UWABUADA UMEGBU & ORS. v. BROWN UGBOAJA
(2011)LCN/4557(CA)
In The Court of Appeal of Nigeria
On Thursday, the 19th day of May, 2011
CA/OW/88/2009
RATIO
EVIDENCE OF TRADITIONAL HISTORY: CIRCUMSTANCE UNDER WHICH THE PRINCIPLE OF LAW RELATING TO TRADITIONAL HISTORY AS DECIDED IN KOJO II V. BONSIE WILL BE APPLIED
The proposition of law relating to traditional history as decided in KOJO II V. BONSIE (1957) WLR 1223 is that where there is a conflict of traditional history, demeanor is of little guide to the truth and that the best way to test the traditional history is by reference to acts in recent years as established by evidence and by seeing which of the two competing histories is more probable. Where there are two competing traditional histories with respect to the title to land in dispute and the two are equally credible, the court will rely on acts of recent possession within living memory on the part of the parties as a test of which of the stories is more probable. The application of this test is predicted on the existence of competing credible traditional history with respect to the land. Thus the rule in Kojo II v. Bonsie is not intended to be applied where one side has as in the instant case, completely failed to put forward a traditional history capable of being tested and compared with the other side, which has pleaded and led evidence of traditional history. See EBOADE v. ATOMESIN (1997) 5 NWLR (Pt.506) Pg. 490 at 493. See also OMOREGBE v. EDO (1971) 1 ALL NLR 282; ALADE v. AWO (1975) 4 SC 215 at 228. PER OGUNWUMIJU, J.C.A.
ONUS OF PROOF: ON WHOM RESTS THE ONUS OF PROOF WHERE THE PLAINTIFF CLAIMS THAT THERE IS A JOINT OWNERSHIP OF THE LAND IN DISPUTE AND THE DEFENDANTS WERE IN POSSESSION
Where there is a claim for joint ownership by the plaintiff and the plaintiff admits the defendants were in possession, the onus is on the plaintiff to prove that both parties held title in common. See CHRISTIAN EWO v. OGBODO ANI (2004) SCNJ 272, (2004) 3 NWLR (Pt. 861) Pg.610 at Pg. 635-636. On the other hand, if the defendants now appellants claimed to be joint owner of the land in dispute, the effect would be to shift the onus of proof of joint ownership on them as they have thereby admitted respondent’s ownership. PER OGUNWUMIJU, J.C.A.
OWNERSHIP OF TITLE TO LAND: WAYS OF ESTABLISHING OWNERSHIP OF A LAND IN DISPUTE; WHETHER FOR THE PLAINTIFF TO SUCCEED, HE MUST PROVE ALL THE FIVE WAYS OF ESTABLISHING OWNERSHIP OF A LAND
It is a much feted statement of the law that there are five different ways of establishing ownership of a land in dispute. In YUSUF v. ADEGOKE (2007) NWLR Pt. 1045 Pg..(2007) 4 SCNJ 77, they were restated by the Supreme Court following IDUDUN v. OKUMAGBA (1976) 9 & 10 SC 227 as follows: 1. Proof by traditional evidence. 2. Proof by production of documents of title duly authenticated, unless they are twenty or more years old, produced from proper custody. 3. Proof by acts of ownership in and over the land in dispute such as selling, leasing, making grants or farming on it or a portion thereof extending over a sufficient length of time numerous and positive enough to warrant the inference that the persons exercising such proprietary acts are the true owners of the land. 4. Proof by acts of long possession and enjoyment of the land which prima facie may be evidence of ownership not only of the particular piece of land with reference to which such acts are done but also of other lands so situated or connected therewith by locality or similarity that the presumptions under S.146 of the Evidence Act applies and the inference can be drawn that what is true of the one piece of land is likely to be true of the other piece of land. 5. Proof of possession of connected or adjacent land in circumstances rendering it probable that the owner of such connected land would in addition be the owner of the land in dispute. To succeed it is enough for the plaintiff to establish any one of the five ways and the plaintiff may plead or prove anyone or more of them. See EBE EBE UKA v. CHIEF KALU OKORIE IROLO (2002) 7 SCNJ 137; CHIEF LASISI OYELAKIN BALOGUN v. ONAOLAPO AKANLI (2005) 4 SCNJ 101; AKINYULI v. EJIDIKE (1998) 4 SCNJ 249. PER OGUNWUMIJU, J.C.A.
PROOF OF TITLE TO LAND: WHETHER A PLAINTIFF WHO PLEADS AND PROVES TWO ALTERNATIVE WAYS OF PROVING TITLE TO LAND(FOR EXAMPLE, TRADITIONAL HISTORY AND ACTS OF OWNERSHIP) CAN SUCCEED IN ONE IF HE FAILS IN THE OTHER
In ONWUGBUFOR v. OKOYE the Supreme Court per Iguh JSC said at Pg. 22 of the SCNJ report as follows: “In the present case, it cannot be disputed that the appellants neither sufficiently pleaded nor gave evidence in support of their original ownership of the land in dispute by tradition from time immemorial. Recognizing the fact that there are five modes of establishing title to land, the next issue must be whether the appellants pleaded and/or relied on any other ways in proof of their title to the land in dispute. Besides, although a plaintiff is entitled to rely on traditional evidence alone to succeed in his case (for which see STOOL OF ABINABINA v. ENYIMADU 12 W.A.C.A. 171 at 174 and IDUNDUN v. OKUMAGBA, supra) if such evidence of tradition is inconclusive, the case must rest on the question of other facts pleaded and relied on at the trial. See EKPO v. ITA 11 N.L.R 68 and BALOGUN & ORS. v. AKANJI & ANOR. (1988) vol. 19 I.N.S.C.C. 180”. His lordship opined further at Pg. 24 of the SCNJ report: “With profound respect, I cannot agree with the court below that the appellants must on the plain issue that arises in this case establish their ownership of the land in dispute from time immemorial and whom their forefathers were before they can lead evidence of their acts of possession of the land. The reason is because where, as in the present, case, the appellants merely relied on mere acts of ownership and possession on the land and did not rely exclusively on traditional evidence as proof of their root of title from a particular source, proof of the original ownership of the land in dispute, such as who founded it, how he founded it and the particulars of the intervening owners through whom he claims cannot arise”. (Underlining mine). The authority of ONWUGBUFOR v. OKOYE is clear and to the effect that since there are several ways of proving ownership of land, a plaintiff who pleads and proves two alternative ways can succeed in one if he fails in the other. This leeway had been established from earlier cases including BALOGUN v. AKANJI (1988) (Vol. 19) NSCC 180 where Oputa JSC explained the opinion of the Supreme Court in EKPO v. ITA where it was held that anyone who pleads acts of possession as his root of title is relying on the presumption of law guaranteed by S. 145 of the Evidence Act. Therefore a person pleading acts of possession as his root of title is simply saying “I do not know how I got the land but I have been in possession and have exercised various acts of possession. Now you prove that I am not the owner’. In BALOGUN v. AKANJI (2005) 10 NWLR (Pt. 933) Pg. 394, Oguntade JSC held as follows at Pg. 411; “It is to be borne in mind that proof of the title by evidence of traditional history and acts of ownership are separated 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 the title he asserts in a claim for declaration of title on traditional history. On the other hand, since is it 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 later because in their nature both are different”. PER OGUNWUMIJU, J.C.A.
