OTUDO & ORS v. MBE & ORS (2020)

OTUDO & ORS v. MBE & ORS

(2020)LCN/15332(CA)

In The Court Of Appeal

(OWERRI JUDICIAL DIVISION)

On Wednesday, July 15, 2020

CA/OW/253/2016

Before Our Lordships:

Raphael Chikwe Agbo Justice of the Court of Appeal

Ita George Mbaba Justice of the Court of Appeal

Ibrahim Ali Andenyangtso Justice of the Court of Appeal

Between

1. CHIEF SUNDAY DAMIAN OTUDO 2. CHIEF LONGINUS UDENKWO 3. MR. BENEDICT OKEREKE OKORORIE (For Themselves And As Representing OKEKA NTAGBU Family Of Amandi Umuanyi Autonomous Community, Uturu, Isuikwuto L.G.A, Abia State) APPELANT(S)

And

MR. RUFUS MBE 2. MR. CYPRAIN NWEKE 3. MR. MONDAY ARIMA 4. CHIEF MICHAEL IMO (For Themselves And As Representing ObiaguIsiyi Autonomous Community, Uturu, Isuikwuato L.G.A Of Abia State Except Ogbonna Dibiocha Family) RESPONDENT(S)

RATIO

WHETHER OR NOT TRADITIONAL HISTORY IS A WAY OF PROVING TITLE TO LAND

One of the five known ways of proving title to land is by traditional history, and where a party pleads traditional history, as his root of title, the challenge always remains, that if he fails to establish his claim by that means, he cannot make recourse to, or resort to plea of possession or positive acts of ownership, as the same would become the needed evidence of the acts of trespass on the land by him. See the case of ISIOHIA & Ors Vs ELECHI (2018) LPELR – 44988 CA, which relied on the Supreme Court decision in Dudu Addah & Ors Vs Hassan Sali Ubandawaki (2015) LPELR – 24266 SC to hold 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 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) LPELR – 25529 CA…” PER MBABA, J.C.A.

WHETHER OR NOT A PLAINTIFF CAN ABANDON HIS PLEADINGS AND RESORT TO RELYING ON POSSESSION AND ACTS OF OWNERSHIP TO BACK HIS CLAIM FOR TITLE FOUNDED ON TRADITIONAL HISTORY

Thus, if the traditional history fails, the Plaintiff cannot abandon his pleading and resort to relying on possession and acts of ownership over a long period of time, numerous and positive, to prove title, as that 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 that mode of proof has to be separately and distinctly, pleaded and proved.
The Plaintiff cannot be permitted to rely on acts of possession and ownership, to back his claim for title founded on traditional history, except in a situation where the rule in Kojo II Vs Bonsie (1957) WLR 1223; (2001) Vol.86 LRCN 1492 applies, i.e. where each side relied on traditional histories, but each failed, as none was established, warranting a resort to recent and positive acts of possession and ownership by the parties, to determine the party with better title. See the case of Isiohia V Elechi (supra); Mogaji Vs Cadbury (Nig) Ltd; (1985) LPELR – 1889 SC; Balogun Vs Akanji (1988) 1 NWLR (Pt.70) 301.
See alsoEcheweawo Vs Agomuo & Anor. (2018) LPELR – 46912 CA, where this Court, held:
“Evidence of possession and positive acts of ownership can only be relevant and invoked in a situation that the evidence of traditional histories by the two sides are inconclusive and/or improbable, calling for a resort to the rule in Kojo II Vs Bonsieto determine the person with better title. See the case of Enyinnaya Vs Otikpo & Anor (2015) LPELR –25529 (CA); Ukaegbu & Ors Vs Nwololo (2009) LPELR – 3337 SC; Sogunro & Ors Vs Yeku & Ors (2017) LPELR – 41905 (SC).” PER MBABA, J.C.A.

