UZOMA ONYEWUOTU NNADI V. ACHONWA NNADI
(2012)LCN/5363(CA)
In The Court of Appeal of Nigeria
On Thursday, the 10th day of May, 2012
CA/PH/352/2006
RATIO
EVIDENCE: BURDEN AND STANDARD OF PROOF
In that respect, I am of the view that, it is pertinent to begin by stating that, under the Nigerian law or jurisprudence, any party who asserts must prove, and in that respect, it is laid down under our law that, the burden of proof is on a party who asserts or upon the party who would fail if no evidence at all was adduced in the case. See Section 131, 132 and 134 of the Evidence Act, 2011 (as amended). The standard of proof to be discharged is on a balance of probabilities or preponderance of evidence. In arriving at decision on the evidence adduced, the totality of the evidence of both parties is taken into account and appraised with a view to determining which evidence has weight and which does not have weight. The evidence from either side which has been adjudged credible is then weighed on an imaginary scale by the trial court in order to see which party’s evidence has greater weight or preponderates. It is that party whose evidence preponderates that succeeds or gets judgment. See MOGAJI v. ODOFIN (1978) 4 S. C. Pg. 91; ARE v. ADISA (1967) All NWLR Pg. 158 at Pp. 161 -162; MAIGORO v. BASHIR (2000) 11 NWLR (Pt. 679) Pg. 453 at 464 Para. C-E; ITUAMA v. AKPE-IME (2000) 12 NWLR (Pt.680) Pg. 156 at 177 Paras. C-D and OSUJI v. EKEOCHA (2009) 16 NWLR (Pt. 1166) Pg. 81 at 116 Paras. B-F. PER HARUNA M. TSAMMANI, J.C.A
LAND LAW: WAYS OF PROVING TITLE TO LAND
The Plaintiff may discharge this burden of proving his title by credible evidence in any of the following ways:
(a) Proof by traditional evidence or history.
(b) Proof by production of documents of title duly authenticated, unless they are documents 20 years or more years old, produced from proper custody.
(c) Proof of acts of ownership over the land in dispute such as selling, leasing making a grant, renting out all or any part of the land or farming on it or portion thereof, extending over a sufficient length of time numerous and positive enough as to warrant the inference that the persons exercising such proprietary acts are the true owners of the land.
(d) Proof of acts of 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 land so situated or connected therewith by locality or similarity that the presumption under Section 46 of the Evident Act (now Section 35 of the Evident Act, 2011) applies and the inference can be drawn that what is true of the piece of land is likely to be true of other piece of land; and
(e) Proof of possession of connected or adjacent land in circumstances rendering it possible that the owners of such connected or adjacent land would in addition be the owners of the land in dispute.
See AJIBULU v. AJAYI (2004)11 NWLR (Pt 885) Pg. 458; OYEDOKE v. THE REG. TRUSTEES OF C.A.C (2001) 3 NWLR (Pt. 701) Pg. 621 and AKUSOBI v. OBINECHIE (2004) 2 NWLR (Pt. 857) Pg. 355. PER HARUNA M. TSAMMANI, J.C.A
LAND LAW: REQUIREMENTS OF A PARTY RELYING ON TRADITIONAL HISTORY
In the instant case, both parties claimed title to the land through traditional history and I dare say acts of ownership. Indeed they are entitled to do so, as a party may anchor his claim of title to land on one or more of the above stated modes of proving title, where the facts so permits. Where a party’s claim of title to land is based on traditional history he has the duty to plead and lead evidence showing:
(a) Who founded the land
(b) How he founded the land; and
(c) The particulars of the intervening owners through whom he claims.
See IROAGBARA v. UFOMADU (2009) 11 NWLR (Pt. 1153) Pg. 587; DIM v. ENEMUO (2009) 10 NWLR (Pt. 1149) Pg. 353; AKANBI v. SALAWU (2003) 13 NWLR (Pt. 838) Pg. 637; DURUOSHIHIMIRI v. DURUODUNZE (2001) 9 NWLR (Pt. 717) pg. 244 and NWABUIFE v. NWIGWU (2001) 9 NWLR (Pt. 719) Pg. 710. PER HARUNA M. TSAMMANI, J.C.A
APPEAL: WHAT ARE GROUNDS OF APPEAL PREMISED ON
It is trite law that, a ground or grounds of appeal are premised against a decision relating to the judgment being appealed against. It should therefore constitute a challenge to the ratio of the decision. In that respect, an appeal must arise from the judgment and the issues couched therefrom must be on an issue decided by the court below. Accordingly, an appellant will not be allowed to raise on appeal a question which was not raised, tried and considered in the court below. To raise and argue any issue not canvassed in the court below, the Appellant must first seek and obtain the leave of the Court of Appeal, unless the fresh issue is on jurisdiction.
See BANKOLE v. PELU (1991) 8 NWLR (Pt. 211) Pg. 523; OKONKWO v. OGBOGU (1996) 5 NWLR (pt. 449) Pg. 420; YUSUF v. U.B.N. LTD (1996) 6 NWLR (pt. 457) pg. 632 and ELUGBE v. OMOKHAFE, (2004) 18 NWLR (Pt.905) Pg.319. PER HARUNA M. TSAMMANI, J.C.A
JUSTICES
UWANI MUSA ABBA AJI Justice of The Court of Appeal of Nigeria
MOJEED ADEKUNLE OWOADE Justice of The Court of Appeal of Nigeria
HARUNA M. TSAMMANI Justice of The Court of Appeal of Nigeria
Between
UZOMA ONYEWUOTU NNADI
(For himself and as representing members of Nnadi kindred excluding the Defendant) Appellant(s)
AND
ACHONWA NNADI Respondent(s)
HARUNA M. TSAMMANI, J.C.A (Delivering the Leading Judgment): This is an appeal against the judgment of G. Ifunanya Udom-Azogu; J of Imo State High Court in respect of consolidated suit No: HOW/45/87; delivered on the 20th November, 2000.
The Appellant herein, was Plaintiff at the lower court in Suit No: HOW/45/87 while the Respondent was plaintiff in Suit No: HOW/75/87. By consent of the parties, the two suits were consolidated and judgment given thereon. I wish to point out that, at the trial, the Appellant testified and called two other witnesses. The Respondent also testified and called three witnesses.