JUSTICES
ABUBAKAR JEGA ABDUL-KADIR Justice of The Court of Appeal of Nigeria
HELEN MORONKEJI OGUNWUMIJU Justice of The Court of Appeal of Nigeria
MOJEED ADEKUNLE OWOADE Justice of The Court of Appeal of Nigeria
Between
UWABUADA UMEGBU & ORS.
(FOR THEMSELVES AND AS REPRESENTING UMUNGWAOGU, UMUYOKA AND UMUIMO FAMILIES OF NGODO, AMURO IBERE) – Appellant(s)
AND
BROWN UGBOAJA
(FOR THEMSELVES AND AS REPRESENTING UMUEBO FAMILY OF NGODO AMURO IBERE) – Respondent(s)
OGUNWUMIJU, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of Hon. Justice S. O. E. Nwanosike sitting at Aba High Court, Abia State dated 2nd April 2009. It was a consolidated judgment in respect of five suits hitherto filed by the respondents herein against the appellants after the said suits were consolidated. The facts that led to this appeal are as follows:
Between 1975 and 1978 the respondents herein as plaintiffs on behalf of his Umuebo family instituted five suits at the Umuahia Judicial division of Imo State High Court wherein they claimed as follows in suit HU/82/75:
The Plaintiffs claim against the Defendants jointly and severally:
(A) Declaration that all that lot piece or parcel of land known and called “EZI UMUEBO” situated at Ngodo Amuro Ibere Ikwuano within Umuahia Judicial Division, valued N10.00 is the communal property of Umuebo family of Ngodo, Amuro Ibere.
(B) N400.00 general damages for trespass.
(C) Order for; (i) the 1st defendant to quit vacate from the said “Ezi Umuebo” land ; (ii) both defendants to demolish carry away the debris and or bear the expenses of demolishing and carrying away the debris of the thatch building that the 1st defendant has, and the new block building both defendants are putting up, on the said land.
(D) Injunction.
The plaintiffs’ claims and reliefs in respect of all the suits were essentially the same. After issues were joined, both parties called evidence and addressed the court. The case of the respondents as plaintiffs at the trial court is that the land in dispute which they called “Ezi Umuebo” was their exclusive family property which they had enjoyed since time immemorial. They claimed that both the plaintiff and defendants came from Ngodo community made up of four families namely: Umuebo, Umuimo, Umungwegu and Umuyoka. Their ancestor Ngodo partitioned the land between his four sons who had exercised exclusive control over their various portions. However, in the recent past, due to traditional calamities, individual members from the other three families who constitute the defendants in the various suits had sought and obtained permission to erect temporary residential structures e.g. mud huts with thatch roof on some portions of the plaintiffs’ land on the understanding that none of them would erect permanent structures like cement buildings with iron or tin roofs. The five consolidated cases were brought by the plaintiff’s family to prevent the defendants from violating the terms of the license and recover possession of the land.
The defendants relied on an amended statement of defence wherein they averred that the defendants claimed that the disputed land is called “Ezingodo” and claimed that even though Ngodo gave portions of the Ezi Ngodo to his four sons, if for any reason or for lack of space any descendant of Ngodo wanted to build a residential house outside his father’s compound, he would approach the Ngodo elders who would allocate a portion of land unconditionally from the Ezingodo to such family member. Thus if a family member wanted to build outside his father’s compound, the elders would allocate land from the communal land to him. They claimed that the land in dispute does not belong exclusively to the plaintiffs. The plaintiffs and defendants gave evidence and called three witnesses each in proof of the claim. The learned trial Judge found for the respondents and granted them all the heads of claim. Hence this appeal.
The appellant’s brief was filed 28/9/09. The appellant’s reply brief was also filed on 9/2/11. The respondent’s brief was filed on 12/2/10 and deemed filed on 2/2/11.
The appellant’s counsel Chief Nkem Nwosu identified the following issues for determination. They are stated below:
Issue No. 1
– Whether the appellants are not entitled to have the respondents’ claim for a declaration of title dismissed, the learned trial Judge having found and pronounced the respondents traditional evidence as unreliable.
Grounds 1 & 5.
Issue No. 2
– Whether there were indeed various summons of the Appellants by the Respondents before various local arbitrations and if yes, whether the said summons amounted to sufficient acts of ownership and possession of the land in dispute or created estoppels against the Appellants. Grounds 2 & 3.
Issue No. 3
– From the totality of the evidence adduced by the parties and their witnesses was the fact of a conditional grant of the land in dispute by the respondents to the appellants established on the preponderance of evidence or balance of probability? Ground 4.
On the other hand, the respondent’s Counsel Dr. I. N. Ijiomah donated three (3) issues for determination as follows:-
1. Whether the learned trial Judge was right when he held that the parties in this case derived their title to the land in dispute from a common ancestor or from the same source and because of this fact, evidence of Traditional History of the land in dispute is irrelevant in this case.
Grounds 1 & 5
2. Whether the trial Judge was right when he held that plaintiffs proved sufficient acts of ownership and possession over the land in dispute to warrant the inference that the land in dispute belongs to the plaintiffs. Grounds 2 & 3.
3. Was the trial Judge right when he held that it was the plaintiffs who let the defendants into possession of the land in dispute. Ground 4.
The issues identified by both counsel are the same except they are differently couched. I will rely on the issues as couched by the appellants’ counsel in the determination of this appeal. They better represent the complaints raised by the grounds of appeal.
Issue one
Learned appellants’ counsel submitted that it is settled law that a plaintiff relying as the respondent did on evidence of traditional history to prove his title to land in dispute must plead and prove:
(a) Who founded the land
(b) How he founded it
(c) The particulars of intervening owners through whom he claimed.
He cited NKADO v. OBAINO (1997) 5 NWLR (Pt. 503) Pg. 31 at 68; ANYANWU v. MBARA (1992) 5 NWLR (Pt.242) Pg. 368 at 399; ADEJUMO v. ANYANTAEGBE (1989) 3 NWLR (Pt.110) Pg. 417.
Counsel argued that the respondents’ pleadings in paragraphs 7 and 8 (a) of the statement of claim that Okocha etc “with many others before them, have been successive family heads of the plaintiffs’ family” is an argument that means Okocha is not the founder of the land in dispute. He argued that contrary to paragraph 8(a) P.W.1 swore that the original owner of the land was Okocha who deforested it. Counsel submitted that since the respondents never pleaded that Okocha deforested the land, that evidence goes to no issue as it was not pleaded and consequently the respondents never pleaded nor proved how Okocha founded the land. Counsel argued that none of the respondents’ witnesses was able to say who of their ancestors founded the land and had claimed that settlement of each of four kindreds inures from time immemorial.
Counsel argued that the effect of the contradiction between the pleadings of the respondents and their evidence regarding the founder of the land is that the case of the claimant must fail. He cited EBOADE v. ATOMESUN (1997) 5 NWLR (Pt. 506) Pg. 490 at 493.
