OZO NWOSHI OKOLI & ORS v. SAMUEL NWANNE & ORS
(2013)LCN/6675(CA)
In The Court of Appeal of Nigeria
On Thursday, the 19th day of December, 2013
CA/E/239/07
RATIO
WHETHER OWNERSHIP OF LAND CAN BE ESTABLISHED BY PROOF OF ACTS OF POSSESSION AND ENJOYMENT OF LAND
As laid down in Section 35 of the Evidence Act, 2011, the provisions thereof which we earlier reproduced and the case of Piaro v. Tenalo (supra), Ezeanah v. Attah (supra) Atufe v. Oghamienor and Balogun v. Akanji (Supra), it is settled principle of law that one of the ways of establishing title/ownership of land is proof of acts of possession and enjoyment of land adjacent and connected in a manner rendering it probable that the owner of those adjoining land is in addition the owner of the land in dispute. See Adesanya v. Aderounmu (2001) 6 S.C. (Pt. 11) 18. Commenting on this time-honoured principle of our land Law; Tobi, JSC in Salami v. Lawal (2008) 14 NWLR (Pt. 1108) 546 at 574 – 576 paras. H – A posited inter alia:-
“Apart from long possession, a plaintiff can prove ownership of the land in dispute if he proves possession of land connected or adjacent to the land in dispute. The plaintiff must prove proximity of the two pieces of land. He must prove some nexus or contiguity. Where the pieces of land are Kilometers apart or away a trial Judge will not give judgment to the plaintiff. Again, the connection or adjacent nature of the two pieces of land will be determined by the facts of each case. Plaintiff must prove that the two pieces of land are very close; they touch or almost touch each other. They must join in relation substantially or materially not necessarily like Siamese twins.” Per IGNATIUS IGWE AGUBE, J.C.A.
LAND LAW: WHEN DO ACTS OF POSSESSION BECOME MATERIAL?
The law is also trite that it is only where a party fails to prove title by traditional evidence and by acts of possession that his claim can be dismissed as acts of possession becomes only material where traditional evidence is inconclusive.
See Balogun V. Akanji (2005) 10 NWLR (Pt. 933) 394. Per IGNATIUS IGWE AGUBE, J.C.A.
JUSTICES
ADRIZA GANA MSHELIA Justice of The Court of Appeal of Nigeria
IGNATIUS IGWE AGUBE Justice of The Court of Appeal of Nigeria
EMMANUEL AKOMAYE AGIM Justice of The Court of Appeal of Nigeria
Between
1. OZO NWOSHI OKOLI
2. PETER NWOJI
3. EMMANUAL AMAKU
(for themselves and on behalf of members of Umuogbee family of Umuzuocha Village Awka)
4. JOHN OGUGUO NNEBE Appellant(s)
AND
1. SAMUEL NWANNE
2. ANTHONY NGENE
3. OKWUCHUKWU OKAFOR
(for themselves and on behalf of Amachalla-Nato Community excepting members of Umuogbe family of Umuzocha Village Awka) Respondent(s)
IGNATIUS IGWE AGUBE, J.C.A. (Delivering the Leading Judgment): This Appeal is against the Judgment of Honourable Justice M. I. Onochie then sitting at the Awka Judicial Division of the High Court of Justice, Anambra State, in Suit No. A/124/96 which judgment was delivered on the 23rd day of February, 2007. The Respondents as Plaintiffs in the High Court had sued the Appellants as Defendants and in both the Particulars of their Writ of Summons dated 19th June, 1996 and their Further Amended Statement of Claim of thirty-eight (38) paragraphs, sought for these Reliefs:-
“38. WHEREOF the plaintiffs claim against the Defendants jointly and severally as follows:-
a. A declaration that the Plaintiffs are the People entitled to the Statutory Right of Occupancy to all that piece or parcel of land situated at Agu-Awka known and called Mgboko Agu-Awka in Awka urban within jurisdiction verged pink in plaintiff’s plan and filed with the statement of claim.
b. N10,000.00 being general damages for trespass.
c. An order to set aside the sale of the land to the 4th Defendant.
d. An injunction restraining the Defendants, their agents, servants and privies from alienating or in my way interfering with the possession of the Plaintiffs of the said pieces of land or part thereof, however.”
Issues were joined following the filling of the Defendants’ Amended Statement of Defence on the 2nd day of March, 2006 and the case subsequently proceeded to trial thereafter.
In the course of trial, the Plaintiffs (now Respondents) called five witnesses in proof of their case while the Defendants (now Appellants) called four in rebuttal.
At the close of the parties’ case written addresses were filed and exchanged and in his judgment the learned trial Judge held amongst others that:- “I am satisfied that the Plaintiffs in this case have proved their title to the land in dispute in this case by acts of possession which is one of the five ways of proving title to land.
There shall be judgment for the Plaintiffs against the Defendants in the following terms:
(i) I hereby declare that the Plaintiffs are the people entitled to the statutory right of occupancy to all that piece or parcel of land situated at Agu Awka known and called Mgboko Aguoka in Awka Urban within jurisdiction verged pink in the plaintiff’s plan and filed with the Statement of Claim.
(ii) I award the sum of N10,000.00 as general damages for trespass against Defendants.
(iii). I hereby set aside the sale of the said land made by the 4th Defendant
iv. There shall be an order of perpetual injunction restraining the Defendants, their servants, and their agents from alienating or in any way interfering with the possession of the Plaintiffs of the said piece of land or part thereof.”
Piqued by the above judgment of the learned trial Judge, the Appellants raised originally seven Grounds of Appeal in the High Court by a Notice of Appeal dated 16th of May, 2007 and filed on the 17th of May, 2007. Upon transmission of the Records hereto, leave was granted the Appellants on the 9th day of March, 2011 to file their Amended Notice of Appeal still with seven Grounds. For the avoidance of doubt, the seven Grounds of Appeal are hereby reproduced albeit without their particulars of error.
“GROUND 1
ERROR IN LAW:-
The learned trial Judge erred in law in the following passage of his Judgment as follows:-
“Mr. Chudi Nwankwor submitted that the Plaintiffs’ traditional evidence as to the founding of the land in dispute is contradictory. I agree with him that in one of breath the Plaintiffs claimed that their ancestors Okpo founded the land in dispute and in another breath they claimed that Okpo inherited the land from his father. It is however my view that this contradiction is not fatal to the Plaintiffs’ case since the Defendants admitted that the land in dispute at that time was a communal property.”
“2. ERROR OF LAW:-
The learned trial Judge erred in law when he held in his judgment as follows:-
“I am satisfied that the Plaintiffs in this case have proved their title on the land in dispute by acts of possession which is one of the five ways of proving title to land.”
“3. ERROR IN LAW AND FACT:-
The learned trial Judge erred in law and in fact when he held as follows:-
“In my view, the onus is on the Defendants to show that a parcel of land which was once communal property, has ceased to be so. The traditional evidence offered by the Defendants is also defective. The Defendants pleaded that Okpanam was the founder of the land in dispute and that Okpanam had three sons namely: Amachalla, Amudo, and Umuzocha. The Defendants did not plead what happened to the landed properties of Okpanam on his death. This fact in my view is a material fact, which ought to be pleaded.
That being the case, the evidence of DW3 that on the death of Okpanam his children shared his land goes to no issue.”
“4. ERROR IN LAW AND FACT:
The learned trial Judge erred in law and in fact when he held in his judgment as follows:-
“I preferred the detailed account as to the grant given in evidence by the PW2 to the evidence of DW3, the Defendants claimed that other families that owned land in Mgboko Agu- Awka also granted their respective holdings to AACCFL.
The names of the families that made the said grants were not pleaded and the Defendants did not call any member of the said families to give evidence in this case. PW2 is a founding member of AACCFL, he is an insider and as such in a better position to say who as between the plaintiffs and the Defendants made the grant to AACCFL.
“5. ERROR IN LAW:-
The learned trial Judge erred in law when he held that the Respondents have proved their title to the land in dispute when in fact the evidence proffered by the Respondents at the trial are at variance with the pleadings.
“6. ERROR IN LAW AND FACT:-
The learned trial judge erred in law and in the facts in the following passage of his judgment as follows:-
“I prefer the case of the Plaintiffs that “Exhibit D” was the terms of settlement reached between Amachalla – nato community and the Umuaguyi family following a dispute between them over the ownership of Mgboko Agu-Awka land.”
“7. The judgment is against the weight of evidence.”
Briefs of Arguments were subsequently ordered to be filed and duly exchanged in line with the Rules of this court and in the Brief settled by Chukwudi Nwankwo Esq. on behalf of the Appellant, four issues couched in the following terms were distilled:-
“a. Whether the Respondents discharged the onus or burden placed on them by law to prove their root of title to warrant the burden or onus or to shift to the Appellants to prove that the land in dispute belongs to them (Appellants) exclusively?
“b. Whether it is permissible to substitute a failed root of title with acts of possession which are deniable?
“c Whether the learned trial Judge was right in holding that he preferred the desired account as to the grant given in evidence by PW2 to the evidence of the DW3 when the Appellants proved that the land in dispute is a portion of their larger Okpulukpu land?
“d. Whether the trial Judge was right in preferring Exhibit D to Exhibit E?”
For the Respondents, C. C. Ngwuluka Esq. of counsel distilled the following three Issues as calling for determination from the seven Grounds of Appeal:
“1. Whether the trial court was right in holding that the onus is on the Appellant to show that the land in dispute which was once communal property belongs to them exclusively?
“2. Whether having regard to the pleadings and evidence the Respondents proved their title to the land in dispute by acts of possession or by any other means?
“3. Whether, having regard to the pleadings and evidence the trial court was right in preferring the case of the Respondents to that of the Appellants with particular reference to Exhibit ‘D’ and evidence as to who gave the land in dispute to AACCFL?”
In the determination of this Appeal, I shall adopt the Issues formulated by the Appellants since they are the aggrieved parties although in the course of resolution, I shall subsume the Respondents Issues within those of the Appellants.
ARGUMENT OF LEARNED COUNSEL FOR THE APPELLANTS ON ISSUE NUMBER 1 (ONE): WHETHER THE RESPONDENTS DISCHARGED THE ONUS OR BURDEN PLACED ON THEM BY LAW TO PROVE THEIR ROOT OF TITLE TO WARRANT THE BURDEN OR ONUS TO SHTFT TO THE APPELLANTS TO PROVE THAT THE LAND IN DISPUTE BELONGS TO THEM (APPELLANTS) EXCLUSIVELY? (GROUND 1, 4 AND 5 OF THE NOTICE OF APPEAL).
The learned counsel for the Appellant kicked off his argument on this by recapitulation of Paragraph 6 and 6A of the Further Amended Statement of Claim of the Respondents (Page 42) of the Records where the Respondents pleaded their root of title tracing same to one Okpo and submitted on the authorities of Piaro v. Tenalo (1976) 1 F.N.R. 229 S.C; Ezeanah v. Attah (2004) 7 N.W.L.R (Pt. 873) 468; Atufe v. Oghomienor (2004) 13 N.W.L.R. (Pt. 890) 329; Balogun v. Akanji (2005) 10 N.W.L.R (Pt. 933); which laid down the five ways of proving title; that from the pleadings of the Respondents they predicated their title on traditional evidence that Okpo founded the land by clearing and that the so called acts of possession by the Respondents are predicated upon that traditional evidence.
Learned counsel then argued that by the above averments in their pleadings, the onus was on them to prove that Okpo founded the Mgboko Agu-Oka land by clearing and until that burden was discharged the Appellants had no burden placed on them yet for it is not the duty of the Appellants to first prove that the disputed land belongs to them exclusively before the burden shifted to the Respondents to establish their title and that the land belongs to the entire Amachalla-nato Community.
Relying on the case of A.G. Anambra State v. A.G. of the Federation & ORS. (2005) 9 N.W.L.R. (Pt. 931) 572 at 635, the learned counsel for the Appellant further argued that the Appellant did not file a counter-claim at the trial court and therefore no burden was placed on them initially to prove their own case in order to be entitled to the reliefs sought in the counter-claim.
