OKWUDIRI ONUKOGU v. GAIUS UBANI ONUIGBO & ORS (2015)

OKWUDIRI ONUKOGU v. GAIUS UBANI ONUIGBO & ORS

(2015)LCN/7791(CA)

In The Court of Appeal of Nigeria

On Friday, the 27th day of February, 2015

CA/OW/66/2010

RATIO

APPEAL:ISSUES FOR DETERMINATION; WHETHER ISSUES FOR DETERMINATION MUST BE IN TANDEM AND RELEVANT TO THE GROUND OR GROUNDS OF APPEAL FOUNDING AN APPEAL

COURT: DUTY OF COURTS; THE DUTY IMPOSED ON THE TRIAL COURT TO APPRAISE AND EVALUATE THE EVIDENCE ADDUCED BY APPELLANT

That the trial court has the duty imposed upon him to appraise and evaluate the evidence adduced by Appellant. He relied on EYO VS. INYANG (2001) 4 WRN 78 at 97 and NNEJI VS. CHUKWU (1996) 10 NWLR (PT. 478) 265. per. PETER OLABISI IGE, J.C.A.

APPEAL: WHAT AN APPELLANT SEEKING TO SET ASIDE THE DECISION OR FINDINGS OF LOWER COURT HAS THE DUTY TO SHOW OR ESTABLISH AND THE RULE THAT AN APPELLATE COURT CANNOT SET ASIDE THE DECISION OF A TRIAL COURT THAT WAS NOT PERVERSE AND THE EXCEPTION TO THE RULE

The Law is now firmly settled that an Appellant seeking to set aside the decision or findings of Lower Court has the duty of showing or establishing one or more of the following namely:
ii) That it did not properly appraise the evidence and ascribe probative value to it.
iii) That the Lower Court drew wrong conclusions from the facts proved or accepted leading to a miscarriage of justice.
See
(1) FASHANU VS. ADEKOYA (1974) 6 SC 83 at 91 per COKER, JSC.
(2) MICHAEL ACHILIHU & ORS. VS. EZEKIEL ANYATONWU (2013) 12 NWLR (PART 1368) 256 at 285H – 286 A – G per AKAAHS JSC who said:
“This appeal therefore turns on whether the Lower Courts conformed with the principles of law regulating proper and correct evaluation and appraisal of evidence. It is settled law that an appellate court should not ordinarily disturb or tamper with the findings of facts made by the trial court, particularly if such findings and conclusions reached are supported by credible evidence. This principle is premised on the fact that the duty of appraising of evidence given at a trial is pre-eminently that of the trial court that saw and heard the witnesses: Emarieru v. Ovirie (1977) 2 SC 31; Ogundulu v. Philips (1973) 1 NWLR 267 at 272; Okolo v. Uzoka (1978) 4 SC 77 at 86; Mogaji v. Odofin (1978) 4 SC 91; Nor v. Tarkaa (1998) 4 NWLR (Pt. 544) 130 at 139; Jimoh Garuba V. Isiaka Yahaya (2007) 1 SC (Pt. 2) 262 at 266, (2007) 3 NWLR (Pt. 1021) 390. There is an exception to the above rule. The exception is where there is a misdirection by the trial court. Misdirection occurs when the issues of fact in the case for the parties or the law applicable to the issues raised are not fairly appraised or considered or misconceived or the law applicable is incorrectly applied by the trial court as a result there would be a miscarriage of justice if the decision reached is allowed to stand. See: Abisi v. Ekwealor (1993) 6 NWLR (Pt. 302) 643; and Nor v. Tarkaa (supra). Where a trial court has drawn wrong inference from primary facts, the appellate court can reject the inference and make what it considers to be the right inference supported by evidence. It is also trite that where a trial court has failed, as in the instant case, in its duty to properly consider the evidence before it which led it to draw wrong conclusions from the evidence it accepted, the appeal court will be perfectly justified in re-evaluating and re-considering the whole evidence in order to arrive at a just decision. See: Highgrade Martime Services Ltd. V. First Bank of Nigeria Ltd. (1991) 1 SCNJ 110, (1991) 1 NWLR (Pt. 167) 290; Onwuka v. Omogui (1992) 3 SCNJ 98 at 116, (1992) 3 NWLR (Pt. 230) 390; Ebba v. Ogodo (1984) SCNLR 372; Okoja v. Ishola (1982) 7 SC 314; Finnih v. Imade (1992) 1 SCNJ 87, (1992) 1 NWLR (Pt. 219) 511; A-G Leventis Ltd. v. Chief Christian Akpui (2007) 17 NWLR (Pt. 1063) 416.”
3. CHIEF D. B. AJIBULU VS. MAJOR GENERAL D. O. AJAYI (RTD) (2014) 2 NWLR (PART 1392) 483 at 502 D – H to 503 A per OGUNBIYI, JSC who said:
“The law is well established, that under our adversarial system of jurisprudence, civil cases are decided on preponderance of evidence. See Mogaji v. Odofin (1978) 3 – 4 SC 91. In summary, before the trial court accepts or rejects the evidence of either side, it is expected of the Judge to construct an imaginary scale of justice whereupon he is expected to weigh the evidence of both sides for purpose of determining to which side the pendulum will tilt; the determination which is not dependent upon number of witnesses called. It is rather the credibility that gives probative value to witnesses.
In the evaluation of evidence therefore, the central focus expected of a trial court is whether it made proper findings upon the facts placed before it. In other words, as long as a trial court judge does not arrive at his judgment simply by considering the case of one party and not the other but properly evaluate both sides, the decision will not be set aside merely because he adopts a method which is novel to the usual system. The measuring yardstick is the consideration of the totality of the entire case thus arriving at the just determination of the issues in controversy. The test is that of the perception by an ordinary reasonable man. See Woluchem v. Gudi (1981) 5 SC p. 291.
The trial court has the benefit of hearing and assessing the demeanour of witnesses. It is not within the powers of the appellate court to encroach upon that privilege by way of interfering with the trial Judge’s findings unless they are shown to be perverse, unsupported by evidence or based on evidence not legally admissible.”
Thus where it is shown or proven that the conclusion reached by the Learned trial Judge is perverse or could not flow from the evidence given and even accepted to be true by the Learned trial Judge this court will be justified in interfering with such findings to do the right thing from the circumstances of the pleadings of the parties and evidence led. per. PETER OLABISI IGE, J.C.A.

EVIDENCE: BURDEN OF PROOF; THE GENERAL PRINCIPLE OF THE LAW RELATING TO BURDEN OF PROOF IN CLAIM FOR DECLARATION OF TITTLE TO LAND AND THE STANDARD OF PROOF IN SUCH A CASE
It is true that the Plaintiff in a case for declaration of title to land must rely on the strength of his own case and not on the weakness of the defence.  There is a firm and lucid exception to the general principle of the law relating to burden of proof in claim for declaration of title to land.  See 1. MR. AUDU OTUKPO VS APA JOHN & ANOR (2012) 7 NWLR (PART 1299) 357 at 376 H to 377A per ONNOGHEN, JSC who said:
“It is settled law that a Plaintiff in an action for declaration of title to land must succeed on the strength of his case and not on the weakness of the defence though where the case of the defence support that of the Plaintiff, the Plaintiff can take advantage of same in establishing his claim See Woluchem vs Gudi (1981) 5 SC 294 Mogaji vs Cadbury Nig. Ltd (1985) 2 NWLR (Pt.7) 393.”
2. NELSON NWOSU ONWUGBUFOR & ORS VS HERBERT OKOYE & ORS (1996) 1 SCNJ 1 at 23 (Lines 30-39) where IGUH, JSC said
“It must however be emphasized that the applicable principle is that a Plaintiff when claiming declaration of title must succeed on the strength of his own case and not on the weakness of the defence although where any aspect of the defendant’s case supports the Plaintiff’s case, the plaintiff will not be deprived of the advantage of such support.  See Kodilinye vs Mbanefo Odu 2 WACA 336 at 337, Cobblah vs Gbeke 12 W.A.C.A 294, Akimola vs Oluwo (1962) 1 ALL NLR 224 AT PAGE 225, NWAGBOGU vs Chief NNOLI IBEZIAKO (1972) 1 ALL NLR (Pt. 2) 137.”
The standard of proof in land matters like any other civil cases is on the preponderance of evidence.      I am of the solemn view that the findings of the Learned trial Judge against the Respondents actually tilts the case in favour of the appellant and it shows that if the learned trial Judge had put the evidence of the appellant in support of his case and that of Respondents’ witnesses testimonies before him on an imaginary scale it would have been glaring to the court below that the appellant proved his case as postulated on the pleadings.  I also believe that this is a well deserved case in which the various lapses and admissions on the part of the Respondents as defendants and their witnesses at the trial court should, operate in favour and to the advantage  of the claimant now Appellant.  See: (1) NELSON NWOSU ONWUGBUFOR & ORS VS HERBERT OKOYE & ORS (1996) 1 S.C.N.J. 1 at 29-30 where IGUH, JSC said:
“With profound respect, I think the court below was in gross error by dismissing the evidence of the appellants’ boundary witnesses as un-necessary. per. PETER OLABISI IGE, J.C.A.