WHETHER OR NOT THE BURDEN OF PROOF RESTS ON A PLAINTIFF WHO RELIES ON TRADITIONAL HISTORY TO ESTABLISH HIS ROOT OF TITLE TO LAND IN A DISPUTE
Of course, the law remains trite, that where a party relies on traditional history to establish his root of title to land in dispute, the burden is on him to plead the root of title and names and history of his ancestors, and lead credible evidence to establish same, without any missing link, as a break in the chain of devolution of the land, will be fatal to the Claimant. See Igbojionu & Ors Vs Uko & Ors (2018) LPELR – 45875 (CA); Sogunro & Ors Vs Yeku & Ors (2017) LPELR – 41905 (SC); Owoade Vs Omitola (1988) 2 NWLR (Pt.77) 413; Alli & Anor Vs Alesinloye & Ors (2000) LPELR – 427 (SC).
In such a situation the Plaintiff is bound to plead such facts, as:
(1) Who founded the land;
(2) How the land was founded and
(3) The particulars of the intervening owners, through whom he claims. See Akinloye Vs Eyiyola (1968) NMLR 92; Olujinle Vs Adeagbo (1988) 2 NWLR (Pt.75) 238; Adejumo Vs Ayantegbe (1989) 3 NWLR (Pt.110) 417; Anyanwu Vs Mbara (1992) 5 NWLR (Pt.242) 386. PER MBABA, J.C.A.

WHETHER OR NOT THE FIRST SETTLER OR FOUNDER OF A PARCEL OF LAND BECOMES THE OWNER OF THE LAND

To deforest a land, by original founder, in my opinion and by legal parlance, means to clear the virgin land (i.e. forest) that covered the land, or to acquire and assert possession of the virgin land and appropriate it. It is used to explain the original settler on the land. See the case of Adedayo Vs Babalola & Ors (1995) LPELR – 85 (SC):
“… It is a notorious fact that the first settler or founder of a parcel of land becomes the owner of the land, and the head of subsequent settlers on the land. His descendants derive title to the land from him. It accords with the common sense that the head or ruler of the settlement, at any given time, should be one of the descendants of the founder of the land.” Per Ogwuegbu, JSC.
See also Titiloye & Ors Vs Olupo & Ors (1991) LPELR – 3250 SC; (1991) 7 NWLR (Pt. 205) 519; Okereafor Vs Nkwocha & Ors (2014) LPELR – 23296 (CA); Jala & Ors Vs Jala & Ors (2017) LPELR – 43320 (CA). PER MBABA, J.C.A.

ITA GEORGE MBABA, J.C.A. (Delivering the Leading Judgment): Appellants filed this Appeal on 31/5/2016 against the judgment of Abia State High Court in Suit No. HS/27/2011, delivered on 2nd March, 2016, by Hon. Justice A.U. Kalu, wherein the Learned Trial Judge dismissed the claims by the Plaintiffs (now Appellants) and granted reliefs sought by the Defendants (now Respondents) in their Counter-claim.

At the trial Court, Appellants had sought the following reliefs:
(a) A declaration of Court that the Claimants are entitled to the Statutory Right of Occupancy over and in respect of that piece or parcel of land known as and called “ABO NDILE” situate at Amandile, Umuanyi Autonomous Community, Mbaugwu Ihitte,Uturu in Isuikwuato L.G.A of Abia State, with an annual value of N100.00 (One Hundred Naira)
(b) N1,000,000.00 (One Million Naira) general damages for trespass against the defendants.
(c) Perpetual Injunction restraining the Defendants by themselves, their servants, agents, privies or workmen from any further entry into the said “ABO NDILE” land of the Claimants. (See the Amended Statement of Claim on Page 227 of the Records of Appeal). the Records of Appeal).
The Respondents filed a defence and Counter-Claim, seeking the following reliefs:
(a) A declaration that the Defendants are in possession and entitled to the grant of Statutory Right of Occupancy of that piece or parcel of land known as and called “ABO OBIAGU” situate at ObiaguIsiyi Autonomous Community, Uturu in Isuikwuato L.G.A of Abia State, within the jurisdiction of this Honourable Court.
(b) Ten Million Naira (N10,000,000.00) being general damages for trespass committed by the Claimants on the said land.
(c) Perpetual Injunction, restraining the Claimants, their agents, servants, privies and those that are claiming under or through them, from entering into or interfering or dealing with Defendants’ “ABO OBIAGU” land.” (Page 250 of the Records of Appeal).
After hearing the case and considering the evidence adduced and addresses of Counsel, the trial Court held, as follows, for the Respondents, in their Counter-claim:
“The Defendants called (3) witnesses in defence of the Suit and in proof of their Counter-claim. It is my view that none of these three witnesses was seriously challenged in cross-examination. The evidence tendered by the Defendants clearly demonstrated how their progenitor, Uturu, founded the land in dispute, via deforestation. The Defendants presented quantitative and qualitative evidence on their ancestors on whom title to the land devolved, since it was founded, until it came to the Defendants. They have told the Court of the user (sic) they have put of the land, including Obiagu Community building Ijoma family building, Dr. Ibeaja Memorial hospital and many other buildings of Obiagu people on the land in dispute. All these structures were reflected on the Defendants’ dispute plan tendered as Exhibit N.
In obedience to the decision in Osawe Vs Osawe (1991) 5 NWLR (Pt.194) 710 at 723, the Defendants did not just tender their dispute plan, as Exhibit N, to show the area they are claiming as theirs, the Defendants went further to show by evidence the area to which the said dispute plan relates. In other words, the Defendants demonstrated their dispute plan (Exhibit N), and their evidence placed side by side, are the same or go to prove the same facts.
In sum total, I find the evidence tendered by the Defendants in proof of their title to the land in dispute as one that makes consistent sense and it links the Defendants, who rely on it, affirmatively, with the traditional history they relied on. I, therefore, enter judgment in favour of the Defendants in respect of the Counter-claim and proceed to make the following declarations and order:
(1) I declare that the Defendants are in possession of the land now adjudged as belonging to the Defendants and I further declare that the Defendants are entitled to the grant of the Statutory Right of Occupancy of the piece or parcel of land known as and called “Abo Obiagu” land, situate at Obiagu, Isiyi Autonomous Community, Uturu in Isuikwuato L.G.A of Abia State, more correctly and particularly, delineated and described in dispute Survey Plan No. HAS/ABD02/2013 dated 29/1/2013, which was tendered in this Suit by the Defendants as Exhibit N.
(2) The Order of perpetual injunction issues from this Court restraining the Claimants by themselves or through their agents, servants, privies, successor in title, or howsoever, from taking any action on the land now adjudged as belonging to the Defendant in any manner that is inconsistent within (sic) the ownership right of the Defendants.
(3) The Claimants are to pay N50,000 = as general damages to the Defendants.
Cost follows events. The Claimants are to pay costs of N50,000.00 to the Defendants.” (See Pages 591 – 592 of the Records of Appeal).