In further support of the proposition of the law enunciation in the case cited above, he relied on Sections 135, 136 and 137 of the Evidence Act, U.A.C. of Nigeria Plc v. Prince O. O. Sobodu (2007) 6 N.W.L.R (Pt. 1030) 368 at 389 paras. E -G.
He pointed out again on the authorities of Jija v. Strande (2005) 10 NWLR (Pt. 931) 543 at 564; Agbotu v. Brisibe (2005) 10 N.W.L.R (Pt. 932) 1; Akinyele v. Afribank Plc. (2005) 17 N.W.L.R (Pt. 955) 504 at 515 and Tanerewa (Nig.) Ltd. v. Arzar (2005) 5 N.W.L.R (Pt. 919) 593; that in a claim for declaration of title, the onus is on the plaintiff to show that he has a better title where he and the Respondents are both claiming ownership of the disputed land, and that such proof must be on the balance of probabilities and preponderance of evidence.
The learned counsel therefore questioned the rationale behind the holding of the learned trial Judge at Page 144 of the Record of Appeal inspite of the above established principle of law as enunciated in the cases cited particularly as they (Appellants) did not file any counter-Affidavit and Respondents did not discharge the onus cast upon them as to the communal ownership of the disputed land by Amachalla -nato.
Further reverence was also made to the findings of the Judge at page 152 of the Records which findings still on the onus of proof according to him, is unsupportable in law having regard to the decision in Dim v. Enemuo (2009) 10 NWLR (Pt. 1149) 353 S.C.; in submitting again on the authorities of Oguejiofor v. Siemens Ltd. (2008) 2 N.W.L.R (Pt. 1071) 283 C.A.; Ajao v. Alao (1985) 5 NWLR (Pt. 45) 802; Omotosho v. B.O.N.B Ltd. (2006) 9 NWLR (Pt. 986) 573; and Otanma v. Youdubagha (2006) 2 N.W.L.R (Pt. 964) 337 at 358, that the Respondents ought to depend on the strength of their own case and not the weakness of the Appellants.
In this case, the learned counsel for the Appellants submitted that the Appellants’ case did not support that of the Respondents and the Respondents having not discharged the burden as placed on them by law first, the Appellants could not be called upon to discharge any burden. Here again he placed reliance on the dictum of Cousey, J. A. (as he then was) in the case of Udeakpu Eze v. Samuel Igiliegbe & 5 Ors (1952) 14 W.A.C.A. 61 at 62 submitting that in the case the Respondents proved their case with credible evidence before the burden was accepted by the trial Court and West African Court of Appeal unlike our instant case where the Respondents did not had any credible evidence to shift the burden of proof to the Appellants that the land belongs to them exclusively.
On the nature of evidence that is expected to be accepted before a court can exercise its prerogative of believing and disbelieving the testimonies of witnesses vis-a-viz the need for a Plaintiff like the Respondents seeking declaration of title to communal land, the learned counsel for the Appellants again drew our attention to the cases of Omozeghian v. Ajarho (2000) 4 N.W.L.R (Pt. 968) 33 at 60-61A; Nwaru v. Okoye (2008) 18 N.W.L.R (Pt. 1118) 29 at 49-50 S.C.; in submitting again on the authority of Nnadozie v. Mbagwu (2008) 3 NWLR (Pt. 1074) 366 at 395; Ilori v. Teka (2006) 18 N.W.L.R (Pt. 1011) 267 at 288; Ojiengbe v. Esan (2001) 18 N.W.L.R (Pt. 746) 771 at 786 per Iguh, J.S.C.; that it was the Respondents who ought to have led credible evidence before shifting the onus to the Appellants who claimed that the land is exclusively theirs.
It was the learned counsel for the Appellants’ further submission that the Respondents’ pleadings traced their root of title to Okpo who cleared same which meant that they rely on traditional evidence or history which is the first mode of proof of title out of the five ways but the Respondents did not prove how the land was cleared and then descended subsequently on them (the Respondents). Nnama v. Ebuzome (2006) 9 N.W.L.R (Pt. 985) 217; Adole v. Gwar (2008) 11 N.W.L.R. (Pt. 1099) 562 at 592; Mogaji v. Cadbury (Nig.) Ltd. Supra at 393; Arum v. Nwobodo (2004) 9 NWLR (Pt. 879) 411 at 443 – 444; on the need and onus on the party who traces his root of title to a particular person to establish his root by proving how the person became vested with the title were all cited to buttress the above submission.
The learned counsel for the Appellant further contended that the Respondents did not plead and prove the names and particulars of those successors through whom the land devolved from Okpo to them (the Respondents) who are now living (Paragraphs 4, 5, 6, and 6A of the Respondents Further Amended Statements of Claim at Page 42 of the Records refer as well as the evidence of the PW1 in – chief at pages 67 – 68 of the Records).
It was the learned counsel for the Appellants’ contention still on this point that the evidence of the founding of Amachalla-nato is at variance with the Respondents’ pleadings in that respect in that whereas in the Further Amended Statement of Claim, the founder was Okpo in evidence the PW1 told the court that Okpo people founded the land.
Relying on the cases of Saidu v. Abubakar (2008) 12 N.W.L.R (Pt.11000) 201 ratio 15; Harka Air Services Ltd. v. Keazor (2006) 1 NWLR (Pt. 960) 307 at pages 357 paras. D-E; Ugoji v. Onukogu 22 N.S.C.Q.R (Pt. II) 715 ratio I; Shodipo v. Ogidan (2008) 4 N.W.L.R. (Pt. 1077) 342 at 372; Okwejiminor v. Gbakeji (2008) 5 NWLR (Pt. 1079) 172 at 179; Ajide v. Kelani (1985) 3 NWLR (Pt. 12) 248 per Oputa, J.S.C. and Mogaji v. Cadbury (Nig) Ltd. (supra) at 393; on the need for a party to be consistent with the case he sets up as parties are bound by their pleadings and are not allowed to lead evidence which is at variance with their pleadings since such evidence goes to no issue.
Our attention was also drawn to the evidence of the PW1 at pages 70 lines 23 -26, page 78 lines 12-13, 23 – 24 that of the PW2 at page 86 lines 14 -15, 87 lines 25 – 26, the cases of Abubakar v. Yar’ Adua (2008) 19 N.W.L.R (Pt. 1120) 1 at 153 – 154 paras A -H (S.C.); Agbi v. Ogbeh (2005) 8 NWLR (Pt. 926) 40 at 138; Gagarau v. Pashiri (2006) 1 NWLR (Pt. 962) 521 at 542; Ajadua v. Nwogu (No. 2) (2004) 16 N.W.L.R (Pt. 898) 49 at 58 – 59; on the inconsistencies in the evidence of the witnesses for the Respondents apart from failing to prove how or the manner through which Okpo got the land in dispute either by deforestation or by inheritance as given in evidence (page 92 lines 23 – 28 and page 98 lines 1 – 3 the evidence of the PW1 and PW2 as against the reply to cross-examination by the PW1 at page 78 – 79 further referred).
The learned counsel went on the cited page 799 of Black’s Law Dictionary Eighth Edition and Chambers 21st Century Dictionary at page 351 on the definitions of the words “inheritance” and “deforest” maintaining that when the evidence of the PW4 is juxtaposed against that of the PW1 and PW2 on the issue of how Okpo got the land in dispute; their evidence on the issue are unreliable and ought not to have been acted upon by the court but the court accepted them at page 151 – 152 of the Records in spite of their contradictions and want of consistency in the presentation of their case. For this submission, he relied on Kalio v. Kalio (2005) 4 NWLR (Pt. 915) 305 ratio I to further contend on the authorities of Orji v. Peoples Democratic Party (2009) 14 N.W.L.R (Pt. 1161) 310 at 394 and Nnadozie v. Mbagwu (supra) at 395; Unipetrol (Nig.) Plc. v. Adireje (W.A) Ltd. (2005) 14 N.W.L.R (Pt. 946) 563; University of Ilorin v. Adesina (2009) ALL F.W.L.R (Pt. 487) 56 at 127; Popoola v. Balogun (2007) 8 N.W.L.R (Pt. 1037) 574 at 602 C.A.; that the Respondents presented two diametrically opposed cases yet the learned trial Judge still gave judgment to the Respondent and rather than reject such evidence, it threw back the burden on the Appellants when the Respondents did not prove their title.
Finally on this issue on which submission spanned a whopping twenty pages, the learned counsel for the Appellant argued that the findings of facts by the learned trial Judge to the effect that the contradictions in the testimonies of the Respondents’ witnesses were not fatal to their case was perverse, erroneous and arrived at as a result of wrong approach to the evidence adduced before him and accordingly occasioned a miscarriage of justice.
Resting his submissions on the above point, he relied on Popoola v. Akande (2009) 15 N.W.L.R (Pt. 1163) 119 at 143 paras. E-F and the cases of Anyanwu v. Uzowuaka (2009) 13 NWLR (Pt. 1159) 455 at 465 – 467 and Henshaw v. Effanga (2009) 11 N.W.L.R (Pt. 1151) 65 at 87 – 88; to urge us to interfere with the findings of the lower Court on the reasons for rejecting the contradictions in the testimonies of the Respondents’ witnesses and resolve Issue Number 1 in the negative.
ARGUMENT OF LEARNED COUNSEL FOR THE RESPONDENTS ON THE RESPONDENTS’ ISSUE NUMBER 1(ONE). The learned counsel for the Respondents had hinted in the Respondents’ Brief of Argument that his argument on this Issue, covers GROUNDS 1 AND 3 0f the Notice of Appeal and I shall therefore sift the relevant portions that respond to the arguments of the learned counsel for the Appellants’ arguments on the Appellants Issue Number 1.
Reacting to the contention firstly that the onus of proof was on the Respondents to prove that Okpo founded Mgboko Agu-Oka land now in dispute by clearing and until this was done (the burden was not discharged), the Appellants had no burden to discharge, the learned counsel to the Respondents asserted that all that they as Plaintiffs needed to show was that the land in dispute belonged to both parties. According to the learned counsel for the Respondents, the Respondents gave evidence that the land was part of the track of communal land called Mgboko Agu-Oka which they pleaded in their Further Amended Statement of Claim at pages 41-43 of the Records) in paragraphs 1 – 16 thereof which he reproduced in the Brief.
He also alluded to the Respondents’ averments in paragraphs 1 – 16 of the Respondents’ Further Amended statement of claim which he reproduced and to the fact that the Appellants in their Amended statement of Defence admitted paragraphs 1 – 6 and 13 – 16 of the Respondents’ Further Amended statement of claim, and further pleaded in their paragraphs 3, 4, 6, 15 of the Amended Statement of Defence apart from there being evidence from both sides; that Amachalla-nato as a community passed a resolution in 1985 as contained in Exhibit D to the effect that Mgboko Agu-Oka is a communal land. Pages 108 of the Records as well 117 which contain the evidence of the DW1 and DW2 under cross-examination and the fact that the Respondents also gave evidence of acts of ownership and possession by the Amachalla-nato community; were highlighted to submit that from the above pleadings and evidence from the parties the court rightly found at page 152 that the Appellants admitted that the land was once a communal land but did not plead what happened to the landed property of Okpanam on his death.
The learned counsel for the Defendants/Appellants did not also plead how Umuzocha (one of the three sons of Amachalla-nato and through whom they claim), got the land in dispute exclusively which supports their (Respondents) pleading in Paragraph 148 of their Further Amended statement of claim that Mgboko Agu-Oka, had always been the undivided communal land of Amachalla-nato which individual families never owned.
On the crux of the Issue as to whom the onus or burden of proof lay, he referred us to the findings of the learned trial Judge at page 144 of the Records submitting that the learned trial Judge correctly stated the position of the law relying on the cases enumerated at pages 7 – 8 of the Respondents’ Brief. The learned counsel harped on one of those cases cited by the learned trial Judge – Atuanya v. Onyejekwe (1975) Vol. 5 E.C.S.L.R 359/360 at 363 per Ibekwe, J.S.C.; which according to him effectively resolves the issue of onus.