EVIDENCE: ONUS/BURDEN OF PROOF; WHICH OF THE PARIES HAS THE BURDEN OF PROOF IN A SUIT FOR DECLARATION OF TITLE
It is now settled law that in a suit for a declaration of title to land the onus of proof lies on the plaintiff who must succeed on the strength of his own case and not on the weakness of the defendant’s case: See Kodilinye v. Odu 2 WACA 336; Woluchem v. Gudi (1981) 5 SC 291. The plaintiff can however rely on the evidence of the defendant which supports his case. per. PETER OLABISI IGE, J.C.A.

COURT: INTERFERANCE: WHAT CAN WARRANT THE INTERFERANCE BY AN APPELLATE COURT WITH THE JUDGMENT OF THE TRIAL JUDGE

The basis and the foundation upon which the Respondents defence rested have been uprooted by the avalanche of evidence on record, and as found by the learned trial Judge. All these are enough or sufficient to warrant an interference with the judgment of the learned trial Judge. This is because the conclusion reached by him is contrary to the evidence led by the appellants and Respondents.
See (1) NELSON N. ONWUGBUFOR & ORS V. HERBERT OKOYE & ORS (1996) 1 SCNJ 1 at 33
“What the Court of Appeal ought to do is to find whether there is evidence on which the trial court could have acted. Once there is sufficient evidence on record from which the trial court made its findings of facts, the appellate court cannot intervene. See Akpagbue v. Ogu (1976) 6 S.C. 63. Odofin v. Ayoola (1984) 11 S.C. 72, Amadi v. Nwosu (1992) 5 N.W.L.R (Pt.241) 273 at page 280 etc. Where, however, he failed to make a proper use of the opportunity of seeing, hearing and observing the witnesses at the trial or to exercise his discretion properly, or where the findings cannot be regarded as resulting from the evidence or where it has drawn wrong conclusions to accepted evidence or has taken an erroneous view of the evidence adduced before it or its findings of fact are perverse in the sense that they do not flow from accepted evidence or are not supported by evidence before the court, the appellate court will be at liberty to intervene and to make the necessary findings from such evidence. See Okpiri v. Jona (1961) All N.L.R 102 at page 104, Maja v. Stocco (1968) 1 All N.L.R 141 at page 149, Ike v. Ogboaja (1993) 6 N.W.L.R. (Pt. 301) 539 at 555, Chief Frank Ebba v. Ogodo (1984) 4 S.C. 84 at.” per. PETER OLABISI IGE, J.C.A.

PRACTICE AND PROCEDURE: NON-SUIT; THE DEFINITION OF NON-SUIT AND WHEN IS THE ORDER OF NON-SUIT APPROPRIATE

Blacks Law dictionary 9th Edition describes non-suit as: being
“Equivalent to a demurer to the evidence in that, even if all facts that plaintiff presents are true, the evidence is not, as a matter of law sufficient to entitle plaintiff to judgment.
See also
(1) The Supreme Court case of ANTHONY IBEKWE VS. OLIVER NOW (2011) 9 NWLR (PART 1251) 1 at 17 G – H per Fabiyi JSC who said:
The Appellant, in a subtle manner, mooted the idea that the Trial Court should have ordered a non-suit instead of out-rightly dismissing his counter-claim.  A non-suit denotes that the plaintiff failed to prove something which was essential to his case or that the case which he had proved was different from that which he had pleaded.  The desire by the appellant to embark upon another trial of his counter-claim is most unwarranted in the prevailing circumstances of this matter.
(2) H.R.H 1 A. IKONNE VS ORJI EZIEME (2011) VS. ORJI EZIEME (2011) 11 NWLR (PART 1259) 536 AT 560 F – H TO 561 A – F where my Noble lord OWOADE JCA held:
The choice here is between retrial of the claim of the plaintiff/appellant or non-suiting him. However, I do not agree with the suggestion of the learned counsel to the respondent that the appellant’s claim be dismissed, this is because, in any case from the record of proceedings the defendant/respondent would not be entitled to the judgment of the court.  Indeed, in the instant case, a non-suit is appropriate because there is no satisfactory evidence enabling the court to give judgment to either of the parties and wronging neither.  See African Continental Bank vs Yesufu (1980) 1- 2 SC 49 and Olagbemiro v. Ajagungbade III (1990) 3 NWLR (Pt. 136) 37.
An order of non-suit is usually made in the interest of justice, and not for both parties, Ogbechie v. Onochie (No. 2) (1988) 1 NSCC 211 at 230, (1988)s 1 NWLR (Pt.70) 370.  For if as in this case, the dismissal of the claim might work injustice to the plaintiff/appellant and no injustice or hardship need result the defendant/respondent from non-suiting the plaintiff, an order of non-suit would produce jester result, See Awosanya v. Alh. Algata & 1 Anor. (1965) 1 All NLR 228.” per. PETER OLABISI IGE, J.C.A.

JUSTICES

ITA GEORGE MBABA Justice of The Court of Appeal of Nigeria

PETER OLABISI IGE Justice of The Court of Appeal of Nigeria

FREDERICK O. OHO Justice of The Court of Appeal of Nigeria

Between

OKWUDIRI ONUKOGU Appellant(s)

AND

1. GAIUS UBANI ONUIGBO
2. CHRISTOPHER ONYEHA ONUIGBO
3. ISAIAH ELUWA Respondent(s)

PETER OLABISI IGE, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of ABIA STATE HIGH COURT UMUAHIA JUDICIAL DIVISION contained in the judgment of the Honourable Justice ONUOHA A. K. OGWE delivered on 5th day of August, 2009.

The Appellant who was the Claimant at the trial court had sued the Respondents herein vide his Writ of Summons issued against them, on 12th day of May, 2004 wherein he sought for the following reliefs viz:

“(a) A declaration that the Plaintiff as the holder and occupier of the piece or parcel of land known as and called “Odikpiri Nwageruka” is entitled to the Statutory Right of Occupancy of the said parcel of Urban land of annual rental value of N20.00 (Twenty Naira) situated at Agbama Olokoro Umuahia in the Umuahia South Local Government Area of Abia State of Nigeria within the Umuahia Judicial Division.

(b) N1,000,000.00 (One Million Naira) being general damages for trespass in March 2004 when the Defendants for the first time without the leave, license and approval of the Plaintiff broke and entered the said portion of land in possession of Plaintiff as a result of which the Plaintiff suffered damages.

(c) Perpetual Injunction restraining the Defendants, their servants, privies, agents and workmen from further entry into the said piece or parcel of land or in any way or manner whatsoever interfering with the said parcel of land.”

Pleadings were duly exchanged and the matter went to trial at the conclusion of which Learned Counsel to the Parties presented their final addresses on the suit. In a considered judgment delivered on 5th day of August, 2009 as aforesaid, the trial court held as follows:-

“Claimant claims the land in dispute by inheritance from his forebears. He alleged it was on pledge to 1st and 2nd Defendants’ forebear which was redeemed in 2000. It is trite that when a pledge takes place, possession is conceded to Defendant and if it is so, then Claimant has to prove the pledge while the Defendant cannot rely on possession as proof of title. The evidence led by Claimant on pledge and the alleged redemption is unsatisfactory. I do not even find any satisfactory evidence that the land belonged to, and was deforested by Nwageruka before the alleged pledge.

Defendants Claim the land came into their possession from Emole family as a result of it’s being used to compensate the family of Uwakwe who was killed on the land. The story of this killing of Uwakwe and compensation is unconvincing. The versions by Defendants’ witnesses do not agree with the pleadings. Anyway, there is no duty on Defendants to prove anything as they are not claiming anything. The onus is on Claimant to prove his case on the strength of the evidence he proffers and not to rely on the weakness of the Defendants’ case.

From the evidence before me land in dispute is situate at Akoli. Emole was from Ajata. There was no explanation as to how Emole from Ajata came to deforest land at Akoli. There is evidence by 3rd Defendant who says he has common boundary with the land that he has boundary with Claimant on many other parcels of land and none with 1st and 2nd Defendants. There is evidence before me that no Ajata person has land sharing boundary with land in dispute. It is thus admitted that the land is not that of an Ajata person and so could not have been deforested by an Ajata person. One of the methods of proving title is to show that the lands surrounding the one in dispute have the same character as the one in dispute. These proved issues raise a presumption in favour of Claimant and shows he is connected with the land more than Defendants. But declarations are not granted on admissions of parties but on legal proof. These highlighted issues above were brought out under cross-examination of defence witnesses. No witness was called by Claimant to give positive and admissible evidence on that so I cannot base a principal finding for claimant as to title on the admission of defence witnesses. I am therefore, in the final analysis not persuaded that Claimant has proved his case as required by law. But because of what I have observed, I shall not dismiss this suit at this stage, but shall consider a non-suit. But before I do that, I shall receive arguments from counsel, on whether to dismiss or non-suit the Claimant.”

