WILLIAM AKAOSE & ORS v. ONYEBUCHI OKOYE & ORS
(2016)LCN/8228(CA)
In The Court of Appeal of Nigeria
On Monday, the 29th day of February, 2016
CA/E/205/2010
RATIO
EVIDENCE: THE EVIDENCE OF TRADITIONAL HISTORY
The evidence of traditional history is essentially, a sort of evidence premised on the story of how a parcel of land was acquired by the forebears/progenitors of the parties, as recounted to them by their own fathers. The stories could be true or false. Yet, the parties believe them, nevertheless. Hence either party could be honestly telling the truth. Or even telling lies. However, where such evidence of traditional history, either of conquest, first settlement, inheritance or grant is satisfactorily placed before the Court and it is believed and accepted, title to the land in dispute can be declared for the claimant/plaintiff. Alli v. Alesinloye (supra); Odofin v. Ayoola (1984) 11 S.C. 22. per. TOM SHAIBU YAKUBU, J.C.A.
EVIDENCE: EVIDENCE OF TRADITIONAL HISTORY; WHEN DOES A CONFLICT ARISE IN THE IN THE EVIDENCE OF TRADITIONAL HISTORY
This Court in Amuda v. Ajobo (1995) 7 NWLR (pt. 406) 170 at 180 – 181, per his Lordship, Oguntade JCA (as he then was) succinctly stated, thus:
“A conflict arises when the traditional history given in evidence by the plaintiff and which was unchallenged by the evidence of the defendants, is capable of showing clearly the source of title relied upon by the plaintiffs is set against the traditional history given in evidence by the defendant and which unchallenged by the plaintiffs is capable of showing clearly the source of title relied upon by the defendants. per. TOM SHAIBU YAKUBU, J.C.A.
LAND LAW: ROOT OF TITLE; WHETHER IT IS THE ESTABLISHMENT OF THE PLEAD OF TITLE THAT PAVES THE WAY FOR ACTS OF POSSESSION AND OWNERSHIP
It is the establishment of the pleaded root of title which per force, paves the way for acts of possession and ownership. In other words, without pleading and leading evidence viva voce to satisfactorily establish root of title, it would be futile to resort to finding recent acts of possession. Fasoro v. Beyioku (1988) 2 NWLR (pt. 76) 263. per. TOM SHAIBU YAKUBU, J.C.A.
JUSTICES
HELEN MORONKEJI OGUNWUMIJU Justice of The Court of Appeal of Nigeria
TOM SHAIBU YAKUBU Justice of The Court of Appeal of Nigeria
EMMANUEL AKOMAYE AGIM Justice of The Court of Appeal of Nigeria
Between
1. WILLIAM AKAOSE
2. IFEANYI AKAOSE
3. NWOGBO AKAOSE
4. EMMANUEL AKAOSE
5. PAUL CHIGBO
6. LINUS AKAOSE
7. RAPHAEL OKAFOR
8. DANIEL AKAOSE
(For themselves and on behalf of Uruatuora Family Adagbe Abommi village, Enugu-Ukwu) Appellant(s)
AND
1. ONYEBUCHI OKOYE
2. FRANCIS NGOZIE ANYADO
3. AARON OBIAKO
(For themselves and on behalf of the people of Adagbe Abomimi village Enugwu-Ukwu with the exception of the members of Uruatuora family) Respondent(s)
TOM SHAIBU YAKUBU, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of the Anambra State High Court of Justice, holden at Onitsha, which was delivered on 22nd April, 2010. The respondents had claimed a declaratory and injunctive reliefs cum damages for trespass with respect to the parcel of land called Offia Ulasi situate in Adagbe Abomimi Village, Enugwu-Ukwu, against the appellants. The latter also counter-claimed wherein they equally sought a declaration of title to the same parcel of land, an injunctive relief and damages for trespass against the respondents. The parties filed and exchanged their respective pleadings and effectively joined issues as to the ownership of the land in dispute.
?The background facts of the case as gleaned from the pleadings of the respondents are that:
(i) The land in dispute is called Offia Ulasi and belong to the respondents Adagbe Abomimi sub-village of Abomimi village, Enugwu-Ukwu, Enu Abomimi the second sub village making up Abomimi has no interest in the Offia Ulasi land.
(ii) There is a shrine (juju on the land in dispute called Ulasi belonging to the
respondents Adagbe Abomimi people. The priest of the Ulasi juju from time immemorial come from the Umunnebocha family of the respondents Adagbe Abomimi people.