Having copiously reproduced the dictum of Ibekwe, J.S.C particularly at page 362/363, he argued that the above cited case is a locus classicus on the principle of law that ab initio the onus of proof is on a party who claims family land exclusively against other members of the family and this principle has been religiously followed in Onowhosa & Anor v. Odiuzu & Anor (1999) S.C 10 (Pt. 1) 121 at 140 per Oputa, J.S.C; Ogoh v. Kamalu & Ors. (2005) 24 N.S.C.Q.R 156 at 288 and even Nwavu v. Okoye (2008) N.W.L.R (Pt. 1118) which was cited by the learned counsel for the Appellant.
From the foregoing authorities, it was therefore the view of the learned counsel for the Respondents that this principle of law is an exception to the general rule that in a claim for declaration of title, the onus lies entirely on the plaintiff throughout and never shifts to the Defendant. Thus, in this case, the learned counsel for the Respondents reiterated that the Respondents had put forward a case of communal ownership of the land in dispute and the court having so found, the onus was on the Appellant to show how exclusive ownership of same devolved on them which they failed to do. He maintained that ail that they (Respondents) needed to do was to lead evidence that the land in dispute was communal (which they had done) and not that Okpo founded the land by clearing as contended by the Appellants.
On the different names ascribed to the founder of Amachalla-nato which are Okpo by the Respondents and Okpanam by the Appellants, the learned counsel observed that both parties agreed that they are members of Amachalla-nato and according to him the correct name of the founder whether Okpo or Okpanam is irrelevant to the main issue since a thing can be variously described but can still be held to be one and the same thing. For this observation/submission, the cases of Onu v. Agbajo (1985) 5 S.C. 242 and Dalumo v. The Sketch Publishing Co. (1972) 5 S.C. 309; were relied upon to urge us to answer the question posed in this issue in the affirmative.
RESOLUTION OF ISSUE NUMBER ONE (1)
In resolving this Issue, it is necessary to reflect on the provisions of Sections 131 (1) and (2); 132 (1); 134 and 136(1) of the Evidence Act, 2011; which provide for the burden of proof, on whom the burden lies in civil matters and the burden of proof of particular facts. Generally, since the Respondents as plaintiffs in the lower Court sought for declaration of title to the piece of land in dispute situated at Awka known and called Mgboko Agu -Awka or Mgboko Agu -Oka in Awka Urban, N10,000:00 damages; an order setting aside the sale of the said land to the 4th Defendant/Appellant and injunction restraining the Defendants/Appellants, the burden of proof lay on the Respondents in the first place since they desired the court below to give their judgment as to their right to the disputed land.
Moreover, it was they who would fail if no evidence were adduced by them at the trial court. If they adduced evidence which ought to satisfy the court below that the fact sought to be proved had been established, the burden then shifted to the Defendants/Appellants against whom judgment would be given if no more evidence were elicited and so successively until all the issues in the pleadings had been settled.
Like in all civil matters, the Respondents were expected to discharge the burden of proof on the balance of probabilities. See Buhari v. INEC (2008) 19 N.W.L.R (Pt. 120) 246 at 369 – 370 paras. F -D and Nwavu v. Okoye (2008) 18 N.W.L.R (Pt. 1118) 29 at 64-65 paras. D – P; per Mohammed J.S.C; ably cited by learned counsel for the Appellants.
There is no doubt as the learned counsel for the Appellants has righty argued, that the Supreme Court had long laid down the settled principle that there are five ways of proving title or ownership of land. In the celebrated case of Idundun v. Okumagba (1976) 9 – 10 S.C. 227 (1976) N.M.L.R 200 and (1976) N.S.C.C. (Vol. 10) 445 at 455; Fatayi Williams J.S.C. had identified these five ways as follows:-
1. By traditional history/evidence.
2. By production of documents of title (see Johnson v. Lawanson (1977) 1 ALL N.L.R 56)
3. By acts of person(s) claiming the land such as farming, selling, leasing, or renting out the land or part thereof extending over sufficient length of time numerous or positive enough to warrant the inference that the person(s) is/are true owner(s) of the land (Ekpo v. Ita 11 N.L.R. 68).
4. Acts of long possession and enjoyment of the land which ought to be prima facie evidence of ownership of the particular piece of land in dispute (Section 35 of the Evidence Act, 2011 and Dacosta v. Ikomi (1968) ALL N.L.R 394 at 398).
5. By proof of possession of connected or adjacent land in circumstances rendering it probable that the owner of such connected or adjacent land could in addition, be the owner of land in dispute. Section 35 of the Evidence Act also refers. See also Piaro v. Tenaro (1976) 1 F.N.L.R 229 cited by learned counsel for the Appellant.
In the resolution of this vexed issue of onus of proof, I must not fail to allude to the dictum of Webber C. J. who as far back as 1935 interpreted the provisions of the Evidence Act earlier cited in relation to the mode of discharging same as in land matters like our instant case in the locus classicus of Kodilinye v. Mbanefo Odu (1935) 2 W.A.C.A 335 at 337-338; which has since been followed in a litany of cases inter alia:-
“The onus lies on the Plaintiff to satisfy the court that he is entitled on the evidence brought by him to the declaration of title. The plaintiff in this case must rely on the strength of his own case and not on the weakness of the Defendant’s case. If the onus is not discharged, the weakness of the Defendant’s case will not help him and the proper judgment is for the Defendant; such a judgment decrees no title to the Defendant, he not having sought the declaration”. See further on this proposition of the law, Adeyeri v. Okobi (1997) 51 L.R.C.N 1529; Adeniran v. Alao (2001) 2 L.R.N.C.N 3253 at 3267 per Uwaifo, J.S.C and Ogboni v. Ojah (1996) 6 S.C.N.J 140 at 153.
There are however exceptions to this general rule in land matters like the one at hand, where the Plaintiffs could rely on the weakness of the Defendants’ case which supports their case. See Onisaodu v. Elewuju (2006) 13 N.W.L.R (Pt. 998) 517 at 529 – 530 paras. A -B per Tabai, J.S.C and Olabodun v. Lawal (2008) 35 NSCQR 570 at 644.
From the foregoing authorities, the crucial question that should agitate our minds is whether the Respondents discharged the burden cast on them or proved their case as required by the Evidence Act so as to entitle them to the Declaration they sought. To answer that question, it must be noted that parties are ad idem that the Respondents pleaded/relied on traditional history or evidence and traced the origin of the land to a common ancestor called Okpo. In specific terms he averred in paragraphs 6 and 6A of the Further Amended statement of claim at page 42 of the Records thus:-
“6. At a time immemorial Okpo founded the said Amachalla-nato land which Amachalla-nato till date has remained one united and identifiable Community in Awka, occupying and inhabiting an area of Awka town commonly known as Amachalla-nato.
“6A. Okpo founded Mgboko Agu-Oka by clearing.”
The learned counsel on both sides are also in ad idem that the Respondents also predicated their title on acts of possession like farming, establishing a co-operative farm as far back as 1965 on the land with the consent of the entire community including the Defendants/Appellants which co-operative was called AACCFL. That co-operative society farmed crops like rice and ground nuts to the knowledge of Appellants. The said AACCFL remained in possession of the land till the outbreak of the Nigerian Civil war.
Furthermore, at the end of the Civil war the said AACCFL gave out the said communal land to the Agricultural Development Authority (ADA) a Government Agency. Upon vacation of the land having farmed same in 1975 and employed the sons and daughters of Amachalla-nato, the community resumed possession by farming thereon, and carried out other acts of possession like alienation of the said portion of land by leasing it out to S. N. C. Obuekwe from Amudo for farming purposes. The lease which was in writing was pleaded as well as the Plan No. NLS/AN/170.87 in that respect. See Paragraphs 11 – 24 of the Further Amended Statement of Claim.
As said earlier, and I must agree with the learned counsel for the Appellants’ submission, the law is also trite that generally since the Respondents relied on traditional evidence of first founder they ought to plead and lead credible evidence to prove the following:-
1. The mode of founding the land;
2. The name(s) of the Ancestor(s) who founded it and exercised each original acts of possession; and
3. Names of persons through whom title to the land devolved before the Respondents (now living) inherited same. See Idundun v. Okumagba (supra) Onwugbufor v. Okoye (1996) S.C.N.J. 1 at 20 and Dioha v. Ohia (2005) ALL F.W.L.R (Pt. 291) 713 Paras. A-C.
Learned counsel for the Respondents had drawn our attention to paragraphs 1, 2, 3, 4, 5, 6, 6A, 7, 8, 9, 10, 11, 12, 13, 14, 14B, 15 and 16 of the Further Amended Statement of Claim; Paragraphs 1, 2, 3, 4, 5, 9, 10 which are as follows:-
“1. The Plaintiffs and the Defendants are members of Amachalla-nato which is a community in Awka town within Awka Urban
“2. Awka is made up of three principal sections namely Ezioka, Agulu, and Ifite
“3. The parties are from the said Ifite section of Awka., which Ifite is made up of Amachalla-nato, Ayoun-na-Okpara, Nkwelle and Ifite Awka.
“4. The parties are from the said Amachalla-nato.
“5. Amachalla-nato is made of Amachalla, Amudo, and Umuzocha and the Defendants are from Umuogbee family which is just one of the families in Umuzocha.
“7. The people of Amachalla nato have their personal or individual land holdings but originally owned and posses in common and as communal land a large track of land known as and called Mgboko Agu-Oka situated in Awka town and verged green in the plaintiffs’ Plan No. NLS/ANS/82/97 dated 23rd January, 1997 and filed with this Statement of Claim.
“9. The land in dispute is part of the said communal land of Amachalla-nato; and
“10. Amachalla-nato Community has from time out of memory been the owners in possession of the land verged green in plaintiffs, plan exercising all rights of ownerships such as farming, teasing and outright alienation.”
With the above pleadings there is another dimension to this case as the Plaintiffs/Respondent had asserted communal ownership of the land and the facts that the community including the Appellants had from time immemorial owned and enjoyed the land together and also exercised their joint possession including alienation to persons communally.
The fact of communal ownership and common ancestry was acknowledged by the Appellants when they in their Amended statement of Defence admitted Paragraphs 1, 2, 3, 4, 5, 13, 15, and 16 of the Respondents Further Amended statement of claim. However, their points of disagreement are as pleaded in Paragraphs 3, 4, 6, and 15 of the Amended statement of Defence to the effect inter alia that:-
“3. The Defendants state that the founder of Amachalla-nato is one Okpanam.
“4. Okpanam begot Amachalla, Amudo and Umuzocha in order of seniority. Amachalla in turn begot six (6) sons in order of seniority to wit:-
Agu, Oke, Ama, Oba, Okpoga and Eleke.
“6. The Defendants state that the hitherto communal land of Amachalla-nato are now owned by the individual families and no longer by Amachalla-nato community as the land have since reverted back to their individual original family owners after the land was only granted to the Amachalla-nato Community for the purpose of business as the Co-operative society as a farm land only and not for any other purpose; and collapse of the Co-operative Venture.
“12. The Defendants state categorically that presently there is no land correctively known as and called “Mgboko-Agu-Oka land” situated at Agu-Awka area and now owned jointly and communlly by the Amachalla-nato community. The Defendants said “Okpulukpu land” is shown verged BLUE in the Defendants’ Survey Plan No. SSC/AND – 0698 which is filed with their statement of Defence. The Defendants shall rely on all delineations, boundary features and boundary neighbours in their said survey plan in respect of their said land. The said plan is pleaded.
“13. The Defendants deny Paragraphs 8, 9, 10, 11 and 12 of the Amended statement of claim and put the plaintiffs to the strictest proof of all the allegations of facts therein contained.
“14. The Defendants in further answer to the above said paragraphs state that their piece or parcel of land known and called as “Okpulukpu Land” is not presently a part or portion of the plaintiffs’ alleged Mgboko-Agu-Awka Land”. The land described in plaintiffs’ Survey Plan No. NLS/AN-82?97 is not presently known to the Defendants as it does no longer exist as the individual family lands of the contributing families have been taken back by their long time ago at the end of the Civil war and the collapse of the Co-operative venture and thereafter in 1995 after the 1995 declaration.