Dissatisfied with the said judgment, the Appellant filed Notice of Appeal dated 23rd day of October, 2009 on 29th day of October, 2009, containing six (6) Grounds of appeal. The six grounds of appeal with their particulars are as follows:

“GROUND 1

The Learned trial Court was wrong in law when it held that he did not find any satisfactory evidence that the land in dispute belonged to, and was deforested by the claimant’s ancestor, Nwageruka before it was pledged to the defendants.

PARTICULARS
i) The land in dispute was proved to the Court to be situated in a place called Akoli Agbama Olokoro.
ii) The Claimant and his witnesses gave evidence that the Claimant and his forebears are from Akoli Agbama Olokoro Umuahia.
iii) The Claimant and his witnesses also gave evidence that it was the Claimant’s ancestor, Nwageruka who deforested the parcel of land part of which is now in dispute.
iv) The defendants and their witnesses gave evidence that they came into possession of the land now in dispute through one Emole who deforested same.
v) The defendants’ Emole was found by the Court to have come from a place called Ajata.
vi) The Court also found that Emole’s Ajata is a locality quite different from Akoli of the Claimant.
vii) The Court found that no explanation whatsoever was offered by the defendants as to how Emole moved from Ajata to deforest land at Akoli.
viii) The Court also found that no person of Ajata extraction has land sharing boundary with the Claimant’s land part of which is now in dispute.
ix) The Claimant’s version of the Claimant’s ancestor’s deforestation of land at Akoli part of which land is now in dispute is more probable than the defendants’ version of the deforestation of Akoli land now in dispute by an Ajata man, Emole to whom the defendants traced their title.
x) No reason whatsoever was given by the Honourable trial Court for its not being satisfied with the Claimant’s evidence that the land part of which is now in dispute was deforested by the Claimant’s ancestor.
xi) The onus on the Claimant to prove his case on the strength of the evidence he proffered was satisfactorily discharged by the Claimant.

GROUND II

The Learned trial Court was wrong in law when it held that no witness was called by the Claimant to give positive and admissible evidence to show that the lands surrounding the one in dispute have the same character as the one in dispute to raise a presumption of ownership of the disputed land in favour of the Claimant.

PARTICULARS

i) The Claimant called witnesses and gave evidence of the Claimant’s exercise of acts of possession and enjoyment of a larger parcel of land so connected in locality or similarity with the land in dispute.
ii) The Claimant through the Claimant’s survey plan which is in evidence before the Court gave evidence and buttressed the fact that the land now in dispute is only part of a larger parcel of Claimant’s Odikpiri Nwageruka land situate and being at Akoli Agbama Olokoro.
iii) The Defendants through their witnesses admitted that no person of Ajata origin has land sharing boundary with the Claimant’s land now in dispute.
iv) The Court found that the land now in dispute is not that of an Ajata person.
v) The Court also found that the land could not have been deforested by an Ajata person.
vi) The evidence of the Claimant on acts of possession and enjoyment of other land so situated or connected in locality with the land now in dispute is positive and such that what is true as to the connected land is true of the land in dispute.

GROUND III

The Learned trial Court was wrong in law when it made an order of non suit against the Claimant.

PARTICULARS

i) The Claimant’s evidence and that of his witnesses as to how he came on the Odikpiri Nwageruka land at Akoli part of which is now in dispute is probable.
ii) The Claimant through his oral testimony and those of his witnesses and his survey plan gave positive and admissible evidence of his possession and enjoyment of the larger parcel of land connected by locality to be parcels of land in dispute.
iii) The defendants traced their root of title to one Emole, an Ajata person.
iv) The defendants through their evidence admitted that no person of Ajata origin has land sharing boundary with the Claimant’s land now in dispute.
v) The Court found that Akoli and Ajata exist as name of places in Agbama Olokoro but they are not the same but completely different locations or localities.
vi) The Court also found that the land now in dispute is not that of an Ajata person and could not have been deforested by an Ajata person.
vii) The Court found that these proved issues in paragraphs iii – vi raise a presumption in favour of the Claimant that the Claimant is connected with the land in dispute more than the defendants.
viii) The evidence of the Claimant of possession and enjoyment of land so situated and connected in locality with the land now in dispute juxtaposed with the admissions of the defendants operates in favour of the Claimant and imposed on the Court the duty to draw the inference of ownership and resolve title in favour of the Claimant who is more connected to the disputed land.

GROUND IV

The Learned trial Court was wrong in law when it held that the onus is on the Claimant to prove his case and that the Claimant cannot obtain a declaration of title based on the admissions of the defendants.

PARTICULARS

i) The Claimant having introduced evidence on the issue of his possession and enjoyment of a larger parcel of land part of which is now in dispute, the Claimant is entitled to rely on admissions made by the defendants and their witnesses on these issues.
ii) It was admitted by the defendants that the land in dispute is not that of an Ajata person and could not have been deforested by an Ajata person.
iii) It is settled law that facts admitted need not be proved.
iv) The Claimant, in proof of his case is entitled to rely on admissions by the defendant which support the Claimant’s evidence on the issue of Claimant’s possession and enjoyment of Odikpiri Nwageruka land being and situate at Akoli Agbama Olokoro which was an issue before the Court.
v) The Claimant has not drawn support for his case on the weakness of the defendants’ case but on the admissions made by the defendants which are favourable to the Claimant’s evidence.

GROUND V

The trial Court was wrong when it non suited the Claimant after making a finding that the proved issues raised presumption in favour of the Claimant and shows he is connected with the land more than the defendants.

PARTICULARS

i) The proved issues that raised the presumption in favour of the Claimant were never rebutted by the defendants.
ii) The Defendants instead gave evidence constituting admissions which strengthened the case of the Claimant.
iii) It is the duty of the Court to identify issues arising from pleadings and evidence of parties before it.
iv) It is also the duty of the Court to resolve identified issues in accordance with settled principles.
v) Having identified the issue of presumption that the Claimant is more connected to the land as proved, the Court was duty bound to resolve this issue in favour of the Claimant in accordance with settled principles.
vi) The decisions of the Court in not giving judgment in favour of the claimant occasioned a grave miscarriage of justice against the Claimant.

GROUND VI

The judgment is against the weight of evidence.

The Appellant filed his Brief of Argument dated 9th day of August, 2010 on 7th day of September, 2010. The Respondents Brief of Argument titled:

“RESPONDENTS’/CROSS APPELLANTS BRIEF OF ARGUMENT”
dated 6th day of December, 2010 was filed on 10th December, 2010. The same was deemed filed on 3rd day of June, 2013. Appellant filed Appellant’s Reply Brief of Argument on 17th day of June, 2013.

It must be stated that when this appeal came on 4th day of February, 2015 the Respondents Learned Counsel Barr. (Dr.) G. N. ORIAKU was asked if the Respondents actually filed a cross appeal to which he replied in the negative. In effect Respondents have no cross appeal. The Learned Counsel to the parties in this appeal adopted their Briefs of Arguments.

The Appellant distilled four issues for determination of the appeal namely:-

1. Whether the trial court was right in holding that the Claimant did not prove his root of title.
2. Whether the trial Court was right in holding that from the available evidence that the Claimant was not entitled to the presumption of ownership of lands adjoining the land in dispute.
3. Whether the trial Court was right in non-suiting the Claimant having regard to the evidence tendered in the suit.
4. Whether the trial Court was right to hold that the Claimant cannot under any circumstance take advantage of the admissions of the defendants for the sole reason that Claimant is seeking a declaratory relief of the Court when the Claimant himself had himself and through his witnesses introduced evidence in proof of his entitlement to the declaration.

The Respondents on their part formulated three issues also couched thus:-

1. Whether the Learned trial Judge was right when he held that the Plaintiff is more connected to the land than the Defendants even when “no witness was called by the Plaintiff to give positive and admissible evidence on that”
2. Whether the issue of two names i.e. “Obiofuo” in the Writ of Summons and “Odikpiri Nwageruka” in the Statement of Claim and further amended Statement of Claim of the Plaintiff without asking for leave to amend the same, is not fatal to the case of the Plaintiff/Appellant.
3. Whether the trial Judge was right when he entered a non suit rather than dismissing the suit in its entirety or awarding the title to the Defendants who are in possession.

I have examined the Notice and Grounds of Appeal earlier reproduced in this judgment and I am of the view that Issue 2, formulated by the Respondents is alien to the grounds of appeal filed by the Appellant.

