UZOECHINA & ANOR v. OBANYE & ORS
(2020)LCN/15778(CA)
In The Court Of Appeal
(AWKA JUDICIAL DIVISION)
On Thursday, June 11, 2020
CA/AW/30/2017
Before Our Lordships:
ChiomaEgondu Nwosu-Iheme Justice of the Court of Appeal
Rita NosakharePemu Justice of the Court of Appeal
BitrusGyarazama Sanga Justice of the Court of Appeal
Between
OJINAKA AZUBUIKE UZOECHINA & ANOR (For Themselves And On Behalf Of The Uzoechina Family Of Ogbembulu Village, Onitsha.) APPELANT(S)
And
AKUNWATA NNAJI OBANYE & 13 ORS RESPONDENT(S)
RATIO:
AN ISSUE BEING RAISED AND DECIDED CANNOT BE RAISED AGAIN BY EITHER OF THE PARTIES
The law is settled that once an issue has been raised and decided between the parties, neither of the parties can be allowed to fight the same issue all over again. The same issue cannot be raised by either of the parties in the same suit or in subsequent proceedings.
Ipso facto, they cannot in a subsequent Suit which is the same advance argument or adduce further evidence directed to showing that the issue was wrongly determined.
The Court below, having been seized of the situation should not have revisited the matter nor review same, as he lacked the power to so do. Mbanugo J., had become functus officio in the matter. – CITEC INT’L ESTATES LTD. V. FRANCIS (2014) 8 NWLR (pt 1408) paragraph 139 @ 167; ONYEMOBI V. PRESIDENT O.C.C. (1995)3 NWLR (pt 381) Pg 50 @ 58 paragraph g-h. RITA NOSAKHARE PEMU, J.C.A.
PREVIOUS JUDGMENTS CAN BE USED FOR STRENGTHENING A PARTY’S CASE
It is trite that previous judgments can be used, if it serves to strengthen a party’s case, as an act of possession and ownership. – JAMES ULUBA V. CHIEF SILLO (1973) 1 S.C. 37 at 55; DOLUBO ASEIMO & ORS V. CHIEF ANTHONY AMOS & ORS V OKAFOR & ORS (1961) 2 SCNLR 369. RITA NOSAKHARE PEMU, J.C.A.
A PARTY CANNOT GRANT WHAT HE DOES NOT HAVE
It is trite that you do not give what you do not have. NEMO DAT QUOD NON HABET. The 1st Respondent cannot be seen to give out what he does not have. He had been unable to establish title to the land in dispute, and a fortiori, he cannot grant what he does not have.
Putting all these evidence on an imaginary scale, it is my view that the Appellants’ case tilts more in their favour, as against that of the Respondents. RITA NOSAKHARE PEMU, J.C.A.
THE EXERCISE OF DISCRETION BY THE TRIAL COURT JUDICIOUSLY AND JUDICIALLY
Thus, where a trial Court exercises its discretion judiciously and judicially, an Appellate Court will not question such exercise of discretion – SARAKI V. KOTOYE (1990) 4 NWLR (pt. 143)144. Ipso facto, where this Honourable Court finds that the costs awarded by a trial Court was predicated on a perverse judgment, that judgment must be set aside by the Appellate Court, and any appendage of costs attached to it goes with it, because you cannot put something on nothing. Both will collapse. MACFOY V. UAC. (1961) 3 ALL ER 1169. RITA NOSAKHARE PEMU, J.C.A.
RITA NOSAKHARE PEMU, J.C.A. (Delivering the Leading Judgment): This appeal is against the decision of the High Court of Anambra State holden at Onitsha in Suit No. 0/185/75, delivered on the 18th of October, 2016.
SYNOPSIS OF THE FACTS
Pertinent to note that the original 1st Respondent Sunday Ononye in Suit No. 0/185/75 was substituted with AKUNWATA NNAJI OBANYE as 1st Respondent in this Appeal.
It was the Appellants (as Plaintiffs at the Court below) that instituted the Suit, the subject matter of this Appeal, against the 1st Respondent for Declaration of title to land in respect of a piece of land situate at Onitsha. The other Respondents were joined in the course of proceedings and the 1st Respondent’s Counter claimed.
Vide Writ of Summons dated 9th day of December, 1975, the Appellants instituted the Suit, the subject matter of this Appeal for themselves and as representing the members of Uzoechina family of Ogbembubu village, Onitsha.
The Appellants case is that they are the owners in possession of the land in dispute. They relied on a survey plan No. MES/LD.12/92 as well as on traditional history to establish their ownership of the land in dispute and their root of title to not only the land in dispute, but to adjoining parcels of land South and East of the land in dispute which till date are and remain the Ogbembubu village and settlement in Onitsha.
In their traditional narration establishing their root of title, the Appellant pleaded that their ancestors came from Benin and conquered Ozeh people, thereby occupying Onitsha inland town by conquest.
Their ancestors settled there and had Ogbembubu as the first village in Onitsha.
That the first ruler of Onitsha named Dei lived had died in the Ogbembubu land, Obi Chimezie a direct ancestor and the 3rd installed Obi of Onitsha settled on the land with his brother Chimukwu. They both lived there and upon their death, were buried on the land.
When Obi Chimezie and Chimukwu died their children continued to live on the land and farmed thereon.
A quarrel came up which resulted in the abandonment of the land by a vast majority who migrated further North where they joined other Onitsha people and established the Ogbembubu village of Onitsha.
However, Uzoechina, son of Obi Chimezie, and the Appellants’ ancestor remained on the Ogbembubu land with his family and continued living and farming thereon.
That the Appellants ancestors and Onitsha people settled on the Ogbembubu land (part of which is now in dispute) as part of Onitsha Inland Town, long before the Mgbelekeke people came from Igala land. That these Mbgelekeke people who were predominantly fishermen were permitted by the then Obi of Onitsha to fish on River Niger. They originally settled on the shores of the River Niger, and later on, by the generosity of the Onitsha people, were gradually integrated as messengers both to Obi Anazonwu who ruled from 1874 – 1899 and to Obi Okosi 1, who ruled from 1901-1931.
The Mgbelekeke people paid tributes to the people.
That the Mbgelekeke family had no particular village of their own anywhere in the Onitsha Inland Town, until one Sam Obanye one of their members purchased a piece of land along Mba Road, Onitsha from Lazarus Nwobosi Nzegwu.
The Appellants did say that their Supremacy in Onitsha land has been proven and accepted in some decided cases.
That in a Suit NO. 0/24A/1951. CHIEF M. O. NNEZIANYA V. OFILIENEBELI & 2 ORS, the Appellants had been adjudged the owners of the land now in dispute – land referred to as DMGS Farmland.
The Appellants pleaded several acts of ownership of the said land including but not limited to living on the said land, farming thereon, burying of their ancestors and dead members of Ogbembubu village.
Appellants pleaded several acts of trespass to the land in dispute by the Mgbelekeke people and other trespassers.
Appellants had traced their genealogy to Dei, who was one of the Sons of EzeChima. They also pleaded documents and judgments in paragraphs 7 of their Amended Reply and Defence to Counterclaim.
The Appellants called four (4) witnesses; PW1, PW2, PW3 and PW4 and tendered eighteen (18) Exhibits.
The 1st Respondent called one witness who testified as DW1. He tendered Thirty (30) Exhibits.
The 2nd Respondent called two (2) witnesses:
The 3rd – 9th Respondents called one witness
The 10th – 11th Respondents called two witnesses who testified as DW 5 and DW 6 and tendered Exhibit N1, N2, N3 and 0 (5) Exhibits.
The 12th – 14th Respondents called only one witness.
The Court below found for the 1st Respondent.
The Appellants are dissatisfied with the decision and have appealed it.
Pursuant to the Practice Direction of this Honourable Court, the Appellants filed a Notice and Grounds of Appeal on the 24th October, 2016 – pages 2229 – 2237 of the Record of Appeal. This was abandoned, and another Notice of Appeal was filed on the 10th of January, 2017 – See pages 2238 – 2263 of the Record of Appeal – Vol.111. The Notice and Grounds of Appeal encapsulates 23 Grounds of Appeal.
The Appellants filed their brief of arguments on the 16th of February, 2018, but was deemed filed on the 14th of March, 2019. Same is settled by Dr. OnyechiIkpeazu OON, SAN.
The Appellants distilled four (4) issues for determination from the Grounds of Appeal viz;
(a) WHETHER THE TRIAL COURT WAS RIGHT IN HOLDING THAT THE APPELLANTS DID NOT PROVE THE IDENTITY OF THE LAND IN DISPUTE – GROUNDS 1, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16 AND 17.