That is the Judgment Appellants appealed against, being dissatisfied, as per the Notice and Grounds of Appeal on Pages 594 to 597 of the Records, disclosing 3 Grounds of Appeal.

Appellants filed their Brief of Arguments on 6/3/2019, which was deemed duly filed on same date 6/3/2019. Appellants distilled 2 Issues for the determination of the Appeal, as follows:
(1) Whether the Lower Court properly evaluated the evidence on the printed records before arriving at its decision. (Grounds 1 and 3)
(2) Whether the Lower Court was right in dismissing the Appellants’ Case for lack of proof or root of title, solely on the ground that only one witness testified in support of Plaintiffs’ traditional evidence.

The Respondents filed their Brief on 5/4/2019 and adopted the Issues as distilled by the Appellants.

They, however, picked a quarrel with Appellants for arguing grounds 1 and 3, together, in Issue 1.

Arguing the Appeal on 17/6/2020, Appellants’ Counsel D.C. Ebere Esq, (who adopted the Brief settled by Chief Okey Ehieze, KSC, of blessed memory) on Issue 1, answered in the negative, saying that the trial Court did not properly evaluate the evidence led at the trial before arriving at its decision; he said that they had given evidence of their ownership of this land in dispute over a sufficial length of time, too numerous and positive enough to warrant the inference of their true ownership; that they lived on the land in dispute from the time of their ancestors, till today; that there was unchallenged evidence that Appellants, together with the father of the CW2, jointly donated part of the land in dispute to Mbaugwu Improvement Union, in 1998, for onward donation to Abia State Government for the building of Adult Literacy and Craft Centre; that Appellants tendered, without objection, the agreement to that effect, marked as Exhibit A, and there is evidence on record, that the Abia State Government erected structures on the donated land, which are still standing till date.

But surprisingly, Counsel said the Lower Court ignored such evidence, while evaluating the case, and rather concentrated on the evidence of root of title, which occasioned a miscarriage of justice. Counsel said that because the trial Court ignored the evidence of positive acts of ownership and possession by the Appellants, the decision reached by the trial Court was perverse. He relied on the case of Registered Trustees of Deeper Christian Life Ministry Vs Ebhodaghe (2017) ALL FWLR (Pt.877) 378 at 401. He urged us to interfere with the decision of the Lower Court, and relied on Atanda Vs Ajani (1989) 3 NWLR (Pt.111) 511; Keystone Bank Ltd Vs Shemomal (Nig) Ltd (2016) ALL FWLR (Pt.828) 957 at 984; Faleye Vs Dada (2016) ALL FWLR (Pt.845) 150 at 182 – 183.

