PETER NWIGBO & ORS. V. FIDELIS EBUBEALOR & ORS.
(2012)LCN/5591(CA)
In The Court of Appeal of Nigeria
On Friday, the 20th day of July, 2012
CA/E/66/2008
JUSTICES
ABUBAKAR JEGA ABDULKADIR Justice of The Court of Appeal of Nigeria
ADAMU JAURO Justice of The Court of Appeal of Nigeria
SAMUEL CHUKWUDUMEBI OSEJI Justice of The Court of Appeal of Nigeria
Between
1. PETER NWIGBO
2. ROWLAND NWODIKA
3. OKEKE ALUSI
4. LOUIS ORJI (For themselves and for on behalf of the people of Umuokpu village, Awka) Appellant(s)
AND
1. FIDELIS EBUBEALOR
2. IFEATU OKAGBUE
3. REUBEN OKOLONJI (For themselves and for and on behalf of the people of Mmimi village, Nawfia) Respondent(s)
RATIO
THE IMPLICATION WHERE A PARTY PLEADS ACTS OF POSSESSION AS HIS ROOT OF TITLE
“In Balogun v. Akanji (1988) All NLR 188 at 211 – 212, this court per Oputa, JSC; observed:- “One final word on Ekpo v. Ita supra. Anyone who pleads Acts of Possession as his Root of Title is really relying on the presumption that possession is 9/10 of the law and that he who is in possession is presumed by Section 145 of the Evidence Act Cap. 62 of 1958 to be the owner and that the onus of proving that he is not the owner is on the person who affirms that he is not the owner. Looked at logically and critically a person pleading Acts of Possession as his root of title is simply saying…’I do not know how I got the land. All I know is that I have been in possession and have exercised various positive acts of possession. Now you prove that I am not the owner.’ Put in this way it is easier to appreciate that acts of possession will not arise where the root of title is known, and pleaded, and proved. In such a case title will be awarded on the strength of the title pleaded and proved. It is only where and when traditional evidence is inconclusive that the court will be obliged to look at the acts of possession of the parties and therefrom determine on whose side the presumption in Section 145 Evidence Act will operate.” PER ABDULKADIR, J.C.A
WHETHER THE NEED TO PROVE ACT OF POSSESSION WILL ARISE WHERE A PARTY WHO RELIES ON TRADITIONAL EVIDENCE HAS SUCCESSFUL PROVEN SAME
“A careful consideration of the authorities and decided cases amply shows that there is no onus on a plaintiff who claims title by traditional evidence and who successfully establishes his title by such evidence to prove further acts of ownership numerous and positive enough to lead to the inference that he exclusive owner. When a plaintiff has proved his title by traditional evidence there will be no need again for an inference to establish that which had been already directly proved. Acts of ownership become material only where the traditional evidence is inconclusive. In the case on appeal where the trial court held that the traditional evidence led was conclusive, there was no need whatsoever to require further proof. That will be increasing unnecessarily the burden of proof on the plaintiffs. That will be wrong. Cases like Ekpo v. Ita (supra) or Kojo v. Bonsie (1957) 1 WLR 1223; WAL 257 deal with cases where there is a conflict of traditional history. In such cases the best way is to test the traditional history by reference to facts in recent years as established by evidence and by seeing which of the two competing histories is more probable. Such a situation did not arise in this case since the trial court was satisfied with the plaintiffs’ traditional evidence but not with that of the defendants.” See also OYADARE V. KEJI (2005) 7 NWLR (Pt. 925) 57, in which the Supreme Court made it clear that a party who fails to prove his pleaded root of title was no longer entitled to rely on acts of ownership and possession to prove the same title to the land claimed.” PER ABDULKADIR, J.C.A.
THE LAW AND RULES OF COURT APPLICABLE TO A CAUSE OF ACTION
“The legal position is that the applicable law to a cause of action is the law prevailing at the time the cause of action arose notwithstanding that the law had been revoked at the time the action is being tried: Governor of Oyo State v. Folayan (1995) 9 SCNJ 50 at 64, Mustapha v. Governor of Lagos State (1987) 2 NWLR (Pt. 58) 539, ……………… ln respect of practice and procedure, the applicable Rules of Court are those in force at the time of trial: Owata v. Aniogo & Ors. (sic) 2 SCNJ 1 at 10; Rossek & Ors v. ACB Ltd & Ors (1993) 10 SCNJ 20.” PER ABDULKADIR, J.C.A.
THE BURDEN OF PROOF IN A CLAIM FOR DECLARATION OF TITLE TO LAND AND DECLARATION OF ENTITLEMENT TO A RIGHT OF OCCUPANCY
“The position of the law is that the burden of proof on the party claiming for a declaration of title to land and a declaration of entitlement to a right of occupancy (i.e. Statutory Right of Occupancy or Customary Right of Occupancy), over land is the same. See ADESHOYE V. OLOWOLAGBA (1996) 12 SCNJ 95. In the said case the Supreme Court per M.E. Ogundare, JSC; stated at pages 118 – 119 thus: – “………….On the question as to whether the plaintiff established his root of title, I find myself unable to agree with the court below in the distinction it made between a claim for declaration of title and a claim, under the Land Use Act, for a declaration of entitlement to a right of occupancy. The standard of proof required in a claim for a declaration of title is the same as that required in a declaration of entitlement to a right of occupancy. Indeed, the latter claim arose as a result of the provisions of the Land Use Act whereby the court could no longer grant a declaration of title to land but rather a declaration of entitlement to a right of occupancy. This change in the nature of claim has, however, not affected the law as to what is required to be proved to sustain the latter claim.” PER ABDULKADIR, J.C.A
WHETHER OR NOT THE COURT CAN MAKE A CASE FOR A PARTY BEFORE IT
“It is also settled law that though a court is not to make a case for a party it should look at what is pleaded and the relief sought in order to determine the Issues involved in the case. See F.A.A.N. V. GREENSTONE LTD [2009) All FWLR (Pt 500) 741; and BANK OF THE NORTH LTD V. GANA [200] All FWLR (Pt. 296) 862.” PER ABDULKADIR, J.C.A
ABUBAKAR JEGA ABDULKADIR, J.C.A (Delivering the Leading Judgment): This is an appeal against the judgment delivered on 15/12/2005, by Hon. Justice Umegbolu Eri-Ezedi (as he then was) and (hereafter simply referred to as “the learned trial Judge”) of the Anambra State High Court of Justice holden at Awka Judicial Division (hereafter simply referred to as “the lower court”). The learned trial Judge in the judgment granted all the reliefs claimed by the Plaintiffs (hereafter simply referred to as “the Respondents”); while he dismissed the Counter-Claim of the Defendants (hereafter simply referred to as “the Appellants”) in its entirety.