Counsel argued that the failure of the respondent to plead and adduce evidence of the successive ancestors through whom the land descended to Okocha is fatal to a claim for declaration of title. Counsel submitted the view that the appellants as defendants were able to prove their root of title to the land in dispute and their evidence was not controverted. Counsel submitted that it was wrong for the trial court not to have made a definite finding of fact regarding the evidence of traditional history. Counsel argued that the learned trial judge’s finding that both parties derived their roots of title from same ancestral source namely Ngodo was completely errorneous. He argued that the trial court failed and did not make findings of fact from both the evidence of the respondent as plaintiff and the evidence of the appellants as defendants as it was duty bound to do. He cited MOGAJI v. ODOFIN (1978) 4 SC, 91; ANUKANTI v. EKWONYEASO (1978) 1 SC, 37; OKUMOBI v. ISHOLA (1973) 3 SC, 43.
Counsel submitted that the learned trial Judge erroneously applied the rule in KOJO II v. BONSIE by giving credence to the acts of recent possession of the respondent to give them title to the land. He submitted that the rule in KOJO II v. BONSIE only becomes relevant where there are two equally credible but competing traditional history which makes it impossible for the court to determine title one way or the other. He argued that in this case there is no credible traditional history from the respondents and their claim should have been rejected. He cited OHIARI v. AKABEZE (1992) 2 NWLR (Pt. 221) Pg. 1; EBOADE v. ABOMESIN supra; OMOREGBE v. EDO (1971) 1 All NLR Pg.282; ALADE v. AWO (1975) 4 SC 215 at 228; ATANDA v. AJANI (1989) 3 NWLR (Pt. 111) Pg. 511.
Learned respondents’ counsel in reply to this issue, argued that the contents of the plaintiffs’ statement of claim in HU/93/75 (the same in each of the other four suites consolidated) is to the effect that the parties are agreed that the land in dispute is part of the land which Ngodo their joint ancestor got from the estate of his father, Amu. The parties also agreed in their pleading that Ngodo had four (4) sons who became (four families namely yoka, Ngwaogu, Imo and Ebo). Learned respondents’ counsel argued that the parties had no dispute about their ancestry and their root of title to the land in dispute. He argued further that the dispute between the parties which was the case before the trial court is the question of the exclusive ownership of the land which Ngodo gave to Ebo for residential purposes. The dispute over it is whether Ebo’s descendants (presently the respondents who was plaintiffs at the trial court) have exclusive ownership of it or if the appellants (descendants of a combination of Umuimo, Umungwogu and Umuyoka families) have access to it as co-owners.
Counsel argued that the evidence of the plaintiffs and the defendants witnesses at the trial court showed that the common source of their title is Ngodo. He submitted that this court should agree with the learned trial judge at pg. 201 of the record that the consequences of parties in land matter deriving their title from a common root is that the proof by either side of traditional history is irrelevant. He conceded that the respondents did not plead the traditional history of the land in dispute as they did not rely on traditional history of the land in their claim to the land in dispute. He submitted in concession that the evidence given by P.W.1 that Okocha deforested the land, being unpleaded, goes to no issue. He cited EDOZIE v. ZACCALA (2005) 34 WRN Pg. 103 at 133. Learned counsel submitted that for the evidence of P.W.1 to amount to contradiction of the pleadings, it must affirm the opposite of what he said earlier or he pleaded. He argued that P.W.1 never pleaded the original founder of the land in dispute. Had he done so, and in his evidence given another name as the founder, then that will constitute contradiction in law between the respondents’ pleadings and his evidence. Learned respondents’ counsel submitted that the appellants’ counsel’s submission on the importance of the evidence of the trial traditional history is irrelevant and misconceived as the respondents never based his claim on traditional history. Counsel argued that the respondents as plaintiffs at the lower court was entitled to chose between which one or more of the ways to prove title to the land. If they could prove only one out of the two they relied on, they will be entitled to succeed. He cited ONWUGBUFOR v. OKOYE (1996) 1 SCNJ 1 at 21.
Learned respondents’ counsel submitted further that since the plaintiffs/respondents did not rely (or did not rely exclusively) on traditional evidence of the land in dispute in proof of their title to the land, the trial Judge was right in evaluating the evidence of acts of ownership and possession over the land in dispute by the parties in order to determine which of the parties is the owner of the land in dispute.
Learned counsel argued that the failure of the trial court to evaluate the appellants’ evidence of traditional history was not relevant in the determination of the case and that the court relied on the evidence of acts of ownership over the land in dispute to come to the conclusion that the respondents proved their claim to title. He submitted that where parties trace their title to a common root, it is the party who established a better title that succeeds in the claim and that the respondents established a better title.
To determine this issue, I must certainly consider the following:
(a) Whether the pleadings and evidence support the finding of the trial Judge that the parties had a common root of title to the land in dispute.
(b) Whether the rule in KOJO II v. BONSIE is applicable to the facts of this case and whether the trial Judge applied same in his determination of the issues.
(c) Whether a plaintiff who did not properly plead and prove traditional history as the basis of his claim can fall back on evidence of recent acts of ownership as proof of his title.
(d) Whether the principle in ONWUGBUFOR v. OKOYE supra is applicable to the circumstances of this case.
Let us look at the pleadings:
The respondents at paragraphs 5 & 6 of their statement of claim in HU/93/75 (it is the same in the statement of claim in each of the other 4 consolidated suits) averred thus at Pg. 10 of the record:
5. The plaintiffs aver that Amuro village is made up of a two main sections namely Amaelu and Ngodo. Amaelu is made up of six families whilst Ngodo section is made up of four families. The four families of Ngodo are: – Umuebo, Umuimo, Umuyoka and Umungwaogu. Each has its family land where members of he said family had, have or are entitled to have or build their residential houses.
6. The plaintiffs aver that the residential family lands of the four families comprising Ngodo section of Amuro are known as and called:-
i) For Umuebo, “EZI UMUEBO”
ii) For Umuimo, “UDARA ONYELLUGHILU”
iii) For Umungwaogu, “EZIAGBO”
iv) For Umuyoka, “MKPA”
The appellants at paragraph 5 of the amended statement of defence averred thus:
5. In further answer to paragraph 5 of the Plaintiff’s statement of claim the defendants over that both parties are descendants of a common ancestor called Amu who deforested and founded the present Amuro. Amu begat two sons, namely Ngodo and Elu. Upon the death of Amu his two sons portione his estate and Ngodo got the land in dispute as part his share of Amu’s estate. Elu got the present Amaelu as his shae of Amu’s estate.
From the above pleadings of the parties it is clear that the parties are agreed that the land in dispute which the parties are laying claims to is part of the land which Ngodo got from the estate of his father, Amu.
Apart from the above, the facts of common ancestory highlighted by the amended statement of defence was never denied by the plaintiff/respondent by way of reply at the lower court.