(iii) Offia Ulasi is a sacred bush because it was dedicated to the Ulasi shrine situated there. The forest/bush was never cleared/farmed on by anyone and none was permitted to cut any of the mighty trees on the land except that the whole community sometimes go into the bush to cut selected oghulu trees for making seats for the village square.
(iv) The Ulasi juju was instituted by the ancestors of the respondents since time immemorial. There is a lake close to the Ulasi forest called Ezu Ulasi.
(v) The priests of the Ulasi shrine in recent time were Avuka, Ikechukwu Ezisi, and lastly Nwankwo Okpo who was the priest at the time the cause of action arose.
(vi) The appellants (defendants) are called Uruatuora/Umuatuora. Umuatuora is made of the descendants of Elimma Akupa, a woman that emigrated and settled at Adagbe Abomimi from Ozala town and the descendants of another woman, Nwakujima from Adani that came to Adagbe Abomimi in 1917 and threw herself and 3 sons under the
protection of the Ngene Olioba idol. She and her sons merged themselves with Uruatuora and became one with them. The sons of Nwakujima included Akoseh.
(vii) Elimma Akupe begat Atu/Atuora who begat Okeke and Oligbo. Atu was made the priest of Ngene Oliobu shrine by the Adagbe Abomimi to give him a means of livelihood. On the death of Atuora his son Okeke took over the priesthood of Ngene Oliobu. On the death of Okeke, Akose seized the priesthood of Ngene Oliobu. During his reign as priest of Ngene Oliobu, Akose made attempt to acquire Offiah Ulasi of the respondents but was stopped by the respondents.
(viii) There are other shrines like Udo Ulasi, Ogwugwu Ulasi and Ebe Udo Ulasi all belonging to the respondents at Offiah Ulasi. The priests of these idols are from the respondents family.
(ix) The appellants trespassed into the Ulasi forest in March, 1988 and cut down some tress. Again in October, 1988 the appellants went into the land and began to clear it with workmen. The appellants cut down trees on the land, sawed them into planks which they took away to sell. The appellants in the process pulled down and burnt the hut housing the
Ulasi idol.
(x) The Offia Ulasi in dispute is verged pink in Survey Plan No. MIS/AN/2018/89 drawn by C. P. C. Nwosu.
(xi) The land in dispute is bounded in the North by the lands of Obiakor family and other members of Adagbe Abomimi village square to Ugwuilo, west by Ngboho gully and the south by the land of Andrew Ebisi and that of other members of Adagbe Abomimi.And for the appellants, they pleaded that:
(i) Offiah Ulasi is made up of two contiguous parcels of land belonging to the appellants and the Umunnebocha family of Adagbe Abomimi.
(ii) No part of Offiah Ulasi land is owned communally by the respondents Adagbe Abomimi people.
(iii) The parcel of land being claimed by the respondents as Offiah Ulasi included other parcels of land of the appellants like Ugwuilo/Obuluaja land and Obimuo square.
(iv) The appellants’ Offiah Ulasi land has been under the possession of the appellants people since time immemorial.
?(v) The appellants have since time immemorial been exercising several acts of ownership and possession over their portion of Offiah Ulasi. This included using the Offiah Ulasi for protection,
burial ground, farming thereon, cutting trees on the land, using the firewood therefrom and selling the rest, establishment of several idols being worshipped by the appellants on the land
(vi) The appellants are not strangers in Abomimi. Atuora was the appellants’ ancestor and his father was Ebeogalonya. Atuora was a great native doctor and the chief priest of all the Ngene idol at Abomimi. A stranger/bastard cannot be a juju priest in Enugwu-Ukwu. The land where the appellants reside, the appellants’ portion of Offiah Ulasi land, the appellants’ Ugwilo land were all inherited by the appellants from their ancestors.
(vii) Nwakujimma was the wife of Ngene Chigbo of the appellants’ family and the daughter of Anosike from Uruekwo Enugwu-Ukwu. She went back to Uruekwo with her children on the death of her husband but later returned to Abomimi. She never threw herself under the protection of any juju.
(viii) Many of the appellants’ ancestors took traditional title in Enugwu-Ukwu which show that the appellants were not strangers in the town.
?(ix) The land in dispute is not bounded in the south by the land of Ebisi family but by the
Ugwuilo land of the appellants.
(x) Appellant did not burn down any juju on the land in dispute Nwankwo Okpo was never a juju priest of Ulasi idol.
