he did this with his descendants until it came to the turn of the Respondent who stopped paying the homage. (See paragraphs 1.05 to 1.09 of the Respondents’ Brief).
That summary, coming from the Respondent, for me, is very instructive, as it appears to have documented and verified Appellants’ traditional history over the land in dispute. This is more so, as the Respondents’ witness (DW4) who said he was born in 1929 and met Nnanna, made some startling revelations and disclosure, namely:
(1) That he knew the Plaintiffs (Appellants); that they are Ugwogu, Liolio Umuasua (Page 45 of the Records). Under cross examination he said:
(2) That he did not know the father of Dibia and did not know the father of Ekwedike and had not heard of Apunsi.
(3) It is not true that it was Nnanna who led our people to leave Amangwu, following the suicide. It is not true Nnanna let them to Liolio, who gave them where to live.
(4) It is true Umuasua is derived from Asua. Every land in Umuasua was deforested by Asua. It is true that the Umuasua are descendants of Asua.
(5) It is not true that it was not true that Ekwedike deforested the land in dispute. It is not true that the Plaintiffs inherited the land from their ancestors.
It is not true that Nnanna Ogbu is from Ali Dibia. Where we live is not part of the land in dispute. I know the land in dispute very well. I did not know the place the Plaintiffs built, because it is not in dispute. It is true that where they built is part of the larger Oho Itu land. It is true that when Andrew Madubuike was building his house, I showed him the boundaries. It is true I am the person managing the land in dispute since my father died. I do not look after the area given to the Plaintiffs. It is not true that the land in dispute, including where the Plaintiffs live had always been the inheritance of Liolio? It is not true that after Nnanna that my father took over the management of the land in dispute. See pages 46 to 51 of the Records.
Put to him that neither Nnanna nor his father did any other thing on the land, other than farm on it.
DW4 said:
”It is not true we reaped economic trees on the land. It is not true that the Plaintiffs stopped me from building on the land. They only sued me before Amala. I did not mould blocks on the land. It is true that, because of the Plaintiffs’ challenge that I went and built at another place so as not to be delayed from building because of this case (See pages 50 – 51 of the Records)
Many things are revealed from that evidence/admissions from DW4, the Respondent in this case, among which is the fact that the land in dispute is well known to the parties and is different from the other lands occupied by the Respondent and by the Appellants in the area, which are not in dispute.
DW4, at one time showed the boundary of the land in dispute to PW2, when the latter cleared the land to build or plant; he said the whole land in Umuasua was deforested by Asua and Umuasua are descendant of Asua; DW4 knew the Plaintiffs are from Liolio Umuasua, and Nnanna came to live in Umuasua, from Amangwu!
In my view, the above evidence by the Respondent rather supported the evidence of traditional history by the Appellants, with regards to the disputed land, which was clearly known by the parties, as opposed to the other area the Respondent held or live in, which was not in dispute.
The findings and holding of the trial Court, therefore, appeared strange and perverse to me, when it said:
”As can be seen from the above the Plaintiffs witnesses did not support their case on the critical condition upon which the Plaintiffs ancestors Liolio, is alleged to have allowed the defendant’s ancestor Nnanna Ogbu to remain on the land. Needless to add that the defendant denied this claim of the Plaintiffs of the land coming to the defendant through the Plaintiffs’ The result is that when the traditional evidence of the Plaintiffs upon which they have built their case is examined it is clear it cannot hold together.” See page 94 of the Records of Appeal.
It appears what fueled the above wrong conclusion of the Learned trial Court, stemmed from the equally wrong finding/holding that Appellant did not identify the land in dispute. The trial Court said:
”There is another aspect of the Plaintiffs’ case that is disturbing. Throughout their pleading and their evidence the Plaintiffs never established the identity of the land over which they seek title and injunction? The Plaintiffs’ Counsel in his written address has straineously (sic) submitted that the identity of the land in dispute is not in issue as it is admitted by the defendant? The failure of the Plaintiffs to identify or ascertain the land, its dimensions and locality will result in the dismissal of the Suit? It is only when he (Plaintiff) has pleaded the precise identity of the land in dispute and the defendant agrees with his description that the identity of the land is said not to be in issue? Both in the pleading and their evidence, the parties are not agreed on that identity of the land.
That should have put the Plaintiffs on the alert to know that they have to prove that in order to succeed (Pages 94 – 97 of the Records.
”What the Plaintiffs have done in this case is to leave the land they claim at large. And should they get judgment on such undefined area, they would unleash such judgment on the owners of the land in that area brandishing their judgment as their warrant See page 97 of the Records.
I think those fears of the trial Judge might have influenced the decision of the trial Court, in the circumstances of this case, but they were, in my view, unfounded.
The pleadings of the parties had specified the specific land in dispute, and that it was known to both parties (paragraph 34 of the pleadings of the Plaintiffs). The Respondent, too, had pleaded that the disputed land was known to both parties (paragraph 35A of the Statement of defence).