Counsel also relied on the case of Kasanw Vs Ogundimu (2017) ALL FLWR (Pt. 892) on what makes a decision of Court perverse, and how it should be treated. He urged us to resolve the Issue for Appellants and reverse the decision of the trial Court, asserting that the trial Court was wrong to reject the traditional evidence (history) put forward by the Appellants, simply because it came from only one witness (CW1), the 3rd Appellant who recited it.

On Issue 2, whether the trial Judge was right in dismissing the Appellants’ Case, for lack of proof of title, solely, on the ground that only one witness testified in support of the traditional history, Counsel answered in the negative. He referred us to pages 589 to 590 of the Records, where the trial Court made findings on the traditional history (evidence) led by the Appellants and submitted that the trial Court was wrong to seek for corroborative evidence to support the lone witness on the traditional history. He submitted that there is no requirement of corroboration of traditional evidence of a party before same would be accepted; he said that what a claimant, in a declaration of title by traditional evidence, needs to do is to prove his title by conclusive and cogent evidence of the traditional history, notwithstanding the number of witnesses called. He relied onAseimo Vs Abraham (2001) FWLR (Pt.83) 72 at 79; Agbi Vs Ogbeh (2006) AL FWLR (Pt.329) 941 at 989.

Counsel urged us to resolve the Issue for Appellants and to allow the Appeal.

Responding, Counsel for Respondents, I.C. Ubani, Esq, (who settled the Brief), on Issue 1, answered in the affirmative, saying that the trial Court made proper evaluation of the evidence, before reaching its decision. He argued that Appellants’ Counsel was wrong to argued the grounds 1 (an omnibus ground) together with ground 3 (the two grounds were used to distill the Issue 1); that it is trite, that parties who desire to exercise their right of Appeal, cannot hide behind an omnibus ground of appeal to raise specific questions on matters, like issues of evaluation of evidence. He relied on BHOJSONS PLC Vs Daniel Kalio (2006) 19 WRN 170 at 172; Hassan Vs Tade (2011) 49 WRN 132.

He submitted that the Issue one was therefore incompetent, as it argued an incompetent ground with a competent one. He relied on Jodi Vs Salami (2009) 27 WRN 24 at 34; Egesie Vs Elele (2001) 8 NWLR (Pt.716) 582.

Counsel also scrutinized the evidence by the CW1, who asserted in his Statement on Oath, that they (Claimants) “were owners in possession of the land in dispute from time immemorial by virtue of customary inheritance under native law and custom of Uturu”;that they (Claimants) “inherited this land from their forefathers, starting from Ndile the forefather of Amandile down a long line of succeeding forebears” (See Paragraphs 4 and 5 of the CW1’s Statement on Oath).

But that in Paragraph 6, CW1 said: “Ndile, son of Anyi deforested this land Abo Ndile, now in dispute.” (See page 11 of the Records). And under cross examination CW1 said:
“I now say that it is true that after dividing his holdings into two, Uturu gave a part to his first son, Achara and his brother called Ugwu. I also say that Uturu, now gave the second part to his remaining sons, being Akpukpa, Nvurunvu, Isunabo, Umamara and Ndudu… I also agree that the portions of the land in dispute is within the area of land Uturu had allotted to Achara and Ugwu.” (Page 497 of the Records)

Yet, on page 488 of the Records, CW1 had said:“It was Anyi who deforested the area of the land in dispute”, Counsel added.

Respondents’ Counsel argued, expressing wonder, how the same land in dispute, which the CW1 had earlier said was allotted to Achara and Ugwu by their progenitor, Uturu, subsequently, over the years, became ‘deforested’ by Anyi or Ndile, descendants of the same Uturu! Counsel said that Appellants’ evidence on record, about deforestation of the land in dispute, was incredible and lacked creditability. He said that Appellants’ alleged root of title, concerning how they came to own the land, was quite sandy and unsustainable under any of the five ways of proving ownership of land in Nigeria. He added that an evidence is credible, if it is worthy of belief and must not only proceed from credible sense, but must also be credible in itself, in the sense that it should be naturally reasonable and probable in view of the entire circumstances. He relied on the case of Dim Vs Enemuo (2009) 42 WRN 1 at 5.