The trial judge in the course of his evaluation of the evidence in this case captured the assertion of the plaintiff over the land in dispute and said at Pg. 189 of the record:-
“The plaintiff’s case, both in their statement of claim and oral evidence is that the land in disputer which they called ‘Ezi Umuebo’ was their family property which had been in the possession of their predecessors-in-title through their successive family heads who enjoyed and exercised maximum acts of possession and ownership thereof. Both the plaintiffs and the defendants, they said, came from Ngodo Community made up of four families, namely; Umuebo, Umuimo, Umungwogu and Umuyoka. The plaintiffs are from Umuebo. The defendants in the various consolidated suits came from either of the other three families”
He also captured the assertion of the defendants to the land in dispute and said thus at Pg. 191 of the record
“The defendants, however, in their various statements of defence and oral evidence denied that the land was called ‘Ezi Umuebo’ but rather ‘Ezingodo’ Ngodo had four sons as stated by the plaintiffs and gave portions of the Ngodo’ (i.e Ngodo’s compound) to his said four sons. If for any reason or for lack of space any descendant of Ngodo wanted to build a residential house outside his father’s compound, he would approach the Ngodo elders who would allocate portions of ‘Ezingodo’ indiscriminately to such a descendant. The Ezingodo was never portioned amongst the sons of Ngodo or at all”.
I cannot agree with the argument of the learned counsel for the appellants that on the state of the pleadings neither the respondents nor the appellants acknowledged Ngodo as the root of their title to the disputed land. However I agree with learned appellant’s counsel that the P.W.1 in trying to prove his case of exclusive possession of the land in dispute prevaricated on the source of the radical title of his branch of the family. He gave unpleaded evidence that Okocha deforested the land and both counsel are ad idem on the law that such unpleaded facts go to no issue. Be that as it may, learned appellants’ counsel had argued that the finding of the learned trial Judge that both parties derived their root of title from one ancestral source is bizarre and not borne out of the records. Counsel with the greatest respect was being economical with the truth. P.W.1 conceded that Ngodo community was made up of the four families and that even though both parties gave different names to the land in dispute, there was certainty as to its identity. See pg. 92 of the records of appeal. P.W.3 confessed that “Ngodo consist of four kindreds namely Umuebo, Umuyoka, Umungwaogu and Umuimo” see pg.102 of the records. The P.W.4 agreed that the parties both come from separate sections of Ngodo. D.W.1 at pg. 129 D.W.3 at pg. 139 and D.W.4 at pg. 144 all gave testimony to the effect that Ngodo was the common ancestor of the parties whose four sons are the present disputants in the consolidated suits. The gist of their evidence for the appellants is that the land is communal land available for all the descendants of Ngodo.
In my humble opinion, it was the duty of the learned trial J udge to separate the wheat from the chaff and get at the truth inspite of attempts by the respondents and their witnesses to becloud or deny the fact that the parties had a common ancestor. I am of the view that the pleadings and the evidence on oath support the finding of the learned trial judge at pg. 201 of the record as follows:
“I say so because it is not in dispute that both parties derive their root of title from one ancestral source, namely, Ngodo. It is also not in dispute that Ngodo had four sons namely: Ebo, Imo, Yoka and Ngwaogu. Both parties also agreed that Ngodo granted land for residential purposes to his sons”.
Learned appellants’ counsel had argued that the learned trial Judge erroneously resorted to the rule in KOJO II v. BONSIE by deciding title on acts of possession and ownership. Learned appellants’ counsel has made heavy weather about contradictions between the respondent’s pleadings and oral evidence of traditional history. I have read the respondents’ statement of claim as a whole and a holistic reading of the statement of claim will show that the respondents deliberately played down their reliance on traditional history as the basis of their claim but rather pleaded copiously various acts of exercise of ownership and possession within living memory.
This supports the argument of learned respondents’ counsel that the respondent never relied nor intended to rely on traditional history as the basis of their claim to title to the land.
Let us go back to the issue of whether the learned trial Judge in fact relied on the principle in KOJO II v. BONSIE. At Pg. 201 of the record, the court held thus:
“I therefore reject the traditional history of the land as put forward by the plaintiffs in proof of their title to this land. I hold that the evidence of tradition adduced by the plaintiffs is not reliable and cannot therefore be used to claim a declaration of title in this case in which the defendants have set up a similar or rival traditional claim to the land.
Although I have rejected the traditional history of the land as put forward by the plaintiffs, it does not, however, seem to me that this case can only be decided by traditional history alone.”
The learned trial Judge clearly rejected as unreliable the evidence of traditional history adduced by the respondents. The learned trial Judge was of the view that the pleadings of the respondents supported a dual pronged claim to the land in dispute. His lordship observed further on Pg. 201 of the record as follows:
“I say so because it is not in dispute that both parties derive their root of title from one ancestral source, namely, Ngodo. It is also not in dispute that Ngodo had four sons namely: Ebo, Imo, Yoka and Ngwaogu. Both parties also agreed that Ngodo granted land for residential purposes to his sons. The only disagreement is that while the plaintiffs claimed that they granted land to the defendants to build on their plaintiff’s compound, the defendants said that the land was that of their four families and they built as of right. So, proof of traditional history in the circumstances of this case, in my view, is not relevant. It is either that the land belongs exclusively to the plaintiffs as granted them by Ngodo or it is the common and joint property of the four families”.
The above findings of the learned trial judge clearly show that he did not rely on the principle in KOJO II v. BONSIE.
The proposition of law relating to traditional history as decided in KOJO II V. BONSIE (1957) WLR 1223 is that where there is a conflict of traditional history, demeanor is of little guide to the truth and that the best way to test the traditional history is by reference to acts in recent years as established by evidence and by seeing which of the two competing histories is more probable.
Where there are two competing traditional histories with respect to the title to land in dispute and the two are equally credible, the court will rely on acts of recent possession within living memory on the part of the parties as a test of which of the stories is more probable. The application of this test is predicted on the existence of competing credible traditional history with respect to the land.
Thus the rule in Kojo II v. Bonsie is not intended to be applied where one side has as in the instant case, completely failed to put forward a traditional history capable of being tested and compared with the other side, which has pleaded and led evidence of traditional history. See EBOADE v. ATOMESIN (1997) 5 NWLR (Pt.506) Pg. 490 at 493. See also OMOREGBE v. EDO (1971) 1 ALL NLR 282; ALADE v. AWO (1975) 4 SC 215 at 228.
I am of the humble view that the learned trial Judge did not apply the principle in KOJO II v. BONSIE in deciding this case since it was inapplicable to the facts and circumstances of the case.
Learned appellant’s counsel referred to FASORO v. BEYIOKU (1988) 2 NWLR (Pt. 76) at 271 -272 and argued that where a party’s evidence of root of title is completely flawed as in this case, he has no business with acts of ownership or possession. Learned appellant’s counsel was obviously laboring under the mistaken impression that the respondent relied only on traditional evidence to prove their title. I am aware of the obiter of Oputa JSC in FASORO v. BEYIOKU supra where he held thus:
“One cannot talk of acts of ownership without first establishing that ownership where a party’s root of title is pleaded as say, a grant, or a sale, or a conquest, that root has to be established and any consequential acts following therefrom can properly qualify as acts of ownership in order words acts of ownership are done because of and in further more of ownership. Ownership forms the Quo-warranto of these acts and it gives legality to acts which would have otherwise been acts of trespass”.
That obiter in my humble view becomes relevant where the claimant relied solely in his pleadings on traditional evidence or where a specific root of title is pleaded and the claimant has been unable to establish by evidence that root of title.
This brings us to the issue of both the legal and evidential burden of proof in the circumstances of this case.