The claim of the Appellant is that, he is entitled to a declaration that he is entitled to the statutory right of occupancy over the piece of land or parcel of land known as and called No. 5 Douglas Road/Old Market Road, Owerri. He also claimed one thousand naira (N1, 000.00) being general damages for trespass and a perpetual injunction restraining the defendant (Respondent); his servants and or agents from entering the said piece or parcel of land.
The Appellant built his case on the fact that the land in dispute is his ancestral home-stead which he inherited from his father Onyewuotu Nnadi. That his father Onyewuotu inherited the land from Nnadi his father, who in turn inherited from Agbaere, the Appellant’s great-grand father. The Appellant contended that the Respondent who also claims to have inherited the land does not belong to the lineage of Agbaere, but is the son of a mad woman, who gave birth to the Respondent but subsequently abandoned him, and was brought up by his (Appellant’s) grandparents.
The Respondent on the other hand claimed vide Suit No: HOW/75/87 that, he is a descendant of Erekwerenwa the father of Nwadibo who deforested the land in dispute. That after the death of Nwadibo, Anaele his son inherited the land and Anaele was in turn succeeded by Agbaere. That on the death of Agbaere, his son Nnadi succeeded him. It is also the case of the Respondent that, Agbaere had three sons, to wit: Oparan ozie, Nnadi and Chikwe. That Agbaere had other lands which were shared between members of Umuerekwerenwa and that as the oldest surviving son of Nnadi, he inherited the land in dispute. He further contended that he moulded blocks and erected a structure on the land; and tendered receipts as evidence of the blocks he bought for erecting the structure and other fees he paid to government on the land in dispute.
At the close of evidence and in a considered judgment delivered on the 20/11/2000, the learned trial judge dismissed the Appellant’s claims in Suit No: HOW/45/87 and granted all the reliefs sought by the Respondent as claimed in Suit No: HOW/75/87. The Appellant is not satisfied with the judgment of the learned trial judge and has now filed this appeal.
The Notice of appeal which is dated the 12/12/2000 is dated same day. It consists of six (6) Grounds of Appeal. Those grounds, but without their particulars are stated below:
1. The Learned Trial Judge erred in law in declaring the defendant/respondent as being entitled to a grant of the Statutory Right of occupancy over the land in dispute without bearing in mind the burden of proof on the defendant/respondent in Suit No: HOW/75/87.
2. The Learned trial Judge erred in law in reaching the decision appealed against without properly evaluating the evidence adduced by the parties in the consolidated suit.
3. The Learned Trial Judge erred in law in failing to uphold and apply the proved custom of Owerri people where the land is situate to the effect that the first son of a man who dies intestate inherits his obi or ancestral home.
4. The Learned Trial Judge erred in law in declaring the defendant as the person entitled exclusively to the grant of statutory right of occupancy over the piece and parcel of land in dispute in the consolidated suit.
5. The Judgment of the Trial Judge delivered on the 20th day of November, 2000 is against the rule of fair hearing.
6. The judgment was against the weight of evidence.
As required by the Rules of this court, the Appellant filed and served his brief of argument which is dated the 15/2/2007 filed on the same 15/2/2007. However, the Respondent did not file any brief of argument. Consequently, the Appellant applied for and this appeal was heard on the Appellant’s brief alone. Such leave was granted on the 03/3/2004 vide motion on notice dated the 09/5/08 and filed the same day. At the hearing of the Appeal on the 13/3/2012, Dr. Livy Uzoukwu, SAN of learned counsel for the Appellant adopted the said brief of argument in urging us to allow the appeal and reverse the findings of the learned trial judge in favour of the Appellant.
Consequently, in arguing the appeal, the Appellant nominated only one issue for determination from the Six Grounds of Appeal filed. It is:
“Whether any of the parties (Appellant or Respondent) proved on the preponderance of evidence that he is entitled to the statutory right of occupancy over the disputed land?”
Learned counsel for the Appellant contended that, while the Appellant instituted his action in a representative capacity, wherein he claimed that the disputed land belonged to members of Nnadi kindred or family excluding the Respondent, the Respondent claimed that he is the bona fide owner of the land having inherited same from his late father, Nnadi Agbaere. That it is clear from the pleadings of both parties that they both claim a common descent from a particular ancestor called Agbaere who was the father of Nnadi. That the point of departure is that, while the Appellant claimed through his father Onyewuotu, a son of Nnadi, the Respondent claimed directly through Nnadi. Learned senior counsel for the Appellant then contended that, it is clear that, while the Appellant claimed the land in dispute to be the family property of members of the Nnadi family, the Respondent claimed the land in dispute as his personal and exclusive inheritance from Nnadi. He submitted that the legal implication of the respective claims of the parties to family and personal ownership of the disputed land is obvious.
Learned senior counsel for the Appellant therefore submitted that, it has been settled by a long line of cases, such as EWO v. ANI (2004) 3 NWLR (Pt. 861) Pg. 611 at Pp. 629-630 Paras. H-A and EKENNA v. NKPAKARA (1997) 50 LRCN pg. 1224 at pp. 1240-1241 that, if a member of a family claims ownership of family land, he must prove how he came to own family land to the exclusion of other members of the family. That the Respondent therefore had the onus to prove exclusive ownership of the disputed property, but that he failed to do so. That on the contrary, the Appellant and his witness (D.W.1) proved that the disputed land is an ancestral property and he is entitled to inherit it. Delving into the testimony of the Appellant and the witnesses, learned Appellant’s counsel submitted that, the Appellant gave evidence of how the land in dispute devolved from Agbaere to his grandfather Nnadi, and to his father Onyewuotu, to himself and his brothers. That the testimony of the D.W.1 supported the Appellant’s claim when he (D.W.1) stated that the land in dispute was not shared and remains the common ancestral home or house, which contradicts the Respondents’ claims to personal and exclusive ownership of same.