Counsel asserted that it was incredible and improbable that Anyi, the father of the Appellants, and one of the descendants of Uturu (the progenitor of the Appellants, said to have been the one who deforested the land in dispute) was the one who deforested the land in dispute, after the CW1 had earlier stated that Uturu was the one who allotted the land in dispute to his son 1stAchara, and brother, Ugwu!<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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Counsel said that ascription of probative value to evidence is the business of the trial Court, which had the privilege of hearing and seeing the witnesses – Olalomi Ind. Ltd Vs Nig Ind. Bank Ltd (2009) 39 WRN 1 at 6. Thus, he said, the trial Court had properly evaluated the evidence adduced by CW1, but ascribed no probative value to his evidence of traditional history on the root of title to the land. Counsel urged us to uphold the findings of the trial Court and relied onLasun Vs Awoyemi (2010) 33 WRN 67 at 71 on the responsibility of the trial Court to evaluate and appraise evidence of witnesses, and ascribe probative value to them. He also relied on Ezeokonkwo Vs Okeke(2002) 31 WRN 1 and Bello Vs Eweka (1981) 1 SC 101.

Counsel further said that Appellants, having failed to prove their root of title to the land by traditional evidence/history, cannot be entitled to a declaration of title on the basis of alleged possession; he said that in the absence of proof of root of title, the Court cannot grant title to a party on the basis of being in possession. He relied on Okhuarobo Vs. Aigbe (2002) 31 WRN 30. He added that, where the root of the title pleaded by a party has not been proved, it will be unnecessary to consider acts of possession, as the same has become acts of trespass. He relied on Da Costa Vs Ikomi (1968) 1 ALL NLR 394.

Counsel further argued that, one who pleads root of title by traditional history, must trace the devolution of the landfrom the original founder, and the chain of succession, right down to himself, as Plaintiff. He relied on the case of Lebile Vs. T.R.T.C.S.C.Z.N. (2003) 11 WRN 1 at 4.

In this case, Counsel said, appellants were unable to state, in evidence, the names of their ancestors and a continuous chain of devolution of the land; that they allowed gaps, defying explanation, leading to the collapse of the traditional history. He urged us to resolve the issue one against Appellants.

On Issue 2, Counsel said the trial Court was right to dismiss Appellants case for lack of proof, that that decision was not necessarily because only one witness testified in support of the traditional history. He relied on the case of Eyo Vs Onuoha (2011) 39 WRN 1 at 6, to the effect that in proof of customary/traditional evidence/history, though it may be established by evidence of a lone witness, it is unsafe, to rely on such evidence, and rather desirable that there should be evidence of more than one witness.

Counsel urged us to note that the trial Court did not dismiss Appellants’ claim, because only one witness testified of the traditional history, but because Appellants were not able to establish the said traditional history. He said that the judgment was impeccable, based on evidence; that the trial Court rather preferred the evidence of the Respondents, as per the grant of the counter-claim. He relied on the case ofJodi Vs Salami (2009) 27 WRN at 34, and urged us to dismiss the Appeal, for lacking in merit.

RESOLUTION OF ISSUES
I think the two issues distilled by Appellant for the determination of the Appeal are apt, but they all relate to evaluation of evidence by the trial to reach its decision. I shall, therefore, take the two issues, together.

I observe that the Respondent did not file any motion or objection against the joining of grounds 1 and 3 to argue the issue 1. Counsel simply raised it in the Respondents brief. That, in my opinion, was improper. One who has any objection to the brief and/or the marrying of the issues for determination of the Appeal to the grounds of the appeal, should raise same, formally, and put the other party on notice.