The state of the law and onus of proof is quite clear in this case. Where there is a claim for joint ownership by the plaintiff and the plaintiff admits the defendants were in possession, the onus is on the plaintiff to prove that both parties held title in common. See CHRISTIAN EWO v. OGBODO ANI (2004) SCNJ 272, (2004) 3 NWLR (Pt. 861) Pg.610 at Pg. 635-636. On the other hand, if the defendants now appellants claimed to be joint owner of the land in dispute, the effect would be to shift the onus of proof of joint ownership on them as they have thereby admitted respondent’s ownership.
It is a much feted statement of the law that there are five different ways of establishing ownership of a land in dispute. In YUSUF v. ADEGOKE (2007) NWLR Pt. 1045 Pg..(2007) 4 SCNJ 77, they were restated by the Supreme Court following IDUDUN v. OKUMAGBA (1976) 9 & 10 SC 227 as follows:
1. Proof by traditional evidence.
2. Proof by production of documents of title duly authenticated, unless they are twenty or more years old, produced from proper custody.
3. Proof by acts of ownership in and over the land in dispute such as selling, leasing, making grants or farming on it or a portion thereof extending over a sufficient length of time numerous and positive enough to warrant the inference that the persons exercising such proprietary acts are the true owners of the land.
4. Proof by acts of long possession and enjoyment of the land which prima facie may be evidence of ownership not only of the particular piece of land with reference to which such acts are done but also of other lands so situated or connected therewith by locality or similarity that the presumptions under S.146 of the Evidence Act applies and the inference can be drawn that what is true of the one piece of land is likely to be true of the other piece of land.
5. Proof of possession of connected or adjacent land in circumstances rendering it probable that the owner of such connected land would in addition be the owner of the land in dispute.
To succeed it is enough for the plaintiff to establish any one of the five ways and the plaintiff may plead or prove anyone or more of them. See EBE EBE UKA v. CHIEF KALU OKORIE IROLO (2002) 7 SCNJ 137; CHIEF LASISI OYELAKIN BALOGUN v. ONAOLAPO AKANLI (2005) 4 SCNJ 101; AKINYULI v. EJIDIKE (1998) 4 SCNJ 249.
As I have mentioned earlier, the respondents cleverly refused to plead the root of their radical title but did not counter the facts pleaded by the appellants in their statement of defence by way of a reply. An examination of the statement of claim shows that the respondents did not rely solely on traditional history to prove their title. It is my humble view that the learned trial Judge deliberately did not evaluate the traditional history given by the appellants because the appellants did not plead or prove exclusive ownership. It was only the respondents as plaintiff who tried to prove exclusive ownership. The pleadings of the appellants is a tacit admission of at least joint ownership of the land with the respondents. Since they claimed joint ownership with the respondents, I agree with the learned trial Judge that the onus was on the respondents not to prove radical title but to prove exclusive ownership of the land which was what the appellants were challenging.
I am also inclined to agree with the learned trial Judge that since the parties from their pleadings and the credible evidence before the court derive their root of title from the same ancestor, proof of traditional history alone in the circumstances would neither be sufficient nor relevant to determine whether the respondents had exclusive right to the land in dispute.
The learned trial Judge held as follows on Pg. 199 of the record as follows:-
“It is beyond argument that the plaintiffs by the very nature of their claim have put their title in issue. And the burden is on him to prove that title. He could do so either by traditional history of the land or by showing that they have been exercising acts of ownership and possession over the land. It appears from both their pleadings and oral evidence that the plaintiffs relied on these two modes of proof namely; Traditional history and the exercise of acts of possession and ownership. They need not prove the two simultaneously. If they can prove only one out of the two they relied upon, they will be entitled to succeed. See ONWUGBUFOR v. OKOYE (1996) 1 SCNJ 1 at 21. And it is for me now to consider whether they have proved all or any of them to entitle them to judgment”.
Learned appellants’ counsel in the reply brief argued that the case of ONWUGBUFOR v. OKOYE relied on by the learned trial Judge is inapplicable to the facts of this case. He argued that whereas the plaintiff in ONWUGBUFOR v. OKOYE did not plead or call evidence of traditional history, in the instant appeal the respondent copiously pleaded and called oral evidence of traditional history to prove the claims.
I beg to differ on this point of fact with the greatest respect to learned appellants’ counsel. The respondents clearly did not sufficiently plead traditional history but said that the land had devolved on their family “from time immemorial” (the same phrase used in ONWUGBUFOR v. OKOYE). It was from these unnamed ancestors that it devolved on family heads starting from Okocha etc.
In fact the majority of the statement of claim was taken up with pleadings regarding their claims of acts of ownership in living memory.
In ONWUGBUFOR v. OKOYE the Supreme Court per Iguh JSC said at Pg. 22 of the SCNJ report as follows:
“In the present case, it cannot be disputed that the appellants neither sufficiently pleaded nor gave evidence in support of their original ownership of the land in dispute by tradition from time immemorial. Recognizing the fact that there are five modes of establishing title to land, the next issue must be whether the appellants pleaded and/or relied on any other ways in proof of their title to the land in dispute. Besides, although a plaintiff is entitled to rely on traditional evidence alone to succeed in his case (for which see STOOL OF ABINABINA v. ENYIMADU 12 W.A.C.A. 171 at 174 and IDUNDUN v. OKUMAGBA, supra) if such evidence of tradition is inconclusive, the case must rest on the question of other facts pleaded and relied on at the trial. See EKPO v. ITA 11 N.L.R 68 and BALOGUN & ORS. v. AKANJI & ANOR. (1988) vol. 19 I.N.S.C.C. 180”.
His lordship opined further at Pg. 24 of the SCNJ report:
“With profound respect, I cannot agree with the court below that the appellants must on the plain issue that arises in this case establish their ownership of the land in dispute from time immemorial and whom their forefathers were before they can lead evidence of their acts of possession of the land. The reason is because where, as in the present, case, the appellants merely relied on mere acts of ownership and possession on the land and did not rely exclusively on traditional evidence as proof of their root of title from a particular source, proof of the original ownership of the land in dispute, such as who founded it, how he founded it and the particulars of the intervening owners through whom he claims cannot arise”. (Underlining mine).
The authority of ONWUGBUFOR v. OKOYE is clear and to the effect that since there are several ways of proving ownership of land, a plaintiff who pleads and proves two alternative ways can succeed in one if he fails in the other. This leeway had been established from earlier cases including BALOGUN v. AKANJI (1988) (Vol. 19) NSCC 180 where Oputa JSC explained the opinion of the Supreme Court in EKPO v. ITA where it was held that anyone who pleads acts of possession as his root of title is relying on the presumption of law guaranteed by S. 145 of the Evidence Act. Therefore a person pleading acts of possession as his root of title is simply saying “I do not know how I got the land but I have been in possession and have exercised various acts of possession. Now you prove that I am not the owner”.
In BALOGUN v. AKANJI (2005) 10 NWLR (Pt. 933) Pg. 394, Oguntade JSC held as follows at Pg. 411;
“It is to be borne in mind that proof of the title by evidence of traditional history and acts of ownership are separated 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 the title he asserts in a claim for declaration of title on traditional history. On the other hand, since is it 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 later because in their nature both are different”.
