MOLOKWU & ANOR v. DIVINE POWER GOSPEL MISSION INTL & ORS (2020)

MOLOKWU & ANOR v. DIVINE POWER GOSPEL MISSION INTL & ORS

(2020)LCN/13992(CA)

In The Court Of Appeal

(ENUGU JUDICIAL DIVISION)

On Wednesday, March 25, 2020

CA/E/376/2012

Before Our Lordships:

Misitura Omodere Bolaji-Yusuff Justice of the Court of Appeal

Joseph Olubunmi Kayode Oyewole Justice of the Court of Appeal

Abubakar Sadiq Umar Justice of the Court of Appeal

Between

1. CHINYERE NWORAH MOLOKWU 2. NCHEKWUBE NWORAH MOLOKWU (For Themselves And On Behalf Of Members Of The Nwora-Molokwu Family, Umueze Village, Amawbia, Awka-South Local Government Area) APPELANT(S)

And

1. DIVINE POWER GOSPEL MISSION INTERNATIONAL 2. TRUSTEES OF DIVINE POWER GOSPEL MISSION INTERNATIONAL 3. PASTOR FAVOUR CHUKWUEMEKA RESPONDENT(S)

RATIO

WHETHER OR NOT A COURT MUST CONFINE ITSELF TO THE ISSUES RAISED BY PARTIES FOR DETERMINATION

Generally, a Court ought to confine itself to the issues raised by the parties in the determination of matters. However, where the issues are pluralized, or fragmented, or couched in such a manner as to obscure the crucial and real issues that would properly, adequately and finally determine the dispute, the Court would be entitled to distil such or other issues from the Grounds of Appeal filed. In such a situation, the Court of Appeal has the power and discretion to formulate issues from the Grounds of Appeal, which will determine the vital question between the parties. See KALU V UZOR (2006) 8 NWLR (PT. 981) 66. PER UMAR, J.C.A.

WHETHER OR NOT PARTIES AND THE COURT ARE BOUND BY THE PLEADINGS

It is trite law that where a case is brought before the Court by pleadings and issues are joined on the pleadings filed by both parties, issues must be tried and settled on the pleadings. See WIRI & ORS. V. WUCHE & ORS (1980) LPELR – 3498 (SC) AT 18 (A). It is also trite that parties and the trial Court are strictly bound by the pleadings and issues raised by the parties in their pleadings. Their case succeeds or fails on the basis of their pleadings and evidence led. See ETIM V. CLASEN VENTURES & ORS (2011) LPELR – 3827 (CA) AT 18-19 (G-D). PER UMAR, J.C.A.

WHETHER OR NOT ORAL EVIDENCE IS RELEVANT WHERE THE TITLE OR INTEREST IN FAMILY OR COMMUNAL LAND IS IN ISSUE

It is trite that where the title or interest in family or communal land is in issue, oral evidence of the family or communal tradition concerning such title is relevant. From the oral testimonies of the parties and their witnesses during the trial of the suit, it is clear as I held earlier that the Appellants predicated their ownership and possessory right to the land in dispute on traditional evidence claiming that their grandfather, Molokwu was the original owner who deforested the virgin land and found the land in dispute, cleared it, planted and reaped economic trees and lived thereon before his death in the eighteenth century. (See paragraphs 9 & 11 of the Statement of Claim at page 5 of the record of appeal). PER UMAR, J.C.A.

WHETHER OR NOT THE BURDEN OF PROOF IN A CLAIM FOR DECLARATION OF TITLE TO LAND LIES ON THE PLAINTIFF

The law is settled that the burden of proof in a claim for declaration of title to land lies on the plaintiff, who generally must rely on the strength of his own case and not on the weakness of the defendant’s case. See WOLUCHEM V. GUDI (1981) SC 291, PIARO V. TENALO (1976) 12 SC 31. PER UMAR, J.C.A.

ABUBAKAR SADIQ UMAR, J.C.A. (Delivering the Leading Judgment): This appeal is against the decision of the Anambra State High Court sitting in Onitsha delivered by Honourable Justice C. O. Nweke on 13th March, 2012 wherein the learned trial judge dismissed the Appellants’ claims against the Respondents.

BRIEF STATEMENT OF FACTS
By a Statement of Claim dated 29th March 2007 and filed on the 12th April 2007, the Appellants as Plaintiffs in the Court below claimed against the Respondents as Defendants for the following orders:
“(a) The sum of N10,000,000.00 (Ten Million Naira) being special, general, exemplary and punitive damages for trespass committed by Defendants on the said Adagbeoye land of the Plaintiffs, particularly described and shown verged RED on the Plaintiffs’ Survey Plan No. TG/AN019D/2007, made for them by Surv. E. A. TOLA-ANUEYIAGU, Registered/Licensed Surveyor.;
(b) An Order of perpetual injunction restraining the Defendants, their servants, agents, privies, associated or workmen from further trespass to the said Plaintiff’s land situate at and known as Adagbeoye land in Ezimezi Village, Amawbia,

particularly described and shown verged RED on the Plaintiffs’ Survey Plan No. TG/AN019D/2007, made for them by Surv. E. A. TOLA-ANUEYIAGU, Registered/Licensed Surveyor”

The case of the Appellants in the Court below was that the original person who founded and owned the land in dispute was their great grandfather, one Chief Molokwu and that the land in dispute was part of the Molokwu’s landed property. It is also the case of the Appellants that the Molokwu’s landed property has not been shared up till date and that the Appellants not only inherited the land in dispute but have been in possession thereof till the Respondents trespassed therein in the year 2004.