It is the further contention of learned senior counsel for the Appellant that, in evaluating and assessing the evidence led in the case, the learned trial judge, failed to make use of the conflict between the testimony of the D.W.1 and D.W.2 on the question, whether or not the land in dispute is ancestral house and which conflict the learned trial judge had noted in the record. He then referred to Paragraph 5 of the Respondent’s claim in Suit No: HOW/75/87 and his answers to questions put to him under cross-examination at page 171 lines 5-24 of the record of appeal, to submit that, the Respondent contradicted his claim that he is the first son of Nnadi Agbaere and his evidence in chief that he is the eldest in the family of Nnadi. That this contradiction also repudiates the Respondent’s claim to personal and exclusive ownership of the disputed land.
Learned senior counsel for the Appellant, went on to submit that, the learned trial judge failed to consider the law to the effect that the Appellant was entitled to take advantage of any part of the Respondent’s case that support his own. In that regard, he submitted that the Appellant is entitled to take advantage of that part of the testimonies of the D.W.1, D.W.2, D.W.3 and D.W.4 that support his case. That rather than properly evaluate the evidence on record, including the effect of the conflicting and contradicting evidence tendered by the Respondent, the Lower Court was contented with irrelevant issues.
Another perverse finding, contended learned senior counsel for the Appellant, is in respect of the decision of the Oha Owerre Nchi-Ise, who had looked into the dispute between the Appellant and the Respondent on the land in dispute. That finding is at page 232 lines 16-21 of the Record. It was contended by learned counsel that, that finding is perverse and flies in the face of overwhelming evidence of the D.W.1 and D.W.4 over the issue of ancestral property and who inherits same.
That the Appellant proved his root of title which the Respondent and his witnesses supported, as both parties traced their genealogy to a common ancestor-Agbaere. He then submitted that, there is therefore no basis upon which to sustain that finding of the learned trial judge.
On the issue of possession, it is the contention of learned senior counsel for the Appellant that, the trial court found that both parties claimed that they were in possession and showed acts of possession.
That the learned trial judge however went on to expatiate on the Respondent’s alleged acts of possession, which are mere receipts tendered as Exhibits G, H, H1, H5, H6-H8, but said nothing on the overwhelming acts of possession by the Appellant and his father, which the Respondent and his witnesses conceded to. That those acts were more weighty than mere receipts which do not perse demonstrate acts of possession. It is the contention of learned Appellant’s counsel that, the Appellant averred in his statement of claim that his father built a mud house on the disputed land which is shown in the survey plan tendered by the Appellant as Exhibit A. That apart from the mud house, the Appellant claimed to have erected other buildings on the disputed land and put tenants thereon, and that he also lives on the land in dispute. That the Appellant’s father, Onyewuotu was also buried on the disputed land. That this fact was confirmed by the P.W.2 and P.W.3.
It is the submission of learned counsel for the Appellant that, the learned trial judge never adverted to those material contradictions and conflicts between the Respondent’s pleadings and his testimony, and those of his witnesses in court. That where witnesses for a party give inconsistent and/or contradictory testimonies on material facts, such evidence on the point must be regarded as unreliable and is to be rejected as such. The case of OLUMA v. ONYUNA (1996) 4 NWLR (Pt. 443) Pg. 449 at 457 Para. C was cited in support. Furthermore, that where the evidence adduced by a party is at variance with his pleadings and also contradictory in material particular, the authenticity or veracity of the case becomes doubtful. He cited the case of AUTA v. IBE (2003) 13 NWLR (Pt. 837) Pg. 247 at Pp. 265-266 in support.
Learned senior counsel for the Appellant went on to submit that, by virtue of section 146 of the Evidence Act, when the question is whether any person is owner of anything of which he is shown to be in possession, the burden of proving that he is not the owner is on the person who affirms that he is not the owner. He then cited the cases of POLO v. OJOR (2003) 3 NWLR (Pt. 807) Pg. 344 at 355-356 Paras. H-C and UDEZE v. CHIDEBE (1990) 1 NWLR (Pt. 125) Pg. 161, to submit that the Respondent affirmed that the Appellant is entitled to the disputed property.
It is therefore the conclusion of learned senior counsel for the Appellant that, the judgment of the lower court has been shown to go against the drift of evidence. That it is equally based on perverse findings, erroneous conclusions and improper and contradictory evaluation of evidence. He then relied on the cases of POLO v. OJOR (supra) at Pg.357 Paras. B-G and ATOLAGBE v. SHOKUN (1985) 1 NWLR (Pt. 2) Pg.360 to submit that this court therefore has the right and duty to interfere with those findings and conclusions, and reverse them. He accordingly urged us to reverse those findings and resolve the sole issue in favour of the Appellant and against the Respondent.
Now, a careful reflection on the submission of counsel on the sole issue nominated by him would show that the Appellant’s complaint in this appeal is on the evaluation of the evidence led before the trial court and the conclusion reached thereat by the learned trial judge. This is clear from the submission of learned Appellant’s counsel at Paragraph 4.49 of page 11 of the Appellant’s Brief of Argument, where the learned senior counsel posited that:
“It is respectfully submitted that judgment of the Lower Court has been shown to go against the drift of evidence. It is equally based on perverse findings, erroneous conclusions and improper contradictory evaluation of evidence. This Honourable Court has the right and duty to interfere with those findings and conclusions and reverse them. See POLO v. OJOR supra at 357 Paras. B-G and ATOLAGBE v. SHORUN (1955) 1 NWLR (Pt. 2) Pg. 360.”