I have to agree with the learned respondents counsel that in this case, the evidence led by the respondents at the lower court being unreliable and they having pleaded evidence of acts of recent possession can fall back and rely on the later facts to prove their title.
It is my humble view that the learned trial Judge was right after finding the respondents’ evidence of traditional history unreliable to hold that the parties derived their title from a common ancestor or source. His Lordship was thus right also to hold that evidence of traditional history to resolve the dispute is irrelevant and the issue of his refusal to dismiss the respondents’ claim, should be resolved in favour of the respondent. The first issue is resolved in favour of the respondent.
Issue two
This issue is really whether the parties had subjected themselves to several local arbitrations and if these amounted to sufficient acts of ownership and possession on the part of the respondents to entitle them to judgment. The argument of the learned appellants’ counsel on this point is that the conclusion reached by the learned trial Judge is not supported by the evidence led by the parties. Counsel argued that the respondents did not call evidence at all in support of the 1962, 1964, 1973 traditional arbitrations and as a result facts relating to them are deemed abandoned. Counsel argued that the respondents conceded that the 1974 arbitration on which respondents led evidence was initiated by the appellant’s family when a member of the Umuyoka family summoned a member of the respondents’ family before a local arbitration. Counsel argued that the respondents did not prove acts of exclusive ownership of the land.
Counsel for the respondent argued in reply that the respondent pleaded several acts of ownership and possession over the land in paragraph 13 and 19, 22 and 23 of the statement of claim at Pg. 11-14 of the records particularly in HU/93/75 and all the other suits. He argued that the respondents gave evidence in support of these averments and that the appellants in their statement of defence did not deny the plaintiffs’ allegation of the disputes between them but only denied the verdict given by the various customary arbitrations. Counsel referred to paragraph 13(ii) of the statement of claim in HU/93/75 and the evidence of P.W.2 in support of the pleadings of the arbitration proceedings in 1974. Counsel argued that the land given to the Roman Catholic Church and the juju put there by the respondents’ family constituted acts of ownership. Counsel submitted that the argument of learned appellants’ counsel that the respondents never called any evidence to support their pleadings in relation to the 1962, 1964 and 1974 arbitrations is legally faulty. He submitted that the respondent did not plead the traditional arbitrations as estoppel or res judicata against the appellants, but as evidence of acts of ownership and possession over the land. Since the appellants never denied the fact of the various arbitrations but the result of the various arbitrations, the facts relating to the arbitration taking place simplicita need no further proof being already admitted.
In his lordship’s judgment at Pg. 202-204 of the records, the court held on this issue as follows:
I have quoted extensively from the judgment of the court in order to show the reasoning of the learned trial Judge.
“And this brings me to the question whether there are such acts of assertion of ownership performed by the plaintiffs from which such inference could be drawn? To answer the question, one has to consider the evidence of the parties in this case.
In his evidence P.W.1 said that in 1962 when the deceased 1st plaintiff commenced an extension work in his compound, he was challenged by Orji Nwaekpo of Umungworgu family and was summoned before the Amala Amuro by Ibezim Ugwuzor and Iche Onosike. The Amala Amuro gave the deceased 1st plaintiff judgment. This piece of evidence was confirmed by D.W.1. Again in 1964, P.W.1 said, the same Ibezim Ugwuzor attempted to build a cement/zinc house on the land. The deceased 1st plaintiff and one late Samuel Ugboaja challenged Ibezim. The matter also went before Amala Amuro who also found in favour of the plaintiffs. And that when the plaintiff demanded that Ibezim should vacate his thatch house, Ibezim invited the elders of Amuro and Iyalu villages who pleaded with the plaintiff to allow Ibezim sometime to live on the land to enable him complete the zinc house on his Umugwogu family land. However, this piece of evidence was denied by the defendants.
Again in 1973 one Eze Amasi Adum of Umuyoka family attempted to erect a thatch house on the land without the consent of the plaintiffs. The plaintiffs summoned him before the Ekpe society which also gave judgment in favour of the plaintiffs. The D.W.1 confirmed the summons but said that it was not the plaintiff who stopped Eze Amasi but the Ekpe society that did so, because the house Eze Amasi was building was in front of their juju shrine and the Central Hall of the village. Again, P.W.1 said that in 1974, one Peter uwa of Umuyoka family tried to erect a concrete house on the land. The plaintiff objected. Peter summoned the plaintiffs’ family before the entire Ibere Clan made up of fourteen villages presided over by Chief Uwanna, the traditional ruler then. The panel visited and inspected the land and also gave judgmenet in favour of the plaintiffs. Peter had to abandon his old thatch house and went to his family land at Umuyoka and built his concrete house. This arbitration before the Ibere Clan under Chief Uwanna was confirmed by the D.W.1 who said that Peter abandoned the site because the site could not accommodate the type of building Peter wanted to erect.
It is worthy to note that D.W.1 told the court that although the panel found out that the site could not accommodate Peter’s proposed house, they still asked him to continue the building on the land. And when in 1975, and subsequent dates the defendant persisted the plaintiffs’ brought this suit. These in my view, are assertions of acts of ownership over the land in dispute. I am of the view that the various acts of summoning the defendant before the various local arbitrations, each time the defendant or their predecessors-in-title attempted to build a permanent structure on the land in dispute is a show of assertion of sufficient acts of ownership by the plaintiffs, in the circumstances of this case in which the defendants are physically in possession.”
I have gone through Pg. 77-98 of the record where the respondents gave evidence. The respondent as P.W.1 did not give any specific evidence on oath in respect of the 1962, 1964 and 1973 local arbitrations. However, he gave copious oral evidence supported by the evidence of P.W.2 in respect of the native arbitration in 1974.
I have to agree with learned respondents’ counsel that facts admitted need no further proof. The respondents pleaded these facts in paragraphs 25 and 26 of the statement of claim on Pg. 6 of the records, while the appellants admitted that in fact such quarrels and submission to local arbitrations took place at those times but were not resolved as the respondents claimed.
Page 45-46 of the records shows paragraphs 16-19 of the statement of defence in HU/82/75. Page 5-6 of the record shows paragraph 25 and 26 of the statement of claim. They are set out below:
The plaintiffs aver that:
(i) In 1962 the 1st plaintiff commenced an extension work in his compound in the land in dispute. One Oji Nwaekpo of Umungwaogu interfered with the work. The 1st plaintiff was summoned before the “Amalas” of Amuro village the following day by Ibezim Ugwuzo and Iche Onasike both of Umungwaogu for embarking upon the work. The Amalas of Amuro arbitrated over the dispute by hearing both parties, their witnesses and found as a fact that the land in dispute is the family land of the plaintiffs’ family; that the 1st plaintiff was entitled to embark upon the extention work. The 1st plaintiff completed the work without further interference from any member of Umungwaogu family.
(ii) In 1964- Ibezim Ugwuzo of Umungwaogu family attempted to build a cement/ zinc building-on the land in dispute. The 1st plaintiff and the then head of Umuebo family – late Samuel Ugboaja – challenged Ibezim Ugwuzo. The Amalas of Amuro village, arbitrated over the matter with the knowledge, consent and participation of the 1st plaintiff – and Ibezim Ugwuzo invited the elders of both Amuro and Iyalu villages who pleaded with the plaintiffs to allow Ibezim Ugwuzo continue to live in the land in dispute while he should commence and compete the zinc house on Umungwaogu’s family land at “Eziagbo” Ibezim intended building and thereafter vacate from the land in dispute. Ibezim Ugwuzo commenced the building in 1964 but has not completed it up till date.