(b) WHETHER THE LEARNED TRIAL JUDGE WAS RIGHT TO RE-OPEN AND DETERMINE THE ISSUE OF RES JUDICATA WHICH HAD ALREADY BEEN DETERMINED IN THE RULING DELIVERED BYMBANUGO J., IN THIS SUIT GROUNDS 2 & 6.
(c) WHETHER THE LEARNED TRIAL JUDGE WAS RIGHT IN HOLDING THAT THE APPELLANTS’ CASE WHEN WEIGHED ON THE IMAGINARY SCALE OF JUSTICE WITH THAT OF THE RESPONDENT’S IS NOT MORE PROBABLE THAN THE 1ST RESPONDENTS’ CASE – GROUNDS 3, 4, 18, 19, 20, 21, 22 AND 23.
(d) WHETHER THE COST OF N500,000.00 AWARDED AGAINST THE APPELLANTS IS JUSTIFIED AND SUSTAINABLE IN THE CIRCUMSTANCES OF THIS SUIT GROUND 5.
The 1st Respondent’s brief was filed on the 5th of June, 2018 but was deemed filed on the 23rd of January, 2019. It is settled by Steven Onyechi Ononye Esq. AC1 Arb.
He proffers four (4) issues for determination, they are:
a) WHETHER BASED ON THE EVIDENCE OF PARTIES WITH PARTICULAR REFERENCE TO EXHIBITS “A”, “F”, AND “E” THE LEARNED TRIAL JUDGE WAS NOT RIGHT IN HOLDING THAT THE APPELLANTS DID NOT PROVE THE IDENTITY OF THE LAND IN DISPUTE WITH CERTAINTY.
b) WHETHER BASED ON THE CASE OF PARTIES IN THIS SUIT, THE LEARNED TRIAL JUDGE WAS NOT RIGHT IN HOLDING THAT THE 1ST RESPONDENT’S CASE IS MORE PROBABLE THAN THAT OF THE APPELLANTS,AND DELIVERED JUDGMENT IN HIS FAVOUR
c) WHETHER THE LEARNED TRIAL JUDGE WAS NOT RIGHT TO HAVE RE-CONSIDERED AND DETERMINED THE ISSUE OF RES JUDICATA SINCE THE 10TH AND 11TH RESPONDENTS RAISED SAME AS A DEFENCE IN THEIR STATEMENT OF DEFENCE AND COUNTER CLAIM.
d) WHETHER THE COURT WAS RIGHT WHEN ITS AWARDED COST OF N500,000 IN FAVOUR OF THE 1ST RESPONDENT.
The 2nd Respondent filed his brief of against on the 1st of June, 2018, but same was deemed filed on the 23rd of January, 2019.
It is settled by Edward OguguaIbegbu Esq. ACI.Arb, J.P.
He proffered four (4) issues for determination, they are:
a) WHETHER BASED ON THE EVIDENCE OF PARTIES WITH PARTICULAR REFERENCE TO EXHIBITS “A” AND “F”, THE LEARNED TRIAL JUDGE WAS NOT RIGHT TO HOLD THAT THE APPELLANTS DID NOT PROVE THE IDENTITY OF THE LAND IN DISPUTE WITH CERTAINTY. GROUNDS 1, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, AND 17.
b) WHETHER BASED ON THE CASE OF PARTIES IN THIS SUIT, THE LEARNED TRIAL JUDGE WAS NOT RIGHT TO HOLD THAT THE 1ST RESPONDENT’S CASE CONSEQUENTIAL ON THAT OF THE 2ND RESPONDENTS, IS MORE PROBABLE THAN THAT OF THE APPELLANTS ANDDELIVERED JUDGMENT IN HIS FAVOUR. GROUNDS 2, 4, 18, 19, 20, 21, 22, AND 23.
c) WHETHER THE LEARNED TRIAL JUDGE WAS NOT RIGHT TO HAVE RECONSIDERED AND DETERMINED THE ISSUE OF RES JUDICATA SINCE THE 19TH AND 11TH RESPONDENTS RAISED SAME AS A DEFENCE IN THEIR STATEMENT OF DEFENCE AND COUNTER CLAIM.
d) WHETHER THE LOWER COURT WAS RIGHT WHEN HE AWARDED COST OF N500,000 TO THE SUCCESSFUL PARTIES GROUNDS 5.
The 3rd – 9th Respondent’s brief was filed on the 14th of June, 2018, but same was deemed filed on the 23rd of January, 2019.
It is settled by S. S. Ibebuike Esq.
They proffered four (4) issues for determination viz-
a) WHETHER THE APPELLANTS DISCHARGED THE ONEROUS DUTY PLACED ON THEM BY LAW TO PROVE THE IDENTITY OF THE LAND IN DISPUTE WITH CERTAINTY AND PRECISION, SO AS TO ENTITLE THE APPELLANTS SUCCEED IN THEIR CLAIM FOR DECLARATION OF TITLE TO THE SUIT LAND BEFORE THE TRIAL COURT IN THIS SUIT? GROUNDS 1, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16 AND 17 OF THE NOTICE OF APPEAL.
b) WHETHER THE APPELLANTS ESTABLISHED THAT THE CONCLUSION REACHED BY THE TRIAL COURT IN ITS JUDGMENT IN THIS SUIT, DISMISSING THE ISSUE OF RESJUDICATA RAISED BY THE 10TH-11TH RESPONDENTS OCCASIONED ANY MISCARRIAGE OF JUSTICE AGAINST THE APPELLANTS TO WARRANT THE REVERSAL OF THE JUDGMENT OF THE TRIAL COURT IN FAVOUR OF THE APPELLANTS IN THIS SUIT? GROUNDS 2 AND 6 OF THE NOTICE OF APPEAL.
c) WHETHER HAVING REGARDS TO THE EVIDENCE OF THE TRADITIONAL HISTORY UPON WHICH THE COMPETING CLAIM OF THE APPELLANTS ON ONE HAND AND THOSE OF THE RESPONDENTS ON THE OTHER HAND WITH RESPECT TO TITLE TO THE SUIT LAND WERE ANCHORED, THE EVIDENCE OF TRADITIONAL HISTORY OF THE APPELLANTS WILL ORDINARILY BE PREFERRED TO THAT OF THE 1ST RESPONDENTS SO AS THE ENTITLE THE APPELLANTS DECLARATION OF TITLE TO THE SUIT LAND IN THIS SUIT? GROUNDS 3, 4, 18, 20, 21, 22 AND 23 OF THE NOTICE OF APPEAL.
d) WHETHER IN VIEW OF THE GROSS AND ABYSMAL FAILURE OF THE CLAIM OF THE APPELLANTS BEFORE THE TRIAL COURT, THE N500,000.00 COST AWARDED AGAINST THE APPELLANTS BY THE TRIAL COURT IN FAVOUR OF THE 1ST – 9TH RESPONDENTS IS NOT JUSTIFIABLE AND SUSTAINABLE IN LAW? GROUNDS 5 OF THE NOTICE OF APPEAL.
The 10th – 14th Respondents filed no brief of argument.
Upon the death of the original 1st Respondent Sunday Ononye, he was substituted for Akunwata Nnaji Obanye.
The 3rd – 9th Respondents substituted the original 3rd – 5th Respondents who applied to be joined as parties and were joined by order of Court made on the 15th of November, 2001.
The 10th – 11th Respondents were formerly the 6th – 7th Defendants, and upon application to Court, were joined by order of Court made on the 30th of June, 2004.
The 12th – 14th Respondents applied to be joined as parties to this Suit, and were so joined by order of Court made on the 24th of January, 2007.
The 1st Respondent filed a Counter claim against the Appellants and against the 10th – 11th Respondents- pages 1244 – 1255 Vol. 2 of the Record of Appeal.
The 12th – 14th Respondents filed a Counterclaim against the Appellants, and attached to their proposed further amended Statement of Defence of 12th – 14th Defendants filed on the 18th of February, 2014.
It seems to me, after a perusal of the Respective briefs of Argument, that the issue for determination of the respective Respondents are essentially an adoption of that of the Appellants.
The issues bother on the identity of the land; Resjudicata; the weight of evidence of the respective parties, when weighed on the imaginary scale of justice and finally the issue of costs.
I shall however consider this appeal based on the Appellants issues for determination as distilled from the Grounds of Appeal.
