UGWUAGU v. MICHAEL
(2021)LCN/15756(CA)
In The Court Of Appeal
(ENUGU JUDICIAL DIVISION)
On Tuesday, September 28, 2021
CA/E/323/2014
Before Our Lordships:
Ahmad Olarewaju Belgore Justice of the Court of Appeal
Ita George Mbaba Justice of the Court of Appeal
Joseph Olubunmi Kayode Oyewole Justice of the Court of Appeal
Between
LINUS UGWUAGU APPELANT(S)
And
NGWU MICHAEL RESPONDENT(S)
RATIO
THE POSITON OF LAW ON THE BASIS COURT CASES ARE DECIDED UPON
The position of the Appellant that issues were not joined on these points is not supported by the state of pleadings. The evidence adduced on the existing features of possession and exercise of ownership rights was all in favour of the Respondent. Judges do not adjudicate in vacuum. Cases are decided on the quality of evidence adduced in accordance with the standard stipulated by law. With regards to civil cases, the evidence adduced by each side are placed on an imaginary scale with the weight tilting in favour of the party with the more credible case. See MOGAJI VS ODOFIN (1978) 4 SC 91, OLUJINLE VS ADEAGBO (1988) LPELR-2622(SC) and LAFIA LOCAL GOVT VS. EXECUTIVE GOVT NASARAWA STATE & ORS (2012) LPELR-20602(SC). PER OYEWOLE, J.C.A.
WHETHER OR NOT A PARTY WHO ASSERTS THE EXISTENCE OF FACT MUST PROVE IT THROUGH CREDICBLE EVIDENCE AT TRIAL
The law is that unless a particular custom is notorious and sufficiently well established that the Court could take judicial notice thereof onus is on he who asserts the existence to prove it through credible evidence at trial. See ADEGBOYEGA VS IGBINOSUN (1969) LPELR-25549(SC).
Furthermore, it has been laid down by the Apex Court that in this regard it is unsafe for the Court to rely on just the evidence of the person asserting the existence of the said custom without additional evidence corroborating his claim. See OZOGULA II VS QUEEN (1962) LPELR-25148(SC) and EZEANYA VS ORS VS OKEKE & ORS (1995) LPELR-1199(SC). PER OYEWOLE, J.C.A.
JOSEPH OLUBUNMI KAYODE OYEWOLE, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of Enugu State, Enugu Judicial Division, holden at Enugu, delivered on the 27th March, 2013 by EMEHELU, J. (as he then was).
The parties had a common progenitor in Agu Nwanevo of Atakwu Village in Akwuke, Awkunanaw, Enugu Local Government Area of Enugu State who was their grandfather and original owner of the land in dispute. The dispute culminated in the Appellant taking out a writ of summons against the father of the Respondent now deceased wherein he sought the following reliefs:
(1) A declaration that the plaintiff is entitled to the statutory right of occupancy over all that piece or parcel of land situate in Ugwuagu’s compound and called Ani Ugwuagu in Akwuke, Awkunanaw, Enugu Local Government Area more particularly delineated and verged red in survey plan no. CUO/AN D10/90 dated 28/2/91.
(2) N500.00 damages for trespass.
(3) Perpetual injunction restraining the defendant, his agents, servants and/or privies from committing further acts of trespass and/or interference with the plaintiff’s exclusive rights of possession and use of the said parcel of land.
On being served with the processes, the Respondent‘s late father filed a statement of defence and counter-claim which was subsequently amended wherein he sought the relief contained in paragraph 19 thereof thus:
The Defendant counter-claims that he is entitled to an equal share of the landed property of Agu Nwanevo his father as the other two brothers, the plaintiff’s late father and late Ani Nwagu the elder brother and that he has been in possession of the area verged YELLOW including the area verged RED called the land in dispute and that the plaintiff’s not on his area of land constitutes act of trespass and as such he has suffered loss and damages and counter-claims from the plaintiff the sum of N10,000.00 as damages and seeks a declaration that he is entitled to be awarded Statutory Right of Occupancy of the area verged YELLOW in his plan and perpetual injunction restraining the plaintiff, his servants or agents from further act of trespass on his said share of land verged YELLOW part is verged RED called land in dispute.