The instant case (in which both parties filed survey plans that were duly admitted in evidence) was at the lower court tried upon the amended Statement of Claim dated 28/5/1997 but filed on 10/2/2005 and amended Defence to Counter-Claim dated 1/12/1997 but filed on 5/12/1997 at the instance of the Respondents on the one part; and as amended Statement of Defence and Counter-Claim dated 20/11/1997 but filed on 21/11/1997 as well as Defendants’ Reply to the Plaintiffs’ amended Defence to Counter-Claim dated 14/6/2000 but filed on 28/6/2000 at the instance of the Appellants. The claims of the Respondents against the Appellants as contained in the amended Statement of Claim are as follows: –
(a) A declaration that the Plaintiff are entitled to the customary right of occupancy in respect of all that piece or parcel of land called “Agu Akpuluka” as shown on plan No. MG/AN134/90.
(b) N40,000.00 damages for trespass.
(c) A perpetual injunction restraining the Defendants their servants/Agents from further trespass into the land in dispute or dealing with same in any manner whatsoever.”
The counter-claim of the Appellants against the Respondents jointly and severally as contained in their amended Statement of Defence and Counter-Claim reads:-
‘(1) N20,000.00 twenty thousand Naira) being general damages for plaintiffs’ trespass on the land in dispute in possession of the defendants;
(2) Perpetual injunction restraining the plaintiffs by their servants or agents from interfering with the defendants’ possession of the land in dispute, called “Agu Akpuluka”, and shown verged RED on defendants’ Plan, No. 0293;
(3) A declaration that the defendants are the persons entitled or deemed to be entitled to the Statutory right of occupancy to the said piece or parcel of land known as and called Agu Akpuluka.”
The Respondents called five witnesses in the proof of their case; while the Appellants called nine witnesses in the proof of their own case. The learned trial Judge after an evaluation of the evidence adduced by the parties, their written addresses as well as oral submissions in the judgment delivered on 15/12/2005 gave judgment in favour of the Respondents and dismissed the counter-claim of the Appellants. The Appellants being aggrieved with the judgment of the lower court lodged an appeal against the same vide a Notice of Appeal dated 24/2/2006 and filed on the same date. The Notice of Appeal contains nineteen grounds of appeal, the relief which the Appellants seek from this Court as contained in the Notice of Appeal reads “To set aside the decision of the Court below, to dismiss the case of the plaintiffs, and to give judgment for the counter-claimants, the defendants, on all their claims”.
In accordance with the Rules of this Court parties filed and exchanged Briefs of Argument. Appellants’ Brief of Argument is dated 20/2/2009 and Appellants’ Reply to Respondents’ Preliminary Objection is dated 5/11/2010. Both processes were settled by Dr. A.N. Onejeme and Ifeanyichukwu Obiakor. Respondents Brief of Argument dated 5/10/2010 and filed on 25/10/2010 was settled by Chief N.O. Izuako.
The appeal was entertained on 26/4/2012. At the hearing of the appeal, Chief N.O. Izuako of counsel for the Respondents having first sought the leave of Court in that regard, argued the preliminary objection filed in the appeal by the Respondents and I. Obiakor, learned lead counsel for the Appellants duly responded to the same. Thereafter learned counsel for the parties as hereinbefore identified adopted the Briefs of Arguments filed on behalf of their respective clients in aid of their positions in the appeal.
In the Brief of Argument of the Appellants, six Issues are set out as arising for determination in the appeal. The Issues read thus:-
“1. How relevant was the Okoli Ijomanta war for the determination of case of the parties and could the trial Judge’s findings based on that war be valid having regard to his attitude and approach to the evidence, which he merely commented upon without proper evaluation, and weighing?
2. Whether the trial Court did not make a different case for the parties than the one they put up in their pleadings and evidence, when he resolved that the real issue as far as the settlement of the Defendants’ ancestors were concerned, was on whose land did they settle when they migrated from their village Umuoraonwu?
3. Whether the findings of facts made by the trial judge, namely: –
(a) That Amawbia and the Plaintiffs (sic) ancestors granted land to the Defendants’ ancestors where they settled.
(b) That Amawbia and the Plaintiffs had a common boarder (sic) before the arrival of the Defendants:-
were justifiable and not perverse having regard to the treatment of the totality of the evidence on those issues put forward by the parties?
4. Whether the trial Court was right in his decision:
a) The Ekpe wall relevant to for the ownership of the land in dispute is the Ekpe wall pleaded by the Plaintiffs rather than the Ekpe wall pleaded by the Defendants.
b) That the existence of that Ekpe wall was established by evidence.
5. Whether the Plaintiff proved the title to the land in dispute as pleaded by them to justify the judgment for declaration of title, damages and injunction awarded them.
6. Whether, on the totality of the evidence adduced by the parties, including agreement on the name of the land in dispute, the trial Court should have dismissed the Defendants’ counter-claim to Agu Akpuluka land in dispute?
Having made the observation that Issues 1 – 4 of the six Issues arising for determination as formulated in the Appellants’ Brief of Argument border on proper evaluation by the lower court of the evidence adduced at the hearing, the Respondents formulated three Issues as arising for determination in the appeal. The three Issues are:-
“1. In arriving at his decision, did the Court below properly evaluate the evidence having regard to the pleadings and evidence of the parties?