ISSUE NO. 1
It is the Appellants’ submission that there has never been any doubt as to the identity of the land in dispute.
That the 2nd, 3rd-9th, 10th-11th, 12th-14th Respondents having been joined as parties to the Suit, the 10th-11th Respondents raised a plea of Res judicata, contending that the land, the subject matter of this suit was the subject of litigation in previous suits.
That All the Respondents knew the identity of the land, the subject matter of this Suit. But with regards to the 10th-11th Respondents’ plea of Res judicata, the Appellants, the 1st, 2nd, 3rd, 9th and 12th-14th Respondents were agreed within themselves that the land, the subject matter of this Suit was not the land litigated upon in the earlier suit relied upon by the 10th-11th Respondents for their plea of Res judicata.
They submit that in seeking a declaration of title to land, the Appellants had a duty to establish with certainty the identity of the land.
Submits that the Appellant had adduced oral description of the land in dispute that a surveyor acting on the strength of the description had made a plan of the land and they had filed a plan showing the land in dispute with its boundaries.
That in paragraph 12 of their further Amended Statement of Claim, they had described the identity of the land in dispute with certainty.
They had also described the location and boundaries, and indicated the land in dispute as more particularly delineated and verged RED in the Appellants’ Survey Plan No. MES/LN12/92.
They submit that at the trial, they relied on all the features on the Plan; they called the licensed Surveyor who made the said Plan (Pw3), the plan was tendered as Exhibit “A”, Pw3 made himself available for cross examination by the Respondents, after he tendered Exhibit “A”.
That the Respondents on record raised no issue as to any uncertainty regarding the identity of the land in dispute.
That the respective Respondents, not having raised an issue on the identity of the land in dispute, it was wrong for the Court below to raise an issue on the identity of the land in dispute.
They submit that the Court below went as far as visiting the LOCUS and saw for itself the location, and boundary of the land in dispute – pages 2129 – 2131 Vol 3 of the record of Appeal. That the Court saw these features which tallied with Exhibit “A”, and the evidence of the Appellants witnesses.
Submit that the Court below did not appreciate the essence of the Appellants’ pleading in Paragraph 4 (d), and why the judgment in Suit No. MO/1A/1951 and 0/24A/1951 were pleaded. That the Appellants’ tendering of Exhibits “B”, C1 and C2 was in response to the assertion by the 10th-11th Respondents that the land, the subject matter of the present Suit had been litigated upon, and not to prove the identity of the land, the subject matter of the present Suit.
To prove the identity of the land the subject matter of the present Suit, the Appellants relied on Exhibit “A” and the pleadings in paragraph 12 of the further furtherfurther Amended Statement of Claim.
They submit that both parcels of land were not the same.
That the onus of proof of the identity of the land in Exhibits C, C1, C2, E and N did not lie on the Appellants, but rather laid on the 10th-11th Respondents who relied on same for their plea of Res judicata.
They further submit that the Appellants were not bound to show the trial judge pillars which were not on the disputed land. It was for the 10th-11th Respondents who claimed that the land now in dispute was awarded to them in Exhibits C, C1, C2, E, and N, to relate their contention in a plan by delineating and Surveying the subject matter of Exhibits C, C1, C2, E and N on the land, the subject matter of the present Suit.
Urges this Court to set aside the perverse decision of the Court below and to hold that the Appellants proved with certainty the identity of the land in dispute which was well known to all the Respondents.
RESOLUTION OF ISSUE NO. 1
In Paragraph 12 of the Plaintiffs further furtherfurther Amended Statement of Claim dated 24th October, 2012, they aver thus:
“The Plaintiffs aver that the piece or parcel of land now in dispute is bounded on the WEST by then existing Oguta Road (which is part of the Plaintiffs land), on the SOUTH by houses built by several members of Ogbembubu on the part of their family land not in dispute; on the NORTH by existing Ojedi Road, with a common boundary between the land of the Plaintiff and that of OKPOSIEKI family of Onitsha, and on the EAST by the land of Ogbembubu members not in dispute until their common boundary with the late Chief Megafu, the late DUM OMODI of Onitsha; the said piece or parcel;
Now in dispute in more particularly verged RED and shown in Plan No. MES/LD12/92 filed with the further amended Statement of Claim. Plaintiffs shall rely on all features contained in the said Plan.” pages 1542 Vol 2 of the Record of Appeal.
In paragraph 5 of the 1st Respondents further Amended Statement of Defence and Counter Claim dated 4th of April, 2012, he averred thus in answer to inter alia, Paragraph 12 of the Plaintiffs Statement of claim:
“The 1st Respondent denies paragraphs 6, 7, 8, 9, 10, 11, 12, 13, 14, 15 and 16 of the further further Amended Statement of Claim and would put the Plaintiffs to the strictest proof of the allegation contained therein. The 1stDefendant further avers that the Plaintiffs’ ancestry is in no way hidden in antiquity. The great grandfather of the Plaintiffs on record came and settled in Onitsha from Ogwuikpele in Ogbam Local Government Area of Anambra State of Nigeria. His name was Uzoechina who begat issues to wit – Aver, the Plaintiffs’ father and Obi. The ancestors of the Plaintiff’s on record has not excluded one generation.
For the purpose of integration into Onitsha, the Plaintiffs attached themselves to Umuechimukwu of Ogbeabu Village.”
Noteworthy is that the 1st Defendant (1st Respondent in this Appeal) did not specifically traverse the facts stated in paragraph 12 of the further further Amended Statement of Claim of the Appellants, as it pertains to the identity and location of the land, the subject matter of this appeal.
In Paragraph 5 of the 3rd – 9th Defendants’ Amended Statement of Defence of 3rd-9th Defendants, it states;
“The 3rd – 9th Defendants vehemently deny paragraphs 7, 8, 9, 10, 12, 13, 14, 15, 16, 19, 20, 21, 22, 26, 27, 28, 29, 30, 31 and 32 of the further Amended Statement of Claim of the Plaintiffs and put the Plaintiffs to the strictest proof of the averments thereof.” – Page 1567 of the Record of Appeal. Vol 11.
This constitutes general traverse which in law is no traverse. The result is that the facts averred by the Appellants (Plaintiffs in the Court below) in paragraph 12 of their further furtherfurther Amended Statement of Claim are deemed admitted by the 3rd-9th Defendants, and indeed by the 1st Respondent.
The Counter Claim filed by the 3rd-9th Respondents was struck out on the 30th of November, 2012, having been withdrawn by the 3rd-9th Respondents.
The 10th – 11th Respondents in their Amended Statement of Defence and Counter Claim filed on the 27th of April, 2009, in their Paragraphs 6 & 7 thereof, averred thus (in particular paragraph 7);
“That in specific answer to paragraphs 9, 10, 11, 12, 13 and 14 of the said further Amended Statement of Claim, the 10th and 11th Defendants will reply on the procurement of the Native Court of Appeal in its judgment in Suit No. 41/49 whereat the Honourable Court recognized the Plaintiffs as staying on the said land at the behest and permission of the10th and 11th Respondents’ ancestor and of which judgment is pleaded in paragraph 25 of this Statement of Defence.
What is the “said land”?
Paragraph 25 of the Statement of Defence of the 10th – 11th Defendants and Counter Claim is instructive, I hereby reproduce same verbatim viz:
“Even the present various abode of the Plaintiffs (which are part and parcel of the entire tract of land and including the present land in dispute) and as depicted in the Survey Plans Exhibited in their Statement of Claim would have been demolished and all of them evacuated from the said land had the Native Court of Appeal in its judgment in Suit No. 41/49 not provided a Safety value to wit:
‘We will not make an order for Defendants/Appellants to demolish the houses affected by this judgment, since Plaintiff/Respondent had all these years allowed them to reside there.
They should continue to do so in their life time but should not erect further or new buildings or carry out extensive farming in the area they now occupy without prior reference to the Plaintiff/Respondent, his or successors- in- title to the land for approval’. The certified true copy of the said judgment would be relied upon at TRIAL and that the present Plaintiffs are in flagrant disobedience of the later part of this judgment by erecting new buildings thereafter.
In paragraph 28 of the Statement of Defence of the 10th – 11th of the Defendants and Counter-Claim it states;
“The 10th and 11th Defendants aver their predecessor in-title, the late Chief M. Nejiana having been adjudged the owner the said land, inclusive of this land in dispute in this Suit, the Plaintiffs cannot re-litigate this matter and are caught by doctrine of Estoppel vide the judgments in Case No. 45 of 1993 (delivered on 26/11/33), No. 41/49 at the Onitsha Native Court of Appeal delivered on 23/01/50 and the Federal Supreme Court delivered on 17/11/49; Appeal No. 24/49 at the Native Court of Appeal delivered on 23/01/50 and at the Federal Supreme Court in Appeal No 02/24/51 delivered on 2/02/53.”