At the hearing, both parties called witnesses who testified for them and documentary exhibits were tendered and admitted into evidence. Learned counsel for each side thereafter, filed and exchanged written addresses. The learned trial judge in his consideration of the case, entered judgment for the respondents on their own claim. He however, dismissed the appellants’ counter claim. Hence this appeal which was premised on twelve (12) grounds of appeal, as contained in the Amended Notice of Appeal, filed on 6th March, 2015, with the leave of this Court having been sought and obtained.
A. C. Anaenugwu, Esq., SAN., settled the Further Amended Appellants’ brief of argument dated 4th March, 2015 but filed on 6th March, 2015. In it, he identified three issues for the determination of the appeal, thus:
(i) Whether the trial Court having found as it did that the respondents’ traditional history was not satisfactorily proved should not have out rightly dismissed the respondents’ case rather than relying on
facts or acts in recent years to see which of the competing histories are more probable.(Ground 1)
(ii) Whether the decision of the High Court that the offia ulasi land in dispute is the communal land of the respondents’ Adagbe Abomimi who are the persons currently in possession of the land in dispute is right. (Ground 5, 6, 7, 10 and 11)
(iii) Whether the decision of the High Court that the appellants failed to prove their claim of title to the land in dispute and dismissal of the appellants’ counter claim was right (Ground 2, 3, 4, 8 and 12).
The Amended Respondents’ brief of argument was settled by E.S. Urama, Esq.. It was dated 23rd April, 2015 and filed on 4th May, 2015 pursuant to the Order of this Court made on 4th March, 2015. He nominated two issues in it, for the resolution of this appeal, to wit:
1. WHETHER the plaintiffs have on the balance of probabilities proved their case that Offia Ulasi is the communal land of Adagbe Abomimi Community or whether it is owned by Umuatuorah and Umunnebocha families as claimed by the defendants/appellants.
?2. WHETHER the defendants/appellants at anytime established that the Offia
Ulasi land was ever partitioned.
The Amended appellants’ Reply brief, dated 5th May, 2015 was filed on 6th May, 2015. Upon my perusal of the pleadings of the parties; the pieces of evidence proffered by the witnesses; the documentary exhibits tendered and admitted into evidence, the findings and judgment of the learned trial judge and the amended grounds of appeal, I am impelled to adopt the three issues formulated by the learned senior counsel for the appellants, in my consideration and determination of this appeal.
Issue No. 1
Learned senior counsel to the appellants, submitted that from the respondents’ pleadings at paragraphs 4, 5, 6, 7, 8 and 9 of their statement of claim, coupled with the pieces of evidence proffered by their witnesses, it is apparent that the respondents relied on traditional history evidence in order to prove their claim. He contended that the respondents did not plead and lead evidence to establish the fact of the person who first founded the land; the manner and the circumstances which led to the founding of the land; the names of and the particulars of the successive owners/trustees of the land through whom the land
devolved from the fist founder to a living descendant or descendants who most likely will give that oral history of the founding of the land, in accordance with the decision in Thomas Nruama & Ors v. Reuben Ebuzoeme & Ors (2006) 9 NWLR (pt. 985) 217. That is, the respondents did not plead and lead evidence of who founded the land in dispute called Offia Ulasi and how the same land was acquired, either by inheritance, gift, conquest or by being disvirgined and further that the names and particulars of the successive owners of the land were not pleaded/mentioned. He contended that with the finding of the trial Court at page 366 of the record of appeal, to the effect that the respondents did not establish the traditional history that they posited, he ought to have at stage, dismissed the respondents’ claim. He insisted that there was no conflict in the traditional history of the respondents vis-a-vis that of the appellants, because according to him, the traditional history evidence proffered by the respondents was insufficient and which could not have been believed at all. Therefore, he insisted that the resort to testing the respondents’ traditional
history evidence by facts and acts of recent and current acts of possession and ownership on the principle laid down in Kojo II v. Bonsie (1957) 1 WLR 1223, was not proper. He referred to Amuda v. Ajobo (1995) 7 NWLR (pt. 406) 170 at 180 ? 181 (CA); Izuoji v. Ajukwara (1998) 1 NWLR (pt. 533) 255 at 263 (CA); Fasoro v. Beyioku (1988) 2 NWLR (pt. 76) 263 (SC); Balogun v. Akanji (1988) 1 NWLR (pt. 70) 301; Lawal v. Olufowobi (1996) 10 NWLR (pt. 477) 177 at 187 (SC); Chime v. Ude (1993) 3 NWLR (pt. 279) 78 at 89 (CA); all to the effect that where a plaintiff failed to lead cogent evidence to prove traditional history, his claim must be dismissed.