At trial, the Appellant was the sole witness in support of his claim while the Respondent initially called five witnesses out of which one failed to complete his testimony upon which his incomplete testimony was expunged from the records. The subsequent conflict in the affidavit evidence with regards to the payment of filing fees on the counter-claim made the Respondent call an additional witness after which the trial Court took the final addresses of the parties.
The case of the Appellant was that the land in dispute was a gift inter vivos from his grandfather to his father when the latter came of age and wanted to take a wife. The Respondent on the other denied any such gift and claimed that the said land was part of his late father’s share of the grandfather’s land shared by his said grandfather to his three sons of which the Respondent’s late father was the last son.
The trial Court was more impressed with the evidence adduced by the Respondent upon which judgment was given in his favour as per his counter-claim while the claim of the Appellant was dismissed.
Dissatisfied, the Appellant invoked the appellate jurisdiction of this Court via the Notice of appeal filed on the 3rd of June, 2013 which Notice of Appeal was subsequently amended via the Amended Notice of Appeal filed on the 19th May, 2017 but deemed properly filed and served on the 27th June, 2018 containing seven grounds.
At the hearing of the appeal, Miss Ejimkaraonye adopted the Appellant’s brief filed on the 19th May, 2017 but deemed properly filed and served on the 27th June, 2018 as well as the Reply brief filed on the 18th March, 2021 but deemed properly filed and served on the 6th July, 2021, both briefs having been settled by Chief P.M.B. Onyia, as the arguments of the Appellant in this appeal. While for the Respondent Mr. Onah adopted the Respondent’s brief filed on the 25th March, 2019 but deemed properly filed and served on the 1st March, 2021 as the arguments of the Respondent in contesting the appeal.
The Appellant distilled six issues for determination thus:
(i) Whether in the circumstances of this case, the learned trial Judge was right in refusing to act on the Appellant’s unchallenged evidence on a point of custom he pleaded and gave evidence of, on the excuse that the Appellant’s evidence on the point was not corroborated. (Distilled from ground one).
(ii) Whether the trial Court was right to have upheld the counter-claim of the respondent on which the prescribed filing fees for the Reliefs were paid, and whether the trial Court’s regularization of the counter-claim at the point of delivery of judgment by an order for the payment of the correct fees without according the appellant the opportunity to respond to the regularized counter-claim did not infringe the appellant’s right to fair hearing on the counter-claim. (Grounds 2 and 7).
(iii) Whether the trial Court’s holding that the defendant is entitled to equal share of the property of Agu Nwanevo is justifiable. (Ground 3).
(iv) Whether the trial Court was right when it held that the plaintiff did not prove ownership of adjoining land of Ani Aguene by reason of the fact that no member of Ani Aguene’s family was called to give evidence of same. (Ground 4).
(v) Whether the plaintiff’s evidence as to how the plaintiff took refuge in his maternal uncle’s house to avoid persecution needed to be corroborated before it could be believed. (Ground 5)
(vi) Whether the trial Court was right to hold that the defendant has established title to the land in dispute by reason of having been in possession of the land. (Ground 6).
The Respondent on his part distilled three issues for determination as follows:
1. Whether the appellant at the Court of Appeal who was the plaintiff at the trial Court was able to establish that he is entitled to his claim to the land in dispute which he claimed that his grandfather Agu Nwanevo gave to him as a gift before sharing out of the land to his three sons.
2. Whether the respondent who was the defendant and counter-claimant at the trial Court proved his counter-claim on the balance of probability to the satisfaction of the Court and whether the counter-claim was competent.
3. Whether the trial Court was right in its judgment having rightly evaluated the evidence before arriving at a well reasoned and just decision.