The particulars of Estoppel as pleaded are as follows:
a) The present Plaintiffs are the privies of the losing parties in the above Suits.
b) The Court in the said Suit visited the locus in quo(including) the present land and awarded its judgment to the 10th and 11th Defendants’ father on a large tract of land of which this land forms a smaller portion of and to that extent, the subject matter in these suits being the title and ownership to same are also in issue in this present Suit.
c) The Court in those Suits examined the traditional history advanced and canvassed by the plaintiffs’ ancestors regarding the said land and threw same away as well as determined the title and ownership of the said land in favour of the 10th and 11th Defendants’ father.
d) The same issue and same cause of action are being re-litigated herein contrary to law.
e) The said judgments were fully and conclusively determined on the merits by the Courts of competent jurisdiction as at the time – the said matter were litigated from the Native Court to the then Federal Supreme Court.
f) That while the present Plaintiff’s predecessor-in-title sued and lost as plaintiff in case No. 45 of 1933, in the other aforementioned Suits, the said Plaintiffs’ predecessors-in-title were also sued and they lost as Defendants as well and by reason thereof establishing that they had being previously litigated in both capacities a scenario which will stop them from re-litigating this matter.
g) In the said Suits as previously litigated, the Land in issue which is also the subject matter of this Suit was evidenced as being opposite St. Joseph’s School (presently known as Bishop Shanahan School Onitsha).
h) By virtue of the foregoings, the Plaintiffs are caught by cause of action estoppel, issues estoppel and estoppel per rem judicata.
The 12th – 14th Respondents proposed further Amended Statement of Defence and Counter-claim is dated 1/6/2013.
In their paragraph 6, they averred viz:
“The 12th – 14th Defendants are not in a position to admit or deny paragraphs 5 – 16 of the further Statement of Claim of the Plaintiff but aver that Dei was never an Onitsha King, the late father of the 12th – 14th Defendants was given a grant of another land between Mba Road/Ugwunakpamkpa Road, Onitsha and not the other way round.” – Page 1608 of the Record of Appeal, Vol.11.
It is apparent that in the respective pleadings of the totality of the Respondents, they did not, save the 10th – 11th Respondents, admit or deny the issue of the identity of the land in dispute, which according to the Appellants is all that piece or parcel of land situate at the junction of OJEDI and Oguta Roads Onitsha, which land is part of where is popularly known as OGBEMBUBU in Onitsha Urban Division of the East Central State of Nigeria – pages 1-8 of the Record of Appeal Vol. 1.
It is apparent, even as stated in paragraph 2.02 of the Appellants Reply brief of Argument to the Respondents Brief of Argument; the Appellants pleaded in paragraph 12 of their Further further Amended Statement of Claim the features on the land in dispute and indeed tendered a Survey Plan NO MES/LD12/92 the features in the said survey plan.
They also proceeded to tie and connect the physical description of the land in dispute to the Dispute Survey Plan NO MES/LD12/92.
It seems to me that the Appellants and the 1st Respondent did not join issues on the location of the land known as “DMGS FARMLAND” They were ad idem as to the location of the land known as “DMGS Farmland”. The only contention is that while the Appellants did state that the land was erroneously referred to as “DMGS Farmland”, the 1st Respondent says that it was correctly referred to as such.
The Appellants’ Claim as reflected in paragraph 32 of the further further amended Statement of Claim is inter alia for:
“A declaration that the Plaintiffs are the rightful owners lawfully entitled to the Statutory Right of Occupation of all that piece or parcel of land situate and lying at the junction of Oguta and Ogedi Roads, Onitsha which landed property is part of OGBEMBUBU Onitsha in Onitsha North Local Government Area of Anambra State… “ Page 1546 of the Record of Appeal, Vol. 11.
It cannot be overemphasized, as it is trite that a party who claim declaration of title to land is required to establish clearly the area of land to which his claim relates. This in fact is his prime duty. In other words, he is to establish the identity of the land in dispute.
Thus, if the land, the subject matter of the dispute cannot be properly ascertained the Plaintiffs claim must fail – KWADZO V. ADJEI (1944)10 WACA 274; AUTA VS IBE (2003)3 NWLR (pt. 837) 247.
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The onus placed on the party seeking a declaration of title to land, is predicated on his ability to identify with specificity the land the subject matter of the dispute.
Decidedly, the identity of a parcel of land in dispute may be established by (a) the Claimant giving an oral description of the land, sufficient to make it ascertainable; (b) filing a detailed and accurate survey plan showing the various features on such land sufficient to point to the clear boundaries thereof. See AIYEOLA V. PEDRO (2014) 13 NWLR (pt. 1424) 409.
It is only where a Defendant disputes the identity of the land, that a Plaintiff is required to prove identity of the land in issue. See EZENDU V. OBIAGWU (1986) 2 NWLR (pt. 21)208.
Where land is well known to the parties however, the question of proof of identity of the land does not arise. Ipso facto, it cannot be contended that the area of land in dispute is uncertain.
In the present case, PW1-Nnamdi Ozor a 62 years old witness, answering questions put to him in cross-examination by the 1st Defendants’ counsel, did say that he knows the location and identity of the land in dispute. That standing at the centre of the land in dispute and facing Uguata Road are the boundary neighbours to the land in dispute at the back. There are thereon Ogbembubu village peoples’ buildings.
The 10th – 11th Defendants did not Cross-examine this witness.
Pw3 – Surveyor Michael Ikechukwu Omeili tendered Exhibit “A” certified true copy of Survey Plan made in 1949, on the 8th of February 1992 (of land case between Nnezianya vs Emendi- tendered in the Native Court, Onitsha – (Exhibit B). Notably is that the 10th – 11th Defendants as well as 12th – 14th Defendants did not Cross-examine this witness – Page 2032 of the Record of Appeal.
Pw4 Ojinnaka Ajubuike Uzoechina who introduced himself as a Senior citizen of the Federal Republic of Nigeria says he hails from Ogbembubu village answering questions put to him in Cross-examination by the Court to the 1st Defendant, when asked if he knows the land in dispute, his answer was in the affirmative –Page 2043 of the Record of Appeal Vol. 2.
He did say that the boundary features of the land in dispute are Oguta Road as facing the land, and from Oguta Road by the left, Ojedi Roadand the building of Okposieke at the back of the land in dispute is their family member’s buildings, and on the right is the building of his people, the Arehs.
The totality of it, in my view, is that the Appellants (Plaintiff in the Court below) pleadings and evidence in support of the issue as to the identity and location of the land, has not been impeached by the Respondents. The facts averred in his pleadings remain deemed in law admitted by the Respondents.
The learned Trial Judge was therefore wrong to have observed that the Appellants (Plaintiff in the Court below) failed to identify the land in dispute, the subject matter of this appeal.
A painstaking perusal of Exhibit A – the Survey Plan, shows that the land is located in the area where the Plaintiff aver.
The Appellants had not only pleaded and adduce oral evidence through his witness, describing the land in dispute, and identifying same, but they also filed Exhibit “A” in support of their assertion. The land in dispute is verged RED in Exhibit “A”. It depicts an area of 4776. 096 square metres.
Indeed, the 1st Respondent buttressed this by averring in paragraph 8 of his 2nd further Amended Statement of Defence thus;
“The land claimed to be in dispute by the Plaintiff is more particularly shown verged RED in Survey Plan No. AC/LD.10/2012 filed along with the further further Amended Statement of Defence.” … Page 1248 of the Record of Appeal Vol. 2
Further in the 1st Respondents Survey Plan Exhibit “F”, it shows that he knew with specificity the identity of the land, the subject matter of this appeal.
Noteworthy is that the Learned Trial Chief Judge, in the course of the proceedings, visited the locus in quo. – Pages 2129 – 2131 of the Record of Appeal. Vol. 3.