In that respect, I am of the view that, it is pertinent to begin by stating that, under the Nigerian law or jurisprudence, any party who asserts must prove, and in that respect, it is laid down under our law that, the burden of proof is on a party who asserts or upon the party who would fail if no evidence at all was adduced in the case. See Section 131, 132 and 134 of the Evidence Act, 2011 (as amended). The standard of proof to be discharged is on a balance of probabilities or preponderance of evidence. In arriving at decision on the evidence adduced, the totality of the evidence of both parties is taken into account and appraised with a view to determining which evidence has weight and which does not have weight. The evidence from either side which has been adjudged credible is then weighed on an imaginary scale by the trial court in order to see which party’s evidence has greater weight or preponderates. It is that party whose evidence preponderates that succeeds or gets judgment. See MOGAJI v. ODOFIN (1978) 4 S. C. Pg. 91; ARE v. ADISA (1967) All NWLR Pg. 158 at Pp. 161 -162; MAIGORO v. BASHIR (2000) 11 NWLR (Pt. 679) Pg. 453 at 464 Para. C-E; ITUAMA v. AKPE-IME (2000) 12 NWLR (Pt.680) Pg. 156 at 177 Paras. C-D and OSUJI v. EKEOCHA (2009) 16 NWLR (Pt. 1166) Pg. 81 at 116 Paras. B-F.It follows therefore that, the evaluation of evidence falls squarely within the domain of the trial court which had the excusive and unique advantage of hearing and watching the demeanor of the witnesses who testified before it. It is thus, the duty of the trial court to consider the totally of the evidence led before it, both oral and documentary before arriving at a decision one way or the other. In doing that, the trial court must be shown to have demonstrated a dispassionate appraisal of all the issues raised by the parties. An appellate court on the other hand has no such advantage as a trial court of hearing and watching the witnesses testify, and therefore cannot substitute its own views where the trial court has dutifully and satisfactorily evaluated the evidence led before it.
Ordinarily therefore, an appellate court would not interfere with the findings and conclusions of a trial court except in exceptional circumstances as long as the findings of fact to be re-evaluated by the appellate court do not depend on the credibility of witnesses. See OKOMALU v. AKINBODE (2006) 9 NWLR (Pt. 985) Pg. 338; AWOYOOLU v. ARO (2006) 4 NWLR (Pt. 971) Pg. 481; FAGBENRO v. AROBADI (2006) 7 NWLR (Pt. 978) Pg. 172. Based upon the above stated position of the law, this court can, however, interfere with the findings and conclusions of the trial court and accordingly revaluate afresh the evidence adduced before the trial court as is evident on the printed record where:
(a) The findings of the trial court are found to be perverse; or
(b) The findings were not arrived at as a result of a proper exercise of judicial discretion; or
(c)The trial court did not make a proper use of the opportunity it had of seeing and hearing the witnesses at the trial; or
(d) The findings were reached al as a result of wrong application of some principle of substantive law or procedure or that it drew wrong inferences from the totality of the evidence led.
See OYEWOLE v. AKANDE (2009) 15 NWLR (Pt. 1163) Pg. 119; ANYANWU v. UZOWUAKA (2009) 3 NWLR (pt. 1159) pg. 445; FAGBENRO v. AROBADI (supra) at pg. 193 paras E-F and OLALOMI IND. LTD v. N.I.D.B LTD. (2009) 16 NWLR (Pt. 1167) Pg.266.
For a better appreciation of the issue or points canvassed in this appeal, I find it pertinent to point out that, both parties claimed for declaration of title to the property or land in dispute. To bring out the point clearer, it will be helpful to reproduce the claims of the parties. Thus, the Appellant as Plaintiff in Suit No: NOW/45/87 claimed as follows:
“1. Declaration that the plaintiff is entitled to the statutory right of occupancy of the piece or parcel of land known as and culled No. 5 Douglass Road/7 Old Market Road, Owerri.
2. 1,000.00 (One Thousand Naira) being general damage for Trespass.
3. Perpetual injunction restraining the defendant, his servants and or agents from entering the said piece or parcel of land.”
The Respondent as plaintiff in Suit No: HOW/75/87 claims similar reliefs as follows:
“(a) Declaration that the plaintiff is in possession and therefore entitled to the grant of statutory right of occupancy over the piece or parcel of land situate at No. 7 Old Market Road/5 Duglas Road, Owerri with an annual value of N10.00.
(b) N1, 000,00 damages for trespass committed by the defendants on No. 7 Old Market Road/5 Douglas Road, Owerri with an annual value of N10.00.
(c) Perpetual injunction restraining the defendants by themselves, through their agents, heirs, successors, privies, servants and/or all those claiming through or under them from further trespass into the said land or any act inconsistent with the plaintiff’s possession of the said land.”
It is obvious therefore that both parties claimed for a declaration of title to the same piece and parcel of land situate at No. 7 Old Market Road/5 Douglas Road, Owerri. The identity of the land is therefore not in dispute.
I need also to reiterate hereby that, based on the law on the burden and standard of proof, a party claiming a declaratory relief, as in the case of the parties to this appeal, has the burden to prove his own case. Thus, where a party claims a declaratory relief, it behoves on him to satisfy the court by the evidence adduced by him, that he is entitled to the declaration. He cannot get the relief merely on admission in the pleading of the defendant. In other words, where a party seeks a declaratory judgment, the onus is on him to succeed on the strength of his own case and not the weakness of the case of his adversary. However, where the facts in the defendant’s case support the plaintiff’s case, the latter can rely on that aspect of the defendant’s case that support his case to establish and prove his case. See KODILINYE v. ODU (1935) 2 W.A.C.A Pg.336; AKINTOLA v. OLUWO (1962) 1 S.C.N.L.R Pg. 352; WOLUCHEM v. GUDI (1981) 5 S.C. pg.291; ADERAJA v. FANOIKI (1990) 2 NWLR (pt. 131) pg. 137 and ALECHENDU v. OSHOKE (2002) 9 NWLR (pt. 773) pg. 521 at 535.Similarly, in a claim for declaration of title to land, the plaintiff must plead and lead such evidence as to entitle him to the declaration sought. This he must do by credible evidence led by him and his witnesses showing that he is untitled to the declaration. This is because, here too, where a party makes a claim for declaration of title to land, he must succeed on the strength of the evidence adduced by him and not on the weakness of the case of his adversary or on any admission made by such adversary; though in some instances, he may take advantage of any aspect of the case of his adversary which support his claim. Accordingly, where he fails to adduce such credible evidence as would move the court to exercise its discretion in his favour, his claim would be bound to fail. See BELLO v. EWEKA (1981) 1 S.C. Pg. 1 at 107; MAJA v. SAMORIS (2002) 7 NWLR (pt. 765) pg. 78 at 101; ORJI v. EMOVO (1991) 1 NWLR (Pt. 168) pg. 476 at 487-488; ONU v. AGU (1996) 5 NWLR (Pt. 451) Pg. 652 at 670 and EZEOKONKWO v. OKEKE (2002) 10 NWLR (Pt. 777) Pg. 1 at 29.