A calm appraisal of the two sets of issues discloses that the six issues of the Appellant are subsumed in issues 1 and 2 of the Respondent with the first issue covering the Appellant’s issues (i), (iv) and (v) while the Respondent’s second issue covers the Appellant’s issues (ii), (iii) and (vi). The Respondent’s third issue is of no moment as it has no bearing with any of the grounds of appeal and as the Respondent did not file a cross-appeal, the said issue shall be discountenanced. See EKE VS OGBONDA (2006) LPELR- 1075(SC).
The appeal will therefore be considered under the said issues 1 and 2 of the Respondent. The first issue therefore is:
Whether the appellant at the Court of appeal who was the plaintiff at the trial Court was able to establish that he is entitled to his claim to the land in dispute which he claimed that his grandfather Agu Nwanevo gave to him as a gift before sharing out of the land to his three sons.
On this issue, it was argued for the Appellant that the learned trial Judge erred in not acting on the point of custom raised by the Appellant on the ground that his testimony on the issue had no corroboration. It was submitted that corroboration was unnecessary especially as the adduced evidence was not controverted indicating it had been conceded. Learned counsel referred to Section 200 of the Evidence Act, 2011, N.B.A. VS OJIGBO (2015) 15 NWLR (PT 1481) 186 at 201, FCDA VS NZELU (2014) 5 NWLR (PT 1401) 565 at 581, SPDCN LTD VS ESOWE (2008) 4 NWLR (PT 1076) 72 at 76 and SHUAIBU VS MUAZU (2014) 8 NWLR (PT 1409) 207 at 284.
It was further argued that although the parties failed to join issues on the custom of the Awkunanaw people as regards gift of land to male children the Appellant’s evidence thereon was tacitly corroborated by DW3 making it imperative for the learned trial Judge to have accepted his evidence on the issue.
Learned counsel also submitted that there was no obligation on the Appellant to establish his ownership of the adjoining land or that his family took refuge with his mother’s relations after his father passed away as issues were not joined in the pleadings on the two points or through cross-examination rendering them conceded. He referred to Section 123 of the Evidence Act (supra), CHIEF D. B. AJIBULU VS MAJOR GENERAL D. O. AJAYI (Rtd) (2014) 2 NWLR (PT 1392) 483 at 497 and FCDA VS NZELU (supra), SPDCN LTD VS ESOWE (supra).
For the Respondent, learned counsel submitted that the failure of the Appellant to call his surveyor to testify in support of the survey plan tendered was detrimental to his case and that overall, he failed to lead evidence to support his pleadings that the land in dispute was a gift to his father.
It was also submitted that although ownership of adjoining pieces of land is one of the methods of establishing ownership, the Appellant failed to adduce evidence in support of his pleadings in this regard. Learned counsel referred to IDUNDUN VS OKUMAGBA (1976) LPELR-1431(SC).
With regards to acts of ownership pleaded by the Appellant, it was contended for the Respondent that while the adduced evidence of ownership and long possession of the Appellant was not supported by credible evidence, that of the Respondent was corroborated by existing features on the land as well as the testimony of DW3, a mutual cousin of the parties thereby justifying the finding of the trial Court in his favour. Learned counsel referred to EGWU & ORS VS EMEIKE & ORS (2018) LPELR 44689, EZE OKONKWO VS OKEKE (2002) 11 NWLR (PT. 777), AKPAN VS OTONG (1996) 10 NWLR (PT 476) 108 and IDOGBO & ORS VS AJAYI (2017) LPELR 424435. The Respondent argued that the very basis of the Appellant’s claim to the land in dispute was the customary gift to his father which was contested by the Respondent and that as such he needed to adduce credible evidence beyond his personal testimony in proof thereof which he failed to do. Learned counsel referred to LIPEDE VS SONEKAN (1995) 1 SCNJ 184 and EKONGA VS OZOGULA II (1962) 1 SC (NLR 42B).
Finally, on this point, the Respondent pointed out that the Appellant even failed to call his uncle with whom his family reportedly sojourned despite confirming his availability and in that in totality the Appellant failed to establish his entitlement to the reliefs sought.