ISSUE NO. 2
It is the contention of the appellants’ learned senior counsel that for the respondents’ claims for trespass and an order of injunction to succeed, they must prove that they are in exclusive possession of the land in dispute. He referred to Alhaji Ahmadu Alao v. Alhaji Oba Alabi (1997) 6 NWLR (pt. 508) 351; Adesanya v. Otuewu (1993) 1 NWLR (pt. 270) 414. Furthermore, he contended that where there are competing claims for possession as in this case, possession will be ascribed to the party
that has a better title to the land. He placed reliance on Anyanwu v. Uzowuaka (2009) 13 NWLR (pt. 1159) 445 at 489 (SC). He referred to the pieces of evidence proffered by PW1, PW4 and PW5 under cross examination to the effect that they admitted that the Umunnebocha family were the original owners in possession of the Offia Ulasi land in dispute. He insisted that if the learned trial judge had properly evaluated Exhibit B vis-a-vis H, he ought to have found for the appellants against the respondents.
?ISSUE NO. 3
It is the submission of appellants’ learned senior counsel that from the pleadings of the appellants at paragraphs 10, 11, 12, 13, 17, 35, 40 and 41 of their statement of defence and counter claim at pages 79 – 85 of the record of appeal, the mode of proof of title to the land in dispute is by acts of ownership and possession exercised by their ancestors and the appellants. He also referred to the evidence of DW1, DW3 and DW4, which according to him were not challenged by the respondents and submitted that if the learned trial judge had properly evaluated their pieces of evidence, he ought not to have dismissed the appellants’ counter
claim. He referred again to Iwuoha v. NIPOST LTD (2008) 8 NWLR (pt. 822) 308 at 343; Mainagge v. Gwamma (2004) 14 NWLR (pt. 893) 323 at 338 (SC) and urged us to re-evaluate the pieces of evidence laid before the trial Court and come to a just decision in the circumstances of this case.
?In his responses, the respondents’ learned counsel submitted that from the pleadings of the parties, the question of title to the land in dispute was joined by them. He submitted that in the circumstances, title to ownership of the land could be proved through any of the five ways outlined in Idudun v. Okumagba (1976) 9 10 SC 227; Omoregie v. Idugien Wanye (1985) 2 NWLR (pt. 5) 41. It was also his submission that both parties relied on traditional history evidence, acts of long possession and enjoyment and possession of adjacent or connected lands. He further submitted that the respondents in their traditional evidence testified to the fact that they inherited Offia Ulasi from their ancestors who dedicated the Offia Ulasi to Ulasi juju form time beyond memory. Furthermore, he submitted that the respondents led evidence to the effect that Offia Ulasi had been in existence long
before the progenitors of the appellants, that is, Erinma Okupa from Ozalla and Nwakujinma came to settle in Abomimi after fleeing to take refuge there. That Atuorah, the ancestor of the appellants from whom they got their name was begotten by Erinma from Ozalla. And that because the appellants are strangers on the respondents’ land, they are not allowed to take the Ozo title in Enugwu-Ukwu. It is the contention of learned respondents’ counsel that since neither the respondents nor the appellants led satisfactory evidence with respect to the traditional histories projected by each of them as to the ownership of the land in dispute, the learned trial judge was right when he resolved “the traditional history one way or the other by reference to facts in recent years established by evidence and seeing (sic) (see) which of the competing histories is more probable. He referred to Kojo II v. Bonsie (1957) WLR 1223; Section 146 of the Evidence Act, Cap. E. L4 Laws of the Federation of Nigeria, 2004.
?Arguing his own issue 2, the respondents’ learned counsel referred to paragraphs 6, 7, 8, 9, 10, 11 and 12 of the appellants’ statement of defence wherein the latter
mentioned their own portion of the land to the effect that the land in dispute had been partitioned. He insisted that “Offia Ulasi is one and undivided with only one Ulasi juju, tended by only one Chief Priest. He specifically referred to the pieces of evidence proffered by DW1 at pages 330 – 331 of the record of appeal to the effect that Offia Ulasi is not a communal land but that it was partitioned in the olden days between Uruatuora and Umunnebocha and submitted that the appellants led no evidence with respect to the boundaries of the partitioned portion of their land nor when the partitioning was carried out. He insisted therefore that the Offia Ulasi land is the communal property of Adagbe Community of Enugwu-Ukwu.ResolutionThe main thrust of the appellants’ complaint against the decision of the learned trial judge is that since he found that the traditional history evidence projected by the respondents was not satisfactory, their claim at that stage ought to have been dismissed. Therefore, according to learned senior counsel to the appellants, the trial Court ought not to have resorted to finding recent acts of possession in recent years on the basis of
the principle enunciated by Lord Denning, in Kojo U v. Bosnie (1957) 1 WLR 1223 to the effect that where traditional history evidence proffered by both parties in an action for declaration of title to land, are in conflict and inconclusive, the judge can determine the action by reference to evidence laid before him with respect to recent acts of possession in recent years, in order to see which of the traditional histories projected by the parties is more probable.