The Plaintiff may discharge this burden of proving his title by credible evidence in any of the following ways:
(a) Proof by traditional evidence or history.
(b) Proof by production of documents of title duly authenticated, unless they are documents 20 years or more years old, produced from proper custody.
(c) Proof of acts of ownership over the land in dispute such as selling, leasing making a grant, renting out all or any part of the land or farming on it or portion thereof, extending over a sufficient length of time numerous and positive enough as to warrant the inference that the persons exercising such proprietary acts are the true owners of the land.
(d) Proof of acts of 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 land so situated or connected therewith by locality or similarity that the presumption under Section 46 of the Evident Act (now Section 35 of the Evident Act, 2011) applies and the inference can be drawn that what is true of the piece of land is likely to be true of other piece of land; and
(e) Proof of possession of connected or adjacent land in circumstances rendering it possible that the owners of such connected or adjacent land would in addition be the owners of the land in dispute.
See AJIBULU v. AJAYI (2004)11 NWLR (Pt 885) Pg. 458; OYEDOKE v. THE REG. TRUSTEES OF C.A.C (2001) 3 NWLR (Pt. 701) Pg. 621 and AKUSOBI v. OBINECHIE (2004) 2 NWLR (Pt. 857) Pg. 355.
In the instant case, both parties claimed title to the land through traditional history and I dare say acts of ownership. Indeed they are entitled to do so, as a party may anchor his claim of title to land on one or more of the above stated modes of proving title, where the facts so permits. Where a party’s claim of title to land is based on traditional history he has the duty to plead and lead evidence showing:
(a) Who founded the land
(b) How he founded the land; and
(c) The particulars of the intervening owners through whom he claims.
See IROAGBARA v. UFOMADU (2009) 11 NWLR (Pt. 1153) Pg. 587; DIM v. ENEMUO (2009) 10 NWLR (Pt. 1149) Pg. 353; AKANBI v. SALAWU (2003) 13 NWLR (Pt. 838) Pg. 637; DURUOSHIHIMIRI v. DURUODUNZE (2001) 9 NWLR (Pt. 717) pg. 244 and NWABUIFE v. NWIGWU (2001) 9 NWLR (Pt. 719) Pg. 710.
On this, the complaint of the Appellant is that, the finding of the learned trial judge that, the Appellant failed to prove by preponderance of evidence his title to the land is perverse. That it is grossly unfair to hold that the Appellant did not prove his root of title, as both parties traced their genealogy to a common ancestor – Agbaere.
Now, recourse to the pleadings of the parties would be helpful in the determination of this point. The Appellant as Plaintiff in Suit No: HOW/45/87 had pleaded his root of title at paragraph 8 of his statement of claim as follows:
“8. The entire land in dispute verged “RED” is the Plaintiff’s ancestral home which had descended to him by way of inheritance from his ancestor Agbaere; from Agbaere to Nnadi and from Nnadi to Onyewuotu and from Onyemotu to the plaintiff and his other brothers.”
He had earlier pleaded at paragraph 6 of the said statement of claim, that;
“6. Agbaere-Plaintiff’s forebear and ancestor had three male issues and these are:
OPARANOZIE, NNADI and CHIKWE OPARANOZIE begat WALTER, WALTER had four male issues, viz VICTOR, EUGENE, JOHN and JOSEPH. All these are living except VICTOR who died some years ago. NNADI the 2nd son of Agbaere had only one son by name ONYEWUOTU the father of the plaintiff. CHIKWE had no male issue. There are now only two surviving families of Agbaere, viz; OPARANOZIE and NNADI families. CHIKWE’S family is extinct. ONYEWUOTU the father of the plaintiff has four surviving male issues, viz:
KENETH, UZOMA the Plaintiff JOSEPH and OKWU. The defendant has no father, grand-father or great-grand father in the kindred or family.”
It is clear therefore that the Appellant traces the root of his title to Agbaere. That after the demise of Agbaere he was succeeded by Nnadi the father of Onyewuotu-the plaintiff s father. It is important to note that, the Appellant having pleaded in paragraph 6 of his statement of claim that his ancestor Agbaere had three children, named; Oparanozie, Nnadi and Chikwe failed to state what happened to the line of succession as regards the Oparanozie line. This is important as he had pleaded that the Chikwe line is extinct and that Oparanozie was the first male child of Agbaere, while his ancestor Nnadi was the 2nd son. I am of the view that considering his pleading and evidence led by him on the custom of Owerri people on succession; he had to plead how his ancestor Nnadi and not Oparanozie the first son of Agbaere came to succeed their father Agbaere in respect of the ancestral home.
The Respondent on his part as Plaintiff in Suit No: HOW/75/87, pleaded his root of title in Paragraphs 4 and 5 of his statement of claim, as follows:
“4. The Plaintiff is the bonafide owner of the land having inherited same from his late father Nnadi Agbaere. The said land originally devolved from Nwaodibo Erekwerenwu to Anaele Nwaodibo and to Nnadi Agbaere. It finally devolved unto the Plaintiff as the 1st son of Nnadi Agbaere.
5. The Plaintiff states that notwithstanding the devolution of the said land unto him, the land was realloted to him as the eldest son whilst the family land were being shared by the Oha Owerre Nchi-Ise.”
From this state of the pleadings of the parties, it is clear that the name of Agbaere features prominently in the genealogy or root of title claimed by both parties. As rightly pointed out by learned counsel for the Appellant, the point of departure is that, while the Appellant’s root of title starts from Agbaere, the Respondent’s root of title went beyond Agbaere. In other words, while the Appellant traced his root title from Agbaere the father of Nnadi, and to Onyewuotu the Appellant’s father, the Respondent stated that it was Nwaodibo Erekwerenwa who founded the land. That Anaele succeeded Nwaodibo, who was in turn succeeded by Agbaere and Agbaere’s son Nnadi succeeded him. That he (Respondent) finally succeeded his father Nnadi as his first son.