In the judgment of the Court below it observed thus;
“Exhibit “A” which is the dispute Survey of the Plaintiff did not even support or show any nexus with the facts pleaded by the Plaintiff to the judgments relied by them in paragraph 4(d) of their further FurtherFurther Amended Statement of Claim of 24/10/2012. Above all Exhibit A did not support the submission of the learned Plaintiffs’ Counsel with respect to the identity of the land indispute also. Being that the Plaintiffs relied on the judgments in Suit No. MO/1A/1951 pleaded in their paragraph 4(d) of their nascent pleading to show that they have been in occupation of the land in dispute in the present case the Plaintiffs are bound to prove the identity of the land in the judgments pleaded and relied on by them” – Page 2210 of the Record of Appeal Vol. 3.
The Court went further:
“…The Plaintiff’s failure to prove the identity or location of the land they pleaded in the paragraph 4(d) of their Further FurtherFurther Amended Statement of Claim of 24/10/2012 left this honourable Court with the finding that the Plaintiff also failed to establish the relationship between the land pleaded in the paragraph 4(b) and Paragraph 12 of their Further FurtherFurther Amended Statement of Claim of 24/10/12 to the land in dispute.” – Page 2210 of the Record of Appeal. Vol. 3
It went further:
“Further to the above issue at the visit of the locus in quo made by this Honourable Court on 22/7/2015, the Plaintiffs failed to show this Honourable Court the Pillars measured by the Native Court and the Native Court of Appeal which corresponded with the measurements in the deed with which these judgments pleaded by them in paragraph 4(d) of their extant pleading are anchored that would have assisted the Court in identification of the land subject matter of the judgments pleaded and relied on by the Plaintiff and as well assist this Honourable Court to determine the location of the said DMGS land and its relationship with the present land in dispute.”
It is curious that the Court below made these findings in view of the fact that it visited the locus in quo and had a physical first hand observation of things thereon. The visit to the locus in quo showed the natural land marks such as Oguta Road; Queens’s hospital on the other side of Oquta Road; Ojedi Road buildings of Ogbembubu people like S. O. Areh’s building; Peter Areh’s house, the Iroko tree which houses the Shrine of the Ogbembubu family of the Appellants.
I am of the view that the Court below went on a wild goose chase; a voyage of discovery, when it failed to consider the land in respect of which a declaration of title is sought, by referring incessantly tothe other land in respect of which litigation has closed.
The learned trial Judge failed in my view to take time to consider the pleadings, Survey Plans and evidence of the Plaintiffs/Appellants, and indeed other parties to the Suit, in order to see whether the Plaintiffs/Appellants had proved with certainty the identity of the land the subject matter of this appeal in which a declaration and other reliefs is sought.
The Court below adverted its mind more on the land in Exhibits C, C1 C2, F and N, than the land, the subject matter of this appeal, and that is a grave error on the part of the Court.
It was the duty of the Appellants to establish the identity of the land in dispute as reflected in Exhibit A, and not that in Exhibit C, C1 C2, which are not the subject matter of the land in dispute.
The parties in this case knew the land for which the Appellants sought declaration of title. They did not make its identity an issue.
Survey plan is decidedly not a sine qua non in proof of identity of land. Therefore, where land in dispute is known to the parties, and same is clearly ascertainable based on the pleadings of the Plaintiffs and his witness testimony, regarding its area, exact location and precise boundaries, the non-production of a survey plan is of no moment, and this would not deprive a deserving Plaintiff judgement IBULUYA V. DIKIBO (1976) 6 SC 87@107; OSHODI V. EYIFUNMI (2000) 13. NWLR (pt 684) pg289 at 334. Paragraphs c-e.
The Respondents, did not make the identity of the land, the subject matter of this Suit an issue. May I ask why the learned Trial Judge decided to make it an issue? It did this SUO MOTU and that constitutes gross error on the part of the Court below.
Decidedly, the question of the identity of land as an issue will only arise where the Defendant raises it in his testimony – EZEUDU V. OBIAGWU (1986)2 NWLR (pt 21) 208.
Where issue of identity of land in dispute is made an issue by the learned trial Judge in his own volition that judgement is liable to be set aside on appeal, as being perverse DADA V. DOSUNMU (2006)18 NWLR (pt. 1010) 134 @ 182 paragraph e – h; KYARI V. ALKALI (2001)11 NWLR (pt 724) paragraph 412 @ 433. Paragraph g-h.
In LAGGA V. SARHUNA (2008) 16, NWLR (pt. 1114) 427 @ 474 paragraph d-f, it was held inter alia, that aperverse decision is one which no reasonable Court should have arrived at in the light of the evidence before it.
This issue is resolved in favour of the Appellants, and against the Respondents.
ISSUE NO. 2
Learned Counsel submits that the learned Court Judge in his judgment revisited and re-opened for determination the issue of Res judicata, which the Court had become functus-officio, same having been already determined in the ruling delivered by Mbanugo J.
A successful plea of res judicata ousts the jurisdiction of the Court in proceedings in which it is raised …As part of the principle that society must discourage prolongation of litigation; the doctrine of Res judicata has been developed that a party to civil proceeding is not allowed to make an assertion against the other party whether of facts or legal consequences of facts, the correctness of which is an essential element in his course of action or defence, it the same assertion was an essential element in his previous cause of action or defence, in a previous Suit between the same parties, or their predecessors-in-title, and was determined by a Court of Competent jurisdiction useless further material be found which was not available or could not by reasonable diligence have been made available in the previous proceedings – OSUNRINDE V. AJAMOGUN & ORS (1992) LPELR 2819 S.C. (1992), 6 NWLR. (Pt 246)156.
To sustain a plea of Res judicata, a party must show the following viz:
a) That the parties or their privies are the same in the present case as in the previous case.
b) That the issues and subject matter are the same in the previous Suit as in the present suit.
c) That the proceedings in the previous case must have been given by a Court of competent jurisdiction.
d) That the previous decision must have finally decided the issues between the parties.
The plea would fail in its entirety if any of their conditions are found wanting – See EGWA V. EGWA (2006) LPELR 5389; (2007) 1 NWLR (pt 1014)71; AFOLABI V. GOV. OSUN STATE (2003)13 NWLR (pt 836) p.119 @ 129-130 paragraph h-d.
Learned Counsel for the Appellants submit once an issue has been raised and distinctly decided between the parties, as a general rule, neither party can be allowed to fight the same issue all over again.
That the same issue cannot be raised by either of the parties in the same Suit or in subsequent proceedings.
That they cannot subsequently in the same suit, advance argument or adduce further evidence directed to showing that the issue has wrongly determined – FINELI TAS SHIPPING CO., LTD VS EXPORTCH LEB (1965) 2 AVER 4 @ 8 per DiplochL.g OLORUNTOBA V ABDUL – RAHEEM (2009)13. NWLR (pt 1157) 83 @ 132.
They submit that the issue of res judicata was raised by the 10th – 11th Respondents for determination at an interlocutory stage, wherein they sought an order of dismissal of the Appellants Suit on the ground of estoppel per rem judicata – Pages 362 – 378 of vol. 1 of the Record of Appeal.
That in a ruling delivered on 18/7/2006 Mbanugo J., on the issue of res judicata raised by 10th – 11th Respondents – Pages 1979 – 1988 v. 3 of the Record of Appeal refused the application.
RESOLUTION OF ISSUE NO. 2
From records, the parties in Suit No. 41/49, MO/1A/1950 AND 0/24A/1951 A, all bear the same names i.e. CHIEF M. O. MAENIAYA(M) OF ONITSHA VS. OFILI GNABELI, JOHN EMODI, ODIAKOSA. The parties remained the same.
In Suit No. O/185/75, the parties are OJINAKA AZUBUIKE UZOECHINA AND ANOR V. SUNDAY ONONYE & ANOR (Same as the parties in this appeal, save parties substituted).
The Ruling by Mbanugo J., of the 18th of July, 2006 in Suit No. 0/185/75 in its introduction states thus:
“This case was commenced by the Plaintiffs/Respondents sometime in 1975 (thirty years ago) against the Defendants sometime in 1975 over all that piece of land situate and lying at the junction of Oguta and Ojedi Road Onitsha…“ – Page 1979 the Record of Appeal.
Mbanugo J., in concluding his judgment observed thus:
“Thus position is that the parties are not the same, other parties not sued precisely on representative capacity are not bound by the decision and vice versa. There is nothing like assumption. Either you are suing precisely on representative capacity or you are suing on your individual capacity. I am bound to read all the documents in the Court file to arrive at my findings and conclusion. The Principle of Res judicata cannot apply in this case. I will hear the matter without further delay to decide it once and forall.” – Page 1988 of the Record of Appeal.
That Ruling was a decision which is that the parties and the capacity in which they were sued in the previous cases relied upon by the 10th-11th Respondents are not the same with the parties in the present Suit.