In his reply brief, the Appellant argued that from the records of appeal, the failure to call the Surveyor as witness did not impact the judgment of the Court and did not form part of the grounds of appeal and consequently could not be raised by the Respondent who had no cross-appeal. He then reiterated his earlier arguments on the failure of the trial Court to accept the adduced evidence on the custom with regards to the gift of the land in dispute.
The Appellant sought declaration of title to the land in dispute before the trial Court. This endeavor imposed on him the duty of establishing his case on preponderance of evidence in the recognition that he had to rely on the strength of his case and not the weakness of the defence. In other words he must carry his own can. See ELIAS VS OMO-BARE (1982) LPELR-1116(SC).
There are five well established methods of proving title to land and the Appellant only had to make out one of these five methods to enable him succeed in his claim. See IDUNDUN VS OKUMAGBA (1976) 9-10 SC 227, ONWUGBUFOR & ORS VS OKOYE & ORS (1996) LPELR-2716 (SC) and NRUAMAH & ORS VS EBUZOEME & ORS (2013) LPELR-19771(SC).
The two contending parties traced the radical ownership to their common grandfather Agu Nwanevo and each put forward their claims based on devolution from their said grandfather. The learned trial Judge was not satisfied with the case put forward by the Appellant, a development which led to this appeal.
According to the Appellant, the first sticky point in the judgment of the lower Court was the refusal to accept his evidence on the custom of his Awkunanaw people as regards gift of land to their sons when they come of age. The law is that unless a particular custom is notorious and sufficiently well established that the Court could take judicial notice thereof onus is on he who asserts the existence to prove it through credible evidence at trial. See ADEGBOYEGA VS IGBINOSUN (1969) LPELR-25549(SC).
Furthermore, it has been laid down by the Apex Court that in this regard it is unsafe for the Court to rely on just the evidence of the person asserting the existence of the said custom without additional evidence corroborating his claim. See OZOGULA II VS QUEEN (1962) LPELR-25148(SC) and EZEANYA VS ORS VS OKEKE & ORS (1995) LPELR-1199(SC).
The crux of the Appellant’s claim to the land in dispute was that based on the existence of this custom the land in dispute was given by his grandfather Agu Nwanevo to his father Ugwu Agu when he came of age and wanted to take a wife. He was the sole witness for his case. He gave evidence of the existence of this custom and extracted some supporting evidence from DW3 (later DW2), Chief Alexander Ani, a mutual cousin of the parties that such a gift could be made. However, what he failed to establish was that the said gift was actually made. This later crucial point was missing from the case made out by the Appellant who had the onus of establishing same.
That a father could make such a gift to his son coming of age was only part of the case to be made out. The most vital point was whether in fact Agu Nwanevo, the grandfather of the parties did actually make a gift of the land in dispute to the Appellant’s father. The existence of this gift could not have been solely within the knowledge of the Appellant who had not even been born when the said gift supposedly took place. Appellant had nobody in his entire family including his aunties, sisters of his father as well as his maternal uncle who was said to have been the rock of support for his family, called as witness to support his case despite the availability of these people. Where evidence which is ordinarily available is kept away from trial the presumption is that such evidence was kept away because it would have been unfavourable. See Section 167 (d) of the Evidence Act, JALLCO LTD & ANOR VS OWONIBOYS TECHNICAL SERVICES LTD (1995) LPELR-1591(SC), PEOPLE OF LAGOS STATE VS UMARU (2014)LPELR-22466(SC) and AREMU VS ADETORO(2007) LPELR-546 (SC).
To worsen the case of the Appellant, the only direct member of his family who testified at the trial DW3 (later DW2) Chief Alexander Ani denied the existence of the gift forming the Appellant’s case and was fully in support of the Respondent’s case.