The evidence led at the trial by the Appellant is that, his father; Onyewuotu inherited the land from Nnadi the (Appellant’s grandfather), and that he in turn inherited from his father Onyewuotu. He testified further that under the custom of Owerri people, the first male child of a deceased person inherits his “Ishi Obi”. The P.W.1 also stated that on the demise of a man, his first son or Opara is entitled to inherit his obi. He however stated under cross-examination that, in Owerri custom, if the eldest son dies, the next oldest son takes the land, provided that he is the son of the man. It is therefore the Appellant’s case that his father Onyewuotu inherited the land from Nnadi as his first son, and that he in turn inherited the said Onyewuotu.
The Respondent on the other hand, pleaded and gave evidence to the effect that, he inherited the land from his father, Nnadi. That Onyewuotu, the Appellant’s father was his half brother of the same lather. It is also his testimony that his grandfather Agbaere had three sons, namely Oparanozie, Nnadi and Chikwe and that the properties were shared between Oparanozie and Nnadi lineages, as Chikwe died without a male child. That when the lands were shared by Victor Oparanozie, he inherited the property in issue as the surviving male child of Nnadi and that during the sharing of the properties of Agbaere lineage, he represented the Nnadi family as the eldest. He therefore denied that it was the Appellant’s mother that handed the property to him in trust for Onyewuotu’s children, one of whom is the Appellant.
That he occupied the house after the civil war until 1975, when he got a job at Ogbatu and moved out leaving the house with tenants.
It is also the case of the Respondent that, when he inherited the lands of Nnadi his father, he gave two plots of land to Onu, the eldest son of Onyewuotu which he accepted. As stated earlier, the evidence shows that Onyewuotu, the father of the Appellant and half-brother of the Respondent died in 1960, leaving the Appellant and his siblings who went along with their mother to live at Egbu. That at that time, Agbaere’s properties had not been shared, and so was under the charge of Walter Oparanozie, the eldest child of Oparanozie; the first son of Agbaere. He admitted that, Onyewuotu was his elder brother, but denied that when Nnadi Agbaere died, Onyewuotu inherited the property in dispute, but that at the time Nnadi died, the properties of Agbaere had not been shared, so the lands were inherited by Walter, the first son of Oparanozie.
The Appellant made heavy weather of the statement of the Respondent under cross-examination at page 171 lines 14-24, where the Respondent conceded that the Appellant is the surviving male child of Onyewuotu and that under Owerri custom he was entitled to succeed his father Onyewuotu, since the eldest son Onu is dead. I am of the view that this cannot amount to a concession by the Respondent that, it is the Appellant who is entitled to inherit the properties of Nnadi. Rather, this piece of evidence, in my view, gives credence to the Respondent’s testimony that, where the oldest surviving child of a man dies, the next son inherits. Furthermore, the evidence on record shows that, when Onyewuotu, father of the Appellant and elder brother of the Respondent died in 1960, the land in dispute was in the control of Walter Oparanozie, as the Agbaere estate had not been shared, so Onyewuotu the father of the Appellant had not inherited the land in dispute before he died.
The D.W.1 Chief Eugene Oparanozie stated that he is the head of the Agbaere family of Umuerekwerenwa kindred. He confirmed the testimony of the respondent that the Agbaere lineage in made up of three compounds, namely; Oparanozie, Nnadi and Chikwe. That Chikwe died without a male child, so is now extinct, leaving the Oparanozie and Nnadi compounds. He also stated that Nnadi is the father of the Respondent, while he is the son of Oparanozie. That as regards succession, the eldest male child takes charge of the land and buildings on behalf of his siblings, except where it is shared, and that the oldest member of Nnadi Agbaere living today, is Achonwa; the Respondent.
He contended that it is not true that the mother of the Appellant handed over the land to the Respondent, as Onyewuotu was never the oldest member of Agbaere family when he was alive and so was never in charge of the land in dispute. That it was Walter Oparanozie who was holding the land in trust for Umuagbaere, at the time Onyewuotu died.
Under cross-examination, he maintained that, it is the Respondent as the oldest living son of Nnadi that inherited the land when the Agbaere lands were shared between the Oparanozie and Nnadi families. The D.W.2 also stated that the Respondent is the oldest son of Nnadi from Umuerekwerenwa and that the properties of Agbaere were shared between Victor Oparanozie and the Respondent, as the oldest living males of their lineages, according to the custom of Owerri people.
That when Onyewuotu died, he was not the head of Agbaere family and that before the sharing of the Agbaere lands, the land in dispute was enjoyed in common by the Oparanozie and Nnadi families. The P.W.3 also stated that, under the custom of Owerri people, the oldest man in the kindred inherits his father’s home including landed property on behalf of his brothers. That after the death of the eldest son, the next in line of succession is the brother and not the son.
A very careful perusal of the evidence on the printed record show that the fact of the line of succession as professed by the Respondent and his witnesses was never challenged. The Appellant perhaps knowing fully the line of succession as it affects him, was pre-occupied and did make frantic and fruitless effort to edge out the Respondent. That is why he invented the scandalous story that, the Respondent is not the son of Nnadi, but the son of a roving mad woman. Alas, his concocted story was found by the learned trial judge to be baseless. The learned trial judge thus found that the Respondent is a legitimate son of Nnadi Agbaere, and this finding of the learned trial judge has not been appealed against.
The legitimacy of the Respondent as a son of Nnadi and his right to succeed the said Nnadi was well established by his witnesses. The case of the Appellant was made worse on this issue by the P.W.2. He stated in line with the testimony of the Respondent and his witnesses that, under Owerri custom, if the eldest son dies, it is the next eldest son that inherits provided that, he is a legitimate child. In the instant case, it has been established by the evidence on record that, the Respondent is the oldest surviving son of Nnadi Agbaere and therefore entitled to inherit the properties of the said Nnadi his father and not the Appellant who is a grandchild of Nnadi.
As stated earlier in the course of this judgment, both parties claimed to be in possession of the land in dispute. It is therefore the contention of learned senior counsel for the Appellant that, the trial court expatiated on the Respondent’s alleged acts of possession, which were mere receipts, but said nothing on the overwhelming acts of possession by the Appellant and his father. That the Respondent and his witnesses conceded those acts of possession, and that those acts of possession were more weighty than mere receipts which do not perse demonstrate acts of possession.