“15. The Defendants further state that their said “Okpulukpu land” is no longer a communal property or land of the descendants of Okpanam the founder of Amachalla-nato Community. The Defendants state that their said land was only granted to the Amachalla-nato Community for the purpose of business as the Co-operative Society as a farmland only and not for any other purpose; and that
“16. The Defendants state further that at the end of the Civil War when the Co-operative Society business collapsed they took back their “Okpulukpu land” and resumed diverse and individual acts of ownership by collectively farming same and reaping economic trees thereon without any hindrance.”
Now, it is pertinent to note that the learned counsel for the Respondent aptly stated the portion of the law in situations like this where their Plaintiff/Respondent claimed that the land the subject of dispute was communal land whereas the Defendants/Appellants on the contrary claimed that the land exclusively belongs to their family. The cases of Ezekwe & Ors. v. Onyema (1993) 8 N.W.L.R (Pt. 309) 76 at 84; Bello v. Ishola (1967) A.N.L.R (Reprint) 8 at 10; Bangboshe v. Oshoko (1988) S.C. 199 at 207 and Jules v. Agu (1980) 5 – 7 S.C. 96 at 109 refers.
Also, the dictum of Dan Ibekwe, J.S.C of blessed memory ably cited by the learned counsel is actively instructive and apt as to whom the onus lies in the unique situation of our case as had occurred in that case when he opined:-
“This case is unique in the sense that it serves as an exception to the general rule that in an action for declaration of title the onus rests entirely on the Plaintiff to establish his title and the burden never shifts from plaintiff to the Defendants.”
The learned judicial icon re-stated the principle enunciated and settled by Webber C. J. in Kodilinye v. Odu (supra) that normally in a claim for declaration of title; the Plaintiff relies on the strength of his own case in discharging the onus which lies on him to prove his title which onus never shifts. He also restated the well established position of the law that:-
“….it is our view that the onus lies squarely on the party who lays claim to family land to prove that he is the exclusive owner of the land in dispute. The question now is how do we reconcile these two rules where as in the case before us the plaintiffs claim is for declaration of title to family land, and the Defendant, on the other hand, claims to be the exclusive owner of the disputed land.”
Then he made bold to answer the question inter alia:-
“We take the view that in such circumstances, the onus lies ab initio on the claimant (exclusive Claimer) to show that he is in fact entitled to the family land as against all other family members. It is for the party who is claiming family land to prove that he or she is the owner of such land. Now, applying this test to the case before us, we are clearly of the view that on the whole, the 2nd onus is on the Defendant/Appellant to prove to the satisfaction of the court that she is the exclusive owner of the disputed land” (Atuanya v. Onyejekwe (1975) 5 N.W.L.R 359 at 362 – 363).
Borrowing a leaf from the above dictum and applying the test laid down in the above case, it is manifestly and axiomatically settled on the afore-quoted dictum of Ibekwe, JSC; that the onus of establishing that the land the subject matter of this appeal which the Appellants call and describe as “Okpulukpu land” as against “Mgboko Agu-Oka land” as claimed by the Respondents, ab initio lay on the Appellants. See Onowhosa & Anor v. Odiuzu & Anor. (1999) S.C.N (Pt. 1) 121 at 140 per Oputa J.S.C, Ogoh v. Kamalu & Ors. (2005) 24 N.S.C.Q.R 156 at 288 and Nwavu v. Okoye (2008) 18 N.W.L.R (Pt. 1118) (supra) at 10; which was even cited by the learned counsel for the Appellant.
I agree therefore with the submissions of the learned counsel for the Respondents that since the Plaintiffs/Respondents pleaded and led evidence that the land in dispute is communally owned, the onus shifted ab initio to the Appellants to prove the contrary – the rationale being that there is a presumption in favour of communal ownership of land under custom particularly in this case where parties rely on traditional evidence of inheritance from a common ancestor but Appellants by their subsequent pleadings as highlighted in some of the paragraphs of their Amended statement of claim now assert that the land is no longer communal.
In this wise, it would appear to me that the same burden of proof cast on a party seeking for declaration of title as a Plaintiff also lay on the Appellants to show that the land the subject matter of the dispute is exclusively theirs. According, they ought therefore to rely on the strength of their case and not on the weakness of the Respondents’ even though as Defendants they did not seek for a Counter – Claim. In addition, since the Appellants also pleaded traditional history or evidence, it was incumbent upon them to narrate their historical antecedents particularly their genealogical pedigree from the original ancestral owner through the successive generations on whom the land eventually devolved until it came into their possession. “In other words, the Appellants must plead and prove who founded the land; the manner the land was founded and the circumstances leading to it; and the successive persons to whom thereafter the land devolved through an unbroken chain or in such a way that there is no gap which cannot be explained. “See Odi v. Iyala (2004) 8 N.W.L.R (Pt. 875) 283 S.C; Ewo v. Ani (2004) 3 N.W.L.R (Pt. 861) 610 S.C.; Inawo v. Adedokun (2005) N.W.L.R (Pt. 906) 199 and Ezinwa V. Agu (2004) 3 N.W.L.R (Pt. 861) 610 C.A.
Going by the principles enunciated in the above authorities we shall now turn to the question whether the Appellants discharged this onus and to answer that question we shall now resort to the pleadings of the Appellants once more and the evidence elicited. Without much ado I would say that apart from the paragraphs of the Appellants Amended Statements of Defence earlier highlighted and reproduced, the Appellants copiously pleaded their genealogical tree and traced same to Okpanam the common progenitor of Amachalla-nato and his children according to their line of seniority beginning from Amachalla, Amudo and Umzocha. Amachalla was said to have begotten six sons in this order to wit: Agu, Oke, Ama, Obu, Okpoba and Eleke (see Paragraph 4 of the Amended statement of claim).
The Appellants continued to trace this lineage through an unbroken chain of successors and eventually culminated on how the land which hitherto was communal became exclusive to them in paragraph 5 thus:
“5. Amudo in turn begot four (4) sons in order of seniority to wit: Chime, Omam, Okpechukwu and Eze and the descendants of the said sons of Amudo are today known as and called Umuchime, Umuomam Umuokpechukwu and Umueze respectively, while Umuzocha in turn in order of seniority begot Mgbute, Nkili, Obu and Aru and the descendants of these sons of Umuzocha are today know as and called Umumgbute, Umunkili, Umuobu and Umuaru respectively. When Umuzocha died his sons shared/partitioned his landed property and Okputukpu land” of the defendants became the share of Aru, among other land”.
The Appellants further traced the succession line of Aru also in an unbroken chain in paragraph 7 to 11 ending with the averments that on the death of Ogbee the fourth son of Aru, the land ogbee inherited from the partitioning of Aru’s landed property, was shared by his (ogbee’s) sons except “Okpulukpu Land” in Agu – Awka Area of Awka Town which they decided to leave as a communal land for themselves and descendants of Ogbee. According to them, today, the land is a unifying factor as the descendants of the said Ogbee known as Umu-Ogbee family now jointly and communally enjoys the said land by cultivating same and reaping economic trees thereon without let and hindrance. During the farming season any interested family member clears any portion of the said land and cultivates same with the consent and permission of the family while economic trees thereon are harvested on the basis of whoever sees first or comes first.
On how the land became known as “Okpulukpu Land” they deposed in paragraph 17 of their Amended statement of Defence that it is because the land is swampy and the ure is very soft in terms of cultivation and in response to the claim by the Respondents in paragraphs 12-14 of their Further Amended Statement of Claim, they (Respondents) denied that there was ever a time that Amachalla-nato decided to farm the “Okpulukpu land” on two yearly basis to scare away birds.
Turning to the mode of acquisition of the land by the Amenyi Awka cCooperative Farm Ltd. (AACCFL) which is now the subject of this Appeal, the Appellants pleaded in paragraphs 19 – 23 that the society approached individual families and owners of land and not the entire Amachalla-nato community after the pogrom of 1966 when many indigenes of the community who escaped from different parts of the country gathered to form AACCFL and they approached those family land owners at Agu-Awka area including Umuogbee family (the Appellants) with two (2) gallons of up wine (atuma mmanya) and four (4) kola nuts. According to them, the first harvest of rice cultivated on the land was kept in the store of one Mr. Nwokocha Okafor Eze from Umuzocha Village, Awka and the bags of rice were there when Awka fell to the Federal troops and everybody ran away for his dear life.
At the end of the war in 1970, when the people returned to their respective towns, and the cooperative society failed, each contributing family took back and resumed possession of their respective portions of land as they did before 1966. They also pleaded that the Defendants/Appellants willingly released their land to the AACCFL on the understanding that the land will be taken back if the Co-operative business failed and that the land will be used for that purpose only.
Now, upon the pleadings of the parties and the evidence led by them, could the learned trial Judge be justified in holding variously as he did in favour of the Respondents? From my perusal of the Records, parties through their witnesses led copious evidence in support of their pleadings and I agree with the position taken by the learned trial Judge that: “From pleadings filed by the parties it is my view that the main issue that arises for determination in this case is whether the land in dispute which forms part of a large expanse of land called Mgboko Agu-Oka is community owned as alleged by the plaintiffs or owned exclusively by the defendant?”
However, as regards their root of title, whereas in their pleadings the Respondents alleged that Okpo who was their common progenitor of Amachalla-nato founded the land by clearing or deforesting, their witnesses claimed that their said Okpo inherited the land from his father – Ifite. They did not trace the genealogical tree of the land. The Respondents on the other hand, as I said earlier, had traced their geneaology through the same common ancestor whom they called Okpaman to Ogbee whose portion of land inherited from Aru devolved on all his sons except Okpulukpu the swampy land which they decided to use in common.
DW3 whom I consider their star witness gave a vivid account of their case in complete tandem with their pleadings. There appeared to be conflicts and contradictions in the traditional evidence rendered by the parties and the position of the law as established in Kojo II vs. Bonsie (1957) 1 WLR 1223; is that where evidence of tradition are conflicting the parties may be mistaken although they could be honest or telling the truth. Accordingly, it has been held that in circumstances like the one at hand demeanour is no guide to sifting out the truth of the case rather the best way is to test the traditional histories by reference to facts in recent years as established by evidence and to determine which of the two competing histories is more probable. This principle is said to offer a guideline to when a Court is evaluating the evidence as to which of two competing versions of the traditional histories is more probable in establishing their pleaded source of title to the land in dispute. See also Okoko V. Dakolo (2006) 14 NWLR (Pt. 1000) 4011 S.C.; Balogun v. Akanji (2006) 10 NWLR (Pt. 933) 394; Odofin V. Ayoola (1984) 11 S.C. 72 and Archibong V. Edak (2006) NWLR (Pt. 980) 485.
In the case at hand, the learned trial Judge at Pages 11 and 12 of his Judgment/Page 15.1-15.2 of the Records held on this principle:
“Mr. Chudi Nwankwor submitted that the plaintiff’s traditional evidence as to the founding of the land in dispute is contradictory, I agree with him that in one breath the Plaintiffs claimed that their ancestor Okpo founded the land in dispute and in another breath they claimed that Okpo inherited the land in dispute from his father. It is however my view that this contradiction is not fatal to the Plaintiff’s case since the Defendants admitted that the land in dispute at a time was communal property”.
With the greatest respect to the learned trial Judge, although we had held in the case of Oyewole v. Akande (2009) 15 NWLR (Pt. 1163) 119 at 143 Paras. E – E Anyanwu v. Uzowuaka (2009) 13 NWLR (pt. 1159) 465 – 467 and Henshaw v. Effangha (2009) 11 NWLR (Pt. 1151) 87 – 88; following a long line of Supreme Court decisions that the ascription of probative value to evidence of witnesses is pre-eminently the business of the trial court which saw and heard the witnesses and that an appellate Court should be wary to interfere with findings of facts arrived at in the course of evaluation process, it is also settled law that where such findings are perverse or not borne out of proved facts, an appellate Court can interfere with the findings of fact arrived at by the trial Court.