The Respondent, testifying as DW4, said ‘I know the land in dispute very well’ (page 50 of the Records).
All these pieces of evidence and admissions appeared to mock the findings and concerns of the trial Court and made them perverse.
Of course, the Appellants had stated that the Respondents’ ancestor, Nnanna Ogbu, was brought into the land by Liolio, the ancestor of the Appellants. That means, even when the Respondent was not willing to accept that history, the portion of land held by the Respondent, which was not in dispute, cannot still be annexed or interfered with, even if Appellants were given judgment, as I think they deserved, over the land in dispute. This is because, the old case of Ekpa Vs Utong (1991) 1 NNLR (PT.197) 258; (1991) LPELR 1084 (SC) would come to his protection, over the said portion the Respondent holds, by reason of the grant to his ancestor. See the recent case of Ashilonu & Anor. Vs Ohale & Anor (2018) LPELR 44267 CA), where it was held:
”Appellants, therefore, had the evidential burden of, not only establishing their title to the said parcels of land by traditional evidence, but also that even the portions of land allegedly given to the ancestor of the Defendants by the ancestors of the Claimants (or bought subsequently by members of the Respondents family, were revertible to the Claimants. See the case of Ekpa & Ors Vs Utong & Ors (1991) LPELR 1084 (SC):
I think it has to be conceded that a person is completely without power or competence to revoke a completely constituted gift of land made inter vivos by his ancestor who let the donee into possession some one-and-a-half centuries ago, unless, perhaps, he can show that such a gift was null and void ab initio or that the gift was subject to a condition which has been broken. But none is the case here. Such a gift of land completed with delivery of possession according to custom is a transfer of ownership of the land to the donee and extinction of the rights of those who claim through or under the donor.”
I am unable to see that critical condition in which the Plaintiffs witnesses did not support their case, when their ancestor Liolio allowed Nnanna Ogbu, Respondent?s ancestor to remain in the land. I think there was a clear flow of the history of how the land was deforested by Asua and devolved on his children, right down to Liolio and beyond, to Appellants and how Liolio relocated to Ugwuogu and allowed the ancestor of the Respondent, Nnanna Ogbu, from Amangwu, possession, to look after the land. See pages 30 to 32 of the Records.
In the recent case of Airtel Networks Limited Vs Mr. Sunday Agwalemere & Anor.CA/OW/107/2015, delivered on 2/7/2018, the issue of tracing the family tree or genealogical devolution of the land, it was held:
Appellant had relied on the case of Dudu Addah & Ors Vs Hassan Sahi Ubandawaki (2015) LPELR ? 24266 (SC), and other cases to the effect that, one who places reliance on traditional evidence in the bid to establish their title to the land in dispute, has the onus to plead the root of title, and names and history of his ancestors and lead evidence to establish same, without any missing link. The evidence led by the 1st Respondent appears to have complied with the above position of law, in my opinion, the pleading had disclosed the names of the ancestors in the chain of successors to the land, including Ibezim, who had three sons, including Agwalaemere. The evidence in Court had traced the land from the 1st Respondent up to the Agwalaemere and to Achara. Agwalaemere having been named as one of the sons of Ibezim in the pleading, is obviously, represented in the line of succession, as he, Ibezim, was the link between Achara and Agwalaemere, even without stating so in many words, in my view.
The trial Court had held that:
when the evidence adduced by both sides is placed on the imaginary scale of justice, on the side of the Plaintiff will be seen traditional history of acts of continuous exclusive possession, leaving no gap, evidence of credible boundary neighbors, while nothing will be found on the defendants? side.? (See page 348 of the Records of Appeal)
But what appears to be obvious is that the Respondent’s ancestors, right down to the Respondent had/have lived in the land, side by side with the Appellants, and each keeps to his area that is not in dispute. The DW4 (Respondent) had said under cross examination:
It is true Umuasua is derived from Asua. Every land in Umuasua was deforested by Asua. It is true the Umuasua are the descendants of Asua? It is true that Nnanna Ogbu is from Ali Dibia. Where we live is not part of the land in dispute. I know the land in dispute very well. I did not show the place the Plaintiffs built, because it is not in dispute. It is true that where they built is part of the large Oho Itu land. It is true that when Andrew Madubuike was building his house I showed him the boundaries? See page 50 of the Records.
The above shows that the piece of land in dispute, which the parties are flexing muzzles on, is well known to the parties and is not part of where the two parties are occupying/living which are not is dispute!
Meanwhile, the trial Court had rejected the traditional history, peddled by the Respondent, when the Court said:
The defendant in his claim has relied on traditional history and Acts of Possession in proof of his case. I agree with the Plaintiffs’ Counsel that the defendant left gaps in his evidence of traditional history, which make his traditional history prima facie unreliable (Page 97 of the Records)
With that rejection of Respondent’s traditional history, by law, all that the Respondent’s relied on to claim the disputed portion of land collapsed, as a pack of cards. It was rather strange that the trial Court tried to find a way out for the Respondent by stating a completely wrong principles of law, that ”where the traditional history of a party is unsatisfactory and he is able to establish any other of the modes of proof of title to land, that will avail him” (page 97).