(iii) Both the thatch house of Ibezim Ugwuzo on the land in dispute and the uncompleted block/zinc building he started in 1964 are indicated and marked on the plaintiffs’ plan filed along with this statement of claim.
(iv) The plaintiff aver that both the 1st defendant and his late father Umegbu were alive and knew when the plaintiffs family and the members of Umungwaogu family to which the 1st defendant belongs had the arbitrations referred to above and, as members of Umungwaogu family, the 1st defendant and his father Umegbu supported the plaintiffs’ opponents who lost on each occasion.
The plaintiffs’ aver that the attempt of Onwuyinriuwa branch of Umuyoka family to challenge the plaintiffs’ ownership and possession of the land in dispute also failed. Thus:
(i) In 1973 – one Ezeamasi Adum of Umuyoka family attempted to put a thatch/mud building on the land in dispute without the prior permission of the plaintiffs. The plaintiffs summoned him before the Ekpe society of Amuro who with the consent of both parties heard them and their witnesses, found for the plaintiffs and Ezeamasi Adum had to abandone putting up the building;
(ii) In 1974, one Peter Uwa of Umuyoka family attempted to put up a cement/zinc block building around the thatch/mud building Peter Uwa’s father built in the land in dispute with the permission of the plaintiffs family and which Peter Uwa had occupied on his father’s death. The Plaintiffs – led by their then family head, Samuel Ugboaja (deceased) – objected to this and Peter Uwa summoned the Plaintiffs family – through their then family head Samuel Ugboaja – before the elders of the entire Ibere Clan made up of fourteen villages. The elders heard both parties and their witnesses; inspect the land in dispute and found for Samuel Ugboaja – hence the plaintiffs family. Following the arbitration, Peter Uwa left the thatch house he was living in the land in dispute and built the block /zinc building on his family land that is the Umuyoka family – called “MKPA”. Both the former thatch house and the new zinc house of Peter Uwa are shown on the plaintiffs’ plan filed long with this statement of claim.
(iii) The plaintiffs aver that the 1st defendant was privy and party to the arbitrations referred to in paragraph 26(1)(ii) above by reason of the fact the 1st Defendant supported Ezeamasi Adum and Peter Uwa against the Plaintiffs during aforesaid.
Paragraph 16-19 of the statement of defence are set out below on Pg. 45-45 of the Record:
16. “In answer to paragraph 25 of the statement of claim, the defendants admit that Oji Nwaekpo tried to stop the 1st plaintiff from extending his existing building because Oji felt that the 1st plaintiff’s building was obstructing his view and the entrance to his house. The Amalas of Ngodo and not the Amalas of Amuro intervened and after inspecting the extension work felt that the plaintiff has not blocked the view or entrance to the house of Oji. Both 1st plaintiff and Oji are neighbours and share common boundaries. Save as herein admitted the defendants deny paragraph 25 (i) of the statement of claim and will put the plaintiffs to the strictest proof thereof.
17. In answer to paragraphs 25 (ii), (iii) and (iv) of the statement of claim, the defendants aver that at no time did Ibezim Ugwuzor attempt to build in 1964 and was challenged by Samuel Ugbuaja. Ibezim Ugwuzo is still living in the place he has always lived with his family. He is presently erecting his concrete building in his compound. The defendants aver that the son of Ibezim by name John who lived in the area called old mission started building in 1966 away from his old compound. He died during the war thereby living the house uncompleted. The son of John Ibezim by name Godwin Ibezim and the wife of John are still living in their house at Old mission which is within the land in dispute. John started building his present site not because he was challenged by the said Samuel Ugboaja but because as a young man he wanted sufficient space to build as the Ezi Ngodo of which the Old Mission is part of is getting highly congested. Save as herein admitted the defendant deny paragraph 25 (ii), (iii) & (iv) of the statement of claim and will put the plaintiffs to the strictest proof thereof.
18. In answer to paragraph 26 (i) of the statement of claim, the defendant aver that at no time did the plaintiffs challenge Ezeamasi Adum for building. What happened was that Ezeamasi wanted to erect building in front of Mfam juju shrine and Ngodo Hall. The elders of Ngodo disapproved of this and called the Ekpe oa Ngodo to stop him from building. He then went and built at “Old Mission” area which is still within Ezi Ngodo. Before putting up his building he was living with his father Adum Onwuyiriuwa who was also occupying part of Ezi Ngodo. Save as herein admitted the defendants deny paragraph 26 (i) and will put the plaintiffs to the strictest proof thereof.”
19. In answer to paragraph 26 (ii) & (iii), the defendant aver that about 1974 Peter Uwa was measuring a space near his father’s house to see if it will be sufficient for his building, the plaintiffs came and removed the pegs. Peter summoned them before the clan head chief Uwanna who invited his council of elders made up elders from each village in Ibere. They found the land to belong to all Ngodo descendants and asked Peter Uwa to continue his building. However, after measuring the house Peter found that the space will not be sufficient for the building he therefore found space at the present place he built his house as of right not with plantiffs’ permission. His other brother Ogbulefu Uwa also built his own house within Ezi-Ngodo also as of right. The 1st defendant admits supporting Peter Uwa and avers that Peter Uwa defeated the plaintiffs. Save as herein admitted the defendants deny paragraphs 26 (ii) and (iii) and will put the plaintiffs to the strictest proof thereof.”
It is clear that the appellants admitted the facts relating to resolution by arbitration of various quarrels the parties had in the past over the land in dispute in their pleadings. What was not admitted was the decisions of these native arbitration. It is trite that facts admitted need not be proved by evidence. See S.74 of the Evidence Act. See also OKPARAEKE v. EGBUONU 7 WACA 53; DIN v. AFRICAN NEWSPAPERS LTD. (1990) 3 NWLR (Pt. 137) Pg. 392 at Pg. 408; OBINIANI v. ACB (1992) 3 NWLR (Pt. 229) Pg. 260; BALOGUN v. LABIRAN (1988) 3 NWLR (Pt. 80) Pg. 66. To the extent of the admission by the appellants’ that the parties had resorted to local arbitration in the past to settle their quarrels over the land, the court has to believe the respondents since the appellants admitted the same.
The respondents’ in paragraph 26(ii) pleaded the arbitration in 1974, while P.W.2 and P.W.4, gave evidence in proof of the averment and the verdict of the Eze Uwanna. P.W.2 said about the 1974 arbitration on Pg. 98 of the record as follows:
“I was a member of the panel that visited the land. There were witnesses who testified before the panel. The panel found out that the land belongs to the Samuel Ugboaja but nevertheless we recommend that Ugboaja should allow Peter to build. Samuel rejected the judgment of the panel and Peter went back to his original place of abode to build his house after Samuel rejected our recommendation is called I know Adum Onwuyiriruwa. He was one of the Eze’s panel that looked into his matter and he comes from Umuyoka. Adum Onwuyiriruwa who was a member of the panel and from Umuyoka did not say anything over the judgment of the panel”.