?Now, having painstakingly perused the pleadings of the parties herein, it is clear to me that both of them lay claim to the ownership of Offiah Ulasi which is a forest housing the Ulasi juju. There is no pleading either in the respondents’ statement of claim at pages 19 – 22 of the record of appeal wherein the name of the founder of Offiah Ulasi and how he founded it was pleaded. So also there are no names of the intervening owners of the land in dispute and how it invariably devolved on the respondents, pleaded in their statement of claim. Similarly, on the part of the appellants, there are no averments in their statement of defence with respect to the founder of Offiah Ulasi and he founded it nor
are the names of the intervening owners until the said Offiah Ulasi devolved on them, pleaded by the appellants. The general averments at paragraphs 4, 5, 6, 7, 8, 9, 10, 11 and 12 of the respondents’ statement of claim are to the effect that “the land in dispute is called Ofia Ulasi” and belongs to Adagbe Abomimi. And that there is a juju shrine in the forest “dedicated by the ancient people of Adagbe Abomimi as a sacred place to Ulasi”. On the part of the appellants, the Offiah Ulasi is not a communal land of the Adagbe Abomimi people of the respondents and that the greater part of the Offiah Ulasi is where the appellants occupy.
I have perused the pleadings and the case made at the trial Court by the respondents and it is clear to me that their claim was squarely premised on traditional history with respect to their connection to and descent from their ancestor called Nebo. It must be borne in mind that for the respondents to succeed in a claim for a declaration of title to land, predicated on traditional history, they must plead in their statement of claim and lead evidence in Court, showing the names and histories of their ancestors in such a manner as to
disclose a continuous chain of devolution from one generation to the other until the land finally devolved on them. Akinloye and Anor v. Eyiyola and Ors (1968) NMLR 92 at 95 (SC); Total Nig Ltd v. Nwako (1978) 5 S.C. 1 at 12; Elias v. Omobare (1982) 5 SC 25 at 57-58.
Furthermore, it is incumbent on a claimant, such as the respondents herein, to plead and establish how their ancestor said to be Nebo founded the land in dispute, whether by conquest, first settlement or grant and the evidence must be cogent, uncontradicted and conclusive, for them to succeed in obtaining the Court’s declaration in their favour. Iseogbekun and Anor v. Adelakun and Ors (2012) 4 SCNJ 100; Nruamah and Ors v. Ebuzoeme and Ors (2013) 1 SCNJ (pt.1) 128; Alli v. Alesinloye (2004) 4 SCNJ 264 at 284; Piaro v. Tenalo (1976) 1 All NLR 229 at 234.
It is manifestly clear to me as crystals that just as the respondents, as claimants at the Court below failed to aver in their statement of claim, naming the founder of the land in dispute and how the same land was founded and also the names of the intervening owners of the said land before it devolved on them, that is, the respondents, they could not
have and actually did not lead evidence as to those facts. Indeed, the PW3 in answer to a question under cross-examination at page 313 of the record of appeal did say, to wit:
“The 1st settler in Adagbe Abomimi was called Oneana Nebo. He had four male issues namely Egweluga, Edupute, Nebocha and Obenebo. I am from Egweluga lineage. At the death of Adagbe Abomimi his four sons did not share his properties rather they owned it in common”.
But was a far as he could go and no more. Equally, the PW5 at page 322 of the record of appeal, while answering questions under cross-examination testified that:
“I know Ofia Ulasi which is now in dispute. Adagbe Abomimi is the owner of Ofia Ulasi. The Adagbe Abomimi got the Ofia Ulasi by inheritance. I know the original owner of that land. He was called Nnebo-Ocha.”
That was all from him.