I also hold that, because the ground 3 of the appeal alleged improper evaluation of evidence by the trial Court, it was proper to consider the same, together with the ground 1, which also quarreled with the assessment and the application of the (weight) of evidence. The case of Hassan Vs Tade & Anor (2011) LPELR – 4235 CA, is therefore not applicable to this case.
Did the trial Court properly evaluate the evidence adduced by the two sides to reach the conclusion that Appellants did not prove their root of title by their traditional history, as advanced by the sole witness, CW1, dismissing their claim, but preferring the evidence of the Respondents to allow the reliefs sought in the Counter claim?
One of the five known ways of proving title to land is by traditional history, and where a party pleads traditional history, as his root of title, the challenge always remains, that if he fails to establish his claim by that means, he cannot make recourse to, or resort to plea of possession or positive acts of ownership, as the same would become the needed evidence of the acts of trespass on the land by him. See the case of ISIOHIA & Ors Vs ELECHI (2018) LPELR – 44988 CA, which relied on the Supreme Court decision in Dudu Addah & Ors Vs Hassan Sali Ubandawaki (2015) LPELR – 24266 SC to hold 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 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) LPELR – 25529 CA…”
Thus, if the traditional history fails, the Plaintiff cannot abandon his pleading and resort to relying on possession and acts of ownership over a long period of time, numerous and positive, to prove title, as that 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 that mode of proof has to be separately and distinctly, pleaded and proved.
The Plaintiff cannot be permitted to rely on acts of possession and ownership, to back his claim for title founded on traditional history, except in a situation where the rule in Kojo II Vs Bonsie (1957) WLR 1223; (2001) Vol.86 LRCN 1492 applies, i.e. where each side relied on traditional histories, but each failed, as none was established, warranting a resort to recent and positive acts of possession and ownership by the parties, to determine the party with better title. See the case of Isiohia V Elechi (supra); Mogaji Vs Cadbury (Nig) Ltd; (1985) LPELR – 1889 SC; Balogun Vs Akanji (1988) 1 NWLR (Pt.70) 301.
See alsoEcheweawo Vs Agomuo & Anor. (2018) LPELR – 46912 CA, where this Court, held:
“Evidence of possession and positive acts of ownership can only be relevant and invoked in a situation that the evidence of traditional histories by the two sides are inconclusive and/or improbable, calling for a resort to the rule in Kojo II Vs Bonsieto determine the person with better title. See the case of Enyinnaya Vs Otikpo & Anor (2015) LPELR –25529 (CA); Ukaegbu & Ors Vs Nwololo (2009) LPELR – 3337 SC; Sogunro & Ors Vs Yeku & Ors (2017) LPELR – 41905 (SC).”
Of course, the law remains trite, that where a party relies on traditional history to establish his root of title to land in dispute, the burden is on him to plead the root of title and names and history of his ancestors, and lead credible evidence to establish same, without any missing link, as a break in the chain of devolution of the land, will be fatal to the Claimant. See Igbojionu & Ors Vs Uko & Ors (2018) LPELR – 45875 (CA); Sogunro & Ors Vs Yeku & Ors (2017) LPELR – 41905 (SC); Owoade Vs Omitola (1988) 2 NWLR (Pt.77) 413; Alli & Anor Vs Alesinloye & Ors (2000) LPELR – 427 (SC).
In such a situation the Plaintiff is bound to plead such facts, as:
(1) Who founded the land;
(2) How the land was founded and
(3) The particulars of the intervening owners, through whom he claims. See Akinloye Vs Eyiyola (1968) NMLR 92; Olujinle Vs Adeagbo (1988) 2 NWLR (Pt.75) 238; Adejumo Vs Ayantegbe (1989) 3 NWLR (Pt.110) 417; Anyanwu Vs Mbara (1992) 5 NWLR (Pt.242) 386.
See, again,Igbojionu & Ors Vs Uko & Ors (2018) LPELR – 45875 (CA), where this Court held:
“As earlier stated in this judgment, this Case is founded on claims of title by means of traditional evidence, that the pieces or parcels land listed in the writ of Summons, devolved on the Plaintiffs (Respondents herein) from their ancestors, who deforested the said lands, and took possession of same and handed them (lands) over to them (Respondents);the Respondents said that since they came into possession of the said lands, they have been cultivating same (for many years) without any interruption from any quarters, until the year 2000, when the Defendants (Appellants herein) trespassed into the said lands, alleging that the Plaintiffs were/are not the rightful owners, but were/are strangers, who came from Okposi to settle in Amaoghoro Ngodo AkoliImenyi (See paragraphs 5 to 11 of the statement of claim on page 5 of the Records)…
Of course, by law, where the two sides rely on traditional evidence to prove their claims to the land, the party that filed the Suit has burden to establish its root of title, by leading cogent and credible evidence on how the land was acquired by his ancestors/founder and how it devolved, down the line of the succeeding ancestors/beneficiaries, until the turn of the Plaintiff(s), without breaking the chain of succession; that is, the Plaintiff (or the defendant, where the defendant also asserts traditional history) has to trace the family tree or genealogical devolution of the land, from the common founder or ancestor, to the current generation, laying claims to the land. See Airtel Network Ltd Vs Agwalemere (2018) LPELR – 44814 CA and Isiohia & Ors Vs Elechi (2018) LPELR – 44988 CA, where it was held:
“… 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 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 becomes evidence of trespass on the land.” See Oyadare Vs Keji (2005) 1 SC (Pt.1) 19 at 25; Enyinnaya Vs Otikpo (2015) LPELR – 25529 CA… 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 the 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.” See also Eze & Ors Vs Atasie & Ors (2000) LPELR – 1190 SC.”