Both parties agree that there was a quarrel in 1974 which was subject to customary arbitration by the clan under Chief Uwanna. The panel found on investigation and after listening to witnesses that indeed Samuel (from the respondent’s family) actually owned the land but recommended that Samuel should allow Peter to build. Samuel rejected the judgment and Peter returned to his own Umuyoka part of the village to erect a permanent structure. I agree with the reasoning of the learned trial judge on why he believed the evidence of the respondents’ against the appellants’ on the reason why Peter having met with resistance from the respondent decided to build on his own family portion. Peter relocated because Samuel rejected the clan’s decision for him to build a permanent structure on land belonging to Samuel’s family. The appellant’s case is that the land was shared between the four kindred when the Catholics left. However, those the appellant said are in occupation are those challenged by the respondents.
The respondents also pleaded and gave evidence to the effect that the respondents had given part of the land in dispute to the Roman Catholic Church in exercise of their right of ownership. The case of the respondents is that the land in dispute is a large area of land within which the Roman Catholic Church had built a church and school. When the church vacated the land, it ought to revert back to the original owners viz the respondents. However, persons from other families started building permanent structures on it and these cases constitute the resistance by the respondents of such moves by the appellants. One of the grantee of the land was P.W.3 Emmanuel Umekwe who gave evidence that the Umuebo kindred gave the land to the Catholic Church and to him. As a member of the Umuebo family he sought and obtained permission from the family to build a permanent structure on the land.
On Pg. 205 of the record, the learned trial Judge after evaluating the evidence in respect of the land abandoned by the Catholic Mission, which is part of the land in dispute, held that it was improbable that there was a communal land called Ezingodo to which all the parties had a right to build without permission.
The appellants’ evidence of the donation of the land to the Roman Catholic Church was unreliable in that they failed to call those they allegedly built at their instance on the said land after the Church relocated from the land in dispute. On the other hand, the respondents called P.W.2 who is one of such persons mentioned by the appellants, and he denied the appellant’s said assertion. Moreover in considering the evidence of acts of ownership and possession in a case of this nature the trial court has to put the evidence of the parties of acts of ownership and possession on an imaginary scale of justice and to weigh such evidence in order to decide which is heavier. See the case of MADUMERE v. OKAFOR (1996) 4 SCNJ, P. 73 at Pg. 91-92. In my own humble view, the evidence adduced by the appellants regarding their possession of portions of the land which made up the Catholic Mission is improbable. Even if it were communal land before they could move in, there must be the consent of the communal head or committee to approve the occupation. It is noteworthy that no evidence was called in this regard.
The evidence led by the respondents was in my view credible and sufficient to tilt the scale of probability in favour of their assertion that they were entitled to exclusive possession and title over the land in dispute.
I agree intoto with the evaluation of the evidence made by the learned trial Judge and his conclusion at Pg. 204 of the record “that the various summons by the plaintiffs against the defendant in various local arbitrations are sufficient assertion of acts of ownership of the land in dispute”.
The respondents also pleaded in paragraph 23 and 24 of the statement of claim and showed on their dispute plan their family juju on the land called “OBU ALA EZI UMUEBO”. In paragraph 24 of the statement of defence the appellants pleaded and led evidence to the effect that every family head of the four sections of Ngodo hold their respective “Obu Ala Eze” within the land in dispute.
The learned trial judge held at Pg. 207 of the record that it was improbable if not impossible for the four sections of Ngodo to establish their homesteads in one singular compound. I too agree with the conclusions reached by the trial judge. The defence put up by the appellants that all the four families have their gods together at the Ezingodo is far fetched and incredible moreso that there is evidence that the kindred had separated into four distinct lines who intermarry.
I am of the view that the respondent had exercised various acts of ownership over the land in dispute by consistently challenging trespassers and giving it out and having their own family god on it and that such acts were numerous enough to draw the inference that the respondents had exclusive right to the disputed land. It is my humble view that this issue be resolved in favour of the respondents.
Issue three
This issue is whether or not the respondents proved that the appellants’ possession of the land in dispute was a result of a conditional grant to them by the respondents.
Learned appellants’ counsel argued that the respondents and his witnesses gave oral evidence which contradicted their pleadings and even gave evidence which contradicted each other. He argued that the evidence of P.W.1 that “Ngodo sojourned in the place” and that each kindred lived in separate areas was not pleaded and go to no issue. I have read the record and I cannot see with the greatest respect how counsel can arrive at the conclusion the oral evidence of P.W.1 and P.W.3 has resulted in the deemed abandonment of the pleadings of the respondents regarding the conditional grant. The stand of the appellants from D.W.1 and D.W.2 is that all four families build houses on the Ezingodo as of right with the permission of the elders.
Learned respondents’ counsel argued that the evidence of P.W.1, P.W.2 and P.W.3 was quite uniform on the issue of the conditional grant of portions of residential land to the appellants. P.W.1 testified that after Ngodo partitioned the land into four for each of his four sons, they retained exclusive possession and that it was within the tenure of one Jibueze as family head that he allowed the ancestors of the present appellants to build temporary shelter on humanitarian grounds on conditions that such houses would not be permanent structures with blocks or zinc roofs.
The learned trial judge from Pg. 205 of the record considered the pleadings and evidence in this case and came to the conclusion that the appellants did not adduce any evidence that the extended Ngodo family had allocated land to any of the appellants. He held that there is no evidence of who granted Peter Uwa, Ibezim and John his son the place where they built after the respondents resisted their attempt to build on the disputed land.
I agree with the evaluation of the evidence by the learned trial Judge. I also agree with his Lordship’s reasoning that the appellants in their survey plan did not show or lead oral evidence to prove the portions of land allocated to each of the four sons by Ngodo, they also failed to show what constituted communal land which was being allocated indiscriminately. I am of the humble view that the appellant by the pleadings and evidence had conceded partial ownership of the land to the respondents. They were not able to call any evidence to show how they came about their allocation of the plots for residential purposes. If indeed the land belonged to the community of four descendants of Ngodo, which joint family heads allocated the plots to them? There is no evidence that there was allocation to them to go on land to develop without some form of communal consent. Who gave the consent? The learned trial Judge held the view, which I agree with, that the impression created by the appellants that the parties making up the Ezingodo is one homogeneous family is wrong. See pg. 207 of the record. The conclusions of the learned trial Judge in believing and preferring the evidence of the respondents on the fact of conditional grant are in my view amply supported by the credible evidence adduced before the court. This issue is resolved in favour of the respondent.
In the circumstance, this appeal fails. It is hereby dismissed. I affirm the judgment of the trial court. I award N30,000 cost for the respondents against the appellants.
ABDUL-KADIR, J.C.A.: I have read before now the judgment of my learned brother OGUNWUMIJU, J.C.A., just delivered with which I entirely agree. For the same reasons canvassed in the judgment which I respectfully adopt as mine. I too find the appeal unmeritorious. I accordingly dismiss it and abide by the order for costs proposed in the aforesaid judgment.
OWOADE, J.C.A.: I agree.
Appearances
Nkem NwosuFor Appellant
AND
Dr. I. N. Ijiomah with him E. K. Oji (Miss)For Respondent