The Law is firmly rooted that issues for determination both from the Appellant and Respondent in an appeal must be in tandem and relevant to the ground or grounds of appeal founding an appeal. Any question for determination that does not arise or flow directly from the ground or grounds of appeal is a violation of the principle. Any issue distilled outside the precinct of ground or grounds of appeal is liable to be struck out. See:
1. REAR ADMIRAL FRANCIS ECHIE AGBITI VS. THE NIGERIAN NAVY (2011) 1 SCM 31 at 48 A – D per ADEKEYE, JSC and
2. SOCIETY BIC SA & ORS. VS. CHARZIN INDUSTRIES LIMITED (2014) 3 SCM 208 at 228 A – D per NGWUTA, JSC.
Issue three formulated by the Respondent which also lumped together question relating to non suit with issue challenging the failure of the trial Judge to award the land in dispute to the Respondents on the ostensible ground that they are in possession of the land is also caught in the web of raising issues not covered by ground of appeal.
Also it is important to note that there is no cross appeal on failure to award the land to the Respondents.
See:
(1) COMRADE A. A. OSHIOMOLE VS. CHARLES E. AIRIHIAVBERE MAJ GEN. RTD. (2013) 7 NWLR (PART 1353) 376 at 418 B – C per ALAGOA JSC.
(2) CHIEF D. B. AJIBULU VS. MAJOR GEN. D. O. AJAYI RTD. (2014) 2 NWLR (PART 1392) 483 at 494 B – D Per OGUNBIYI, JSC.
(3) J. G. DUVIE GWEDE VS. INEC & ORS. (2014) 18 NWLR (PART 1438) 54 at 88 C – D per ONNOGHEN, JSC who said:
“In any event the Law is settled that for an issue to be valid and competent for consideration by the Court, it must arise from a complaint against the decision judgment on appealed. Where an issue raised in a brief of argument of either the appellant or respondents does not arise from any of the grounds of appeal as in the instant case, the issue is incompetent and liable to be struck out.”

Therefore Issues 2 and 3 raised for determination by the Respondents are incompetent and are hereby struck out.

The appeal will be determined on the issues distilled by the Appellant for determination. I will however take Issues 1 and 4 together.

ISSUES 1 AND 4

1. WHETHER THE TRIAL COURT WAS RIGHT IN HOLDING THAT THE CLAIMANT DID NOT PROVE HIS ROOT OF TITLE.

4. WHETHER THE TRIAL COURT WAS RIGHT TO HOLD THAT THE CLAIMANT CANNOT UNDER ANY CIRCUMSTANCE TAKE ADVANTAGE OF THE ADMISSIONS OF THE DEFENDANTS FOR THE SOLE REASON THAT THE CLAIMANT IS SEEKING A DECLARATORY RELIEF OF THE COURT WHEN THE CLAIMANT HIMSELF HAD HIMSELF AND THROUGH HIS WITNESSES INTRODUCED EVIDENCE IN PROOF OF HIS ENTITLEMENT TO THE DECLARATION.

Ejike Efobi Esq. for the Appellant relied on the issues joined on the pleadings and evidence led at the trial on the title to the Land in dispute. He laid out the five methods of proving ownership of land and the fact that the Claimant is not under obligation to prove all the five methods as according to him it will suffice if he proves it by anyone cogent, satisfactory and conclusive evidence. He relied on the following authorities viz:

1. IDUNDUN V. OKUMAGBA (2002) 20 WRN 127, 1976 9 – 10SC 227.
2. ACHIAKPA V. NDUKA (2001) 39 WRI 1
3. ELEGUSHI V. OSENI (2006) 14 WRN 1.
4. PASORO & ANOR. VS. BEYIOKU & ORS. (1988) 2 NWLR (PART 76) 263.
5. DADA VS. FALEYE (2007) 17 WRN 118.
6. AIKONBARE V. OMOREGBE (1976) 12 SC 11.

He relied on the pleaded case of the Appellant as pleaded found in the FURTHER AMENDED STATEMENT OF CLAIM pages 48 – 51 of the record. He relied on pages 72 – 82 of the record for the evidence given by the Appellant and his witness PW2 which Appellant’s Learned Counsel submitted established the root of title of the Appellant. Though he conceded that a Claimant claiming title to Land must rely on the strength of his own case he submitted that Appellant established the traditional evidence and history entitling him to the title to the Land. He drew attention to evidence of PW2 and DW7 to submit that before arriving at his decision to non suit the Appellant the trial Judge did not evaluate the traditional evidence relied on by the Appellant in proof of his title to the Land in dispute. That evidence show that the Appellant did not share allodial right of ownership of the Land with anyone. He relied on FAGUNWA VS. ADIBI (2004) 39 WRN 1 at 21. That the Respondents’ evidence shows that one EMOLE they claimed to be their ancestor that deforested the Land was a stranger in AKOLI COMMUNITY as he was said to be from AJATA. That a stranger cannot claim ownership to a land in a community he does not belong without adequate explanation to the court. He relied on the cases of:
1. ONYIBO MADUBUONWU & ORS. VS. ANUMUDU NNALUE & ORS. (1992) 8 NWLR (Pt. 260) 140.
2. JOEL OKOLIE VS. ONYEJULUWA (2000) 2 WRN 89.

That there is no onus on the Appellant to explain how his ancestor who is a Native of AKOLI deforested the ODIKPIRI NWAGERUKA Land in AKOLI now in dispute. That no explanation was offered by Respondents how they came to deforest a land in AKOLI from AJATA COMMUNITY.

That the admissions of the defendants and their witnesses during their testimonies conceding greater connection between Appellant and the Land in dispute strengthened the Appellant’s case and that he is perfectly entitled to take advantage of the weaknesses of the defence witnesses to support Claimant’s case. He relied on:

1. JULES V. AJANI (1980) 5 – 7 SC 97.
2. NWAGBO V. IBEZIAKO (1972) 2 ECSLR 335.
3. JOEL OKOLIE VS. ONYEJULUWA (2000) 2 WRN 89 at 100.
4. EHIMARE V. EMHONYON (1985) 1 NWLR (PART 2) 1 NWLR (PART 2) 177.
5. NGENE VS. CHIKE IGBO (2000) 4 NWLR (PT. 651) 131.

The Learned Counsel to Appellant submitted that once evidence of traditional history succeeded there was no need for evidence of possession. That proof of ownership means proof of possession. He relied on the cases of BASIL V. FAJEBE (2001) 21 NRN 58 and AKINTERIWA VS. OLADUNFJOYE (2000) FWLR (PT. 10) 1711 among other cases.

That having regard to overwhelming evidence by Appellant it was wrong for the Lower Court to say he was not satisfied with the traditional history of the Appellant relying on OKOKO V. DAKOLO (2006) 47 WRN 1 at 44. That the trial court has the duty imposed upon him to appraise and evaluate the evidence adduced by Appellant. He relied on EYO VS. INYANG (2001) 4 WRN 78 at 97 and NNEJI VS. CHUKWU (1996) 10 NWLR (PT. 478) 265.

That there was no dispassionate consideration of the evidence and issues before the Lower Court and that the Lower Court did not reflect in his judgment that he did proper evaluation. He called on this Court to intervene and make necessary findings. He relied on:

1. EYO VS. INYANG SUPRA Page 99.
2. FALEYE VS. OTAPO (1995) 3 NWLR (PART 381) 1 at 12.
3. AMARA VS. ALO (1995) 7 NWLR (PT. 409) 623 at 633.

He urged this court to resolve Issue 1 in favour of the Appellant.

In his response the Learned Counsel to the Respondent Dr. G. N. ORIAKU submitted that there was no evidence before the trial Court to look at. That facts that are not pleaded are inadmissible even if such evidence is extracted during cross examination. He relied on the case of ARO VS. BABAYEMI (2004) ALL FWLR (PART 204) 61 CA.

The Respondent’s Learned Counsel submitted that the findings of the Learned trial Judge are not supported by credible and reliable evidence and if allowed will lead to gross miscarriage of justice. An appellate court has the duty to set aside a perverse finding judgment or decision particularly where it awarded a party what he never claimed as in this appeal. Learned Counsel relied on the case of C – D. C. (NIG.) LTD. VS. 5 COA (NIG) LTD (2007) ALL FWLR (PT. 363) 42 and EKPEYONG V. NYONG (1975) 2 SC 71.

On evidence of traditional history, the Learned Counsel to Respondents traced what he believed to be the history of the Land from the standpoint of Respondents and submitted that the Survey Plan of the Respondents is self explanatory. He relied on the testimonies of MR. WILLIAMS UFOMADU and 1st and 2nd Defendant of Appellant how their properties are close to the Land in dispute. That the Land in dispute was given to the Respondents grandfather by EMOLE FAMILY as compensation for the gruesome murder of Uwakwe during a fight. That there are features like graves of Uwakwe, Mrs. Okwuonu and others from Respondents family on the Land, coupled with presence of trees, Rafia Palm Trees, Oil Palm Trees, Banana Plantain suckers and pit latrines owned and dugged on the Land by Respondents including those who obtained Respondents permission to use the Land for such purpose.