There was no wonder then that the learned trial judge found that the traditional history evidence proffered by the respondents with respect to their claim to title to the Ofia Ulasi land was not satisfactory. And I entirely agree with his Lordship. The contention of the appellants, is that, at that stage, the claim of the respondents, ought
to have been dismissed and that the learned trial judge misapprehended the principle of law enunciated in Kojo II v. Bonsie (supra). There is the need to reiterate the said principle again. The apex Court in Nwokidu & Ors v. Okanu & Anor (2010) 1 SCNJ 167 at 196 per Adekeye, JSC graciously, explained it thus:
“In the scenario before the Court where the case is fought on evidence of traditional history – which in other words becomes a matter of hearsay upon hearsay which is the nature of traditional evidence, the trial Court in its traditional role of an umpire has a duty to examine the evidence of the parties and come to the conclusion which is more probable in the circumstances of the case, by testing it against the other evidence. Where witnesses of one party contradict each other on the traditional history relied upon the trial Court will be right to reject the traditional history. If the evidence adduced on one side is supportive of the traditional history relied on by the other side, the trial Court will be right in accepting the traditional history. It is only when it can neither find any of the two histories probable nor conclusive that he will
declare both inconclusive and proceed to decide the case on numerous and positive acts of possession and ownership.”
Further see Matanmi v. Dada (2013) 2 SCNJ 816 at 832 where his Lordship Fabiyi, JSC., re-echoed the apex Court’s position inter alia:
“What then is the Rule in Kojo II v. Bonsie? The Rule which has stood the test of time for quite sometimes now is that where traditional evidence proffered by the parties are inconclusive, the Court is enjoined to take into consideration facts in recent times given by the parties in order to determine which of the traditional evidence is more probable. To resort to the rule, the traditional evidence of the parties must be capable of being believed but that since the two are competing, a Court cannot prefer one to the other. Rather, it is enjoined to look out for further facts in recent times to see which of the traditional history is more probable.
?The finding of the trial judge that, there is no cogent evidence of tradition to prove the claim for declaration of title put steam out of the plaintiffs’ case. The Court below felt that the trial Court was right in the position taken by it. With respect, the Court below
was wrong. Indeed, the two Courts below erred. The evidence of the plaintiffs that was rejected by the trial Court had no chance of being tested under the Rule in Kojo II v. Bonsie (supra) The application of the Rule in the prevailing circumstance is not apt.”
The evidence of traditional history is essentially, a sort of evidence premised on the story of how a parcel of land was acquired by the forebears/progenitors of the parties, as recounted to them by their own fathers. The stories could be true or false. Yet, the parties believe them, nevertheless. Hence either party could be honestly telling the truth. Or even telling lies. However, where such evidence of traditional history, either of conquest, first settlement, inheritance or grant is satisfactorily placed before the Court and it is believed and accepted, title to the land in dispute can be declared for the claimant/plaintiff. Alli v. Alesinloye (supra); Odofin v. Ayoola (1984) 11 S.C. 22. However, where there is conflict in the traditional history evidence put forward by the parties, a trial judge by employing the principle in Kojo II v. Bonsie (supra) then resort to determining the probable traditional
history between the two traditional histories projected by the parties, by reference to recent acts in recent years evidencing who has been in possession of the land.
?In the instant case, the appellants’ contention is that the traditional history projected by the respondents, was yet to get up, such that the question of it being in conflict with that of the appellants, did not arise, since the traditional history evidence proffered by the respondents is not credible for it to be pitched against that of the appellants, in order to determine which of them is plausible and probable.This Court in Amuda v. Ajobo (1995) 7 NWLR (pt. 406) 170 at 180 – 181, per his Lordship, Oguntade JCA (as he then was) succinctly stated, thus:
?”A conflict arises when the traditional history given in evidence by the plaintiff and which was unchallenged by the evidence of the defendants, is capable of showing clearly the source of title relied upon by the plaintiffs is set against the traditional history given in evidence by the defendant and which unchallenged by the plaintiffs is capable of showing clearly the source of title relied upon by the defendants. In the instant case, the
plaintiffs’ evidence of traditional history would on its own have failed to show that Oderinlo granted the land in dispute to plaintiffs’ ancestor even if the defendants had not set up any traditional history of their own. The question of a conflict between the two traditional histories given by the parties did not arise at all. It was only in the event of the plaintiffs showing that Oderinlo granted the land in dispute to their ancestor that it could be said that they put before the lower Court evidence of traditional history which could be pitched against the traditional history of the defendants to determine if there was a conflict between both. The trial judge should have held that the plaintiffs’ evidence of traditional history in respect of the grant of the land in dispute by Oderinlo to plaintiffs’ ancestor was nebulous and insufficient. This would have led to the dismissal of plaintiff’s claim for declaration of title.”