In this case, at hand, the trial Court found, as a fact, that both parties laid claims to a common ancestor, Uturu; that the Respondents pleaded and led evidence to the effect that their said progenitor, Uturu, deforested the land in dispute, and traced the devolution of the land right down to themselves (Respondents). See pages 590 to 591 of the Records, where the Court, said:
“According to the further Amended Statement of Defence/Counter-claim, Uturu, before his death, divided his estate into two, giving a portion to Achara and Ugwu and the other portion to Apukpa, Nvurunvu, Isunabo, Umumara and Ndudu. The Defendants/Counter-claimants pleaded that the portion of the land presently in dispute falls within the area Uturu had allotted to Achara and Ugwu. It is the further averment of the Defendants that Achara and Ugwu partitioned their land into two, with each taking a portion. The Defendants averred that the land presently in dispute fall into the portion of land inherited by Ugwu.”

The Respondents, according to the trial Court, further traced the chain of devolution of the portion of land in dispute, inherited by Ugwu, right down to themselves, after stating the succeeding owners, from Ugwu, to themselves – page 591 of the Records.

But the Appellants, who also first traced their origin to the same Uturu, as their progenitor, rather got confused and traced the land in dispute to “Achara”, the first son of Ihitte, as the person who “deforested” the Ugwuogu area, presently called Uturu. They further pleaded that the 5th Son of Mbaugwu begat Elu, Eluamaeze, Ndiagbo, Ndile, Agbo, Obodoete and Amaorji; that Ndile moved out of Ugwuogu area to settle at his own area which he called ABO NDILE. The trial Court then observed, as follows:
“It is on the above pleaded traditional history that the Claimants want the Court to declare that they are entitled to the land they called “Abo Ndile” land. The dispute was all as to the traditional history, which had been handed down by word of mouth, from their forefathers. In this regard, it must be realized that in the course of transmission from generation to generation, mistakes may occur, with or without dishonest motives. The above is the reason why in a long roster of superior authorities, our Courts have held that the traditional history of a people is like native law and custom, requiring facts to be proved by credible evidence. It is extremely important that customs or traditional history should be strictly proved. Though such proof is not dependent on the number of witnesses called, it is not enough that one who asserted the custom or traditional history should be the only witness to testify for the party. Another witness or other witnesses who is or are versed in the alleged custom or traditional history should also be called to testify. See Ozuruoke Vs Okolie & Ors (1999) LPELR – 6539; (2000) 1 NWLR (Pt. 642) 571; Adeyemi & Ors Vs Alhaji Shittu Bamidele & Ors (1968) 1 ALL NLR 31; Emmanuel Chijioke Orlu Vs Chief Mpakaboari Gogo – Abite (2010) LPELR – SC.234/2002.” See pages 589 – 590 of the Records.

The trial Court further said:
“The above position of the law bring out the inherent weakness in the traditional history which the Claimants have made the foundation of their case. The 3rd Claimant is the CW1… He was the only witness who testified in support of the traditional history, being relied upon by the Claimants… The CW2 was Judge (sic) Ogbonna… Of course, the CW2 knew nothing of the traditional history of the claimants and did not testify on it… The bottom line is that the crux of the Claimants’ case is not supported by credible and convincing evidence. How on earth can the traditional history of a party be said to be proved just by its recital by the party relying on it? In conclusion I hold that, on the balance of probabilities, the case of the claimants fails and the case of the Claimants is ordered dismissed.” (See Page 590 of the Records of Appeal)

I agree with the trial Court, that the ipsi dixit of the 3rd Claimant, (CW1) on the traditional history of the Claimants, as to their root of title to the land, was not credible, not just because the CW1 was a lone witness on the traditional history, but because there were obvious errors, falsehood, gaps and facts that made the story not plausible, unreasonable and improbable.

For instance, it does not sound plausible, reasonable or probable, in my view, that Appellants (after admitting that the common ancestor or progenitor of the two parties, was Uturu, who founded the land in dispute) to say that “Ihitte, begot Achara and Mbaugwu and on the death of Ihitte his first son, Achara, occupied Ihitte’s place of abode while Mbaugwu moved out to “deforest” the Ugwuogu area of the area presently called Uturu” (page 589 of the Records); and that “Ndile moved out of Ugwuogu area to settle at his own area which he called Abo Ndile(i.e. the name of the land in dispute by the Claimants) (page 589 of the Records).

And that Ndile the son of Anyi deforested this land ABONdile, now in dispute! (Page 11 of the Records).