Under Issue 4 the Learned Counsel to the Appellant argued and relied on numerous authorities that the cases seem to agree that whenever the defendant’s evidence support the case of the Plaintiff, the Plaintiff is fully entitled to rely on such evidence notwithstanding that the Plaintiff’s Claim is for declaration of title to Land. He relied on the following cases:

1. IHEANACHO VS. CHIGEKE (2004) 48 WRN 18.
2. ADU V. GBADAMOSI (2009) 19 WRN 178.
3. ELEBURIKE VS. OYEWOLE (2004) 51 WRN 66.
4. OKELOLA VS. ADELEKE (2004) 44 WRN 1.
5. FAGUNWA VS. ADIBI (2004) 39 WRN 1.

The Learned Counsel urged the Court to resolve Issue 4 in favour of the Appellant. The position of the Respondent is that the findings of the trial Court are not supported by credible and reliable evidence. There was no argument from Respondents as to whether the trial Judge ought to have relied on admissions of the Respondents to found for the Appellant on his Claim.

It is here apposite to bring out clearly the respective root of title pleaded by the Appellant and the Respondents. Paragraphs 3 – 13 of the Claimants FURTHER AMENDED STATEMENT OF CLAIM are as follows:

3. The Plaintiff knows the entire land are known as and called “ODIKPIRI NWAGERUKA” of an annual rental value of N20.00 (Twenty Naira) and is situate at Akoli Agbama Olokoro an Urban Area within the Umuahia South Local Government Area of Abia State of Nigeria within the Umuahia Judicial Division.

4. The Plaintiff avers that he is the owner, holder and occupier of the entire “ODIKPIRI NWAGERUKA” parcel of land by Customary Inheritance and devolution of property in accordance with the Native Law and Custom of Akoli Agbama Olokoro Umuahia.

5. The Plaintiff avers that the entire “ODIKPIRI NWAGERUKA” parcel of land is correctly and accurately delineated and verged GREEN while the two portions in dispute are verged RED in the Plaintiff’s Survey Plan. No. HAS/ABD/029/2004 dated 7/12/2004 and filed with the Statement of Claim. The Survey Plan is hereby pleaded and will be relied upon by the Plaintiff during the hearing of this Suit.

6. The Plaintiff avers that the Survey Plan was prepared by a Registered Surveyor ‘A’ are palm trees and cola nut tree. The features in plot ‘B’ are Cola nut tree, Ochicha tree, Palm trees, Udara tree, Apple tree, Orange tree, Tangaline tree and Ube tree and a footpath.

7. The Plaintiff avers that the two plots of land in dispute verged RED in the Plaintiff’s Survey Plan are bounded as follows: Plot ‘A’.

(a) On one side by Odoemelam family land.
(b) It is surrounded by and or inside the “ODIKPIRI NWAGERUKA” Land not in dispute. Plot ‘B’ is bounded as follows:
(a) By the Oriaku family compound.
(b) By Eluwa family compound.
(c) The “ODIKPIRI NWAGERUKA” land of the Plaintiff not in dispute.

8. The Plaintiff avers that the entire “ODIKPIRI NWAGERUKA” parcel of land verged GREEN including the areas plots ‘A’ and ‘B’ verged RED in the Plaintiff’s Survey Plan was deforested by Nwageruka Ibeji the Original Owner of the land. Nwageruka Ibeji when he was alive exercised maximum acts of ownership and possession of the land where he dug his pit latrines hence the name “ODIKPIRI NWAGERUKA”. Nobody from the Defendants’ families challenged his ownership and possession of the entire land area including the portions in dispute.

9. That Nwageruka Ibeji begat three (3) sons namely: Nana Onukogu Nwageruka, Nwokoukwu Nwageruka and Iroulo Nwageruka. That on the death of Nwageruka Ibeji his three sons inherited his lands including the “ODIKPIRI NWAGERUKA” land. They farmed on the land and exercised maximum acts of ownership and possession of the same unchallenged by any member of the Defendants’ families.

10. That Nana Onukaogu Nwageruka and Iroulo Nwageruka after the death of Nwokoukwu Nwageruka in the exercise of their acts and of Ownership and possession of the land pledged the two portions in plot ‘B’ one portion to Mr. Akobundu for two (2 Pounds). The other portion to Mrs. Onuigbo of Ajata Agbama Olokoro for two (2 Pounds) in 1942. That they also allowed Mrs. Ogbonna and Mrs. Okwuonu a portion each of the plot ‘A’ for seasonal farming. They did not sell the two portions of the plot ‘A’ land to the women. On the death of the two women the lands in plot ‘A’ reverted to the Nwageruka family. They did not redeem the portions of lands in plot ‘B’ they pledged out.

11. That Nana Onukaogu Nwageruka begat late Stephen Uwaezuoke Onukaogu Nwageruka who begat Mr. Job Uwageruka Onukaogu and Mr. James Onyebuchi Uwaezuoke Onukaogu. That on the death of Nana Onukaogu Nwageruka and Iroulo Nwageruka. Their sons including the Plaintiff inherited the entire “ODIKPIRI NWAGERUKA” land as family land including the areas in dispute. That late Samuel Ugbogu Onukaogu begat Mr. Okwudiri Onukaogu who became the Plaintiff when his father died. The Plaintiff avers that once a pledge always a pledge and that under Agbama Olokoro Native Law and Custom the Plaintiff has the right to redeem the portions of land in plot ‘B’. The Plaintiff hereby pleads the Agbama Olokoro Native Law and Custom on redemption of land that a pledge remains a pledge and there is no prescription on redemption of land.

12. The Plaintiff avers that in the exercise of his right of redemption of the portion in plot ‘B’ he in the year 2000 went to the families of Onuigbo and Akobundu to redeem the portions of lands pledged to them. They insisted that I pay them N40.00 (Forty Naira) each which I paid them in the presence of Mazi Onyebuchi Enyinnaya, Elijah Onukaogu and Job Onukaogu and both of them accepted the money and took possession of the portions of land in plot ‘B’. That since the year 2000 after the redemption of the portions of land in plot ‘B’ I have been farming the portions of land and reaping the crops without molestation from anybody. That of Onuigbo family was paid to Mr. Gaius Onuigbo while that of Akobundu family was paid to Mr. Matthew Opoko Akobundu. The Plaintiff in the exercise of his right of ownership and possession gave Mr. Tobechukwu Azuonye Usuwa and late Iheonunekwu Ibebunjo parts of the lands in dispute for seasonal farming. Both of them farmed the portions given to them and reaped their farm crops unchallenged by the Defendants.

13. That in the month of March, 2004 the Defendants for the first time jointly and severally without the leave, licence and approval of the Plaintiff broke and entered the lands in dispute in the possession of the Plaintiff as a result of which the Plaintiff suffered damages. When the Plaintiff challenged them the 2nd Defendant assaulted the Plaintiff by hitting him with a long gun and injured the Plaintiff.

The Respondents in paragraphs 2, 4 – 12 of their Statement of Defence pleaded thus:

“2. The defendants admit paragraph 3 of the Statement of Claim except to state that the land in dispute is known as and called “Ala Emole” and not “Odikpiri Nwangeruka” and is well known to the defendants.

4. The defendants deny paragraphs 4, 5, 6 and 7 of the Statement of Claim. In answer thereto, the defendants, state as follows:-

(a) That the land in dispute belongs to the 1st and 2nd defendants by inheritance while both of them granted a portion thereof to the 3rd defendant to enable him build his house. This portion granted 3rd defendant where he built his dwelling house to the knowledge of that without any challenge is verged brown in the defendants survey plan.

(b) That the defendants’ ancestors and the defendants themselves have since their inheritance of the land in dispute been in peaceable possession of same and exercised various acts of ownership over same to the knowledge of but without any challenge from the plaintiff or members of his family.

(c) The features of the land in dispute are:- Banana stumps, Stump of Oji tree, Orange tree, Ube tree, Banana, Coconut tree, Uha tree, Ube tree, Plantain tree, Pit toilet, Electric pole, Cocoanut tree and tomb of murdered Uwakwe. The 1st and 2nd defendants aver that their ancestors planted the economic trees on the land in dispute which fruits thereof they have been reaping peacefully till date.

(d) The land in dispute is bounded as follows:-

(i) In the North by house of 3rd defendant;
(ii) In the South by lands of Israel Ogbonna and Zachius Onukogu;

(iii) In the east by Oriaku Ogbonna family; and
(iv) In the West by Benson and Lazarus Ogbonna.

5. The defendants deny paragraphs 8, 9, 10 and 11 of the Statement of Claim. In answer thereto, the defendants state that the land in dispute was deforested by Emole Okpechi of Ajata Agbama from time immemorial, hence the name of the land in dispute. Emole begat Akobundu and Ufomadu who inherited this land in dispute and used same peacefully till their death.