My Lords, the above position of the law was more recently reiterated by the apex Court in Matanmi v. Dada (supra) at page 631, per Fabiyi, JSC, to wit:
I need to emphasize the point here that the position of law on the effect of
rejection of traditional evidence is as stated by this Court in Odofin v. Ayoola (1984) 11 SC 72 at 106; (1984) NSCC (vol. 15) 711 at 720 per Karibi-Whyte,JSC as follows:
“It follows therefore that where traditional evidence of that alleged from which title is derived, is lacking or rejected, as was in this case, such evidence is not merely inconclusive but also cannot be relied upon whether any other acts positive or numerous can support evidence of ownership. The basic foundation, that is traditional evidence, having been rejected there is nothing on which to found acts of, ownership.”
It is against the backdrop of the decisions of this Court in Amuda v. Ajobo (supra) and that of the Supreme Court in Matanmi v. Dada (supra) that I have come to agree with the learned senior counsel to the appellants, that since the respondents’ traditional history was yet to get up, it was unreliable and unbelievable. Therefore, there was no foundational evidence upon which to test any other traditional evidence proffered by the appellants. The learned trial judge was not on firma terra when he deployed the principle in Kojo II v. Bosnie (supra) by resorting to finding
recent acts of possession and ownership. For, it is a truism that acts of possession and ownership can only come into play where the root of title is clearly pleaded and duly established by cogent and believable/satisfactory evidence. It is the establishment of the pleaded root of title which per force, paves the way for acts of possession and ownership. In other words, without pleading and leading evidence viva voce to satisfactorily establish root of title, it would be futile to resort to finding recent acts of possession. Fasoro v. Beyioku (1988) 2 NWLR (pt. 76) 263.
In sum, I resolve issue 1 against the respondents and in favour of the appellants.
The other thrust of the appellants’ complaint against the learned trial judge is that he did not make a proper evaluation of the pieces of evidence proffered by the witnesses and therefore failed to make specific findings premised on such a proper evaluation of those pieces of evidence. The law is firmly settled to the effect that it is the primary duty of the trial judge who saw and heard the witnesses who gave evidence in a case before him and watched their demeanors in the witness box, to receive, perceive and
evaluate those pieces of evidence. The making of finding of facts involves both the perception and evaluation of evidence. Mainage v. Gwamma (2004) 14 NWLR (pt.893) 323 at 330 (SC); NACENN Nig Ltd v. Bewac Automotive producers Ltd (2011) LPELR – 8125 (SC).
The law also is well settled that generally, it is not the duty of the appellate Court to evaluate evidence proffered at the trial Court. However, where the trial Court failed to do a proper evaluation from the proved and established facts, the appellate Court will step in and do the evaluation of the evidence contained in the record of appeal. Odutola v. Mabogunje (2013) 7 NWLR (pt.1354) 522 at 548, 553 (SC); Adedayo v. Peoples Democratic Party and Ors (2013) All FWLR (pt.695) 203 at 265-266 (SC).
Therefore where there is a complaint, as it is in the instant appeal, that the trial judge did not make findings based on the evidence placed before him, the appellate Court, is in as good position as the trial Court to do its own evaluation of the evidence laid before the former. And where the latter finds that there are inadequacies on the part of the trial judge in reaching its decision, the appellate Court has a
duty to examine the inferences drawn and the conclusion reached by the trial Court and then re-evaluate the evidence in order to come to its judgment, to see that justice is done to the parties fairly. Oghoda v. Adulugba (1971) 1 All NLR 68; Lion Building Ltd v. Shadipe (1976) 12 S.C. 135; Eki v. Giwa (1977) 2 S.C. 131; Narumai and Sons Nig Ltd v. Niger Benue Transport Co Ltd (1989) 2 NWLR (pt.106) 730; Adedayo v. PDP (supra) at 234, 265-266 (SC).
Furthermore, the law is no longer recondite but very well settled to the effect that the appellate Court, just like the trial Court, possesses the power to evaluate the documentary exhibits tendered by the parties and admitted into evidence by the trial Court.Therefore, evaluation of documentary evidence is not the exclusive preserve of trial Courts. Dr. Soga Ogundalu v. Chief A. E. O. Macjob (2015) 3 SCNJ 90 at 107; Iwuoha v. NIPOST (2013) LRCN 1622; (2008) 8 NWLR (pt. 822) 308 (SC); Salisu v. Odumade (2010) 2 SCNJ 257.
I have examined Exhibit “B” and the complaint by the appellants to the effect that it was not properly evaluated by the learned trial judge. The said Exhibit “B” certainly did not establish that the
appellants are the owners of the land in dispute. It only represents the contention of the appellants that the respondents are intruding into their own part of Ofia Ulasi – the land in dispute. It should be remembered that the respondents contended that the appellants are strangers as far as Ofia Ulasi is concerned, a contention that the appellants resisted vehemently. To my mind, the appellants’ counter claim provided the linch pin and the launching pad, the appropriate forum, to prove how they came into possession of the land in dispute and that they indeed are not strangers on the said land, but also sons of the soil, so to say.
