LawCare Nigeria

Nigeria Legal Information & Law Reports

PAUL IHEDIOHA v. MR. SUNDAY AGWALEMERE & ANOR (2018)

PAUL IHEDIOHA v. MR. SUNDAY AGWALEMERE & ANOR

(2018)LCN/11822(CA)

In The Court of Appeal of Nigeria

On Monday, the 2nd day of July, 2018

CA/OW/98/2016

 

JUSTICES

MASSOUD ABDULRAHMAN OREDOLA Justice of The Court of Appeal of Nigeria

ITA GEORGE MBABA Justice of The Court of Appeal of Nigeria

TUNDE OYEBANJI AWOTOYE Justice of The Court of Appeal of Nigeria

Between

PAUL IHEDIOHA Appellant(s)

AND

1. MR. SUNDAY AGWALEMERE
(For himself and as the head of Agwalemere Family of Ezialiachara Amaokwe Amiyi
Autonomous Community Isuikwuato Local Government Area, Abia State)
2. AIRTEL NETWORKS LIMITED Respondent(s)

RATIO

WHETHER OR NOT THE FINDING OF THE COURT NOT APPEALED AGAINST REMAINS BINDING AND CONCLUSIVE

The law is trite, that a finding of the Court not appealed against, remains binding and conclusive. See Ezerioha & Ors Mgbeajulu & Ors (2018) LPELR  43811 CA; CPC VS INEC (2011) 18 NWLR (Pt. 1279) 493; Nze Vs Aribe (2016) LPELR  40617 CA. PER MBABA, J.C.A.

ITA GEORGE MBABA, J.C.A. (Delivering the Leading Judgment):

This is an appeal against the decision of Abia State High Court in Suit No. HS/11/2012, delivered on 16/9/2014 by Hon. Justice Obisike Oji, wherein the Learned Trial Judge gave judgment to the Plaintiff (now 1st Respondent) as follows:
it is:

(1) Declared that the Plaintiff is entitled to the Right of Occupancy over that piece of land at Iheagu, situate at Amaokwe Amiyi in Isuikwuato L.G.A and more clearly delineated in Survey Plan No. MCCO/ABD003/2013, dated 22/01/2013 and therein verged GREEN which is Exhibit E in this proceedings.

(2) The transaction over this land between the 1st and 2nd defendant (sic) is hereby declared null and void.

(3) The defendants shall pay the sum of One Hundred Thousand Naira (N100,000.00) to the Plaintiff being general damages for their trespass to the said land of the Plaintiff.

(4) The defendants are hereby restrained by themselves, their heirs, agents, successors in title and servants from further trespass into Iheagu land of the Plaintiff.

(5) The defendants shall pay cost of this Suit to the Plaintiff assessed at Twenty Thousand Naira (N20,000.00).? (See page 348 – 349 of the Records of Appeal).

Dissatisfied with the above decision, Appellant (who was 2nd Defendant at the trial) filed Notice of Appeal on 12/11/14, as per pages 388 – 390 of the Records, disclosing 3 grounds of Appeal. Appellant filed Brief of Argument on 4/10/16, which was deemed duly filed on 27/9/17. Appellant distilled two Issues for the determination of the Appeal, as follows:
(1) Whether on the state of pleadings and evidence adduced, the trial Court was right in holding that the 1st Respondent (Claimant at the trial Court) proved traditional history of acts of continuous exclusive possession leaving no gap? (Grounds 1 and 2)

(2) Whether the trial Court properly evaluated the evidence placed before it during the trial to arrive at a fair and just decision for all the parties. (Ground 3).

The 1st Respondent filed his brief on 15/1/18 and the same was deemed duly filed on 1/2/18. He adopted the Issues as distilled by the Appellant for the determination of the appeal. The 2nd Respondent filed no brief.

Arguing the Appeal, on 16/5/18, Appellant’s Counsel, Ngozi K. Uzoma Esq., (who settled the brief), on Issue one, said the 1st Respondent did not prove his case as required by law, to be entitled to the reliefs he sought. He submitted that, in an action for declaration of title to land, the Plaintiff must succeed on the strength of his own case, not on the weakness of the defence. He relied on the case of Ekanem Vs Akpan (1991) 8 NWLR (Pt. 211) 616; Kodilinye Vs Odu (1935) 2 WACA 336 at 337 – 338; Onwugbufor Vs Okoye (1996) NWLR (Pt. 424) 225; Shittu Vs Fashawe (2005) 14 NWLR (Pt. 946) 671; Eze Vs Atasie (2000) 10 NWLR (Pt. 676) 450.