Decidedly, a decision against a person in one capacity cannot be used to support a plea of res judicata against him suing in another action in a different and distinct capacity – COKER V. SANYAOLU (1976) 9-10 S.C. 203.
Learned Counsel had submitted that the Supreme Court of Onitsha Judicial Division had found the Survey plan used in the previous Suits to be incorrect and unreliable. That a previous judgement in favour of a party in respect of land which is not tied to any plan cannot be relied upon to raise a plea of res judicata – MBAMAENYI V. ABOSI (1995) 7 NWLR (pt 405)54 @ 65 Paragraph e.
Notably is that the 10th-11th Respondents did not appeal the decision of Mbanugo J. DW5 even said so – Page 2109. Vol. 3 of the Record of Appeal.
Indeed, none of the other Respondents appealed Mbanugo J.’s Ruling, the Court below cannot be heard to sit on appeal, or review the ruling of a Court of Coordinate jurisdiction.
The law is settled that once an issue has been raised and decided between the parties, neither of the parties can be allowed to fight the same issue all over again. The same issue cannot be raised by either of the parties in the same suit or in subsequent proceedings.
Ipso facto, they cannot in a subsequent Suit which is the same advance argument or adduce further evidence directed to showing that the issue was wrongly determined.
The Court below, having been seized of the situation should not have revisited the matter nor review same, as he lacked the power to so do. Mbanugo J., had become functus officio in the matter. – CITEC INT’L ESTATES LTD. V. FRANCIS (2014) 8 NWLR (pt 1408) paragraph 139 @ 167; ONYEMOBI V. PRESIDENT O.C.C. (1995)3 NWLR (pt 381) Pg 50 @ 58 paragraph g-h.
This issue is resolved in favour of the Appellants and against the 10th – 12th Respondents.
ISSUE NO. 3
It is the case of the Appellants that the Court below’s decision that the Appellants failed to prove the identity of the land in dispute weighed unduly on the mind of the learned trial Judge. This is because the Court below ignored every evidence and facts presented before it by the Appellants.
They submit that the Court below failed to weigh the Appellant’s case on the imaginary scale of justice vis-a-vis the case of the other Respondents. In other words, that the Court below did not evaluate the case of the Appellants on the imaginary scale of justice, as it had concluded that the Appellants failed to identify the land in dispute. That if the Court below had evaluated the case and evidence led by the Appellants, and weighed same, he would have arrived at a different conclusion.
That evidence of traditional history of the Appellants and their root of the title to the land in dispute was credible and had been established and indeed accepted in decided cases – for instance judgment in Suit No. 0/8/1932 J.M. KODILINYE (representing OBOSI PEOPLE V. CHIEF MBANEFO ODU (as representing Odoumegwu quarters) of Odeh, Onitsha – OSAFILE V. ODI(NO 1) (1990) 3 NWLR. (pt 137)130@ 164.
They submit that the Appellants had given traditional history and their root of the title to the land in dispute, which iscredible, and had been established and accepted in decided cases.
They pleaded that Onitsha people came from Benin and conquered the Ogeh people and occupied the land which is now known as the Onitsha Inland town.
That they are indigenes of Onitsha and their village called Ogbembubu was the first village established by Onitsha people when their ancestors came over from Benin years ago.
They submit that Ogbembubu where the land in dispute is situate was part of the land acquired by conquest from the people of Ogeh by Onitsha people.
That this traditional history had been confirmed and accepted having been established in previous cases. Urged Court to take judicial notice of Suit NO 0/8/1932 J.M. KODILINYE (representing Obosi People V. CHIEF MBAWEFO ODU (as representing Odoumegwu quarters) of Odeh, Onitsha. Suit NO. 0/3/49. P.O. ANATOGU & ORS V. CHIEF J.N. KODILINYE & ORS OF OBOSI.
That in OSAFILE V ODI (No 1) (1990) 3 NWLR (pt. 137) p.130 @ 164. Paragraphs d – e, it was held that the Court shall readily take judicial notice of valid judgments of a Court in Record.
That in paragraphs 5, 6 and 7 of the further Further Further Amended Statement of Claim, the Appellants traced their genealogy and descent in paragraphs 2(1) – (vii) of their Reply to the Further Amended Statement of Defence of the 1st Respondent. That the Appellants also relied on the book written by one S.I. BOSAH which impeached the 1st Respondent’ account of the traditional history of Mgbelekeke people and to establish the Appellants story of how their ancestors who conquered the Ogeh’s first settled on Ogbembubu land in Onitsha Inland town many years before the Mgbelekeke people became integrated into Onitsha Community.
They submit that PW4 gave evidence of the Appellants’ traditional history and traced their genealogy to their ancestors who were the first settlers of Onitsha. That PW4 traced the unbroken chain of his genealogy and decent from Dei.
That Exhibit D2, D3 and D4 totally impeached the account of traditional history given by the 1st Respondent; who said that Mgbelekeke people were the first settlers of Onitsha Inland town.
They submit that the 1st, 2nd, 3rd, 9th and 12th-14th Respondents agreed with the Appellants that the land in dispute is not the parcelof land litigated upon in Suit No. 41/49, but that rather, the land in dispute in the present Suit was the land at the Northern boundary of the parcel of land litigated upon in Suit NO 41/49.
That it is the land in dispute in the present Suit that was erroneously referred to as D.M.G.S land which is at the North of the land litigated upon in Suit No. 41/49; which Suit went up as far as to the Supreme Court of the Onitsha Judicial Division in appeal No. 0/24A/1951 – CHIEF M.O. NNEZIANYA V. OFILI ENEBILI & 2 ORS; where the Supreme Court found that the Appellants family, Ogbembubu, have for many years been the owners of the land in dispute in the present Suit, which is at the North of the land litigated upon in Exhibits C, C1, C2, E and N.
That the 1st Respondent in their survey plan Exhibit F, had superimposed the land litigated upon in Exhibits C, C1, C2, E and N which the 1st Respondent verged BLUE. That the 1st Respondent in Exhibit F admitted that the land in dispute which is verged RED in Exhibit F is at the North of the land litigated upon in Exhibits C, C1, C2, E and N.
They submit that the 1st Respondent did not present a credible or better evidence of traditional history or root of title to the land in dispute.
That the 1st Respondent had admitted the Appellants’ possession of Ogbembubu village land. However, it is the case of the 1st Respondent that it was Mbbelekeke people that granted the Appellants land where Ogbembubu village situate.
That in such a state of pleadings, it is incumbent on the 1st Respondent, and that indeed the onus is on him to prove the alleged grant. That failure of him to prove the alleged grant, the claim of the Appellants was bound to succeed without the Appellants adducing any evidence.
RESOLUTION OF ISSUE NO. 3
It was the 3rd – 9th Respondents who in their brief of Argument filed on the 14th of June, 2018 but deemed filed on the 23rd of January, 2019 that captured in a concise form the case of all the Respondents in this matter.
In their paragraph 2.7 of their brief of Argument, they stated that the 1st Respondent’s Counter Claimed against the Appellants vide a 2nd Further Amended Statement of Defence and Counter-Claim filed on the 4th of August, 2012.
The 1st Respondent had pleaded that the Appellantsare not the original Onitsha aborigines of the land in dispute in particular and Onitsha in general, but are descendants of Uzoechina who lived as a migrant at Nsugbe. Uzoechina, later migrated and was later assimilated into the house of Agwuonye, a direct descendant of Chimezie in Onitsha.
The 1st Respondents traditional history was based on the plank that it was Mgbelekeke family, which was coined from the names UGBE and EKEKE pronounced Ugbe-le-Ekeke, but later called Mgbelekeke (computed from Ugbe and Ekeke who were two brothers) – autochthones of Ado now called Onitsha, whose ancestral original village is located near Idu. These two brothers fished unchallenged on all the shores of Onitsha water. That these brothers founded the Onitsha territory, having conquered OZEH people who hitherto occupied major part of the Onitsha territory before being conquered by the Mgbelekekes in the ancient days, who since their conquest of the Ozeh people have continued to maintain dominion over all the land which they conquered in Onitsha. That it was in the course of conquering Ozeh people that the land in dispute was annexed by Mgbelekekes.The 1st Respondent granted the land in dispute to Nzegwu family which land is DMGS farm – verged light green in Survey plan No: AC/LD.10/2012.
The 1st Respondent granted several of Mgbelekeke’s family land near the land in dispute, including to the 10th – 11th Respondents – Nezianya family.