2. Was the Court below right in holding that Umuokpu emigrated from Umuaronwu village Awka and that Amawbia and Nawfia granted them land where they initially settled?
3. Whether the Learned trial Judge was right in finding for the Plaintiffs and dismissing the Defendants (sic) counter-claim.”
I will first consider the merit or otherwise of the preliminary objection lodged against the appeal by the Respondents. This is against the backdrop of the settled position of the law, that where a preliminary objection to an appeal succeeds, then there is no need to consider the appeal on the merits.
The Respondents gave notice of their intention to rely upon a preliminary objection in the instant appeal in their process dated 17/11/2009 and filed on the same date. The only ground of the Respondents’ objection as set out in the process by which the objection was raised reads:
The Appellants failed to comply with the provision of Order 6 Rule 2(2) of the Court of Appeal Rules in that the appellants failed to give the particulars of error in law or particulars of misdirection in law alleged in their grounds of appeal.”
The argument advanced by the Respondents in support of their preliminary objection can be found at paragraphs 1.01 – 1.02 of their Brief of Argument. The Respondents referred the Court to pages 173 – 177 of the record of appeal as containing the Notice and grounds of appeal. They said that the 20 grounds of appeal allege either error in law, or misdirection in law, without clearly giving the particulars of the error in law, or misdirection in law, or fact (underlining supplied by me). The Respondents submitted to the effect that grounds of appeal to be competent and valid, must comply with the 2007 Rules of Court and that the Rules require particulars to be given when errors in law or misdirection in law, are alleged in grounds of appeal. That the Notice of Appeal in the circumstance is grossly incompetent and should be “dismissed” notwithstanding ground 1, therein which is the omnibus ground of appeal. This is because the Appellant cannot attack specific findings of facts by the lower court, pursuant to the said omnibus ground of appeal. Cases considered relevant and which include Bereyin v. Gbobo (1989) 1 NWLR (Pt. 97) 372 at 379; and Ndiwe v. Okocha (1992) 7 NWLR (Pt.252) 129 at 139 were cited in aid of the submissions.
The Appellants as already indicated hereinbefore, responded to the preliminary objection of the Respondents in their Reply Brief. The Appellants in the main submitted to the effect that the objection is grossly misconceived and unsustainable having regard to the provision of the Rules of Court upon which it is predicated, i.e. Order 6 Rule 2(2) of the Court of Appeal Rules , 2007. In this regard the Appellants submitted that the particulars of the error in law and or misdirection in law, alleged in their grounds of appeal are sufficiently disclosed, or sufficiently evident, or sufficiently discernible, in the grounds of appeal. That there was no need for them to itemized the errors again by way of particulars in the circumstances. Cases considered relevant were cited by the Appellants and they include, Ezenwa v. J.C. Ltd (1994) 7 NWLR (Pt. 356) 292 at 306 – 307; and Nneji v. Chukwu (1988) 3 NWLR (Pt. 81) 184.
The Appellants in my considered view have clearly rendered the objection of the Respondents prostrate or without substance by their submissions the gist or essence of which has been highlighted above. I do not understand the Respondents by their objection to be that particulars of error in law or misdirection in law are not disclosed at all in the grounds of appeal wherein error in law and or misdirection in law, have been alleged. The stance of the Respondents is that the particulars of the errors are not clearly stated in that they ought to have been itemized so to say. The cases cited by the Appellants clearly show that particulars of error can be built into or subsumed in the ground of appeal alleging error in law and or misdirection in law, and this unarguably is what the Appellants have done in their grounds of appeal. All that the objection of the Respondents has brought to the fore, is that if the Respondents had applied themselves more diligently to the grounds of appeal, they would have clearly seen the particulars of error in law and or misdirection in law, in the grounds of appeal before the court. The preliminary objection of the Respondents is therefore bound to fail as their complaint is very cosmetic and indeed tenuous.
I also consider it worth mentioning, that the Respondents have exhibited great laziness in the pursuit of the preliminary objection. The Respondents as it can be seen are urging the Court to “dismiss” the Notice of Appeal filed by the Appellants upon an alleged infraction of the 2007 Rules of this Court. Can this be done when the said Rules are no longer operative, given the fact that the 2011 Rules of this Court came into operation on 1/4/2011 and therefore had been in operation long before the date of the hearing of the appeal? The Respondents would appear not know the position of the law to be to the effect that it is the current rules of procedure of a court that applies to proceedings before the court at any given time. In this regard see the ruling (unreported) of this Court delivered on 26/5/2011 in APPEAL NO. CA/E/173/2006 – CHIEF A.C.I. MBANEFO V. IGWE N.A.U. ACHEBE & ANOR wherein it was decided amongst others to the effect that it is the Court’s current rules of procedure that applies to proceedings before it at any point in time. This was in dwelling on its 2004 Rules vis-a-vis its 2007 Rules and in this regard stated thus: –
“…………. Dwelling on this issue in the case of OWATA V. ANYIGOR (1993) 2 SCNJ I at pages 10 – 11 the Supreme Court per Karibi-Whyte, JSC; said thus: –
“……….. There is a clear distinction between the substantive law applicable, and the rules of governing practice and procedure.
It is similarly well settled that the rule governing practice and procedure is the rule in force at the time of the trial or the application is made, unless there is any provision to the contrary. This is based on the principle that there is no vested right in any course of procedure – See Gosta Rica v. Erlanger (1874) 3 Ch. D 69. A litigant only has the right to rely on the procedure prescribed for the time being. Where the procedure is altered he must proceed according to the altered manner. See Attorney-General v. Sillem (1864) 10 H.L.C.704.