With due respect to the learned trial Judge, that is not the law. Rather, the law is that where the evidence of traditional history, adduced by a party to establish title to land, fails, his other claim of possession or and acts of ownership on the land rather become evidence of trespass on the land. See the case of Oyadare Vs Keji (2005) 1 SC (Pt.1) 19 at 25; Enyinnaya Vs Otikpo (2015) LEPLR 25529:
where a Plaintiff relies on traditional evidence to prove his root of title to the land but fails to establish his claims by that means, he cannot resort to fact that he is in possession or that he has exercised various acts of ownership? as his said acts of ownership/possession would simply evident trespass to the land.
In the case of Eze & 7 Ors Vs Atasie & Ors (2000) LPELR 1190 SC said:
”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, having been accepted by the Court on its merits, either as standing alone without any competing story, or where any other story is seen to be unreliable and completely rejected, there is no need to show recent acts of ownership. The traditional history is then accepted on its strength and cogency. This is what the authorities have established, that where evidence of traditional history is not contradicted, or is not in conflict with another that was set up, and is found by the Court to be cogent, it can support a claim for declaration of title, without further requirement. See Olujebu of Ijebu Vs Oso, the Eleda of Eda (1972) 5 SC 143 at 151; Aikhionbare Vs Omoregie (1976) 12 SC 11; Iriri Vs Erhurhobara (1991) 2 NWLR (Pt.173) 252.
Conversely, if the history fails, the Plaintiff cannot abandon his pleading and rely on acts of ownership over a long period of time, numerous and positive, which is only available to support title based on immemorality i.e. time beyond human memory, which is one of the ways of proving title, but it is separately and distinctly alleged, nor can he be permitted to rely on any recent acts of possession and ownership to back his claim for title. See Mogaji Vs Cadbury Nig. Ltd (Supra) at page 341; Balogun Vs Akanji (1988) 1 NWLR (Pt.70) 301.
See again the case of Ayorinde Vs Kuforiji (2007) 4 NWLR (Pt.1024) 341 at 368 earlier reproduced in page 12 of this judgment.
I think the trial Court should have preferred the traditional history of the Appellant, which was more credible, in the face of the collapse of that of the Respondent. And some aspects of the Respondents’ evidence had corroborated the evidence of the Appellants, especially his admission that Umuasua people originated from Asua and they inherited the land. Appellants had stated the family tree from Asua to themselves, including Liolio, said to have relocated from the land, to bring in Nnanna Ogbu, the grand father (ancestor) of the Respondent.
I have also said that, contrary to the fears of the trial Court, that the identity of the land was not in issue, since the parties knew the exact area in dispute, as opposed to the other pieces or parcels of land in the area held by the parties (Appellants and Respondent) without dispute.
In the circumstance, I think the Appellants deserved judgment in their Suit HS/7/2008, while the Respondent’s claim should have been dismissed, for failure of his traditional history. He had even told the Court: Where we live is not part of the land in dispute. I know the land in dispute very well.
I therefore resolve the issues for the Appellants and hold that the appeal is meritorious. I set aside the decision of the trial Court, dismissing the Appellants’ Suit No. HS/7/2008, and rather grant the reliefs sought, therein:
(1) That Appellants are entitled to the Statutory right of occupancy over the said piece and parcel of land, known to the two parties, called ‘Ala Ehuri’ by the Appellant and (Oho Itu) by the Respondent, situate at Umuasua in Isuikwaoto Local Government Area of Abia State.
(2) An Order of the Court compelling the Respondent to surrender and give up possession of that particular land.
(3) N100,000.00 damages for trespass on that piece of land against the Defendant, payable to Plaintiffs and
(4) Perpetual injunction restraining the defendant his agents, servants, workmen or privies from further trespass on that known piece of land.
In the same way, the decision on Respondent’s case in HS/9/2008 is set aside, and the claim of the Respondent therein dismissed, the same having failed.
Parties shall bear their respective costs of this Appeal.
AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A.: I agree
TUNDE OYEBANJI AWOTOYE, J.C.A.: I had the opportunity of reading the draft of the judgment just delivered by my learned brother ITA G. MBABA J.C.A. I am in full agreement with the reasoning and conclusion therein.
I agree that the appellants deserved Judgment in Suit HS/ 7/2008.
I also resolve the issues in favour of the appellants.
This appeal has merit. It is hereby allowed. I abide by the consequential orders in the lead judgment.
Appearances:
CHIEF ONYEBUEKE F.O.For Appellant(s)
M.N. NWAKENTA, ESQ.For Respondent(s)