Counsel also relied on the case of Ojoh Vs Kamalu (2005) 18 NWLR (Pt. 958) 523; Nwosu Vs Udeaja (1990) 1 NWLR (Pt. 125) 188; Kyari Vs Alkali (2001) 11 NWLR (Pt. 724), on the five different ways of proving title to land and said that the Plaintiff failed in his bid to establish his claims at the trial by traditional history which he relied on. Counsel further relied onBalogun Vs Akanji (1988) 1 NWLR (Pt. 70) 301, on evidence of ownership by traditional history, and added that, a party is not bound to plead and prove more than one root of title, to succeed, but that where he relies on traditional history and in addition, acts of ownership and long possession, predicated on traditional history, he is not entitled to a declaration of title based on the evidence of acts of ownership and long possession, where evidence of traditional history is unavailable. He added that the evidence adduced must accord with the pleaded facts to be acceptable and relied on Owoeye Vs Oyinola (2012) 15 NWLR (Pt. 322) 84.

Counsel said that 1st Respondent, failed to establish his claims at the trial Court via traditional history, as he failed to lead evidence to establish the names and history of his alleged ancestors, from the alleged deforester of the land, to himself, without any missing link. He relied on the case of Wachukwu Vs Owunwanne (2011) 14 NWLR (Pt.1266) 1 SC; Iheanacho Vs Chigere (2004) 17 NWLR (Pt. 901) 130. He also relied on Section 131 of the Evidence Act, that he alleges has the burden of proof.

Counsel said that, it was averred in paragraphs 8, 9,10 and 11 of the Amended Statement of claim and paragraphs 3 – 5 of the Reply filed by 1st Respondent that Achara (the ancestor and founder) gave birth to Ibezim and brothers and that when Achara died, his heirs, which includes Ibezim, inherited the land and farmed on it; that Ibezim had three sons (Agwalemere, Ogbulagu and Ibegbulam) and when Ibezim died, his three sons and their children inherited his portion of the land (while the descendants of his late brothers inherited their portions as was partitioned to them), and that the portion of the land of the claimant, now in dispute, were formerly the land of Ibezim, partitioned for the three families (three sons of ibezim) in accordance with native law and custom of the people of Ezialachara in Amaokwe Amiyi Autonomous Community, Isuikwuato L.G.A. Abia State; but that neither the 1st Respondent nor any of the other 4 witnesses he called, mentioned the name of Ibezim at the trial as descendant of Achara. He referred us to the evidence of 1st Respondent, who testified as PW4 on the Records of Appeal, and said that, having failed to mention the name of Ibezim in the chain of ownership and devolution of the land, the trial Court was wrong to hold for 1st Respondent.

Counsel said that where a Plaintiff fails to prove his root of title, as in this case, by traditional history, that marks the end of his case, as any alleged act of possession, erected by him, would not avail him. He relied on Wachukwu Vs Owunwanne (2011) 14 NWLR (Pt.1266) 1; Balogun Vs Akanji (1988) 1 NWLR (Pt. 70) 301.

He urged us to allow the appeal and dismiss the claim of the 1st Respondent, as that is what the trial Court ought to have done, relying on the case of Osolu Vs Osolu (2003) 11 NWLR (Pt. 832) 608.

On Issue 2, whether the trial Court properly evaluated the evidence placed before it to arrive at a fair and just decision, Counsel answered in the negative. He relied on Anyakora Vs Obiakor (2005) 5 NWLR (Pt. 919) 537 and Mogaji Vs Odofin (1978) 3 SC 91 on the issue; that evaluation of evidence on any issue or fact in the circumstances of each case, is to determine whether the totality of evidence supports a finding of facts, which the party adducing the evidence seeks the trial Court to make. He added that PW2, a brother of the 1st Respondent even worked for the 2nd Respondent at the site (disputed land) after the lease by the Appellant; that the trial Court should have considered same, and the evidence of DW1 and DW2 which showed that they made findings about the ownership of the land before the 2nd Respondent took the lease from Appellant. He relied on the case of Udengwu Vs Uzuegbu (2003) 13 NWLR (Pt. 336) 141.

Responding, 1st Respondent’s Counsel, Chinedu I. Obialor Esq., (who settled the brief), on the Issue one, said the 1st Respondent had substantiated his claim at the lower Court and had proved his case by traditional evidence, being one of the five ways of proving title to land, as per the case of Idundun Vs Okumagba (1976) NMLR 200 at 210. He said 1st Respondent?s fresh averments in the amended Statement of Claim, and the Exhibit D1 was not controverted. He added that the evidence led by the claimant had satisfied the Court as to the root of title; that the land was their family land and he had traced same to his ancestors.