Now, a careful study of the record of appeal would show that the Appellant stated in his testimony in chief that, before the demise of his father Onyewuotu, he (Onyewuotu) had built a house on the land which is still in existence, and he (Appellant) lives in the said house. That when his father died, his mother took him and his siblings to Egbu, where they lived till they returned to Owerri in between 1973 or 1974. He stated further that, he also erected buildings on the land, and even let out part of the property he erected to tenants. That as at now, there are three new buildings in addition to a pool house which he built in 1988. It is his testimony that, when the property was shared, the Respondent was excluded. He however stated that, six plots of land were allotted to Umu Nnadi, but the Respondent sold all and went to Ogbaku. He denied that the Respondent erected any structure on the land in dispute. He equally denied that the Respondent is in possession of the land. He also admitted that the purchasers of the land sold by the Respondent are still in possession. He again stated under cross-examination that he returned from Egbu in 1985, contrary to his earlier statement that he returned in 1973.
The P.W.2 stated in his testimony in chief that, the land in dispute has always been in the possession of the Appellant’s father when he was alive. That, the Appellants are in occupation or possession of the land in dispute. He stated under cross-examination that, the Respondent has never been in possession of the land, as he was in his mother’s home; Ngegu near Amakohia, where he still lives. It should be noted that this piece of evidence contradicts the case of the Appellant that the Respondent was in occupation of the property in dispute when the Appellant and his siblings were at Egbu, with the consent of the Appellant’s mother. Indeed, he stated that, anybody who says Respondent lived on the land is a liar! He could not however say who was in occupation of the land between 1960- 1980 when the Appellant returned from Egbu.
The P.W.3 also stated that the Appellant lives on the land in dispute and that the Appellant’s father also lived on the land. He stated further that during the Nigerian civil war, the roof of the house built on the land was burnt, but said he did not know who rebuilt the house. He also stated that the Appellant’s father was buried on the land in dispute.
He again agreed that, when the Agbaere lands were shared, the Respondent received six plots on behalf of the Nnadi family, and sold four of those plots.
The Respondent on his part stated that, when the Agbaere lands were shared, he inherited the property in dispute. That he then molded blocks and built on the land and also paid the statutory fees in respect of the land. The receipts in respect thereof were admitted in evidence. It should be noted that the Appellant contended that those receipts do not perse demonstrate act of possession. That may be so, but they were tendered to show that the Respondent indeed built on the land and paid statutory fees on the land as evidence of ownership or the exercise of such possessory rights.
It is the further testimony of the Appellant that, after the civil war, he built on the land and lived there till 1975, when he got a job at Ogbaku, when he moved out and let out the house to tenants. That after some time, the tenants reported that the Appellant chased them away with a gun, as a result of which he reported the matter to the police, who advised him to take out a civil action which he did. That the court then referred the matter to the Oha Owerre Nchi-Ise, who settled the matter, the terms of which was adopted by the magistrate court as its judgment.
It is in evidence as Exhibit K.
Under cross-examination, he insisted that he built a house on the land in dispute after the civil war. Contrary to the submission of learned senior counsel for the Appellant, the Respondent denied that the Appellant is in possession of the land. He then denied that it was the house built by the Appellant’s father that he renovated and lived in after the civil war. He maintained that he is in possession of the land, but the Appellant trespassed thereon.
The D.W.1 also stated, and thus agreeing with the Appellant, that Onyewuotu built a mud house on the land in dispute, which relics and those of other members of Umuagbaere were still there at the end of the civil war. This piece of evidence which is uncontradicted go to show that Onyewuotu was not the sole occupant or possessor of the land in dispute, being family land. He also stated that Onyewuotu was buried in his mother’s house inside the land in dispute, but that he was laid in state in the house he built. That after the civil war, the Respondent rebuilt the mud house built by Onyewuotu and was living therein till the Appellant and his siblings returned from Egbu and lived with the Respondent till he later left.
The D.W.2 also admitted that the Appellant now lives on the land in dispute as the Respondent now lives at h is place of business. He stated also that the Respondent had built on the land. He also stated that the Appellant’s father, Onyewuotu was buried on the land in dispute.
Learned senior counsel for the Appellant referred to the testimony of the Appellant in cross-examination at page 131 lines 6-7 and at 132 lines 1-4, and the testimony of the D.W.1 at pages 139 lines 17; 29-30, pages 143 lines 14-20 and 151 lines 14-22 of the record, to submit that the Respondent had admitted that the Appellant is in possession.
It should be noted that, from the drift of evidence, the Respondent denied emphatically that the Appellant is in possession. His testimony is that, when he left to work at Ogbaku in 1975, the Appellant later came and chased away the tenants he (Respondent) had put in the house he built. That this resulted in a law suit between him and the Appellant, the result of which is Exhibit K. The statement of the D.W.1 at page 149 line 14-18 and at pages 151 lines 14-22, cannot be interpreted to mean that the Respondent and his witnesses had conceded possession to the Appellant. Indeed, it shows that Onyewuotu built on the land like any member of the Agbaere family at that time, since the Agbaere lands had not been shared. It did not show that Onyewuotu (Appellant’s father) had exclusive possession over the land. It has also been shown that the Respondent did not give up possession of the land and house he had built thereon, when he left to start a job at Ogbaku. This is evidenced by his act of letting out the house to tenants who was chased out by the Appellant.
In law, there is a difference between mere occupation of land and possession. Possession in law, may entail or coincide with occupation of the property, but is not necessarily synonymous or co-terminus with it. Thus, a man may be legally in possession of the land, even though he does not occupy same. Legal or dejure possession arises where the person has the right to occupy at will, sufficient to exclude other persons from interfering. Occupation on the other land entails mere physical control of the land at the time being. Such occupation may be with the consent of the person entitled to or in possession; or it may be by stealth.
See UDEZE v. CHIDEBE (1990) 1 NWLR (pt. 125) pg. 141 at 162 and OGUNLEYE v. ONI (1990) 2 NWLR (pt. 135) pg. 745 at 783-784.