The learned trial Judge also faulted the absence of corroboration in other aspects of the Appellant’s case relating to the temporary relocation to his maternal family, possession of the land in dispute and ownership of adjoining pieces of land. The position of the Appellant that issues were not joined on these points is not supported by the state of pleadings. The evidence adduced on the existing features of possession and exercise of ownership rights was all in favour of the Respondent. Judges do not adjudicate in vacuum. Cases are decided on the quality of evidence adduced in accordance with the standard stipulated by law. With regards to civil cases, the evidence adduced by each side are placed on an imaginary scale with the weight tilting in favour of the party with the more credible case. See MOGAJI VS ODOFIN (1978) 4 SC 91, OLUJINLE VS ADEAGBO (1988) LPELR-2622(SC) and LAFIA LOCAL GOVT VS. EXECUTIVE GOVT NASARAWA STATE & ORS (2012) LPELR-20602(SC).
It is significant that while the Appellant claimed that he was placed at a disadvantage during the communal attempt to resolve the dispute as those present were largely Respondent’s age group, he had no such disadvantage at the trial Court yet he could not produce a single witness to support his contentions.
I see no basis to interfere with the findings of the trial Court and I therefore resolve this issue which encompasses Appellant’s issues (i), (iv) and (v) in favour of the Respondent and against the Appellant.
The remaining issue which captures the Appellant’s issues (ii), (iii), and (vi) is as follows:
Whether the respondent who was the defendant and counter-claimant at the trial Court proved his counter-claim on the balance of probability to the satisfaction of the Court and whether the counter-claim was competent.
Arguing this issue, the Appellant submitted that the regularization and validation of the Respondent’s counter-claim without the Appellant having a chance to respond thereto violated his rights to fair hearing. Learned counsel argued that the defect in the payment made for the counter-claim robbed the trial Court of the jurisdictional competence to adjudicate. He urged the Court to consider the breach of the principle of fair hearing and consequently set aside the said decision. He referred to ETSAKO WEST LOCAL GOVERNMENT COUNCIL VS CHRISTOPHER (2014) 14 NWLR (PT 1426) 73 at 92-93, SAMBA PETROLEUM CO. LTD VS FIRST CITY MONUMENT BANK (2014) 3 NWLR (PT 1394) 346 at 364, THE OWNERS OF MV “MSC AGATA” VS NESTLE (NIG) PLC (2014) 1 NWLR (PT 1388) 290, SHUAIBU VS MUAZU (2014) 8 NWLR (PT 1409) 207 at 208, AKPAJI VS UDEMBA (2009) 6 NWLR (PT 1138) 454, ONWUGBUFOR VS OKOYE (1996) 1 NWLR (PT 424) 252 at 292, OKOLO VS UNION BANK OF NIGERIA (2004) SCNJ 113 and MUHAMMED VS AHMADU BELLO UNIVERSITY ZARIA (2014) 7 NWLR (PT 1407) 500 at 538.
It was further argued that there was no evidential basis for the finding of the trial Court that the father of the present Respondent was entitled to an equal share as his other two brothers in the property of his father Agu Nwanevo as shown verged yellow in Exhibit B, the survey plan. Learned counsel argued that the Respondent failed to prove and lead evidence in support of his entitlement in this regard. He referred to IDEHEN VS IDEHEN (1991) 6 NWLR (PT 198) 382, ONOVO VS MBA (2014) 5-6 SC (PT IV) 147 at 170 and ODUNUKE VS OFOMATA (2010) 12 SC (PT 111) 101.
Finally, learned counsel for the Appellant submitted that possession no matter how long cannot defeat a legitimate title. He argued that from the adduced evidence the physical possession of the Respondent was obtained by oppressive means while the ownership and possessory acts of the Appellant were legitimate and should have been accorded judicial validation by the trial Court. He urged the Court to set aside the judgment of the trial Court and referred to O.K.O MOGAJI & ORS VS CADBURY NIG. LTD (1985) 2 NWLR (PT 7) 393, TIJANI JEGEDE VS BAKARE VS BAKARE GBAJUMO (1974) 10 SC 183 at 187, GODDY UMEOBI VS CHIEF OTUKOYA (1978) 4 SC 33 and OSENI VS BAJULU & 2 ORS (2009) 12 SC (PT 11) 103.