On Issue 2, 1st Respondent said the trial Court had properly evaluated the evidence before it, and relied on the evidence of his boundary neighbors. He relied on the case ofOwosho & Ors Vs Dada (1984) 7 SC 149; Akintola & Anor Vs Solano (1986) 4 SC 141; Cameroon Airlines Vs Otutuizu (2011) 45 NSCQR 962. He urged us to dismiss the Appeal.

Appellant filed a Reply brief, which in my view, was a rehash of the argument in the main brief.

RESOLUTION OF THE ISSUES
I think the two Issues distilled by the parties for the determination of this Appeal are apt and I shall consider them, together.

A brief of facts of this case, at the Court below, shows that the Appellant leased the piece of land in dispute to the 2nd Respondent, on which 2nd Respondent erected its communication equipment. The 1st Respondent (as Claimant) sued them (Appellant and 2nd Respondent) claiming title to the land, damages for trespass and injunction. After hearing the case, the trial Court held for the Claimant (1st Respondent). At the trial, Appellant and the 2nd Respondent had a joint defence; and at a point, they sought to file additional witnesses deposition, which was refused by the Court, for being overreaching of the claimant, who had closed his case, at the time.

Did the 1st Respondent establish his Claim to the land to be entitled to the grant of Right of Occupancy over the land?

Appellant’s main argument appears to be that, whereas that 1st Respondent pleaded traditional history and stated how the land devolved, from his ancestor, Achara, to Ibezim, to Agwalemere, and right down to him and his relations, but in oral evidence, in Court, he skipped Ibezim and never mentioned that name, while tracing the chain of succession to the land in dispute. Hear him (Appellant’s Counsel):

”Thus, while it was averred in paragraphs 8, 9 and 11 of the Amended Statement of Claim at pages 140 – 141 of the Records that Achara gave birth to Ibezim and his brothers and that when Achara died, his heirs which include Ibezim inherited the land and farmed thereon; Ibezim had three sons, namely: Agwalaemere, Ogbulagu and Ibegbulam, and when Ibezim died, his three sons and their children inherited his portion of the land? until early 80’s when it was partitioned for the three families (the three sons of Ibezim) in accordance with native law and custom of the people of Ezialachara in Amaokwe Amiyi Autonomous Community, Isuikwuato LGA, Abia State, neither the 1st Respondent nor any of the other four (4) witnesses which he called at the trial mentioned the name Ibezim in their evidence at the trial.”  (See paragraph 4.10 of the Appellant’s Brief – pages 8).

Appellant however admitted that PW4, in his Statement on oath, paragraph 8 (Exhibit D), said:
”I and my brothers inherited the said farmland of which portion of it is in dispute, from our forefather late Achara, to our great grandfather (late Agwalemere) to our grandfather (late Monday Agwalemere) and to our father (late Ishmael Agwalemere) whom we inherited directly from.” (See paragraph 4.15 of the of Appellant’s Brief).

And that PW2 said in Exhibit B, (his statement on oath) that:
”Achara, founder of our kindred Ezialachara, deforested that piece of land and was in possession of same until his demise. Achara gave birth to late Agwalemere, the founder of Agwalemere and his brothers of which their descents are our boundary neighbors at the said piece of farmland, particularly, Paul Ibegbulam and Eze Ogbualu.” (See paragraph 4.16 of the Appellant’s Brief).

I cannot see how the lack of specific mention of Ibezim in the oral evidence of the 1st Respondent (and his witnesses) would detract from the sound findings of the trial Court, that the 1st Respondent had established his traditional history over the land. The pleading had acknowledged that Achara gave birth to Ibezim and his brothers, and Ibezim had three Sons including Agwalemere, whom the 1st Respondent said was his great grandfather, and traced himself and family to. In other words, the 1st Respondent had traced himself to Achara the founder of the land in the devolution of the land.

I consider that to be substantial trace of the family tree, in line with the findings of the trial Court, on page 346 of the Records, when it said:
”The traditional history of the Claimant was better brought in his Amended Statement of Claim. It is that the land in dispute was deforested by Achara, the founder of Ezialiachara kindred of the claimant. Achara begat Ibezim who begat three sons, Agwalemere, Ogbulam and Ibeligbu. The Claimant is from the Agwalemere lineage. These three sons of Ibezim shared the Achara lands inherited by Ibezim. Agwalemere begat Monday who begat Ishmael the father of the Claimant and his brothers. The Claimant pleaded and led evidence of how these; his ancestors enjoyed the land in dispute as the owners.”