The Court of Appeal Act No. 43 of 1976 came into force on the (sic) October, 1976. Section 8(3) of the Act provided that until rules are made under this section, the rules in force in the Supreme Court at the time of commencement of this Decree shall be deemed to have been made under this section ………”
At the commencement of this Decree on 1st October, 1976, the Supreme Court Rules 1961 was in force in the court in accordance with the above provision. Section 8(3) of the Court of Appeal Act No. 43 of 1976 empowered the President of the court to ……… make rules regulating the practice and procedure of the court. On the coming into force of the Constitution 1979 on October 1, 1979 section 227 therein conferred powers on the President of the Court of Appeal with the approval of the President of the country to make rules for regulating practice and procedure of the court. In exercise of powers under section 227 of the Constitution, the President of the Court of Appeal made rules regulating the practice and procedure in the Court of Appeal and which came into force on the 1st day of July, 1981. The Federal Court of Appeal (Amendment) Act, 1982 which came into force on the 15th July, 1982 repealed sub-section (3) of section 8 of the Federal Court of Appeal Act No. 43 of 1976, which introduced the application of the Supreme Court Rules 1961 for the regulation of the practice and procedure in the Court of Appeal. Thus as from 1st July, 1981, the Supreme Court Rules 1961 ceased to apply in the Court of Appeal. The Federal Court of Appeal Rules 1981 became the rules applicable for regulating practice and procedure in that court.
The motion subject matter of the ruling which gave rise to the appeal before us, was dated 24th February, 1989. It is a distinct proceeding from the cause of action between the parties. It is not a claim for a substantive right and is therefore not governed by the principles relating to determination of causes of action. It is an application in the proceedings for the determination and enforcement of the substantive right in the claim before the court. It was not intended for the definition or determination of the substantive right. In a more concise sense it is for regulating of steps in the action and retrieval of errors and defects in the substantive action.
The rules of practice and procedure are the rules and practice in operation at the time the application was being heard, in the instant case it is the Court of Appeal Rules 1981.”
See also AREMO II V. ADEKANYE (2004) 7 SC (Pt. II) 28 wherein Edozie, JSC; at pages 37 – 38 reiterated the position of the law as enunciated in Owata’s case (supra) in the following words:-
“………. The legal position is that the applicable law to a cause of action is the law prevailing at the time the cause of action arose notwithstanding that the law had been revoked at the time the action is being tried: Governor of Oyo State v. Folayan (1995) 9 SCNJ 50 at 64, Mustapha v. Governor of Lagos State (1987) 2 NWLR (Pt. 58) 539, ……………… ln respect of practice and procedure, the applicable Rules of Court are those in force at the time of trial: Owata v. Aniogo & Ors. (sic) 2 SCNJ 1 at 10; Rossek & Ors v. ACB Ltd & Ors (1993) 10 SCNJ 20.”
This is aside from the fact that Order 1 Rule 2 of the 2011 Rules of this Court not only specifically repealed the 2007 Rules upon which the Respondents predicated their objection, but also Order 1 Rule 3 of the same 2011 Rules of this Court has provided to the effect that the practice and procedure of this Court shall be as prescribed by the 2011 Rules notwithstanding any written law or rule of practice to the contrary in any state. The Respondents in the circumstances and in display of due diligence ought to have seen the need to have filed a fresh Notice of their intention to raise the preliminary objection and to have predicated the same on the relevant provision of the 2011 Rules of this Court. Be that as it may, I have before now found the Appellants to have by response to the preliminary objection shown the same to be puerile, as it were. Accordingly, the preliminary objection of the Respondents is overruled and accordingly dismissed. I will now proceed to consider the appeal on the merit.
The settled position of the law is that it is a plaintiff who brings a suit before the court that also nominates the issues for decision in the case. See NKUMA V. ODILI (2006) All FWLR (Pt. 313) 24. It is also settled law that though a court is not to make a case for a party it should look at what is pleaded and the relief sought in order to determine the Issues involved in the case. See F.A.A.N. V. GREENSTONE LTD [2009) All FWLR (Pt 500) 741; and BANK OF THE NORTH LTD V. GANA [200] All FWLR (Pt. 296) 862. The position of the law in this regard, apparently justifies another position of the law to the effect that in a case where a plaintiff claims for trespass and injunction, title of the parties to the land in dispute is automatically put in issue. See OMOTAYO V. CO-OPERATIVE SUPPLY ASSOCIATION (2010) ALL FWLR (Pt. 537) 608; and FAYEMI V. AWE (2010) All FWLR (Pt. 528) 862. Given the positions of the law as stated above, it would appear to be incontrovertible in the light of the claims of the Respondents in the main action, and Appellants in the counter-claim, respectively (and which claims have been reproduced hereinbefore), that the title of the parties to the land in dispute is solidly in issue in the actions, in which the lower court gave judgment on 15/12/2005. Against the backdrop of these, I intend to resolve the instant appeal on Issues 5 and 6 of the six Issues formulated by the Appellants. All the other Issues formulated by the parties in my considered view can adequately be treated under the said Issues 5 and 6.