This is more particularly so in this case where the witnesses for the Respondents had given contradictory evidence on the material fact of their root of title. The authorities of Mogaji V. Cadbury Nig. Ltd. Supra at 593, Unipetrol v. Adireje (W.A.) Ltd. (2005) 14 NWLR (Pt. 946) 563; University of Ilorin v. Adeshina (2009) ALL FWLR (Pt. 487) 56 at 127, all gravitate to the settled position of the law, that where witnesses to a party give conflicting evidence on material facts, their evidence ought to be rejected as unreliable so also where the basis of the party’s traditional evidence lacks credibility.
I am also of the candid view that the learned trial Judge based his findings on false premises which were not only perverse but occasioned a travesty of justice. For instance, the learned trial Judge hid under the facade of the Defendants’ admittance that the land in dispute at a time was communal property to disregard the evidence of DW3 but the Defendants/Appellants as had been copiously narrated earlier on, had pleaded and proffered evidence through their witnesses particularly the DW3, which evidence was neither challenged nor contradicted, as to how Mgboko Agu-Oka became communal land. They also pleaded and gave unchallenged evidence as to what happened to the landed property of Okpanam on his death. See for instance Paragraphs 4, 5, 6, 7, 8, 9, 10 and 11 of the Appellants’ Statement of Defence and the evidence of DW3. They had also pleaded and given evidence on how they gave out their “Okpulukpu Land” to the AACCLF Ltd. during the war and how the land reverted to them on the collapse of the Cooperative Society.
There is a pertinent question which was not answered by the Respondents as well as the learned trial Judge before holding that the evidence of the DW3 went to no issue and that the Plaintiffs’ case had been proved by acts of possession. That pertinent question is this: if the land was not owned prior to 1966 by individual families and had reverted to those families after the collapse of the Cooperative Society, how come that the families signed the Declaration in 1985 that the Mgboko Agu-oka should hence forth become communal land?
Even on acts of possession which the learned trial Judge subsequently anchored his judgment or findings, the Appellants pleaded and led unchallenged evidence that Okpulukpu was their exclusive land which is contiguous with Mgboko Agu-Oka. This fact was acknowledged by the PW1 at page 84 of the Records under cross-examination that just like other families, the Defendants’ have a piece of land close to Mgboko Agu-Oka and further that the Defendants’ land very close to the disputed land is not in dispute. From the foregoing analysis, I agree therefore that in the instant case the reason for the rejection or refusal of the trial Court to regard the contradictions in the evidence of the Respondents, witnesses as fatal as to how Okpo got the land, is not only perverse and erroneous but not borne out the evidence adduced before it. Accordingly, it is such that this court should intervene and set it aside.
This issue is resolved in favour of the Appellants as the Respondents did not discharge the burden placed on them to prove their root of title and assuming they did the Appellants had discharged the onus placed on them to prove that the Okpulukpu Land situate at Mgboko Agu-oka is exclusively theirs instead of communal as purported by the Respondents.
ISSUE NUMBER 2 OF THE APPELLANT AND RESPONDENTS: WHETHER IT IS PERMISSIBLE TO SUBSTITUTE A FAILED ROOT OF TITLE WITH ACTS OF POSSESSION, WHICH ARE DERIVABLE FROM NON-EXISTENT TITLE?
ARGUMENT OF LEARNED COUNSEL FOR THE APPELLANT: On this issue, the learned counsel for the Appellants’ contention is that the Respondent having failed to prove their root of title, they cannot rely on acts of possession, which are predicated or derivable from their said faulty root of title. For this submission he has relied on the cases of Popoola v. Balogun (supra) at 602 Paras E-F, Dabo v. Abdullahi (2005) 5 MJSC 57 ratio 7, Mogaji v. Cadbury Nig. Ltd. (supra) at 393, on the effect of failure of the Respondents to prove their root of title. He recalled once more the root of title of the Respondents as pleaded and as proved at the trial which according to him were contradictory and accordingly they (Respondents) could not have substituted a failed root of title with acts of possession which could have derived from such failed title, more so, when the Appellants’ successfully challenged the Respondents’ purported acts of possession.
In this wise, the learned counsel for the Appellants took the view that rather than dismiss the claim of the Respondents, the learned trial Judge held as he did at Page 152 of the Records that he was satisfied that the plaintiff had proved their title to the land in dispute by acts of possession which is one of the five ways of proving title to land. Learned counsel for the Appellants, still on this point, placed reliance on Ilori v. Tella (2006) 18 NWLR (Pt. 1011) 267 at 290, Yusuf v. Adegoke Motors (2007) 11 NWLR (Pt. 1045) 332 at 359 – 359 S.C., Ajikande v. Yusuf (2008) 2 NWLR (Pt. 1071) 301 at 339-340, Okoko v. Dakolo (2006) 14 NWLR (Pt. 1000) 401 at 429-430, Yusuf v. Kode (2002) NWLR (Pt. 762) 231 at 252-253; Adisa v. Oyinwola (2000) 10 NWLR (Pt. 674) 116 at 179 S.C. per Ayoola, JSC and Orunengimo v. Egebe (2007) 15 NWLR (Pt. 1058) 630 at 650 and Fasoro v. Beyioku (1999) 4 S.C. 151 at 162 and submitted as follows that:-
1. The Respondents failed to establish how they inherited the land in dispute from their forbearers and how the land devolved on them.
2. They could not establish their traditional evidence/history in relation to the land and whatever acts of possession dependent on the said traditional history got to no issue and cannot stand.
3. The alleged positive and numerous acts of possession by the Respondents having been tied to their said failed root of title the Court below ought to dismiss their case and was accordingly wrong to have held as he did at page 146-147 of the Records.
4. The findings of the Court below in respect of the grant of the land to A.A.C.C.F.L as well as other alleged acts of possession by the Respondents based on faulty or defective title were irrelevant and unnecessary as the land the Respondents purportedly granted to the A.A.C.C.F.L. does not belong to them.
5. The Respondents having claimed that the land belonged to their family, title was put in issue and for the Plaintiffs to succeed they must prove better title which in this case the Respondents did not do and therefore were not entitled to the possession of the disputed land.
6. The conflicting evidence of the Respondents’ witnesses on the founding of the land by Okpo and the failure of the Respondents to prove the precise nature of their title to the land which the Court below acknowledged at page 151-152 such conflicting evidence was fatal and material as it goes to the root of their case in that if the learned trial Judge had rejected the contradictory evidence of the witnesses on how Okpo got the land which was crux of the Respondents’ case, they would have failed irrespective of whether the Appellant admitted that the land was a communal land or not or that they actually performed acts of possession numerous and positive on the disputed land since the acts are based on defective title.
Still on the nature of conflicting and contradictory evidence he relied on Kaza v. The State (2008) 7 NWLR (Pt. 1085) 125 at 169 paras, C – D and Gafarau V. Pashiri (Supra) at 542; to finally submit on this issue that the Respondents did not discharge the onus placed on them by law on who and how the land was founded and how it devolved on their ancestors successively until it came to them who are now alive. We were then urged to resolve the issue in the negative.
ARGUMENT OF LEARNED COUNSEL FOR THE RESPONDENTS ON ISSUE NUMBER 2 OF THE APPELLANTS AND RESPONDENTS:
Reacting to the above submissions of the learned Counsel for the Appellants, Mr. Ngwuluka for the Respondents contended that it is erroneous for the learned Counsel for the Appellants to have thought that the Respondents must have first proved their traditional history before they succeed. He insisted on the authority of Atuanya v. Onyejekwe (Supra) that the situation here is different where the land is said to be communal land of the parties or where the plaintiff is not relying only on traditional history. In this case, the onus ab initio was shifted to the Appellants, the learned Counsel for the Respondents maintained, relying still on the dictum of Ibekwe, J.S.C. of blessed memory in the Atuanya v. Onyejekwe case.
According to the learned Counsel for the Respondents, by the above cited authority since the Onus has been shown to be on the Appellants, it would be contradictory to require the Respondents to prove their title by traditional evidence as all that was needed of them which they had done was to lead evidence that the land in dispute is communal land and the Court below made a finding of fact to that effect. The learned Counsel for the Respondents also took the view that the Respondents need not prove acts of ownership or possession in order to succeed as the Plaintiff in Atuanya’s case succeeded without proving title.
Turning to the main legal point in the Appellant’s Brief, the learned Counsel recalled that in Abel Nkado & 2 Ors. v. Ozulike (1997) 5 S.C.N.J. 33 the Appellants in that case canvassed the same point as done herein and also relied on the dictum of Oputa J.S.C. in Fasoro v. Beyioku (Supra) that the Respondents cannot rely on acts of possession when they could not prove their root of title but that the dictum of Oputa was rejected by the supreme as it contradicted others of its decisions and the Respondents therefore relied on the decision in Nkado’s case as it gives an effective answer to the Appellants’ argument as it restated the five ways of proving title.
The learned Counsel for the Respondents went on to argue that the Supreme Court in the said Nkado’s case held that proof of any of the five different ways is the minimum required by the law and cited the dictum of Adio, JSC, in Akunyili v. Ejidike (1996) NWLR (Pt. 449) 381; Abdullahi V. Manue (1945) WACA 172, Onwugbufor V. Okoye per Iguh JSC; which dicta also effectively answers the Appellants’ arguments on this Issue, to further submit that there is no where the Appellants’ challenged the finding by the trial Court that the Appellants admitted that Mgboko-agu-oka at a time was communally owned. Thus, the learned Counsel for the Respondents insisted, if the onus was on the Appellants ab initio to prove exclusive ownership such onus ought to be discharged before the Respondents were expected to prove any root of title whatsoever as it is the communality of the land that distinguishes it from the cases relied upon by the Appellants where the onus was on the Plaintiffs.
For this submissions he relied on the cases of Owhonda V. Ekpechi (2003) FWLR 1563 at 1586 and Alade V. Awo (1976) 4 S.C. 215 at 228 per Ibekwe, JSC. and argued further that the Respondents copiously pleaded acts of ownership such as farming, selling, leasing, grant to ACCFL and successfully warding off trespassers and in Paragraph 10 of the Further Amended Statement of Claim pleaded and proved facts of long possession and enjoyment of the land from timeout of memory. We were therefore urged on the authority of Nkado V. Obiano (Supra) and Atuanya V. Onyejekwe (Supra) to resolve the Issue in favour of the Respondents.
On the question whether there was conflicting or contradictory evidence on the traditional history of the land and that the Respondents did not establish same he referred to the evidence-in-chief and cross-examination of the PW4 at pages 86 – 87 and on the answer by the said witness that Okpo must have inherited the land from his father adding that such evidence was speculative evidence which the Courts attach no weight to ditto the evidence of the PW1 who testified in-chief that Okpo founded the land by clearing but under Cross examination stated that it was by inheritance. He then submitted on this score that PW2 that evidence was consistent that Okpo founded the land by clearing same and that the contradiction were minor and that since both parties agreed to a common ancestor, the mode of founding the land should not be important issues in proof of title.
In this respect he also cited the cases of Taiwo Ilariogu V. Mokoli Akinyele (2004) 20 NSCQR?, Anyasinti Umunna & 5 Ors. v. Animudu Okwuraike & 3 Ors (1978) 6 – 7 S. C. 13 and Emiator v. The State (2007) 110 – 111; on the need to regard the contradictions in the evidence of the witnesses for the Respondents as minor bearing in mind that at the death of his founder of Amachalla-nato, the land never devolved on anybody and that there have been no intervening owners since his death. According to him, taking the totality of the cases presented by the parties, they (the Respondents) having pleaded in Paragraphs 6, and 10 of their Further Statement of Claim that Okpo founded Amachalla-nato from time beyond human memory, it would be unjust to insist that they must fail because they did not show how Okpo first acquired the land.
Alluding again to the dictum of Onu, JSC. at pages 59 and 60 of Nkado’s case where the Appellant canvassed a similar point as the present Appellant that the Plaintiffs did not show how their (Plaintiff’s) ancestor Obiekwe Egolum first acquired the land in dispute, he urged us to follow the cases of Atuanya v.Onyejekwe and Nkkado v. Obiano (supra) and hard that the five ways of proving title are mutually exclusive and apart from acts of possession, the Respondents proved their title by traditional evidence since the contradiction in their evidence is not fatal to their case. We were then urged once more to answer Issue Number 2 in the affirmative.