6. The defendants further ever that Akobundu begat Matthew and Daniel while Ufomadu begat William, all of whom inherited the land in dispute and used same variously without challenge from plaintiff’s family till their death.

7. Matthew had Chidi and Patrick. Daniel had Obinna and Francis while William begat Nna or Nana. These men also inherited the land in dispute and used same variously including……….. without challenge from anybody.

8. The 1st and 2nd defendants aver that Otti Nwankwo Nta was their great grandfather, who had 5 sons, namely:- Ufoegbu, Uwakwe, Obike, Uluagu and Irozuru. Nna or Nana – a great grandson of Emole Okpechi – hired Uwakwe Otti to farm for him on the land in dispute. While working for Nna, a quarrel arose between Umu Emole and Umuobia people which resulted into a fight and as a result Uwakwe was killed on the land in dispute. This brought a big bad blood between Agbama people (of Uwakwe) and Umuobia people (of Emole family members).

9. The 1st and 2nd defendants further aver that Agbama people met and decided that to avoid any vengeance, the Emole Okpechi family of Nna should give the portion of land on which Uwakwe was murdered to his father – Otti Nwankwo Nta – as compensation. This demand was made to Nna and Emole family members who readily agreed and customarily gave the land in dispute to Otti Nwankwo Nta as compensation according to Olokoro native law and custom.

10. The 1st and 2nd defendants aver that their grandfather Otti Nwankwo Nta gave this land in dispute to Ufoegbu Otti who was the only brother of late Uwakwe from the same mother as compensation to his mother for her son’s death, under their custom.

11. Ufoegbu begot Joseph Onuigbo Ufoegbu who begot the 1st and 2nd defendants. All ancestors of 1st and 2nd defendants and themselves have always been in peaceable possession and made various use of the land in dispute without challenge from the plaintiffs family members or anybody at all.

12. In further answer to paragraphs 10 and 11 of Statement of Claim, the 1st and 2nd defendants aver that the land in dispute was not and has never been on pledge to either Mrs. Ogbuebule Onuigbo or any member of Onuigbo family or anybody at all. Instead, their great grandfather.

13. The 1st and 2nd defendants deny paragraphs 12 and 13 of the Statement of Claim. In answer thereto, they aver that the land in dispute was never on pledge to any of their ancestors and there was never any attempt or question of redemption of same from any of them. Plaintiff has never been farming or reaping crops from or been in possession of the land in dispute and was never assaulted by the 2nd defendants over same.”

At the trial the Appellant led evidence in support of his pleaded case and the record does not show that his evidence and that of his witnesses was discredited. See pages 72 – 85 of the record.

The 1st Respondent who gave evidence as DW1 stated on page 89 of the record under cross-examination that the land in dispute is not his ancestral land. That the land in dispute was given to one Uwakwe’s mother who was killed. DW1 said:

“No member of my family has land near the area in dispute.”

DW2 is the 2nd Respondent. He testified that the land was called “Ama Emole” and that it was Emole and his sons that deforested the land. That EMOLE is from AJATA MGBARAMA AGBAMA OLOKORO.

Under cross examination DW2 said:

“The Land in dispute is in Akoli. Akoli is not the same as MBARAMA but they are related. The land in dispute is not at MBARAMA BUT AKOLI EMOLE was from Ajata Mbarama Agbama Olokoro. There are four (4) villages in Agbama Olokoro viz Mbarama, Umuagwu, Akoli and Umuwara. Ajata Agboma is MBARAMA the land in dispute is the property of Agbama people. The land in dispute is not property of Umuobia people. Nobody gave the land to Agbama. They were owners from time immemorial.”

Page 92 of the record lines 15 – 23.

While the said DW2 said the land in dispute belonged to AGBAMA people DW3 CHIDI OPOKO AKOBUNDU who said he was not from Onuigbo family of Defendants said under -cross examination as follows:

“The land in dispute belongs to Umuemole and not Agbama people. The land in dispute does not belong to the entire Umuobia. It was Akobundu the owner who gave the land to Onuigbo.”

Lines 17 – 21 of page 94 of the record.

The Learned trial Judge acknowledged the anomalies in the case of the Respondents and the facts that evidence given by the Respondents and their witnesses actually supported the root of title pleaded by the Appellants. One is surprised that in one breath the Learned trial Judge said the appellant did not give satisfactory evidence to prove his case and yet after showing that the evidence of the Respondents was at variance with pleadings, and even raised presumption in favour of the Appellant that he is more connected with the land, he came to conclusion that it was better to non suit the Appellant in view of her findings. What are the findings? These could be found on pages 108 to 110 where she said:

“DW7 was Maxwell Okwuonu. He said his father Bensonn Okwuonu bought the land in dispute from Emole family. The portions of 1st and 2nd Defendants are also there. Witness buried some people on the land without any objection.

Under cross-examination, he confirmed that none of the boundary neighbours to the land comes from Ajata. Emole was in possession of the land in 1970 when the witness’ father bought it. He is 56 years old. This witness added a new dimension to the case of defence by claiming that his father bought the land in dispute from Emole family. Defence was done with this witness. Ordered written Address which were duly filed and exchanged.

Claimant claims the land in dispute by inheritance from his forebears. He alleged it was on pledge to 1st and 2nd Defendants’ forebear which was redeemed in 2000. It is trite that when a pledge takes place, possession is conceded to Defendant and if it is so, then Claimant has to prove the pledge while the Defendant cannot rely on possession as proof of title. The evidence led by Claimant on pledge and the alleged redemption is unsatisfactory. I do not even find any satisfactory evidence that the land belonged to, and was deforested by Nwageruka before the alleged pledge.

Defendants claim the land came into their possession from Emole family as a result of it’s being used to compensate the family of Uwakwe who was killed on the land. The story of this killing of Uwakwe and compensation is unconvincing. The versions by Defendants witness do not agree with the pleadings. Anyway, there is no duty on Defendants to prove anything as they are not claiming anything. The onus is on Claimant to prove his case on the strength of the evidence he proffers and not to rely on the weakness of the Defendants’ case.

From the evidence before me land in dispute is situate at Akoli. Emole was from Ajata. There was no explanation as to how Emole came from Ajata to deforest land at Akoli. There is evidence by 3rd Defendant who says he has common boundary with the land that he has boundary with Claimant on many other parcels of land and none with 1st and 2nd Defendants. There is evidence before me that no Ajata person has land sharing boundary with land in dispute. It is thus admitted that the land is not that of an Ajata person and so could not have been deforested by an Ajata person. One of the methods of proving title is to show that the lands surrounding the one in dispute have the same character as the one in dispute. These proved issues raise a presumption in favour of claimant and shows he is connected with the land more than Defendants. But declarations are not granted on admissions of parties but on legal proof. These highlighted issues above were brought out under cross-examination of defence witnesses. No witness was called by Claimant to give positive and admissible evidence on that. So I cannot base a principal finding for claimant as to title on the admission of defence witnesses. I am therefore, in the final analysis not persuaded that Claimant has proved his case as required by law. But because of what I have observed, I shall not dismiss this suit at this stage, but shall consider a non-suit. But before I do that, I shall receive arguments from counsel, on whether to dismiss or non-suit the Claimant.

HON. JUSTICE ONUOHA A. K. OGWE
JUDGE
5/8/2009

Court: Based on the submissions of Claimant’s Counsel, I hereby non-suit the Claimant.

HON. JUSTICE ONUOHA A. K. OGWE
JUDGE
5/8/2009”