APPELLANTS’ ISSUE 5:
The Appellants commenced their treatment of the Issue by stating the principles of law in relation to the onus on a claimant for declaration of title and the ways of proving ownership of land as recognised in law. The cases of Atanda v. Ajani (1989) 3 NWLR (Pt. 111) 511 at 538 and Idundun v. Okumagba (1976) 9-10 SC (Reprint) 140, were cited in aid. The Appellants stated that the Respondents based their claim of title on proof of possession and ownership of the land in dispute extending over a sufficient length of time numerous and positive enough as to warrant the inference that they are the owners of the said land”. That they (Appellants), equally based their title to the land in dispute on the same method of proof and in addition on traditional history or evidence. The Appellants submitted that the acts of possession and ownership relied upon must take place on the land or be in relation to land being claimed. The Appellant submitted to the effect that the learned trial Judge did not appreciate that the land in dispute as claimed by the Respondents is not actually the land in dispute in the counter-claim and that this was responsible for the confusion of the learned trial Judge in respect of evidence adduced by the Respondents. It is the submission of the Appellants that the averment of the Respondents that the land in dispute was not given to them (Appellants) and their reliance on Suit No. 44/65 instituted before the Udoka customary court in the proof thereof, was not established in any manner. This is so particularly as the proceedings in the suit were not tendered and there was accordingly no way the lower court could identify the land in dispute in the said customary court case, talk less of relating it to the land in dispute in the instant case. That it was wrong of the learned trial Judge to have regarded the customary court case as an act of possession. Again, the Appellants submitted to the effect that it was wrong of the learned trial Judge to have relied on the alleged resistance of their (Appellants’) trespass on the land in dispute in respect of which it was the Respondents that were prosecuted by the Police at the Amawbia Magistrate Court in 1984 and at their (Appellants’) instance, as acts of possession and ownership. Furthermore, it is the stance of the Appellants that the learned trial Judge wrongly referred to his earlier perverse findings that the Respondents gave land to them (Appellants) where they now lived and that the Respondents and Amawbia had a common boundary, as relevant fact in favour of the Respondents. It is also the submission of the Appellants that in any event, the perverse findings made by the learned trial Judge did not throw any light on what acts the Respondents did on the land in dispute or in relation to it. That in the circumstances the findings in question are irrelevant and cannot constitute evidence of acts of possession and ownership in favour of the Respondents to sustain the declaration of title granted the Respondents. The Appellants contended that if the learned trial Judge had compared and weighed the scanty evidence of farming and non-farming activities of the Respondents on the land in dispute against their own (Appellants) copious pleadings and evidence of acts of ownership and possession on the land in their counter-claim, he would not have decided the case in the way and manner he did. The Appellants stressed the only area over which the Respondents showed farming activities is not in dispute as far as the said Respondents’ claims are concerned. That it is the same area in respect of which the Respondents were prosecuted by the Police for malicious damage to their (Appellants’) farm.
The Respondents did not specifically formulate an Issue relating to whether or not they proved their title to the land in dispute as the Appellant did. Howbeit, as the Respondents would appear to have treated the issue concerning the proof of their title to the land in dispute under their Issues 1 and 2, I will highlight their submissions in that regard.
The Respondents submitted that even though the lower court held that the reason for the migration of the Appellants from Umuaronwu Awka to Umuokpu was not important (and which was correct), the learned trial Judge all the same properly evaluated the evidence adduced by the parties and was right in believing their evidence (Respondents) more probable. In the same vein the Respondents submitted that the lower court was right in holding that the real issue for him to decide was on whose land the Appellants first or initially settled when they migrated from Umuaronwu Awka. The Respondents submitted the finding of the lower court that Amawbia and Nawfia granted land to the Appellants and that there was a war between these two which was settled by Enugwu Ukwu was correct in the light of the admission by the Appellants on the pleadings that they emigrated from Umuaronwu Awka to Umuokpu without stating when or exactly the extent of land where they settled.
APPELLANTS’ ISSUE 6:
Dwelling on the Issue, the Appellant said that parties were agreed that the name of the land in dispute is “Agu Akpuluka”. That they went further to explain how the land derived the name from “Akpuluka juju” and duly described the land on their survey plan admitted as Exhibit E. The Appellants further said that the learned trial Judge in his judgment agreed that the land in dispute got its name from Akpuluka juju which admittedly belonged to them (Appellants). The Appellants submitted that Akpuluka land in dispute cannot belong to the Respondents who are not the owners of the Akpuluka juju. This reasoning the Appellants would appear to say is a proper subject for judicial notice. This is because farmlands in Nigeria, like the one in dispute, and particularly in Igboland are communally owned and the naming of such community land is an important community responsibility, which is taken most seriously in Igboland. lt is the submission of the Appellants that common sense dictates that no community is likely to name its farmland after a juju which is established to be owned by another community especially when as in the instant case there was no tradition or custom to explain this. The Appellants further submitted that the learned trial Judge failed to make the correct inference that they (Appellants) who owned the Akpuluka juju also owned Agu Akpuluka land and that this led to a miscarriage of justice when the learned trial Judge dismissed their (Appellants) counter-claim. This Court was urged to now make the correct and proper inference that Agu Akpuluka land which got its name from their (Appellants) Akpuluka juju belonged to them (Appellants) the case of Ayanru v. Mandilas Ltd (2007) 10 NWLR (Pt. 1034) 462 amongst others was cited in aid.
The Appellants said that they relied on traditional root of title as well as acts of possession and ownership in the proof of the case. That the root of title they relied upon in this regard is the same as the root of title pleaded and relied upon by the Respondents. The Appellants submitted that it was wrong of the learned trial Judge to reject their evidence on tradition on the ground that the same was not properly pleaded and to have relied on the evidence of acts of possession and ownership adduced by the Respondents without considering their (Appellants) copious evidence on acts of possession and ownership. That if the learned trial Judge had done this he would have found that their evidence (Appellants) weighed more in the imaginary scale. The case of Woluchem v. Gudi (1981) 5 SC 291 at 294- 295 amongst others was cited in aid.
The Respondents dealt with the Issue under consideration under their Issue 3. In the main the Respondents submitted that they led sufficient in the proof of their pleaded root of title and cited the cases of Balogun v. Akanji (1988) 1 NWLR (Pt. 70) 301 at 320 and Onwugbufor v. Okoye (1996) 1 NWLR (Pt. 424) 252 at 258 in aid. The Respondents said that the Appellants admitted that they emigrated from where they called Awka land, but never stated when the emigration took place and the extent of land they initially settled on. The Respondent also said that there was no meaningful denial by the Appellants of their (Respondents) case on the pleading that from time immemorial Nawfia people have been farming on the land in dispute. That in the face of the lack of sufficient traverse of their (Respondents) pleading, the Appellants are deemed to have admitted the acts of ownership and possession pleaded by them (Respondents). Cases considered to be relevant were cited in aid of the submission.
The Respondents submitted that the Appellants based their case on traditional history as they claimed that the land in dispute was Awka land but that they never pleaded nor gave evidence of how and when Awka people came to own the land, that in the circumstances the lower court was very right in dismissing the counter-claim of the Appellants.