The above findings, by the trial Court, appeared to have flowed from the conflicting and inconsistent evidence of the CW1, on the traditional history, when he averred in paragraphs 4, 5 and 6 of his Statement on Oath as follows:
“(4) That we the claimants are owners in possession, from time immemorial, by virtue of customary inheritance under the native law and custom of Uturu aforesaid.
(5) That the claimants inherited this land from our forefathers, starting from Ndile,the father of Amandile, down a long line of succeeding forebears
(6) Ndile, son of Anyi deforested this land ABO Ndile, now in dispute. At Ndile’s death Otagbuo inherited this land. When Otagbuo died, the only son, Agu, inherited the land in dispute. After Agu, his two sons Okeka and Ntagbu continued to enjoy the land unshared. The descendants of Okeka/Ntagbu, which are the Claimants, still enjoy the land in common by building on it, farming and reaping the economic trees among other acts of ownership without let or hindrance from anybody, including the defendants.” (See page 11 of the Records of Appeal)

But, under cross examination, the CW1, who had earlier adopted his said statement on oath, said:
“The land area that now make VIP Uturu Town, was not deforested by one man and it is not true that any such man (sic) called Uturu. There was a man called Uturu,who was the prosenctor (sic) of Uturu clan. Uturu had only two sons and not seven. It is not true that Uturu begat Achara, Akpukpa, Nvurunvu, Isunabo, Umumara, Ugwu and Ndudu. Rather Uturu’s sons, in order of generity (sic) were, Ihitte and Ekeaina. Ihitte and Ekeaina were direct sons of Uturu. It is true that in his life time, Uturu divided his land into two for his two sons. It is lie that Uturu, after dividing his land into two, gave one part to Achara… Rather he gave each part to each of his two sons. I mentioned.
I now say that it is true that, after dividing his holdings into two, Uturu gave a part to his first son called Achara and his brother called Ugwu. I also said that Uturu now gave the second part to his remaining sons, being Akpukpa, Nvurunvu, Isunabo, Umumara and Ndudu. I also agree that the portions of the land in dispute is within the area of land Uturu had allotted to Achara and Ugwu. I would not know whether Achara and Ugwu shared their holdings. All I know is that I found out that Acharahas an area where he lived, so also Ugwu… All I know is that the area in dispute belonged to Anyi, a descendant of Ugwu. It was Anyi who deforested the area of land in dispute. Ugwu had eight (8) Sons…” See pages 497 – 498 of the Records.

The above shows how incredible the evidence of CW1 was on the traditional history. After trying to deny their Ancestor, Uturu, and that he (Uturu) had seven sons, he came back to admit the obvious – that Uturu was their common ancestor; had seven sons; divided his estate into two; one part given to Achara and Ugwu and the other part was given to his other sons; that the land in dispute belonged to the area shared to Ugwu – Uturu’s brother.

CW1 committed another blunder, when he said, under cross examination, that the area of the land in dispute was deforested by Anyi! He had earlier stated in his statement on oath, that “Ndile the son of Anyi deforested this land ABO Ndile now in dispute.” (Page 11 of the Records).

How can a property founded by Uturu, and inherited by his sons, down the line, including Appellants, be “deforested” again, by Anyi, or by Ndile, the son of Anyi, who came later in the line?

I cannot, therefore, see any basis for the complaint of the Appellants, in this Appeal, against the decision of the trial Court, dismissing Appellants Suit in the light of such flawed evidence of traditional history by Appellants. And it became clear that, under cross examination, Appellants, through the CW1, agreed with the traditional history as led by the Respondents! I cannot, therefore, fault the findings of the trial Court on the credibility of their (Respondents) traditional history, which were supported by the facts on the grounds, showing the acts of possession and ownership, exercised by the Respondents, and finally admitted by Appellants, under cross examination of CW1.

I therefore resolve the Issues against the Appellants and dismiss this Appeal, with cost, assessed at Fifty Thousand Naira (N50,000.00) only, payable by Appellants to the Respondents.

RAPHAEL CHIKWE AGBO, J.C.A.: I agree.

IBRAHIM ALI ANDENYANGTSO, J.C.A.: I have read the judgment just delivered by my learned brother I. G. Mbaba JCA, and I agree totally with his reasoning and conclusion, which I adopt as mine, that this appeal lacks merit and qualifies for dismissal.

Consequently I hereby dismiss same, abiding by the orders made in the lead judgment.

Appearances:

D.C. EBERE, ESQ. (who adopted the Brief settled by CHIEF OKEY EHIEZE of blessed memory) For Appellant(s)

I.C. UBANI, ESQ. For Respondent(s)