In effect the Learned trial Judge said he could not declare or grant reliefs sought by the appellant because the admissions in favour of the Appellant’s case were obtained under cross examination by the Learned Counsel to the Appellant and because declaration of title is not granted on admissions and weaknesses in defence case.It must be noted that a Claimant can prove his case through his witnesses and via cross examination of witnesses for defence.
It is true that the Plaintiff in a case for declaration of title to land must rely on the strength of his own case and not on the weakness of the defence.  There is a firm and lucid exception to the general principle of the law relating to burden of proof in claim for declaration of title to land.  See
1. MR. AUDU OTUKPO VS APA JOHN & ANOR (2012) 7 NWLR (PART 1299) 357 at 376 H to 377A per ONNOGHEN, JSC who said:
“It is settled law that a Plaintiff in an action for declaration of title to land must succeed on the strength of his case and not on the weakness of the defence though where the case of the defence support that of the Plaintiff, the Plaintiff can take advantage of same in establishing his claim See Woluchem vs Gudi (1981) 5 SC 294 Mogaji vs Cadbury Nig. Ltd (1985) 2 NWLR (Pt.7) 393.”
2. NELSON NWOSU ONWUGBUFOR & ORS VS HERBERT OKOYE & ORS (1996) 1 SCNJ 1 at 23 (Lines 30-39) where IGUH, JSC said
“It must however be emphasized that the applicable principle is that a Plaintiff when claiming declaration of title must succeed on the strength of his own case and not on the weakness of the defence although where any aspect of the defendant’s case supports the Plaintiff’s case, the plaintiff will not be deprived of the advantage of such support.  See Kodilinye vs Mbanefo Odu 2 WACA 336 at 337, Cobblah vs Gbeke 12 W.A.C.A 294, Akimola vs Oluwo (1962) 1 ALL NLR 224 AT PAGE 225, NWAGBOGU vs Chief NNOLI IBEZIAKO (1972) 1 ALL NLR (Pt. 2) 137.”
The standard of proof in land matters like any other civil cases is on the preponderance of evidence.      I am of the solemn view that the findings of the Learned trial Judge against the Respondents actually tilts the case in favour of the appellant and it shows that if the learned trial Judge had put the evidence of the appellant in support of his case and that of Respondents’ witnesses testimonies before him on an imaginary scale it would have been glaring to the court below that the appellant proved his case as postulated on the pleadings.  I also believe that this is a well deserved case in which the various lapses and admissions on the part of the Respondents as defendants and their witnesses at the trial court should, operate in favour and to the advantage  of the claimant now Appellant.  See: (1) NELSON NWOSU ONWUGBUFOR & ORS VS HERBERT OKOYE & ORS (1996) 1 S.C.N.J. 1 at 29-30 where IGUH, JSC said:
“With profound respect, I think the court below was in gross error by dismissing the evidence of the appellants’ boundary witnesses as un-necessary.  In the first place, paragraph 2 of the Appellants Amended Statement of Claim averred that the land in dispute which situates in Amawa village belongs to the Appellants.  In reply thereto, the Respondents per paragraph 3 of their statement of defence traversed the same and averred that the land in dispute is situate at Azu village, Ogbunike.  In other words, whereas the Appellants averred that the land is situate within their Amawa village, the respondents claimed that it is situated within their Azu village.
There can be no doubt that the parties joined issue on the situs or location of the land in dispute, namely, whether it is situated at Amawa or Azu village.  Indeed I accept the submission of the Appellants that a resolution of this issue would go a long way in determining who own the land in dispute in so far as neither party pleaded purchase as their root of title.
The court below would appear to have appreciated this point when it stated thus –
“One obvious fact which the plaintiffs had to prove was that they know the land of Amawa village as distinct from the land of Azu Ogbunike.  This they could prove by showing the boundary between them by credible evidence. This is important because these are separate villages and the land in question must necessarily be within one of the villages.  So it would appear that one of the facts that ought to be satisfactorily established by the plaintiffs is the boundary.”
It therefore seems to me crystal clear that the boundaries of the land in dispute in so far as its sites or location is concerned was in issue.  If the land is conclusively established to lie within Amawa village, then of course it must belong to the Appellants, if, on the other hand, it is found to be situated in Azu village, then, naturally it must belong to the Respondents.  The court below was clearly in error when it held that the evidence of boundary witnesses is devoid of value.  This is so as they all came from Amawa village and testified that the entire land surrounding the land in dispute belonging to them and indeed to their Amawa village.  Their evidence of boundary was therefore very relevant as, if believed, as indeed, it was, the inescapable inference would be that the land is situate within Amawa village and would therefore belong to the Appellants.
In the second place, these witnesses did not give evidence of their boundaries with the appellants on the land in dispute; they also gave material evidence in support of the appellants’ case. PW2 for instance, not only gave evidence of his boundary with the appellants on the land in dispute but corroborated the Appellants’ testimony to the effect that the Respondents family members lived on the Appellants land in dispute.”
(Underlined mine)
The Appellant was able to prove the location of the land to be in Akolli Agbama Olokoro and that same was known and called “ODIKPIRI NWAGERUKA” The Respondents in paragraph 2 of their Statement of Defence admitted the situs of the land though they called it ALA EMOLE and pleaded also that EMOLE EKPECHI who deforest the land came from Ajata Agbama.  The Respondents evidence destroyed the case pleaded and confirmed the boundaries of the land pleaded by the Appellant. In order words the respondents pulled down brick by brick the edifice built in their pleadings vide the evidence of their own witnesses which include the testimonies of the Respondents themselves.  The Appellant is entitled to take advantage of them.  See: CHIEF FALADE ONISAODU & ANOR VS CHIEF ASUNMO ELEWUJU & ANOR (2006) 13 NWLR (PT. 998) 517 at 529 B – H to 530A, where KATSINA ALU JSC (Later CJN RTD) said:
“The testimony of PW6 clearly strengthens the admission made by D.W.2 against the interest of defendants-appellants who called him as a witness.
It is now settled law that in a suit for a declaration of title to land the onus of proof lies on the plaintiff who must succeed on the strength of his own case and not on the weakness of the defendant’s case: See Kodilinye v. Odu 2 WACA 336; Woluchem v. Gudi (1981) 5 SC 291. The plaintiff can however rely on the evidence of the defendant which supports his case.
It is plain from the record of this case that the learned trial Judge did not evaluate the admission of DW2. He casually mentioned it in his judgment. He said:
“Furthermore I have considered all the evidence in this suit although DW2 later contradicted himself by saying that the land in dispute belonged to Eleigba family i.e. the plaintiffs family, in all, the weight of evidence goes more in favour of the defendants than the plaintiffs.”
I have indicated earlier on in the course of this judgment that the learned trial Judge did not review the evidence of the defendants. And without evaluating the evidence of admission he proceeded to give judgment for the defendants-appellants. What the learned trial Judge did was tantamount to saying that the plaintiffs had not made out a case for the defendants to answer even though he took their evidence at the trial.
The plaintiffs led evidence in line with their pleadings and so established a prima facie case. As I have already pointed out, the evidence of D.W.2, called by the defendants, to the effect that the land in question was owned by the plaintiffs’ family strengthened the plaintiffs’ case. This was an admission against the interest of the defendants. The said admission against interest is relevant and admissible evidence: See Ojiegbe & Ors. V. Okwaranyia & Ors. (1962) All NLR 605; (1962) 2 SCNLR 358. I think it is pertinent to state here that the defendants did not treat their witness (DW2) as a hostile witness. In such a situation the evidence must be treated as an admission upon which the plaintiffs are entitled to rely as further reinforcement of his claim. The effect of the admission is that the learned trial Judge was wrong in giving judgment for the defendants. The admission in my judgment was fatal to the case of the defendants – appellants.”

The effect of the admission of Defendants in this case is that the learned trial judge was wrong in giving judgment non suiting the Appellant. The admission in my judgment was fatal to the case of the defendants.

More importantly there is evidence on record which the learned trial Judge believed that contrary to the pleading and evidence of Defendants the original owner of the land that defendants claimed deforested the land was a stranger and that there was no explanation from Defendants, how Emole came from Ajata to deforest the land in dispute at Akoli.

The pieces of evidence led by the appellant were amply supported by the evidence of Defendants now Respondents witnesses thereby establishing that founder of the land in dispute was Appellant’s ancestor. The basis and the foundation upon which the Respondents defence rested have been uprooted by the avalanche of evidence on record, and as found by the learned trial Judge. All these are enough or sufficient to warrant an interference with the judgment of the learned trial Judge. This is because the conclusion reached by him is contrary to the evidence led by the appellants and Respondents.
See (1) NELSON N. ONWUGBUFOR & ORS V. HERBERT OKOYE & ORS (1996) 1 SCNJ 1 at 33
“What the Court of Appeal ought to do is to find whether there is evidence on which the trial court could have acted. Once there is sufficient evidence on record from which the trial court made its findings of facts, the appellate court cannot intervene. See Akpagbue v. Ogu (1976) 6 S.C. 63. Odofin v. Ayoola (1984) 11 S.C. 72, Amadi v. Nwosu (1992) 5 N.W.L.R (Pt.241) 273 at page 280 etc. Where, however, he failed to make a proper use of the opportunity of seeing, hearing and observing the witnesses at the trial or to exercise his discretion properly, or where the findings cannot be regarded as resulting from the evidence or where it has drawn wrong conclusions to accepted evidence or has taken an erroneous view of the evidence adduced before it or its findings of fact are perverse in the sense that they do not flow from accepted evidence or are not supported by evidence before the court, the appellate court will be at liberty to intervene and to make the necessary findings from such evidence. See Okpiri v. Jona (1961) All N.L.R 102 at page 104, Maja v. Stocco (1968) 1 All N.L.R 141 at page 149, Ike v. Ogboaja (1993) 6 N.W.L.R. (Pt. 301) 539 at 555, Chief Frank Ebba v. Ogodo (1984) 4 S.C. 84 at.”

The learned trial Judge as can be seen from his earlier quoted judgment failed to make a proper use of the opportunity of seeing and hearing the witnesses and has drawn wrong conclusion from the pieces of evidence led before him. The finding of the trial Judge is perverse and it is not supported by evidence on record.