The position of the law is that the burden of proof on the party claiming for a declaration of title to land and a declaration of entitlement to a right of occupancy (i.e. Statutory Right of Occupancy or Customary Right of Occupancy), over land is the same. See ADESHOYE V. OLOWOLAGBA (1996) 12 SCNJ 95. In the said case the Supreme Court per M.E. Ogundare, JSC; stated at pages 118 – 119 thus: –
“………….On the question as to whether the plaintiff established his root of title, I find myself unable to agree with the court below in the distinction it made between a claim for declaration of title and a claim, under the Land Use Act, for a declaration of entitlement to a right of occupancy. The standard of proof required in a claim for a declaration of title is the same as that required in a declaration of entitlement to a right of occupancy. Indeed, the latter claim arose as a result of the provisions of the Land Use Act whereby the court could no longer grant a declaration of title to land but rather a declaration of entitlement to a right of occupancy. This change in the nature of claim has, however, not affected the law as to what is required to be proved to sustain the latter claim.”
The law is definitely settled as to how title to land can be established and that the proof of any of the methods is sufficient. I must however quickly add that it is the particular manner of proof of title pleaded by a party that can be properly relied upon in a trial on pleadings. This is because it is settled law that evidence at variance with pleadings goes to no issue and thus cannot be acted upon by the court. The ways of proving or establishing title to land as stated in NWOKIDU V. OKANU (2010) All FWLR (Pt. ) 1633 at 1660 are: –
a. By traditional evidence;
b. By production of document of title duly authenticated and executed;
c. By acts of ownership over a sufficient length of time numerous and positive enough as to warrant the inference of a true ownership;
d. By acts of long possession and enjoyment or
e. By proof of possession of connected or adjacent land in circumstances rendering it probable that the owner of such connected or adjacent land would, in addition, be the owner of the land in dispute.
See also EWO V. ANI (2004) 1 S.C. PART II page 115 at 121.
The judgment of the lower court is at pages 147 -172 of the record of appeal. In the judgment the learned trial Judge at pages 148 – 150 gave a summary of the respective cases of the Respondents and the Appellants on the pleadings before the lower court, Furthermore, the learned trial Judge set out in the judgment at pages 150 – 151 set out the 11 issues formulated for determination of the case (including their counter-claim) by the Appellants. It was stated in the judgment that the Appellants regarded the first of the 11 Issues as the main Issue for determination and the remaining Issue as subsidiary. The first of the Issues formulated by the Appellants reads: –
“Who is the owner of the land in dispute, Mmimi village Nawfia or Umuokpu village Awka.”
In the same vein the 8 Issues set out for determination in the case by the Respondents were set out by the learned trial Judge at pages 151 – 152 of the record. The Issues upon which the learned trial Judge proceeded to determine the case are however those he formulated and they read thus:
“1. Have the plaintiffs in their claim and the defendants in their counter-claim proved their relief of a declaratory title of ownership to the land in dispute.
2. Whether at the time of settlement of Umuokpu, Nawfia had a common boundary with Amawbia.
3. Did Nawfia and Amawbia grant land to Umuokpu people where they now live.
4. Who built the Ekpe Wall and for what purpose.
5. Is the name of the land of any significance in this case.
6. Who is in possession of the land in dispute.
7. Did any of the parties commit trespass.”
I am of the considered view that it cannot be said that the Appellants by any of the six Issues they formulated for the determination of the appeal have any grouse with the Issues as set out above, and upon which the learned trial Judge resolved the case. Likewise it must be said that what the learned trial Judge engaged in at pages 152 – 156 as stated by him was a commentary on some issues in the case but which were not amongst the Issues he formulated for the determination of the case. It was in doing this that he commented thus:-
“Before I consider the issues for determination let me briefly comment on the Okoli Ijeomanta war. A lot of energy, effort and time were spent by both parties on this war which in any case both parties agree did take place.
It is my humble view however that all that was not necessary if one takes into account the state of the pleadings and the main issue for determination in this case.
The main issue is who is entitled to a declaration of title to the land in dispute. I say so because both parties agree that originally Umuokpu people live in side Awka in the village known as Umuoraonwu but now called Umuoranma. Both parties agree that at a point in the history of Awka people mainly from Umuoraonwu, migrated from where they originally lived inside Awka to settle where Umuokpu people now live, where their names was changed to Umuokpu.
So the reason why they migrated is in my view not very important in this case. What is important or relevant is when they migrated on whose land did they settle. Did they confine themselves to the land on which they initially settled or did they encroach on the land of their neighbouts. These are the real issues I have to resolve.
So whether the war was fought by the whole of Awka town or only Umuoranwa is of very little moment in this case.”
As rightly stated by the learned trial Judge the main Issue for determination in the case is, which of the parties has established his entitlement to a declaration of title to the land in dispute. This Issue must necessarily be resolved upon the root of title relied upon by the parties in respect of the land in dispute. It is not the case of the Appellants (who have made what they called “the attitude adopted” by the learned trial Judge to the Okoli Ijeomanta war despite the copious pleading and evidence thereon, an issue by their Issue 1), that the root of their title to the land in dispute is that war (i.e. conquest). Neither is it the case of the Respondents that they came to own the land in dispute as a result of the war in question. The Respondents set up the fact of the war to explain as it were, why the Appellants had to leave where they were originally settled. The learned trial Judge relying on the pleadings before him stated to the effect that the reason for migration in his view was not very important in the case. I am of the view that the view of the learned trial Judge in this regard cannot be said to be unfounded inasmuch as neither of the parties predicated his root of title on the Okoli Ijeomanta war. The Appellants would appear to want the learned trial Judge to have made a specific finding in respect of the war. This is clearly unnecessary having regard to the pleadings of the parties concerning their respective root of title to the land in dispute. The fact of the war as rightly stated by the learned trial Judge is not a matter the parties dispute. Therefore as long as the time of the occurrence of the war is not material for the establishment of the root of title of either of the parties, there is no reason why the learned trial Judge should base his findings on the fact that the war was fought. All of these glaringly dispose of Appellants’ Issue 1 against them.