On this second issue, the Respondent contended that the alleged deficiency in his counter-claim was a mere irregularity which did not render the said counter-claim incompetent as held by the trial Court. Learned counsel urged the Court to discountenance the contentions of the Appellant in this regard.
Learned counsel further submitted that the Respondent discharged the onus on him to establish his counter-claim through credible evidence of the location and dimension of the land claimed, how it devolved on him from his grandfather Agu Nwanevo who was the original owner and the various acts of ownership and possession exercised thereon. He urged the Court to resolve the said issue in his favour.
The initial arguments of the Appellant were reiterated in the reply brief.
The preliminary issue raised by the Appellant on the competence of the counter-claim seems to me to be a mere storm in a teacup. As well noted by the learned trial Judge, this was not a case where the process involved was not paid for. The Respondent as litigant could only submit his processes to the relevant officials of the Court and pay whatever sum is assessed as the filing fees. It is beyond counsel or litigant to assess his process personally. The counter-claim of the Respondent followed the same pattern and the evidence adduced was unequivocal that payment of the assessed filing fees was paid at the time of filing. That the assessment was erroneous cannot be attributed to the litigant as he had no role to play other than pay whatever was assessed as the fees. The sins of the Court officials cannot be borne by the litigants. It will be unjust and unconscionable to do so. See OLOYEDE VS THE STATE (2017) LPELR-47996(SC).
Furthermore, the Appellant did not contend that he was not served with the counter-claim in October, 1991 when it was initially filed and did not also contend that he was unaware of the amended version filed in June, 2003 upon the grant of a motion to that effect with his full participation. He chose to contest the assessed sum paid for the filing and kept that challenge till the very end of the litigation when he raised it about 9 years after he became aware of it. The Appellant could have challenged this process through a preliminary objection immediately it was served on him or so soon thereafter but he did not do so until trial had virtually been concluded thereby placing his entire eggs in the erroneous conviction that the said process would be set aside. He gambled and lost. He cannot eat his cake and have it. He adopted a style which foreclosed him from filing a defence to the counter-claim and cannot place the blame on the trial Court. I therefore do not agree that the counter-claim was incompetent or that it in any way vitiated the jurisdictional competence of the trial Court.
The further contentions of the Appellant had been substantially dealt with when the earlier issue was being considered. The onus on the Respondent to establish his entitlement to the land in dispute was discharged through credible evidence. The Respondent tendered his survey plan Exhibit B as showing the land in respect of which he sought declaration of title and later called DW5 (later DW4) the Surveyor, to testify to the content. He not only testified but also called various witnesses to corroborate his ownership and possessory claims including DW3 (later DW2) a mutual cousin of the parties who confirmed his assertions with respect thereto. The physical features on the land in dispute as testified to by the Respondent’s witnesses corroborated his testimony and supported his averments.
I am in full agreement with the learned trial Judge that the case made out by the Respondent on the balance of probabilities entitled him to the reliefs sought by him in his counter-claim and I therefore resolve this issue in favour of the Respondent and against the Appellant.
In totality, I find no merit in this appeal and it is accordingly dismissed. Consequently, the judgment of the trial Court is hereby affirmed.
Cost of N200,000.00 is awarded in favour of the Respondent and against the Appellant.
AHMAD OLAREWAJU BELGORE, J.C.A.: I had the privilege of reading in draft, the judgment just delivered by my learned brother, JOSEPH OLUBUNMI KAYODE OYEWOLE, JCA, and I am in agreement with his reasoning and conclusion.
I dismiss this appeal for being unmeritorious. I abide with the consequential orders contained in the lead judgment, including orders as to cost.
ITA GEORGE MBABA, J.C.A.: I agree with the reasoning and conclusion of my learned brother, J.O.K. OYEWOLE, JCA, that the appeal lacks merit. I too dismiss the appeal and abide by the consequential orders in the lead judgment.
Appearances:
Miss. C. Ejimkaraonye For Appellant(s)
Mr. Luke Onah For Respondent(s)