In the result Issues 1 and 4 are resolved in favour of the Appellant against the Respondents.

ISSUES 2

WHETHER THE TRIAL COURT WAS RIGHT IN HOLDING THAT FROM THE AVAILABLE EVIDENCE THAT THE CLAIMANT WAS NOT ENTITLED TO THE PRESUMPTION OF OWNERSHIP FROM HIS PROVE OF OWNERSHIP OF LANDS ADJOINING THE LAND IN DISPUTE.

The Learned Counsel relied on his arguments under issue 1 particularly on five methods of proving ownership of land. He referred to the further Amended Statement of Claim paragraphs 4-8 on pages 48- 49 of the record. The Appellant relied on Section 46 of the Evidence Act as supporting the oral evidence tendered in support of his pleadings and the Survey Plan Exhibit “A” that the said Exhibit proved the exact boundaries and extent of the area of land claimed. That the learned trial Judge did not say a word on the exhibits tendered. He stated it was an error on the part of the trial Judge. He relied on the cases of

1. KYARI VS ALKALI (2002) 31 WRN 88.
2. EJEBU VS OKOKO (2001) 44 WRN 141.
3. OLADELE VS AROMOLARAN II (1996) 6 NWLR (PT. 453) 180.

That using Exhibit A as hanger to test the oral testimonies the trial Judge would have known where the truth lies.
Here relied on:

1. KARIMU OLUJINLE VS BELLO ADEAGBO (1988) 2 NWLR (PART 75) 283.
2. KIMDEY & ORS VS MILITARY ADMINISTRATOR OF GONGOLA STATE & ORS (1988) 8 NWLR (PART 77) 445 AND
3. INEC VS OSHIOMOLE (2009) 4 NWLR (PART 1132) 607 AT 671.

That the evidence of the claimant to the effect that the land in dispute is surrounded by or so connected to the land owned by the Appellant that is not in dispute was admitted by the 3rd Defendant in his oral testimony as DW5. That the Appellant gave evidence supporting his claim.

The Respondents repudiated the appellant’s argument by contending that he did not establish his claim to the land. That the 3rd Respondent built his house close to the land in dispute and that the (3rd Respondent) got the land via purchase of same from 1st and 2nd Respondents.

A close perusal of the evidence of the 3rd Respondent who testified as DW5 confirmed the boundary men pleaded by the claimant/Appellant in paragraph 7 of the Further Amended Statement of Claim contained on pages 48-49 of the record. Under cross examination he (DW5) stated he does not belong to the families of the parties in this appeal.
Under cross examination on page 99 from lines 25-30 DW5 said.

“I did not physically see Nwageruka. I know his descendants, such as Onukaogu Nwokeukwu and Iroulo. They are have (sic) boundaries with the land in dispute.”

The Learned trial Judge found in his judgment on page 109 among others that:

“One of the methods of proving title is to show that the lands surrounding the one in dispute had the same character as the one in dispute. These proved issues raise a presumption in favour of Claimant and shows he is connected with the land more than the defendants.”

It is therefore not right for the trial court to hold that there was no evidence called by the claimant to give positive and admissible evidence on that.  There is such evidence on record given by the appellant and his witnesses amply supported and strengthened by admissions and evidence by the Respondents and their witnesses.  The Learned trial Judge wrongly evaluated the evidence relevant to the said issue and came to wrong conclusion.
See:  ADLELE IHUNWO VS JOHNSON IHULNWO & ORS (2013) 8 NWLR (PART 1357) 550 at 571 D where ARIWOOLA, JSC, said:
“It has been held and it is trite law, that appeals to appellate courts are by way of rehearing.  In hearing an appeal, the appellate court should reconsider the materials before the trial court and should not hesitate to overrule its decision even on facts where after giving due regards to the advantage which the trial court has of seeing the witness, it is clear the decision is wrong.  See OKHUAROBO & ORS VS AGBE supra.”

Issue 2 is resolved in favour of the Appellant against the Respondents.

ISSUE 3

WHETHER THE TRIAL COURT WAS RIGHT IN NON-SUITING THE CLAIMANT HAVING REGARD TO THE EVIDENCE TENDERED IN THE SUIT.

It is the submission of EJIKE EFOBI Esq. that an order of non suit would be appropriate where there is no satisfactory evidence enabling the court to give judgment to either parties. He relied on the following cases.

1. ADELUSOLA VS AKINDE (2004) 52 WRN 27 at 46
2. AFRICAN CONTINENTAL BANK VS YESUFU (1980) 1- 2 SC 49.
3. OLAGBENRO VS AJAGUNGBADE iii (1990) 3 (sic)

He submitted that the Lower Court did not give any reason for holding that the claimant evidence was unsatisfactory. That the traditional evidence relied upon by the appellant in proof of his case at the court below was cogent, satisfactory and conclusive. He cited and relied on EJEBU VS OKOKO (2001) 44 WRN 141 at 153.

He urged the Court to resolve issue 3 in favour of the Appellant.
The Respondent did not react to this aspect of the appeal as to whether the Lower Court was justified in making order of non-suit. Nonetheless this court is under a duty to consider it.

I am of the view that the evidence led was sufficient enough to entitle the appellant to the reliefs sought at the trial court. He proved his case as set out on the further Amended Statement of Claim and the evidence proffered. The quality of evidence given is enough to enable the appellant win his case coupled with the destructive admissions and other pieces of evidence falling from the lips of the Respondents and their witnesses.

Order 40 of the Abia State High Court (Civil Procedure) Rules, 2009 provides that where satisfactory evidence is not given entitling the Claimant or defendant to the judgment of the court, the Judge suo motu or on application may non suit the claimant but the parties’ Legal Practitioners shall have right to make submissions about the proprietary or otherwise of making such order.

The rule cannot apply in this case because there is satisfactory evidence before the Lower Court which evidence was supported by the testimonies of the Respondents and their witnesses.

Issue 3 is also resolved against the Respondents in favour of the Appellant.

Therefore I hold that the appellant’s appeal is meritorious. The appellant appeal is hereby allowed. The decision of the ABIA STATE HIGH COURT contained in the judgment of HON. JUSTICE ONUOHA A. K. OGWE delivered on 5th day of August, 2009 non-suiting the Appellant is hereby set aside.

The Appellant is entitled to judgment on the reliefs sought by him in suit No. HU/87/2004 as the Appellant proved his entitlement to the said reliefs.

Judgment is hereby entered in favour of the Appellant as follows:

“(a) A declaration that the plaintiff as the holder and occupier of the piece or parcel of land known as and called “Odikpiri Nwageruka” is entitled to the statutory right of occupancy of the said parcel of urban land of annual rental value of N20.00 (Twenty Naira) situate at Agbama Olokoro Umuahia in Umuahia South Local government area of Abia State of Nigeria within the Umuahia Judicial Division.

(b) N1,000,000.00 (One Million Naira) being general damages for trespass in March 2004 when the defendants for the first time without the leave, license and approval of the plaintiff broke and entered the said portion of land in possession of the plaintiff as a result of which the plaintiff suffered damages.

(c) Perpetual injunction restraining the defendants, their servants, privies, agents and workmen from further entry into the said piece or parcel of land or in any way or manner whatsoever interfering with the said parcel of land.”

The Appellant is entitled to costs assessed at N50,000 (Fifty Thousand Naira).

ITA GEORGE MBABA, J.C.A. : I had the privilege of reading in draft, the lead judgment of my learned brother, P. O. Ige, just delivered and I agree with his reasoning and conclusions, that the Appeal is meritorious.

Of course, my learned brother, P. O. Ige JCA, had, exhaustively, discussed and applied the exception to the legal principle that a Plaintiff in a land matter (or declaratory relief) must succeed on the strength of his own case, by leading credible evidence to establish his claim, and need not rely on the weakness of the defence’s case or on admission by the defence. In that circumstance, the law requires the Plaintiff to succeed on a minimal of proof, where there is admission by the defence, and the plaintiff can take advantage of the admissions by the Defendant touching on material facts. See Gwantu vs. Yaki (2013) LPELR – Ukpo vs. Imoke (2009) 1 NWLR (Pt.1121) 90 at 144; Agboola vs. UBA PLC (2011) ALL FWLR (Pt.574) 74.

I too allow the appeal and abide by the consequential orders in the lead judgment.

FREDERICK O. OHO, J.C.A.: I have had the opportunity of reading the draft of the Judgment of my learned Brother, P. O. Ige, JCA, just read. I agree that the Respondents failed to establish their title to the parcel of land in dispute and consequently the Appeal must succeed.

It is allowed and abide by the consequential orders made by my Brother.

Appearances

Ejike Efobi Esq.For Appellant

AND

G. N. Oriaku Esq. with Emmanuel Okoroji Esq.For Respondent