The 1st Respondent in conjunction with Nzegwu family (to which the 3rd – 9th Respondents belong also granted a lease of the land in dispute to the 2nd Respondents’ church organization in 1939.
The 1st Respondent in their Counter Claim called only DW1 and tendered several exhibits namely Exhibits E, F, G, H, J, K, K (a) (b) (c) (d) E, L, L1-L17A.
Regarding the 2nd Respondent, in his Amended statement of defence filed on the 13th of January, 2011, he stated that by virtue of a deed of lease dated 29th of March, 1939, the 1st Respondent and Nzegwu family jointly leased out the land in dispute, which lease is still subsisting – Pages 1061-1066 of the Record of Appeal – Vol. 2.
In essence the 2nd Respondent traced their actual occupation of the land in dispute to 1939; which they use as the students’ farm of theirmission school known as Dennis Memorial Grammar School. The 2nd Respondents were joined as parties on the 15th of November, 2001.
Regarding the 3rd – 9th Respondents they were joined as parties to the Suit as representing the S.J. Nzegwu family of Onitsha (having substituted the original 3rd-5th Respondents in the Suit vide an amended statement of Defence filed on the 26th of November 2012. The 3rd – 9th Respondents counter-claim is that the land in dispute with its features is shown in the Survey Plan AA/D10/2002 and verged RED, and that their ancestors Akunne Samuel JideoforNzegwu purchased the land in dispute from Mgbelekeke family in 1917, which family was then under the headship of William Ononye who was the then Diokpa of Mgbelekeke family of Onitsha. The purchase of the land in dispute is evidenced in a receipt of purchase dated 14th of December, 1917.
That S.J. Nzegwu was in active possession of the land now in dispute which he had purchased until at a time when he returned to become the Obi of Onitsha, and relegated his interest to Lazarus NwaobofiNzegwu, to handle and deal with the property on his behalf. He however allowedthe said Lazarus N. Nzegwu to co-join Mgbelekeke family to lease out the land in dispute to the 2nd Respondents for their church missionary works. The 3rd – 9th Respondents in the course of the proceedings called DW4 and tendered Exhibit “M” (purchase receipt) issued to S.J. Nzegwu for his purchase of the land in dispute from Mgbelekeke family – Pages 1566 -1574 of the Record of Appeal.
The 10th – 11th Respondents filed an Amended Statement of Defence and Counter-claim on the 27th of April, 2009. They traced their root of title to the land in dispute to the 1st Respondent. They claimed that the land was purchased by their ancestors vide an understanding reached between Chief M.O. Nezianya and Mgbelekeke family headed then by EZEAN 1 on the 9th day of May, 1914. That there was another document of purchase dated 29th of May, 1915.
They contend that the 10th – 11th Respondents family acquired title to the land in dispute from Mgbelekeke family and were confirmed the owners of same land in a number of Courts litigation judgments especially in Suits No. 41/49; Appeal NO. 24/29; 0/24/51.
Noteworthy is that the 10th –11th Respondents were joined in this Suit on the 30th of June, 2004, as representing the members of Chief M.O.Nezianya family of Onitsha, having substituted the original 6th – 7th Respondents.
In the course of trial, the 10th – 11th Respondents called two witness as proof of their case and tendered Exhibits N, N1, N2, N3 and O.
The 12th – 14th Respondents were joined as parties to the Suit and as representing themselves and members of L.N.Njegwu family of Onitsha.
In their proposed Further Amended Statement of Defence filed on the 18th of December, 2014, they contend in essence that the 1st Respondents Mgbelekeke’s family granted the land in dispute to the father of the 12th – 14th Respondents under Customary Tenancy of Onitsha (Cola Tenancy) which land was later leased jointly by the 1st Respondents Mgbelekeke family and the late father of the 12th – 14th Respondents.
In Paragraphs 5, 6, and 7 of the Further FurtherFurther Amended Statement of Claim, the Appellant traced their genealogy and descent pages 1540-1541 Vol. 2 of the Record of Appeal. Also in paragraph 2(1) – (vii) of their Reply to theFurther Amended Statement of Defence of the 1st Respondent – Pages 790 – 796 Vol. 1 of the Record of Appeal.
The Appellants relied on a book “Ground work of the history and culture of Onitsha” – Exhibits D2, D3 and D4 written by S.I. Bosah, a renowned historian, to impeach the 1st Respondents’ account of the traditional history of Mgbelekeke people.
This was to establish the fact that it was the Appellants’ ancestors who are the Onitsha people, that conquered the Ogehs who first own Ogbembubu land in Onitsha Inland Town many years before the Mgbelekeke people came to be integrated into the Onitsha community.
PW4 gave evidence of the Appellants’ traditional history and traced their genealogy to their ancestors who were the first settlers of Onitsha. He traced the unbroken chain of his genealogy and descent from Dei. He tendered Exhibits D5, D6, D7, D8, D9, D10 and D11 to buttress that the Appellants are from Ogbembubu village. This evidence was corroborated by that of PW1 and PW2 respectively.
Page 3 of the book “Groundwork of the History and Culture of Onitsha” depicts how thatthe people of Onitsha left Benin to seek a new place of settlement in the 16th Century during the reign of Oba Esigie – who ruled Benin Empire from 1504 to 1550.
This connotes that the people of Onitsha left Benin in the 16th Century, and after a long sojourn they arrived the eastern bank of the River Niger in the 17th Century – Page 15 of the book (Exhibits D2 and D4).
The Appellants averred that they are Onitsha people, whose ancestors first settled on the land now known as Onitsha Inland Town, with Ogbembubu village as the very first village in Onitsha.
The land in dispute is part of Ogbembubu land in Onitsha Inland Town. That the settlement and occupation by the Appellants of Onitsha Inland Town took place many years before Mgbelekeke people integrated (on a gradual basis) by Onitsha people and became messengers to Obi Anajonwu (1874-1899) and Obi Okosi 1 (1901 – 1931). That a calculation of the period when the Appellants occupied the Onitsha Inland Town following their conquest of Ozeh people two hundred years ago (as at 1932) will give the year 1732 (i.e. 200 years ago calculating from 1932).
Exhibits D2, D3 and D4showed that the Appellants’ ancestors were the first to settle on Onitsha Inland before the arrival of Mgbelekeke people.
The land in dispute in the present case was erroneously referred to as D.M.G.S land which is at the North of the land litigated upon in Suit No. 41/49, which culminated in an appeal to the Supreme Court of Onitsha judicial Division in Suit No 0/24A/1951. – CHIE M. O. NNEZIANYA V. OFILI ENEBELI & 2 ORS.
The land in dispute is not the parcel of land litigated upon in Suit NO. 41/49, but it is rather that the land in dispute was the land at the Northern boundary of the parcel of land litigated upon in Suit NO. 41/49.
The Supreme Court of Onitsha judicial Division found that the Appellants’ family, Ogbembubu had been the owners of the land in dispute in the present suit which land is at the north of the land litigated upon in Exhibit C, C1, C2, E and N.
In their plea of Res judicata, the 10th – 11th Respondents reliance on the judgments in Exhibits C, C1, C2, E and N did not avail them, but the reliance of the Appellants on these Exhibits who pleaded and relied on them as proof of their ownership of theland avails them.
It is trite that previous judgments can be used, if it serves to strengthen a party’s case, as an act of possession and ownership. – JAMES ULUBA V. CHIEF SILLO (1973) 1 S.C. 37 at 55; DOLUBO ASEIMO & ORS V. CHIEF ANTHONY AMOS & ORS V OKAFOR & ORS (1961) 2 SCNLR 369.
It seems to me that the Appellants had presented a mere plausible, credible evidence of traditional history and root of title. From the pleadings of the 1st Respondent, it is obvious that he admitted the Appellants’ possession of Ogbembubu village land, but that the land was granted to the Appellants by the Mgbelekeke people.
This brings to focus the issue of “GRANT”.