?I am in agreement with the finding of the learned trial judge that the traditional histories projected by the respondents and the appellants were not made out and convincing. The appellants averred at paragraphs 7, 8, 9, 10, 11, 12, 13, 22, 35, 44 and 47 of their statement of defence at pages 79 – 85 of the record of appeal, to the effect that they are not strangers in Adagbe Abomimi of Enugu-Ukwu and that they live on a portion of Ofia Ulasi and their ancestors were Chief Priests in their portion of Ofia Ulasi. Furthermore, they
averred that they inherited the portion of Ofia Ulasi where they live, from their own ancestors.
The question that props up itself, demanding an answer from the appellants is who were their ancestors from whom they inherited their portion of Ofia Ulasi, where they live? And how did their ancestors found the land in dispute. The appellants did not plead the facts which could have led to the answers to the questions posed above. The DW1 at page 328 of the record of appeal, answering questions under cross examination, said:
“I did not know when Ofia Ulasi grew into a bush. I saw it as a thick forest. My father told me that his own father married to (sic) (for) him that the Ofia Ulasi was once a grassland before it grew into a thick forest. The Ulasi juju was paced (sic) (placed) on the land for its protection and thereafter the area grew into a forest. Our own Ofia Ulasi started existing before that of the plaintiffs. I do not know how the Plaintiff(s) Ofia Ulasi came to being. I only know of the defendants’ Ofia Ulasi.”
The question again is, who founded the appellants’ Ofia Ulasi and how was it foundedI have used the same prism and lens to peruse and consider
the appellants’ counter claim, just like I did while considering the respondents’ claim at the Court below. I adopt my reasoning and analysis in the consideration of the respondents’ claim, earlier in this judgment and have found that the appellants never pleaded the name of their ancestor – Atuora, as the person who founded the Ofia Ulasi where the appellants live and also how he founded it, was it by conquest, first settlement or what? Furthermore, the names of the intervening owners of the said Ofia Ulasi until the same devolved on the appellants as their inheritance, were not pleaded nor evidence led on them.
The law needs be restated again that in an action such as the appellants’ counter claim, where the evidence is porous and unsatisfactory, judgment will not be given to the claimant, but the claim should fail because the claimant failed to prove what he claimed. Ekun & Ors v. Baruwa & Ors (1996) 2 All NLR 211; Ogundare v. Okanlawon & Ors (1963) All NLR 358.
In the end, I resolve issues 2 and 3 against the appellants. Consequently, the appeal succeeded in part only. In effect, that part of the judgment of the learned trial judge where judgment
was entered for the plaintiffs/respondents, as per their claim, is hereby set aside. The part of the same judgment, which granted the injunctive relief against the appellants, is also set aside. However, that part of the said judgment which dismissed the appellants’ counter claim is hereby affirmed.
Each side shall bear own costs of this appeal.
HELEN MORONKEJI OGUNWUMIJU, J.C.A.: I have had the privilege of reading before now the judgment just delivered by my learned brother TOM SHAIBU YAKUBU JCA. I am completely in agreement with the incisive and erudite reasoning and conclusion that in substance the appeal lacks merit. The story of either party did not match. Neither could prove their claim to ownership or exclusive possession of the land in dispute. They had lived peacefully for generations together on the same portion of communal land. In effect that part of the judgment of the learned trial judge where judgment was entered for the Respondents as sole owner of the communal land in dispute is set aside as there is no proof of their sole ownership of same on a preponderance of evidence. Consequently part of the same judgment which
granted injunctive reliefs against the Appellants is set aside. The Appellants had filed a counter claim to sole ownership of the same communal land. That part of the said judgment which dismissed the Appellant’s counter claim is hereby affirmed. As can be seen from the records and the reasoning of my learned brother, the Appellants did not also prove the counter-claim on a preponderance of evidence as required by law. I abide by the consequential orders in the leading judgment.
EMMANUEL AKOMAYE AGIM, J.C.A.: I had a preview of the judgment delivered by my learned brother, TOM SHAIBU YAKUBU, JCA. I agree with reasoning, conclusions and orders therein.
Appearances
A. C. Anaenugwu (SAN) with him, G. B. Obi, Esq., Emeka Nwankwo, Esq., Mrs. J. E. Okafor and O. M. Onuigbo, Esq.For Appellant
AND
Enechi Onyia (SAN) with him, E. S. Urama, Esq.For Respondent