RESOLUTION OF ISSUE NUMBER 2
I have carefully considered the submissions of the learned counsel on both sides of the divide. As had earlier been held, having agreed with the submission of the learned counsel for the Respondents that since they (Respondents) claimed that the land is communal more so as the Appellants have agreed that they are of common ancestry of Okpo or Okpanam who founded Amachalla-nato and therefore Mgboko-Agu-Oka, the onus of proving that Okpulukpu land which is within the precincts or contiguous with the communal land, is exclusively their family land, lay on the Appellants. See Atuanya v. Onyejekwe (supra), Nwavu v. Okoye (Supra).
I had earlier held that the Respondents copiously pleaded and led cogent and compelling evidence on how the land they call Okpulukpu devolved from Okpo, through Aru to Ogbee and subsequently on them through the unchallenged evidence of their witnesses more particularly the DW3. On the other hand, the learned counsel to the Respondents had conceded in his words that: the PW2 was consistent that Okpo founded Mgboko-agu-Oka by clearing, in both his evidence-in-chief and under cross-examination and that “the PW4 in his evidence in-chief said Amachala-nato inherited Mgboko-agu from their ancestor Okpo.” Asked under cross-examination whether he knows from whom Okpo inherited the land in dispute he answered, “He inherited from his father. I am not quite sure about that.” When asked who was the father of Okpo? He answered: “I cannot remember the name of his father but I know he must have a father. He was the first person to settle on the land in dispute so he must have inherited the land from his father”.
The learned counsel further conceded that the PW4 presumed that the land must have been inherited and therefore his evidence was speculative as to how Okpo acquired the land and as for the PW1, he also admitted that he “said in his evidence-in-chief that Okpo founded the land in dispute by clearing and under cross-examination he said it was by inheritance”. Again in one breath the PW4 stated that Okpo was an individual but in another breath, he claimed the land was founded by the Okpo people. See also the evidence of the PW2 which contradicted that of the PW1. With the greatest respect to the learned counsel, where the Appellants discharged the onus cast on them to show that the land was exclusively that of Umuogbee, the onus shifted to the Respondents to establish the contrary because title to the land was put in issue which they failed to do and accordingly their case ought to have been dismissed.
The court below had the duty to place the evidence adduced/elicited by the parties side by side and decide on the basis of their credibility who actually owned title to the land in dispute. Definitely, contradictory and speculative evidence lack credibility and reliability such that all that the Court had to do was to reject the evidence of custom or traditional history as proffered by the Respondents. As was rightly submitted by the learned Counsel for the Appellants while citing Kaza v. The State (2008) 7 NWLR (Pt. 1085) 125 at 169 paras C – D; in that case the Supreme Court held thus:
“There can only be contradictory evidence when a piece of evidence contradicts another when it affirms the opposite of what the other evidence has stated, not when there is just a minor discrepancy between them.”
Also the case of Gagaran v. Pashire (Supra) is very instructive as it establishes the principle that should guide Courts in considering conflicts in the evidence of witnesses which is that only material contradictions are relevant. In the case at hand, where the witnesses were not sure whether the land they claim to be communal was founded by Okpo by clearing or inheritance, it is clear that their case or root of title lacks the necessary foundation particularly as the Appellants were able to trace the origin of their land and how it eventually devolved through their predecessors-in-title and the court below ought to dismiss their (Respondents’ case) case for declaration of title. Having shown that their claim lacked any foundation whatever, the acts of possession they exercised were based on speculative title particularly as they admitted at page 84 that the Defendants’ land very close to the land in dispute is not in dispute which shows that the Appellants have land at Mgboko-Agu-Oka. Talking of possession the Supreme Court in the recent case of Jinadu & Ors v. Esurom-bi-Aro & Ors (2009) 9 NWLR (Pt. 1145) 55 at 89 paras. E – G; upon the contention that the Respondents’ land had been acquired by the government held per Oguntade, JSC. that: “Even on that supposition, the Plaintiffs/Respondents case is further strengthened because this shows that the land contiguous to the land in dispute has been shown to belong to the Plaintiffs/Respondents. In Kaijaola v. Egunla (1974) 12 S.C. 55, Ibekwe, JSC, at page 63 said:
“It has been held that, in a claim for the ownership of land the fact that the land in dispute is contiguous with other lands belonging to the plaintiff is enough to raise a probability (though not presumptuous) that the land in dispute also belongs to the plaintiff/respondents.”
There is no doubt that on the authorities of Akunyili v. Ejidike (Supra) per Adio, JSC, and Abdullahi v. Manue (supra) the Plaintiff could succeed in an action for declaration of title on acts of possession if he fails to prove ownership by traditional evidence.
The law is also trite that it is only where a party fails to prove title by traditional evidence and by acts of possession that his claim can be dismissed as acts of possession becomes only material where traditional evidence is inconclusive.
See Balogun V. Akanji (2005) 10 NWLR (Pt. 933) 394.
The question pertinent in this case to be answered is whether the Respondents established their title by acts of possession. It is indubitable that the Respondents pleaded copiously and led evidence though their witnesses on acts of ownership by long possession such as farming, leasing, selling grant to AACCFL etc, and that they specifically pleaded in paragraph 10 of the Further Amended Statement of Claim that the land in dispute was communally owned from time beyond memory. They also pleaded in paragraph 14c of the Further Amended Statement of Claim that Okpulukpu land is unknown to the Plaintiffs/Respondents and if it exists at all, it never extends to Mgboko Agu Oka.
However, under Cross-examination the PW1 at page 88 admitted that the Defendant has boundary with Mgboko Agu Awka land on the right while standing on the Enugu-Onitsha Old Road and facing the land in dispute. On further Cross-examination he could not tell other boundary neighbours. Asked again: “Q. It is true that the land of the Defendants not in dispute has a boundary with the land in dispute? He answered emphatically, “It is true.” He admitted that “there is nothing on the boundary between Defendants land and Mgboko-Agu Awka.” At page 91 when questioned whether the Appellants’ land is called Okpulukpu he stated that it is not true but when further asked of the name of the Appellants’ land near Mgboko-Agu Awka, He answered “I don’t know.”
Again upon being asked at page 92 whether the decision of the A.A.C.C.F.L. to lease part of the Mgboko Agu Awka was in the Minutes Book of the Association he answered in the negative but when asked to tender the Minutes Book, he purported that it was lost.
From all indications even the evidence of the Respondents on acts of possession are full of contradictions, half truth, and ignorance of the land they are claiming and the Court below ought not to have relied on such evidence to give them judgment. On the other hand, the evidence of the Appellants on how they inherited the land and subsequently handed over same to the failed Co-operative Society is more probable as it is clear that the land called Mgboko-Agu Awka initially belonged to families and upon failure of the project for which it was acquired, it ought to revert to the original owners. The Appellants were therefore right to have sold their portion of land to whoever wanted it in exercise of their exclusive right of ownership. Although the Respondents could succeed upon proof of possession, where their traditional evidence failed they in my estimation also failed to establish their claim that they were in exclusive possession of Okpulukpu which is the exclusive land of the Appellants as admitted by them (the Respondents). This issue is therefore resolved against the Respondent and in favour of the Appellants.
ISSUE NUMBER 3: WHETHER THE LEARNED TRIAL JUDGE WAS RIGHT IN HOLDING THAT HE PREFERRED THE DETAILED ACCOUNT AS TO THE GRANT GIVEN IN EVIDENCE BY THE PW2 TO THE EVIDENCE OF GIVEN BY THE DW3 WHEN THE LAND IN DISPUTE IS A PORTION OF THEIR LARGER OKPULUKPU LAND?
ARGUMENT OF LEARNED COUNSEL FOR THE APPELLANTS ON ISSUE NUMBER 3: On this issue the grouse of the Appellant is that there is no basis for the learned trial Judge to prefer the “detailed account as to the grant given in evidence by the PW2 to the evidence of DW3” in that the Appellants through the DW3 and the PW2 had proved that the land the subject of dispute is within the larger Okpulukpu Land which the Appellants claim to be exclusively theirs. The learned Counsel for the Appellant had alluded to the Survey plan tendered by the Appellants and admitted and marked Exhibit F which shows that the land in dispute is part of the Appellants larger “Okpulukpu” land or that the land in dispute and “Okpulukpu” are the same and contiguous.
Reference was made to Paragraph 22 of the Amended Statement of Defence at page 33 of the Records and the evidence of DW3 at pages 119, 120 – 123 of the Records submitting on the authorities of Piaro V. Tenalo (Supra), Ezeanah V. Attah (2004) 4 NWLR (Pt. 873) 468 ratio 15, Afufe V. Oghomienor (2004) 13 NWLR (Pt. 890) 329 and Balogun V. Akanyi (2005) 10 NWLR (Pt. 933) 894 ratio 1, and Section 46 of the Evidence Act that from the evidence of the DW3 as well as those of the Respondents’ witnesses, the land in dispute and the larger “Okpulukpu” land are situate in the same area or locality.
The learned Counsel for the Appellants further referred us to the answer of PW1 to Cross-examination at page 84 of the Records and the cases of Okoko V. Dakolo (Supra) at pages 430 – 431, Junadu v. Esurombi-Aro (2009) 9 NWLR (Pt. 1145) 55 at 59 S.C. and maintained that in the instant case the larger “Okpulukpu” land is not only contiguous to the land in dispute but is connected by locality to the said land in dispute and the Appellants gave evidence that they have been enjoying the land in dispute with their larger “Okplukpu” land.
The learned Counsel also alluded still to the evidence of the PW1 at page 85 which is in accord with that of DW3 at page 121 that the Appellants’ family granted their swampy portion to AACCFL and that the rest of the Appellants “Okpulukpu” land is separated from the disputed land by Enugu – Onitsha old road and the Express way as shown in Appellants’ Exhibit F. Reference was also made to the evidence of the PW2 and his answers to cross-examination which go to show the contiguity and continuity of the land in dispute with the larger “Okpulukpu” which is not in dispute, (Pages 90 and 91 refer).
From the foregoing, he took the view that the Appellants, assuming but not conceding that the onus or burden is on them first to prove their ownership of the disputed land exclusively, had discharged that onus more so when their position had remained unchallenged by the Respondents inability or refusal to cross-examine the DW3 as to the effect that the land in dispute was part of their (Appellants) “Okpulukpu land”. On the failure of a rival party to cross-examine his opponent upon a material issue, he relied on the cases of Nigeria Customs Service & Anor V. Bazuaye (2006) 3 NWLR (Pt. 967) 303 at 322 Dagash V. Bulama (2004) 14 NWLR (Pt. 892) 144 at 240, Patrick Oforlete V. The State (2000) 12 NWLR (Pt. 681) 415 and Nigerian Bar Association V. Anamelechi Iteogu (2000) 13 NWLR (Pt. 996) 219; and finally submitted that since the fulcrum of the Appellants’ case is that the land in dispute is part of their larger land (Ana Okpulukpu) and their said evidence was not challenged either under cross-examination or through any other piece of evidence this essential piece of evidence is deemed to be true, but that notwithstanding, the learned trial Judge went on to give Judgment to the Respondents. We were then urged to resolve Issue Number 3 in the negative.
ARGUMENT OF LEARNED COUNSEL TO THE RESPONDENTS ON ISSUE NUMBER 3 AND RESOLUTION OF THE ISSUE:
The learned Counsel for the Respondents had addressed or responded to the above arguments of the learned Counsel to the Appellants in the Respondents argument on Issues Numbers 1 and 2 of their Brief. Suffice it to say however that I had earlier resolved those Issues in favour of the Appellants. For purposes of emphasis however, I must state that the learned Counsel to the Respondents did not react to the contention of the Appellants that the Respondents apart from admitting that the land in dispute forms part of a contiguous and continuous part of the larger portion of “Ana okpulukpu” which is exclusively owned by the Appellants, the disputed part which was granted to the ACCCFL on or about 1966 during the pogrom and upon failure of the Co-operative Society project, which they (Appellants) reclaimed their land and had been exercising acts of ownership and possession since then.