The incidents of possession include selling, leasing or renting out all or part of the land, farming thereon or building thereon. What the law requires is that such acts of possession and enjoyment of the land should be proved to be sufficient so as to enable the court to draw inference of exclusive possession. What is long possession depends of the facts of each case. See OZAWALE v. COKER (1994) S.C.N.J. Pg. 20; SOLAGBADE & ORS v. ANYANKOYA & ORS (1962) W.N.L.R and FISCIAN v. NELSON 12 W.A.C.A. Pg. 21. Where such a person is found to be in possession, the law presumes that he is the owner, and the burden will be on the person who alleges that he is not the owner to prove otherwise. See Section 143 of the Evidence Act, 2011.
In the instant case, the evidence on the record of appeal show that the Appellant had been at Egbu and only returned to Owerri sometimes in 1985, though he had stated in his evidence in chief that he returned in 1973. When cross-examined on the 17/5/95, he stated that he built the structures he claimed on the land about three or four years to that date.
That would be between 1991 or 1994 which is within the period, the dispute between the parties over the land was pending in court. On the burial of his father Onyewuotu on the land, I had earlier held that, they said Onyewuotu was buried on the land just like any member of Umuagbaere at the time, and not as evidence that he was in exclusive possession of the land in dispute. So also is the fact of his having built a mud house on the land.
The Respondent on the other hand adduced evidence showing that he built on the land and lived therein immediately after the civil war. The receipt for the materials he purchased and the receipts evidencing payment of the statutory fees over the land are evidence of those facts.
That was at a period when the Appellant was yet at his mother’s hometown; Egbu. He built on the land, and let out same to tenants but the Appellant chased them out, which culminated in litigation between them, before the matter was finally settled by the Oha Owerre Nchi-Ise, whereof the land was affirmed in favour of the Respondent. I am therefore of the view that the evidence of possession adduced by the Respondent is weightier than that proffered by the Appellant. It therefore means that the evidence of possession preponderates in favour of the Respondent. The fact that he was no more in physical occupation of the land in dispute does not derogate from the acts he had performed on the land, which constitute acts of possession. The acts of possession he exercised predate all the acts of the Appellant on the land. In any case, as the evidence on the record shows the Appellant secured entry into the land by stealth, when he chased out the Respondent’s tenants.
Now, learned counsel for the Appellant argued at length on the nature of the claims put forward by the parties before the court below. He contended that, the land in dispute being ancestral land to be enjoyed in common by all, the Respondent could not assert or claim personal and exclusive ownership of same. That to succeed in doing that, he had to prove how he came to own the said family land to the exclusion of other members of the family, and that the Respondent failed to do that.
I have carefully perused the record of appeal, which includes the pleadings, the testimony of the witnesses, the addresses of counsel and the judgment of the court. I am unable to find wherein the Appellant raised that issue at the trial court. The Submissions of counsel and the body of the judgment did not disclose same. It is trite law that, a ground or grounds of appeal are premised against a decision relating to the judgment being appealed against. It should therefore constitute a challenge to the ratio of the decision. In that respect, an appeal must arise from the judgment and the issues couched therefrom must be on an issue decided by the court below. Accordingly, an appellant will not be allowed to raise on appeal a question which was not raised, tried and considered in the court below. To raise and argue any issue not canvassed in the court below, the Appellant must first seek and obtain the leave of the Court of Appeal, unless the fresh issue is on jurisdiction.
See BANKOLE v. PELU (1991) 8 NWLR (Pt. 211) Pg. 523; OKONKWO v. OGBOGU (1996) 5 NWLR (pt. 449) Pg. 420; YUSUF v. U.B.N. LTD (1996) 6 NWLR (pt. 457) pg. 632 and ELUGBE v. OMOKHAFE, (2004) 18 NWLR (Pt.905) Pg.319. In that respect, I am of the view that the argument of the Appellant on the nature of the Respondent’s claim in Suit No: HOW/75/87 is a fresh issue not canvassed at the court below and the Appellant having not sought for the leave of the court to raise and argue same, should be discountenanced. It is accordingly discountenanced.
On the whole, I am of the view that this appeal lacks merit. It is accordingly dismissed. The judgment of the lower court in the consolidated Suit Nos: HOW/45/87 and HOW/75/87 is hereby affirmed. I make no order as to cost.
UWANI MUSA ABBA AJI, J.C.A: I have had the advantage of reading in draft the judgment of my learned brother, H.M. Tsammani, (JCA) in this appeal.
I agree completely with the Judgment and for the reasons therein stated, I also dismiss the appeal and make no order as to costs.
MOJEED A. OWOADE, J.C.A: I read in advance the judgment just delivered by my learned brother TSAMMANI JCA. I agree with the reasoning and conclusion. I also agree that the appeal lacks merit and ought to be dismissed.
Both the Appellant and the Respondent traced their root of title to same source that is Nnadi Agbaere. The Appellant pleaded and evidence to say that Nnadi the 2nd son of Agbaere had only one son by name Onyewuotu, from whom he, the Appellant inherited the land in dispute and that the Respondent has no father, grand-father or great-grand father in the kindred or family.
The Respondent on the other hand said the land in dispute was inherited by him as the first son of Nnadi Agbaere.
The learned trial Judge evaluated the evidence of the parties and accepted the Respondent’s version that Onyewuotu, the Appellant’s father was the half brother of the Respondent Achonwa Nnadi. And, that the Respondent is indeed the 1st son of Nnadi Agbaere.
Given these facts, the learned trial Judge was right to have come to the conclusion that under the custom of Owerri People, the Opara that is the first son was entitled to inherit the “Ishi Obi”.
Also, the Respondent in this case, contrary to the Appellant’s contention was found to be in legal or de jure possession of the land in dispute.
The law presumes the person in possession of land to be the owner. Therefore, in order to displace a party in possession, a claimant has to show that the party in possession is in possession without his consent or his tenant.
See Jinadu v. Ejirombi Aro (2005) 14 NWLR (Pt. 944) 142. For this, and the fuller reasons contained in the lead judgment of my learned brother TSAMMANI, JCA, I also dismiss the appeal.
Appearances
Dr. Livy Uzoukwu, SAN (A. S. Kolawole, Esq. and M. U. Mgbe, Esq. with him)For Appellant
AND
For Respondent