The Appellants have submitted to the effect that the Respondents relied on acts of ownership over a sufficient length of time numerous and positive enough as to warrant the inference of a true ownership in the proof of their title to the land in dispute. The Appellants in my view are clearly right in this regard. The Appellants have further submitted that they based their title to the land in dispute on the same method of proof and in addition, on traditional history or evidence. I do not think the Appellants are correct in their stance that like the Respondents they too relied on acts of ownership over a sufficient length of time numerous and positive enough as to warrant the inference of a true ownership, in the proof of their title to the land in dispute. From their pleadings the Appellants would appear to have relied on being the settlors or founder of the land in dispute. The Appellants in their pleadings and evidence adduced before the lower court stoutly denied being granted the land by the Respondents when they migrated from Awka. Indeed at page 168 of the record the learned trial Judge stated thus concerning the Appellants: –
“The defendants in paragraph 2(12) of their Reply to the Amended Statement of Claim stated as follows:
“The defendants deny paragraph 9 of the amended defence to the counter-claim, and say that the defendants are not land speculators but acquired the lands of their villages by being the first person to clear the virgin forest thereof and live there as Awka people. The defendants are not hungry for land, but are satisfied with lands God has given them, that is Umuokpu village”.
What is the evidence in support of this pleading? There was no such evidence in the evidence in chief of the defendants’ witnesses. In cross-examination D.W.9, Alusi stated as follows:
“The young men came from Umuoranma, Umuayom, Umunke and Nkweelle villages. I do not know how many they were. When they came they cleared the thick forest and settled there. And that is where Umuokpu are living now.”
D.W.2 Ekelem stated that where plaintiffs live now is Awka land. So if this place was Awka land before the young volunteers came to clear the forest, then what they cleared was not a virgin forest, but a forest owned by Awka people. Now how did Awka people come to own the land in the first place? Court was not told. DW4 Ikebude stated that when the young volunteers came “they lived on the land at the boundary between Nawfia and Awka.” Again this evidence shows that what the young volunteers cleared was already Awka land and certainly not a virgin forest. How did Awka people acquire the land originally, he failed to tell the court.
The law is that when a party relies on traditional history, he is bound to plead and prove in evidence who founded it, how it was founded and the history of the devolution of the land from the founder to such a party. See Akunyili vs. Ejidike (1989) 4 SCNJ 251; Egbo vs. Agbara (1997) 1 SCNJ 591.
I am convinced and find as a fact that the defendants have not pleaded and proved traditional history as required by law.”
In my considered view, it is obvious from the portion of the judgment quoted above that the learned trial Judge made a specific finding that the traditional history relied upon by the Appellants in respect of the land in dispute did not avail them. Despite this finding the learned trial Judge proceeded to consider acts of ownership extending over a sufficient length of time numerous and positive enough to warrant the inference that the party is the exclusive owner, to the cases of the parties before him. The learned trial Judge was clearly wrong in this regard with respect to the Appellants “who he found not to have pleaded and proved traditional history as required by law”.
This view clearly finds fortification in the case of BALOGUN V. AKANJI (2005) 3-4 SC 95. In the case under reference the Supreme Court per G.A. Oguntade, JSC; who delivered the leading judgment, dwelling on the ways of proving ownership of land stated at pages 104 – 106 thus:-
“The passage is not of any assistance in a case where a plaintiff relies on acts of ownership spanning several years as his root of title. Indeed, a plaintiff who relies on acts of ownership spanning several years as his root of title is in fact saying or confessing that he does not know the historical origin of his title but that his family had openly and without resistance from anyone been exercising dominion as the owner of the land for several years. The court may infer from such evidence that even if the plaintiff has not shown the origin of his title, he may be accepted as the owner from such acts of open and unchallenged ownership. See Ekpo v. Ita 11 NLR 68. This approach is in line with the third method recognized by this court in Idundun v. Okumagba (supra). In expatiating on this method Fatayi-Williams, JSC; (as he then was), said:
‘Thirdly, acts of the person (or persons) claiming the land, such as selling, leasing or renting out all or part of the land or farming on it or on a portion of it, are also evidence of ownership. Provided the acts extend over a sufficient length of time and are numerous and positive enough as to warrant the inference that the person is the true owner. (See Ekpo v. Ita 11 NLR 68)”
It is to be borne in mind that proof of title by evidence of traditional history and acts of ownership are separate and parallel. One is also to be distinguished from the other. Whilst the evidence in proof of either in a claim for declaration of title may overlap, the recognition of each as different to the other helps to remove the error and confusion to which parties and counsel alike are prone. A plaintiff may by his Statement of Claim rely solely for declaration of title on traditional evidence. On the other hand, since it is permissible to plead in the alternative, he may rely on both methods i.e., traditional history and acts of ownership. Where he fails on the former, he may well succeed on the latter because in their nature both are different.
In Balogun v. Akanji (1988) All NLR 188 at 211 – 212, this court per Oputa, JSC; observed:-
“One final word on Ekpo v. Ita supra. Anyone who pleads Acts of Possession as his Root of Title is really relying on the presumption that possession is 9/10 of the law and that he who is in possession is presumed by Section 145 of the Evidence Act Cap. 62 of 1958 to be the owner and that the onus of proving that he is not the owner is on the person who affirms that he is not the owner. Looked at logically and critically a person pleading Acts of Possession as his root of title is simply saying…’I do not know how I got the land. All I know is that I have been in possession and have exercised various positive acts of possession. Now you prove that I am not the owner.’ Put in this way it is easier to appreciate that acts of possession will not arise where the root of title is known, and pleaded, and proved. In such a case title will be awarded on the strength of the title pleaded and proved. It is only where and when traditional evidence is inconclusive that the court will be obliged to look at the acts of possession of the parties and therefrom determine on whose side the presumption in Section 145 Evidence Act will operate.