For the avoidance of doubt, since we had held that title had been put in issue by the rival claims of the parties of their ownership of the land in dispute, judgment could only have been given to the party that proved better title. The Respondents had been held not to have established their root of title by traditional evidence and they resorted to acts of possession and user of the land numerous and positive enough to warrant the conclusion or inference that the land actually is communal land. See Ekpo v. Ita 11 NLR 18 and Dacosta v. Ikomi (1068) ALL NLR 394 at 398 and Section 35 of the Evidence Act 2011. They also tendered their Survey Plan to establish or show the extent of their land.
On the part of the Appellants, they had pleaded copiously in Paragraphs 12 – 16 and 22 of their Further Amended Statement of Defence that there is no longer land called Mgboko-Agu-Oka and that they had taken over their Okpulukpu land and resumed possession by collectively farming there on and reaping the economic trees without let or hindrance following the collapse of the Cooperative Society after the Civil War, until 1985.
They pleaded Survey Plan Number SSC/AND-0698 with their said “Okpulukpu Land” verged Blue on the Plan. As said earlier, that plan was tendered by the Appellants, admitted and marked Exhibit ‘F’ by the Court. Upon my careful perusal of the Appellants’ Survey Plan, it is clear that the disputed land marked red is a small portion within the larger Okpulukpu Land verged Blue. Section 35 of the new Evidence Act, 2011 captioned “Acts in Relation to Land” provides as follows:
“35. Acts of possession and enjoyment of land may be evidence of ownership or of right of occupancy not only of the particular piece of quantity of land with reference to which such acts are done, but also to other land so situated or connected with it by locality or similarity that what is true to the piece of land is lively to be true of the other piece of land.”
In the case at hand, the DW3 had testified in line with their pleadings in the paragraphs of their Further Amended statement of Defence earlier highlighted thus:
“There is no piece of land now known as and called Mgboko-Agu-Awka. There is no parcel of land at Mgbko-Agu-Awka jointly owned by Amachalla-nato community. The land known as Mgboko-Agu Awka is called Mgboko-Agu-Awka because it is swampy area. Part of Ana Okpulukpu is within the area known as Mgboko Agu Awka, part of Ana Okpulukpu known as Ozu ani area is not inside Mgboko Agu Awka Area. The part is called Ozuani because it is not within the swampy area. I know of an organization known as Amaenyi Awka and co-operative community Farm Limited otherwise known as AACCFL. The Association was formed in 1966. It was formed by the returnees from different parts of the country that were disturbed shortly before the outbreak of the civil war. The returnees were the sons of Amachalla-nato who came back from different parts of the country after the pogrom of 1966. When they formed the Association they approached families from Amechalla-nator who own land within the swampy portions of their lands for rice cultivation. They approached our family with two gallons of up wine and four Kola nuts. Umuogbee family granted their request and gave them the swampy portion of the Aana Okpulukpu granted them. They harvested the rice and stored it in one of the stores owned by Nwokocha Okafor at Umuzocha Village.
When the war ended in 1970 the returnees went back to the respective stations and resumed business. The Cooperative Society collapsed. When the cooperative society collapsed, each family retook possession of their respective lands and started using it for farming. Before 1966, Okpulukpu was not owned by the entire Amachallanator. The Amachallanator never farmed Ana Okputukpu land bi-annually to scare animals. Before 1966 the defendants were using Ana Okputukpu as farm land, Members of Umuogbee family farmed on the land during the farming season.” See Pages, 120 and 121 of the Records.
Turning specifically to the identity of the land and the Survey plan, when cross-examined by the learned Counsel for the Respondents:
“Q. Do you have anything to show the boundary between Ozuani and Mgboko Agu Awka in your plan”?; the DW3 replied confidently:
“No, if you have a piece of land stretching across an area it could stretch from Ozuani to Mgboko area. The two parcels of land belong to us and there is no need for demarcation.
“Q. Did you show the land in dispute as being in Mgboko (swampy Area, or Ozuani?
“A. We showed the whole of our land in dispute and our land not in dispute as well as our boundary neighbours. We did not include in our plan the swampy area and Ozuani (Upland) area,”
When asked whether he (DW3) showed the Surveyor the features he (surveyor) measured in the Appellants’ Plan, the DW3 answered that: “We showed our Surveyor our Area Okpulukpu land.”
Earlier on at page 129 upon being questioned by learned Counsel for the Respondents as to their (Appellants) boundary neighbours on the disputed land, the witness replied: “We share boundary with Umude family, Umuogba family a family in Umunoke and with Umuaguiyi family and the Onitsha – Enugu dual carriage road.” See pages 129 and 130 of the Records.
The Respondents witness (PW2) on the other hand at page 81 of the Records when Cross-examined by the learned Counsel for the Appellants on the identity of the land he rather buttressed the evidence of the DW3 thus:
“Q. After the defendant who is the next boundary neighbour.
“A. I do not know
“Q. Are you saying throughout the right side of the land you don’t know the boundaries of the land in dispute.
“A. I do not know.
“Q. Standing on the Onitsha – Enugu Road and facing the land in dispute who has boundary with the land in dispute on the left.
“A. I do not know.
“Q. It is true that the land of the defendants not in dispute has a boundary with the land in dispute.
“A. It is true.
“Q. What is presently on the boundary between the defendants land and Mgboko Agu Awka.
“A. There is nothing on the boundary between the defendants land and Mgboko Agu Awka.
“Q. what demarcates the land in dispute from the entire Mgboko Agu Awka land;
“A. I do not know.”
At page 82 the question and answer session continued thus:
“Q. Do you know how Umuogbee got their land very close to Mgboko Agu Awka.
“A. I do not know.
“Q. Because you do not know the extent of their lan4 you do not know whether their land extends to the land in dispute.
“A. I know they have a boundary with the land in dispute.” The above question was follow up to an earlier question and answer to wit;-
“Q. “Do you know the extent of the land of the people of Umuogbee not in dispute.
“A. I do not know,”
Before then the PW1 had also admitted when cross-examined at page 84 of the Records, by the learned Counsel to the Appellant whether:
“Q. Defendants have a piece of land close to Mgboko Agu Awka”; and he answered:
“A. Yes just like other families.
“Q. Defendants land very close to the land in dispute is not in dispute.
“A. Yes.”
From the foregoing, the submissions of the learned counsel for the Appellants and the authorities relied upon are unassailable to the effect that the Appellants discharged the burden cast on them to prove exclusive ownership of the land in dispute while the Respondents failed to discharge the onus which shifted to them to prove the contrary. As laid down in Section 35 of the Evidence Act, 2011, the provisions thereof which we earlier reproduced and the case of Piaro v. Tenalo (supra), Ezeanah v. Attah (supra) Atufe v. Oghamienor and Balogun v. Akanji (Supra), it is settled principle of law that one of the ways of establishing title/ownership of land is proof of acts of possession and enjoyment of land adjacent and connected in a manner rendering it probable that the owner of those adjoining land is in addition the owner of the land in dispute. See Adesanya v. Aderounmu (2001) 6 S.C. (Pt. 11) 18. Commenting on this time-honoured principle of our land Law; Tobi, JSC in Salami v. Lawal (2008) 14 NWLR (Pt. 1108) 546 at 574 – 576 paras. H – A posited inter alia:-
“Apart from long possession, a plaintiff can prove ownership of the land in dispute if he proves possession of land connected or adjacent to the land in dispute. The plaintiff must prove proximity of the two pieces of land. He must prove some nexus or contiguity. Where the pieces of land are Kilometers apart or away a trial Judge will not give judgment to the plaintiff. Again, the connection or adjacent nature of the two pieces of land will be determined by the facts of each case. Plaintiff must prove that the two pieces of land are very close; they touch or almost touch each other. They must join in relation substantially or materially not necessarily like Siamese twins.”
In the instant case, not only has the DW3 proved the connection and adjacent nature of the land in dispute to their larger Okpulukpu Land by contiguity, proximity and established the nexus between their greater Ana Okpulukpu and the disputed land but the PW1 and PW2 by their ipse dixit had proved in favour of the Appellants that the land in dispute and the Appellants land not in dispute (the Larger Ana Okpulukpu) are inextricably connected and tied together like Siamese twins. See Idundun v. Okumagba (1976) 9 – 10 S.C. 41, Ezeoke v. Nwagbo (1988) 1 NWLR (Pt. 72) 616; Fasaro v. Beyeioku (1988) 2 NWLR (Pt. 76) 283 and Okpuruwu v. Chief Okpo Kanu (1988) 4 NWLR (Pt. 90) 554.
Beside the admissions by the Respondents that there is no demarcation between the land in dispute and the Appellants land not in dispute, I have also observed from Exhibit F that the disputed land is actually circumscribed or enveloped and within the greater Okpulukpu land. The provision of Section 35 of the Evidence Act and the plethora of decisions on this principle of law ought to have been invoked in favour of the Appellants, since it is clear that the Appellants’ land is contiguous with the disputed land and the Appellants proved that they have been enjoying the said disputed land with the larger Okpulukpu land for a considerable length of time before and after they gave out the disputed portion to the Respondent. Definitely, the learned trial Judge ought to dismiss the claim of the Respondents from all the surrounding circumstances and I so hold.
On the issue of the DW3 not being cross-examined on his evidence in this respect, there is no doubt that on the authorities of Nigerian Customs Service & Anor V. Bazuaye (supra) Dagash v. Bulamah (supra), it is trite that the effect of non-cross-examination of the DW3 is that his evidence has been accepted hook line and sinker by the Respondents as the truth of what he had asserted. The Court below ought therefore to have given effect to this evidence and dismiss the case. See Oforlete v. The State (supra); NBA v Anamaelechi (supra) See further Edokpolo & Co Ltd. v. Ohenhen (1994) 7 NWLR (Pt. 385) 511; Ramalu v. Umunna (1997) 5 NWLR (Pt. 505) 321; Ajomale v. Yaduat (No. 2) (1991) 5 NWLR (Pt. 834) 444 and Idris v. ANPP (2008) 8 NWLR (Pt. 188) 3 at 161 – 162 paras. F – D; 99 – 100 paras. H – B.
On the whole, I agree that the lower Court was wrong to have rejected the evidence of the DW3 on the grant of the land in dispute and accepted the so called ‘detailed’ evidence of the PW2 which was fraught with admissions, contradictions and ignorance of the facts of the case. Accordingly, this holding is perverse and it shall be set aside. I hold rather that the Appellant on the preponderance of evidence adduced/elicited by them which was corroborated by the evidence for the Respondents, proved that the Okpulukpu land part of which is in dispute belongs to their (Appellants) family exclusively and they (Appellants) had therefore discharged the onus placed on them by law. This Issue Number 3 shall also be resolved in favour of the Appellants.
ISSUE NUMBER 4 WHETHER THE LEARNED TRIAL JUDGE WAS RIGHT IN PREFERRING EXHIBIT D TO EXHIBIT E?
ARGUMENT OF LEARNED COUNSEL FOR THE APPELLANTS ON ISSUE NUMBER 4:
On this issue which is distilled from Ground 6 of the Grounds of Appeal, the learned Counsel submitted that there is no basis for the trial court to prefer the case of the Respondents to the effect that Exhibit D was the terms of settlement reached between Amachalla-nato Community and UmuAguiyi family following the dispute between them over the ownership of Mgboko Agu-Awka land (page 149 of the Records refers). He recalled the case as stated by the Respondents on how the AACCFL was formed and the eventual acquisition of the Mgboko Agu Oka land upon being granted by Amachalla-nato Community (page 69 – 70) of the Records refer.
The learned counsel also recalled the facts of the Appellants’ case as given in evidence through the DW3 on how the said AACCFL was formed when it was formed and by whom at pages 119 – 121 of the Records. As regards the Exhibits, the learned Counsel alluded to the evidence of PW3 who tendered same on the genesis of the document and the version of Appellants as regards the document. Particular reference was made to the evidence of the DW1 on how a second document Exhibit ‘E’ was made by the Amachalla-nato Community which document was signed by representatives of the Community of Amachalla-nato and the eldest person in the Community (the Otochalu) Anaekie Igbonekwu who also signed the said Exhibit E. The DW1 was said to have read the two documents and interpreted them to the Amachalla-nato people. He (DW1) was also said to have signed the document as the interpreter as done to Exhibit ‘D’.