Where grant is relied on by a party, the onus of proof is on the party asserting such grant, and his failure to prove the alleged grant entitles the Plaintiff to his claim. The 1st Respondent failed to prove that Ogbembubu land was granted to the Appellants by Mgbelekeke people. The 1st Respondent’s pleading and evidence regarding the alleged grant is shady. DW1 did say under cross-examination that the purported grant of Ogbembubu land to theAppellants was done orally. That it was a customary grant of land – Page 2059 line 17; page 2060 lines 1-2 Vol 3 of the Record of Appeal. The totality of the evidence of the 1st Respondent depicts that he failed to satisfy the requirements of the law regarding the issue of grant. In the allegation of a grant, specific names of those who witnessed the alleged Customary grant and the actual delivery or handing over of the land to the grantee must be pleaded – ADEDEJI V. OLOSO (2007)5 NWLR (pt 1026) Page 133 at 178 -179. A perusal of the 2nd further Amended Statement of Defence and Counterclaim of the 1st Respondent shows that nowhere did he plead the names of those who witnessed the alleged customary grant. Nowhere did he plead the actual handing over of Ogbembubu land by Mgbelekeke people to the Appellants. No witness was called to testify. DW1 in his testimony did not give any name of person/persons who witnessed the alleged customary grant. This is fatal to the allegation of a Customary grant by the 1st Respondent. Moreso, the 1st Respondent failed to establish or prove the extent of the alleged grant.
In Exhibit “F”the 1st Respondent delineated the boundary and dimension of the various portions of the land reflected thereon with different colour verges – green, blue, light green, violet and red. Interestingly, the portion marked “Land of Mgbelekeke Family granted to Ogbembubu” was not verged to show the actual area and extent of the alleged grant.
DW1 testified that Exhibit F had features like trees and shrines that the boundary of the alleged grant was shown in Exhibit F – pages 2059. Vol. 3 of the Record of Appeal. But a cursory look at Exhibit F, in the portion written “Land of Mgbelekeke family granted to Ogbembubu”, it shows no features like trees and shrines to mark the dimensions of the alleged grant. Neither was the boundary of the alleged grant verged.
The Apex Court had in OJIBAH V. OJIBAH 1991 5 NWLR (pt 191) at page 296 stated thus:
“Also this Court has held times without number that it is for a donor or grantor to show the dimensions and extent of a piece of land which is the subject of a grant.”
It seems to me that the 1st Respondent had not sufficiently established his right to the land indispute over and above that of the Appellants. In other words, he has failed to established a superior title. Moreover, evidence elicited from DW1 – witness to the 1st Respondent failed to established any customary grant of land.
DW1 tendered Exhibits K(a) (b) (c) (d) (e); L, L1 – L14, which show that he conveyed various parcel of land, including the land in dispute, but this does not automatically prove the 1st Respondents title to the land in dispute, or entitle him to a declaration of title to the land in dispute – ROMAINE V ROMAINE (1992)4 NWLR (pt 238) 650.
It is trite that you do not give what you do not have. NEMO DAT QUOD NON HABET. The 1st Respondent cannot be seen to give out what he does not have. He had been unable to establish title to the land in dispute, and a fortiori, he cannot grant what he does not have.
Putting all these evidence on an imaginary scale, it is my view that the Appellants’ case tilts more in their favour, as against that of the Respondents.
If the Court below had painstakingly evaluated the evidence of the Respondent’ witnesses, by putting same on an imaginary scale, he would havecome to a different conclusion.
The Court below had this to say (as reflected at pages 2225 Vol. 3 of the Record of Appeal).
“ …this Court found it worthwhile to read through the proceedings and judgments to see if anything will be found helpful in the determination of this case”. – Pages 2225 Vol. 3 of the Record of Appeal.
The Court below relied on the evidence of Stephen Ononye in a previous Suit, who was not called as a witness in the present Suit. This was grossly erroneous.
The Court below obviously relied on the evidence of witnesses that testified in the previous Suits, and relied on same in the determination of the present Suit, the subject matter of this Appeal.
The Court below had a duty to comply first with the provisions of Section 39 and 46(1) of the Evidence Act 2011 before the evidence of Stephen Ononye was admitted by it.
The law is elementary, that evidence in a previous case is not admissible by the Court trying a later case, except where Section 39 and 46(1) of the Evidence Act 2011 is applicable.
Put succinctly, I find that the 1st Respondent failed to lead enough evidence (credible andcogent) of traditional history and root of title of Mgbelekeke people to establish his claim of superior title to the land in dispute. Moreso DW1 on behalf of the 1st respondent failed to prove the alleged grant of Ogbebubu land to the Appellants.
On the other hand, I found that the Appellants, apart from identifying with specificity the identity of the land, had led credible evidence of their well established and traditional history and indeed root of title to the land in dispute. This they did by leading oral and documentary evidence. The judgment in the previous Suits had made a finding of fact that the Ogbembubu people have for many years been the owners of the land in dispute. The land in dispute is the land at the northern boundary of the land litigated upon in Exhibit “C”, C1, C2, E and N.
Exhibit “A” shows the Appellants possession and ownership of connected or adjacent land which is the Ogbebubu land. IDUNDUN V. OKUMAGBA (1976) 9 – 10 SC. 227; ODUNZE V. NWOSU (2007) 13 NWLR (pt. 1050) page 1@37.
I am of the view that the totality of the Appellants case outweighs that of the Respondents and I so hold.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”></br<>
The Court below was wrong to have held that the Appellants’ case when weighed on the imaginary scale of justice with that of the Respondents is not more probable than the 1st Respondents’ case. That view of the Court below was perverse.
The decision of the Court below dismissing the Appellants case for failure to identity the land in dispute as well as pronouncing that the appellants case and the Respondents case (having been put on an imaginary scale) shows that the 1st Respondents case outweighs that of the Appellants) is so perverse that it occasions a miscarriage of justice. And this Honourable Court is duty bound to set such a decision aside.
It is apparent that the Court below ignored the very robust evidence put forward by the Appellants to arrive at an unjust conclusion. No reasonable Court in view of the evidence put forth by the Appellants and the Respondents (both put on an imaginary Scale) would have arrived at the conclusion which it did.
I adopt the view of Oputa J.SC in ONOBRUCHERE V. ESEGINE (1986) 1 NWLR (pt. 19)799 @ 807 Pars f where he held inter alia that:
“Once it is found that there had been amis-apprehension as to the onus of proof and a misdirection casting such onus on the wrong party, it will be reasonably fair to assume the likelihood of a miscarriage of justice.”
This issue is answered in the negative and same is resolved in favour of the Appellants and against the Respondents.
ISSUE NO. 4
Simply put, it is the Appellants’ submission that based on their submission on Issues I, II, and III, the cost of N500,000.00 awarded against them is unjustified and unsustainable against them.
RESOLUTION OF ISSUE 4
I had held that the judgment of the Court below is perverse in all its ramifications. Grant of costs is purely discretionary. Thus, where a trial Court exercises its discretion judiciously and judicially, an Appellate Court will not question such exercise of discretion – SARAKI V. KOTOYE (1990) 4 NWLR (pt. 143)144. Ipso facto, where this Honourable Court finds that the costs awarded by a trial Court was predicated on a perverse judgment, that judgment must be set aside by the Appellate Court, and any appendage of costs attached to it goes with it, because you cannot put something on nothing. Both willcollapse. MACFOY V. UAC. (1961) 3 ALL ER 1169.
This issue is answered in the negative and same is resolved in favour of the Appellants and against the Respondents.
The Appeal succeeds and same is hereby allowed.
The judgment of the High Court of Anambra State, holden in Onitsha in Suit No. 0/185175: OJINNAKA AZUBUIKE UZOECHINA & ANOR V. SUNDAY ONONYE & ORS is hereby set aside.
Courts is assessed at N100,000 in favour of the Appellants and against the Respondents.
CHIOMA EGONDU NWOSU-IHEME, J.C.A.: I have had a preview of the judgment just delivered by my Learned Brother, R. N PEMU, JCA, I agree with the reasons therein advanced to arrive at the final conclusion that the appeal should be allowed. I abide by the order as to costs made by R. N PEMU, JCA in the lead judgment.
BITRUS GYARAZAMA SANGA, J.C.A.: I have read a draft of the judgment just delivered by my learned brother PEMU, J.C.A.
I agree with my learned brother in the lead judgment that this appeal has merit and I also allow same. The judgment of the Lower Court in suit No. 0/185/75 is hereby set aside, I also abide by the order as to cost.
Appearances:
Dr. OnyechiIkpeazu OON, SAN, with him, E.S. Nri-Ezedi, Esq. For Appellant(s)
OnyechiOnonye, Esq. ACIArb, with him, Oliver I. Ugwu, Esq., Fortunatus Nduka Ugwu, Esq. and John S. Ede, Esq. – for 1st Respondent
Edward OguguaIbegbu, Esq. – for 2nd Respondent
S.S. Ibebuike, Esq., with him, P.N. Oshine, Esq. – for 3rd -9th RespondentsFor Respondent(s)