Onus of Proof
A careful consideration of the authorities and decided cases amply shows that there is no onus on a plaintiff who claims title by traditional evidence and who successfully establishes his title by such evidence to prove further acts of ownership numerous and positive enough to lead to the inference that he exclusive owner. When a plaintiff has proved his title by traditional evidence there will be no need again for an inference to establish that which had been already directly proved. Acts of ownership become material only where the traditional evidence is inconclusive. In the case on appeal where the trial court held that the traditional evidence led was conclusive, there was no need whatsoever to require further proof. That will be increasing unnecessarily the burden of proof on the plaintiffs. That will be wrong. Cases like Ekpo v. Ita (supra) or Kojo v. Bonsie (1957) 1 WLR 1223; WAL 257 deal with cases where there is a conflict of traditional history. In such cases the best way is to test the traditional history by reference to facts in recent years as established by evidence and by seeing which of the two competing histories is more probable. Such a situation did not arise in this case since the trial court was satisfied with the plaintiffs’ traditional evidence but not with that of the defendants.”
See also OYADARE V. KEJI (2005) 7 NWLR (Pt. 925) 57, in which the Supreme Court made it clear that a party who fails to prove his pleaded root of title was no longer entitled to rely on acts of ownership and possession to prove the same title to the land claimed.
In the instant case the Appellants did not plead the traditional history they relied upon in the alternative. Similarly, the Respondents never pleaded nor relied upon traditional history in the proof of their title to the land in dispute. Given the pleadings of the parties, it becomes obvious that the question of inconclusiveness of evidence on traditional histories of the parties does not arise. The learned trial Judge in the light of his finding that the Appellants did not plead and prove traditional history as required by law, had no duty to have embarked upon the consideration of acts of ownership and extending over a sufficient length of time numerous and positive enough to warrant the inference that the Appellants are the exclusive owner of the land in dispute in the circumstance.
The Appellants have raised the question as to whether the learned trial Judge made a different case for the parties than the one they put up in their respective pleadings and evidence, by their Issue 2, All that has been said clearly shows that the learned trial Judge actually did this, at least as it concerns the case of the Appellants having regard to their root of title as pleaded by them.
The learned trial Judge at pages 169 – 171 evaluated the evidence adduced by the parties and ended up finding the Respondents to have proved their title to the land in dispute on the probability of the evidence adduced by the parties on the basis of acts of possession and ownership extending over a sufficient length of time. The Appellants have however submitted to the effect that the acts of possession and ownership extending over a sufficient length of time, relied upon by the learned trial Judge in coming to this finding in favour of the Respondents, is scanty. This is not so when the evidence of the Respondents as evaluated, is considered in the light of acts of possession testified to by the Appellants and which acts cannot be relied upon by them in the proof of their title, the traditional history they relied upon having been found not to avail them. In conclusion the finding of the learned trial Judge that the Respondents proved their title to the land in dispute is unassailable on the totality of the evidence before him.
The Appellants have not in any way denied being on the land in dispute and which has been found to be in the possession of the Respondents. Indeed, they justify their being there on the ground that they own it. It is settled law that trespass is actionable at the suit of the person in possession of the land. Indeed that person can sue for trespass even if he is neither the owner nor a privy of the owner. It is also trite that possession in law means exclusive possession, and where it is not exclusive the law will not protect it. Therefore, anyone other than the true owner, who disturbs somebody else’s possession on land, can be sued in trespass and it is no answer for a defendant to say that title to the land is in another person. Again, once a claim for trespass succeeds, a consequential relief or order for an injunction will follow to protect possession. See OYADARE V. KEJI; BALOGUN V. AKANJI (both supra); and OLORUNFEMI V. ASHO (1999) 1 SCNJ 1 at 9. In the light of all that has been stated before now, I therefore find the learned trial Judge to be correct in granting the claims of the Respondent. Flowing from all that has been said, is that Issue 5 is not only resolved against the Appellants, but Issues 3 and 4 formulated by the Appellants and which are issues that the learned trial Judge gave adequate consideration in coming to his decision that the Respondents proved their case concerning their title to the land in dispute, on a balance of probability.
The Appellants have raised the issue that the learned trial Judge should have found for them in respect of their counter-claim, particularly given the fact that he accepted that the land in dispute got its name from the Appellants’ shrine – “Ana Agu Akpuluka”. The Appellants went to the extent of submitting that the learned trial Judge ought to have taken judicial notice of the fact that in Igboland no community would likely name its land after a juju that is not its own.
The issue of the title of the Appellants to the land in dispute which is as defined by the claims of the Respondents was resolved by the learned trial Judge against the said Appellants in the main case. It is clear from the pleadings that it is the same pleaded root of title the Appellants relied upon in resisting the claim of the Respondents to the land in dispute that they relied upon in establishing their counter-claim. This being the situation the learned trial Judge cannot properly have found for the Appellants in respect of their counter-claim, irrespective of who owned the juju. This is particularly so as the Appellants never pleaded their reliance on the name of the juju in establishing their claim to the land in dispute. Application of custom to a matter as the Appellants have thrown up in their submissions, is one that has to be proved, unless the custom has attained by notoriety by virtue of the decisions of the courts in relation thereto. Nothing in that regard was placed before the lower court. Nothing in that regard has also been placed before this Court as well. Flowing from all that has been said is that Issue 6 must be and is hereby resolved against the Appellants.
In the final analysis, the appeal is unmeritorious in the light of the resolution of the Issues upon which it has been determined. In the circumstance, the appeal fails in its entirety. Accordingly, the appeal is hereby dismissed and the decision of the lower court delivered on 15/12/2005 in this case is affirmed. Costs in the sum of N30,000.00 is awarded in favour of the Respondents and against the Appellants.
ADAMU JAURO, J.C.A: I have had the advantage of reading before now, the lead judgment just delivered by my learned brother, A. J. Abdulkadir, JCA. I am in complete agreement with the reasoning and conclusions and adopt same as mine.
I abide by all orders made in the said judgment.
SAMUEL CHUKWUDUMEBI OSEJI, J.C.A: I agree.
Appearances
Ifeanyichukwu Obiakor,
I. AnagorFor Appellant
AND
Chief N.O. Izuako,
G.C NwadimkpaFor Respondent