Learned Counsel for the Appellants explained the rationale behind the Exhibit ‘E’ which was that certain elements in Amachalla-nato started meddling with Mgboko-Agu-Awka and selling portions of the land without the consent of the Amachalla- nato people. Reference was made to the evidence of the DW3 in- chief at page 123 and the fact that when the Affidavit of facts sworn to by the said Aniekie Igbonekwu was tendered, the learned Counsel to the Respondents objected and the Court tentatively admitted same as Exhibit G reserving comprehensive ruling on its admissibility until Judgment. Upon the judgment, the learned trial Judge admitted the document but placed no weight on the Exhibit. He noted that they (Appellants) are not from Umuobu but from Umuogbee family and that the Umuogbee family and that the Umuobu was not a party to the suit in the Lower Court. It was also his contention that Anaekie Igbonekwu was the “Otochalu” or the eldest in Amachalla-nato.
Accordingly, it was submitted that the finding of the learned trial Judge at page 149 of the Records on the purport of Exhibit D is unsupportable in view of the two Exhibits and the evidence before the trial court for if the dispute was between Umuaguiyi family and the entire Amachalla-nato community, Amachallanator could not have arbitrated on the matter which it was a party. According to learned counsel, it appears that by Exhibit D, the Amachalla nato Community was both a party and a Judge in its own cause. He further observed that Exhibit D was not signed by Umuaguiyi family which was a party in the alleged dispute.
The Learned Counsel for the Appellants therefore contended that it is more in accord with common sense and logic that Amachalla-nato Community left the issue before it, that is to say the land disputed between Umuobu and Umuaguiyi families and declared Mgboko Agu Awka a common land of Amacahalla nator Community. He further asserted that it is more in accord with common sense and logic that when the communal ownership of the said land was being abused, the Declaration of 1985 (Exhibit D) became imperative. Accordingly, he maintained that the learned trial Judge had no basis whatsoever to prefer Exhibit D to Exhibit E. We were urged finally to resolve Issue Number 4 in the negative.
ARGUMENT OF LEARNED COUNSEL FOR THE RESPONDENTS ON ISSUE NUMBER 4:
In response to the above contentions of the learned Counsel for the Appellants, the learned Counsel for the Respondents noted that grounds 4, 5 and 6 to which this issue relate challenge the findings of facts made by the learned trial judge particularly with reference to Exhibits “D” and “E” and the evidence of S. N. C. Obuekwe (Pages 144 to 150 of the Records) but that in those pages, the trial court gave reasons for believing the witnesses for the Respondents and disbelieving the Appellants. He submitted that the Respondents tendered Exhibit “A” their Survey Plan and proved their title by Section 35 (then 46) of the Evidence Act. On their said Plan Mgboko Agu Oka is shown green and the land in dispute is shown pink as part of Mgboko Agu Awka less one side where it shows boundary with Appellants land not in dispute but outside Ugboko-Agu Oka. Recording to learned Counsel for the Respondents, the Appellants deliberately did not show Mgboko-Agu Oka in their plan.
As regards Exhibit D which is the bone of contention in this Issue, the learned Counsel for the Respondents contended that it shows that Mgboko-agu Oka was in issue in 1985 and that it is the parties’ communal land. He further pointed out that DW2 under cross-examination said that the land in dispute is inside Mgboko-Agu Oka (Page 117 of the Records refers) while DW3 admitted that Okpulukpu Appellants’ name for the land in dispute is within Mgboko Agu Oka (Page 108 of the Records).
The learned Counsel reiterated that the Appellants did not show Mgboko-Agu Oka in their plan because they were hiding the facts. He submitted further that the Respondents having shown that the land in dispute is within Mgboko-Agu Oka in their plan, they had proved their title also under Section 46 (35) of the Evidence Act. According to him, the Respondents proved their title by:-
1. Acts of ownership extending over a sufficient length of time,
2. Act of long possession and enjoyment of the land;
3. Traditional evidence;
4. Inheritance (communal ownership); and
5. Ownership of connected land (Section 46 (35) of the Evidence Act).
Finally, the learned Counsel for the Respondents insisted by reference to Nkado’s case that evaluation and ascription of probative value to proved facts is within the province of the trial Court. He urged us to hold that the findings of the trial court are not perverse consequently the issue should be resolved in the affirmation.
RESOLUTION OF ISSUE NUMBER 4
In the resolution of this Issue particularly in respect of the submissions of learned Counsel to the Respondents that the Appellants deliberately hid the facts of the case by not including Mgboko Agu oka in their Plan, I must restate that even though DW1 and DW2 admitted that their Okpulukpu land is situated in Mgboko Agu Oka, the PW1 and PW2 have also admitted that there is no boundary between the disputed land and the larger Ana Okpulukpu which is not in disputed.
I have also held earlier on that the disputed land from the plan of their land as filed by the Appellants is contiguous and in fact proximate to their larger Okpulukpu land. If their Okpulukpu had been in Mgboko-Agu Oka by virtue of the fact that they gave part thereof out to the AACCFL, that land had since reverted to them as they have pleaded and proved through the unchallenged evidence of the DW3.
As regards the submission by the learned Counsel for the Respondents that they had proved their title by acts of ownership, possession and so on; nothing can be further from the truth, going by their contradictory and speculative evidence which was given by witnesses who knew next to nothing about the antecedents of the land they claim to be theirs.
In respect of acts of long possession, this had long been truncated since the failure of the Cooperative Society, when the Appellants resumed better possession and enjoyment of the land as pleaded and proved by their witnesses. Turning to Traditional evidence, we had earlier held that their (Respondents) traditional evidence is conflicting and contradictory between deforestation by Okpo or Okpanam and inheritance from Ifite the father of Okpo. On the other hand, the Appellants pleaded copiously the traditional history of the land and traced its origin from Okpanam through successors like Arum and subsequently Ogbee from whom they of living memory inherited same. See the unchallenged evidence of DW3 who traced the unbroken chain of the pedigree of the land beginning from Okpanam to Ogbee at pages 123-124 of the Records. The learned Counsel for the Respondents cannot seriously contend therefore that they (Respondents) proved their title by traditional evidence.
As regards inheritance there is ample evidence that the land used or granted to AACCFL was initially owned by individual families and Exhibit ‘D’ the Declaration of 22nd November, 1985 seems to buttress this fact when as pleaded by the Appellants and led in evidence by the DW1 that in 1985 the Otochalu Amachalla-nato convened a meeting to look into a case between Umuobu family of Amachalla and Aguiyi family of Umuzocha. According to the DW1, by village meeting he meant a joint meeting of Amachalla, Umuzocha and Amudo villages which three villages are said to constitute Amachalla-nato.
The DW1 added that in the course of that meeting however another case came up altogether which was the case of Mgboko-Agu – Awka which land is owned by different families and each family has a name for their own portion. The decision was then taken that Amachalla-nato should be communal land of Amachalla which decision was not the main reason for convening the meeting. The decision was reduced to a written declaration.
He the DW1 signed the Declaration in Exhibit ‘D’ and interpreted same to the entire Amachalla elders from English to Igbo before they appended their signatures. The witness also remembered the 3rd day of June 1995 when the Otachalu then Aniekie Igbonekwu convened another meeting of Amachalla-nato in his residence concerning the attitude of some people who were selling part of the land. Specific mention was made of a portion of land which was sold to one Emmanuel Nweze of Ekwulobia which proceeds could not be accounted for. At that meeting attended by the entire Amachalla-nato Community:
“The decision taken at the meeting of 3/6/95 was that every family should take back their land at Mgboko Agu Awka and that the decision taken in 1985 should be nullified.”
After the declaration one Lawrence Chinwuba was appointed by the Otachalu to reduce same into writing and he (the DW1) also read same and interpreted the contents into Igbo after which the representatives of the three villages signed the document which is Exhibit ‘E’. The witness was not shaken under cross-examination that the Declaration of 1985 was superseded by that of 1995 more so, when he testified as a common denominator and signatory to the two disputed documents.
I agree therefore with the learned Counsel to the Appellants’ submission that it accords with common sense and logic that the Amachalla Community left the main issue that was the subject of the meeting of 1985 – the dispute between Umuobu and Umuaguiyi – and proceeded to declare Mgboko-Agu-Awka Communal land. By this declaration alone, it is clear that the Mgboko-Agu-Awka land was hitherto owned by the respective families of Amachalla-nato as pleaded and proved by the Appellants.
Again, it also accords with common sense that because of the abuse of the communal ownership of the Mgboko Agu-Awka by some unscrupulous and fraudulent elements, the community met in 1995 and abrogated the Declaration of 1985 as has been amply demonstrated by the evidence of the DW1, DW2 and DW3. It would be recalled that DW2 signed Exhibit ‘E’ so did the Otachalu of Amachalla in 1995 Aniekie Igbonekwu. Apart from that Exhibit ‘G’ which was an Affidavit of facts deposed to by the said Otachalu to the effect that the Declaration of 1995 was that families should retrieve their respective family lands at Mgboko Agu Awka, was admitted by the learned trial Judge, yet he decided not to attach any weight to same.
There is no doubt that Nkado’s case (supra) decided that evaluation of evidence called at trial, the ascription of probative value to them and making primary findings on them are matters within the exclusive province of the court of trial which has the singular advantage or is pre-eminently placed in the position to hearing the witnesses testify and watching their demeanour and that Appellate Courts are always reticent in interfering or to substitute their own views on the facts for those of the trial Court. See per Tobi, JSC in Buhari v. INEC (2008) 19 NWLR (Pt. 1120) 246 at 398 para. C.
However, where as in this case, the evaluation of evidence by the Court below and the ascription of probative value to proved facts were perverse, this Court in its appellate jurisdiction can step into the shoes of the Court below and do the needful by re-evaluating the evidence or drawing the necessary inferences from proved facts particularly where the findings of the Court below at page 149 of the Records occasioned a miscarriage of justice. See Nnadozie v. Mbagwu (2008) 3 NWLR (Pt. 1074) 363 at 387 Paras B-D; Oyewole v. Akande (2009) 15 NWLR (Pt. 1163) 119 at 143 Paras E-F, Anyanwu v. Uzuakwa (2009) 13 NWLR (Pt. 1159) 445 at 465-467; Henshaw v. Effanga (2009) 11 NWLR (Pt. 1151) 65 at 87-88 and Popoola v. Balogun (2002) 1 NWLR (Pt. 1037) 574 at 602. From the foregoing authorities, I am of the considered view that this Issue should also be resolved in favour of the Appellants.
On the whole, this Appeal is meritorious and it therefore succeeds in its entirety. The Judgment of the Anambra State High Court, sitting at Awka and delivered by the Hon. M. I. Onochie, J., is hereby set aside. In its stead, I dismiss the Claim of the Respondents who were Plaintiffs in the Lower Court with N30,000.00 costs.
ADZIRA GANA MSHELIA, J.C.A.: I have had the advantage of a preview in draft of the lead judgment just delivered by my learned brother Agube, J.C.A. and for the reasons so clearly stated by him, I agree that this appeal is meritorious and ought to be allowed. I will therefore allow the appeal and set aside the judgment of the Anambra State High Court, sitting at Awka delivered by Onochie, J. I also adopt the consequential orders made in the lead judgment.
EMMANUEL AKOMAYE AGIM, J.C.A.: I had a preview of the very erudite judgment just delivered by my learned brother, IGNATIUS IGWE AGUBE JCA. I completely agree with the reasoning and conclusions therein. I agree that the appeal succeeds and is allowed. The judgment of the High Court of Anambra State at Awka in suit No. A/124/96 of 23-2-2007 is hereby set aside. The claim of the plaintiffs (respondents herein) in the said suit No. A/124/96 is hereby dismissed. The respondents shall pay cost of N30,000.00 to the appellants.
Appearances
Emeka Nwankwo Esq.For Appellant
AND
C. C. Ngwuluka Esq.For Respondent