Appellant had relied on the case of Wachukwu Vs Owunwanne (2011) 14 NWLR (Pt.1266) 1, and other cases to the effect that, one who places reliance on traditional evidence in the bid to establish their title to the land in dispute, has the onus to plead the root of title, and names and history of his ancestors and lead evidence to establish same, without any missing link. The evidence led by the 1st Respondent appears to have satisfied that requirement of the law, in my opinion. The pleading had disclosed the names of the ancestors in the chain of successors to the land and that included Ibezim, who had three sons, including Agwalemere. The evidence in Court had traced the land from the 1st Respondent up to the Agwalemere and to Achara. Agwalemere, having been named as one of the sons of Ibezim in the pleading, is obviously, represented in the line of succession, as he, Ibezim, was the link between Achara and Agwalemere, even without stating so in many words, in my view.

The trial Court had held that:
when the evidence adduced by both sides is placed on the imaginary scale of justice, on the side of the Plaintiff will be seen traditional history of acts of continuous exclusive possession, leaving no gap, evidence of credible boundary neighbors, while nothing will be found on the defendants? side.? (See page 348 of the Records of Appeal)

I have not seen where Appellant appealed against such clear findings of the trial Court, expressed above. The law is trite, that a finding of the Court not appealed against, remains binding and conclusive. See Ezerioha & Ors Mgbeajulu & Ors (2018) LPELR  43811 CA; CPC VS INEC (2011) 18 NWLR (Pt. 1279) 493; Nze Vs Aribe (2016) LPELR  40617 CA.

Issue 2, was whether the trial Court properly evaluated the evidence adduced before it to reach a fair and just decision. I am quick to answer this in the affirmative.

It should be appreciated that Appellant defended the Suit, jointly with the 2nd Respondent, by filing a joint Statement of defence and later obtained leave to amend the said joint statement of defence, which they filed, with statements on oath of their witness. See pages 202 to 205, 222 – 225 of the Records of Appeal. Appellant was therefore fully heard in the case, and the application to file amended statement of defence was granted 16/12/2013. (Page 326 of the Records)

It was on 18/2/2014 that the Defendants (Appellant and 2nd Respondent) filed a motion, seeking (among other things) an order? extending time within which to file written deposition of additional witnesses, and to deem as properly filed, the said written depositions of Mr. Chidiebere Ozoemena and Emeka Ihedioha. (See pages 257 to 264 of the Records).

The trial Court, while refusing that application on 18/2/14, said:
”It must be noted that the statement of defence was filed on 1/2/2013, about a year ago. Since April 2013 the 1st Defendant had been seeking to amend its statement of defence and eventually by his motion of 2nd November 2013 effected the said amendment and listed the witness it desired to field. The Claimant has closed his case and to wait till the close of the case of the claimant to bring this application, is definitely to overreach the claimant. There is no merit in the application and it is, accordingly, dismissed.” See page 328 of the Records.

Appellant had claimed the trial Court did not review, criticize and estimate the evidence placed before it, and did not consider the evidence of Appellant and his witnesses, especially DW2, before arriving at its judgment, that that caused miscarriage of justice.

Those claims cannot be true in the light of the findings of the trial Court. Appellant’s said Issue was founded on wishful thinking and pretense. The trial Court did not deny Appellant right of fair hearing, and did not shortchange Appellant in the evaluation of the evidence adduced before the trial Court. The evidence of PW2 (1st Respondent’s brother) did not even help the cause of Appellant, as PW2 had denied working for the Defendants on the land. See page 368 of the Records of Appeal.

I therefore resolve the Issues against the Appellant. On the whole, I see no merit in this appeal and so dismiss it.

Appellant shall pay the cost of this Appeal assessed at N50,000.00 (Fifty Thousand Naira) only, to the 1st Respondent.

MASSOUD ABDULRAHMAN OREDOLA, J.C.A.: I was opportuned and read in advance, the lead judgment of my learned brother, Hon. Justice Ita George Mbaba, JCA, which has just been delivered. I agree with his reasoning and conclusion, that the instant appeal matter lacks merit and deserves to be dismissed. It is accordingly dismissed by me too. I endorse the order contained in the said lead judgment on costs.

TUNDE OYEBANJI AWOTOYE, J.C.A.: I agree

 

Appearances:

NGOZI K. UZOMA, ESQ.For Appellant(s)

CHINEDU I. OBIALOR, ESQ. -1ST RESPONDENTFor Respondent(s)