As gleaned from the record transmitted to this Court, the Appellants averred in their statement of claim that in February, 2004, the 2nd and 3rd Respondents approached the 1st Appellant who was the head of the family, requesting to purchase the land in dispute but that the 1st Appellant turned down the offer. The Appellants averred further that after the Respondents’ offer was turned down by the 1st Appellant, the 2nd and 3rd Respondents in November, 2004

encroached into the land in dispute by installing survey beacons on the land and upon realizing this act of trespass, the 1st Appellant immediately removed the beacons and bound the entire land with “igechi omu” – the traditional notice to trespassers to keep off the land.

According to the testimonies of the Appellants’ witnesses, the Respondents despite the measures taken by the 1st Appellant to wade the trespass, trespassed and began to erect permanent structures thereon and that upon protest by the 1st Appellant, the Respondents reported the 1st Appellant to the police.

The summary of the Respondents’ case as gleaned from their Statement of Defence at pages 39 to 43 of the Record of Appeal is that they got the land in dispute from one Mr. Chidozie Molokwu, the eldest son of Oluchukwu Molokwu who according to the Respondents donated an irrevocable Power of Attorney to them for consideration of One Million, Six Hundred Thousand Naira (N1, 600, 000.00). It is also the case of the Respondents that the land in dispute was in possession of one Mrs. Ngozi Molokwu and Comfort her mother-in-law and that the Respondents

allowed the said Mrs. Ngozi Molokwu and Comfort her mother-in-law to harvest their crops on the land before taking possession.

The Respondents averred that the Molokwu extended family consisted of two branches which are the Nwora Molokwu and John Molokwu branches, representing the two sons of Chief Molokwu, the progenitor of Molokwu family. They averred further that the land in dispute which was originally Molokwu family land was given to Comfort the only child of John Molokwu by the family on occasion of her marriage to one Chiwendu Ugorji on or before the year 1954. According to the Respondents, Comfort Molokwu, the only child of John Molokwu had a son as a spinster. The son named Oluchukwu was adopted by John Molokwu as his heir and successor in titles and that the land in dispute was in exclusive possession of Comfort who farmed same until 1977 and when Oluchukwu Molokwu got married, the land in dispute was transferred by Comfort to Oluchukwu. They averred that Oluchukwu Molokwu was in possession of the land in dispute until his death in 2003 after which same devolved on Oluchukwu Molokwu’s eldest son and his brother before the said land was

donated to the Defendants on the 26th February 2004 for valuable consideration.

Upon the close of trial and the filing of final written addresses of counsel, the learned trial judge at pages 249 – 250 of the record held as follows:
“In the final analysis, the defendants are not trespassers on the land in dispute because their defence is that the land in dispute was donated to them for a consideration of N1.6m by a member of the same Molokwu family who claimed that the land belongs to him. The Plaintiff having failed to establish exclusive ownership of the land in dispute cannot maintain this action in trespass against the defendants. The plaintiffs having failed to legally challenge the right of the donor over the land in dispute cannot maintain this action against the defendants. The case fails in its entirety and is hereby dismissed.”

Dissatisfied by the decision of the Court below, the Appellants exercising their right of appeal, invoked the appellate jurisdiction of this Court vide a Notice of Appeal dated 23rd April 2012 and filed on 25th April 2012. (See pages 251 – 260 of the Record of Appeal).

In compliance with the Rules of this Court, parties filed and exchanged their respective Briefs. The Appellants’ Brief is dated 9th January 2014 and filed on the same date. The said Brief which was deemed properly filed by an order of this Court made on 23rd November 2016 was settled by DR. E.S.C. OBIORAH who at page 6 of the Appellants’ Brief distilled four issues for the determination of this appeal to wit:
“1. Whether the learned trial Judge was right in dismissing the Appellants’ suit when the Appellants proved their title to the land in dispute or right to possession thereof against the Respondent, entitling them to damages for trespass and order of injunction against the Respondents. (Grounds 1, 5, 9 – 10)
2. Whether the learned trial Judge was right in admitting exhibit ‘F’, an unregistered registrable instrument, which was pleaded and tendered as a document/evidence of title, but not as a receipt nor as evidence of “a transaction between DW2 and the 3rd Defendant.” (Ground 7)
3. Whether the learned trial Judge was right in relying on pure hearsay evidence in finding that there was pledge,

redemption and gift of the land in dispute to one Comfort, thereby dismissing the Appellants’ case, when there was no scintilla of evidence supporting the pledge, redemption and gift of the land in dispute. (Grounds 3 and 4)
4. Whether the learned trial Judge was right in holding that the Respondents were not trespassers and that they proved valid donation of the land in dispute to the 1st Respondent, when the said Respondents failed to prove that the Donor to the land in dispute had right to make such donation and when the donee (1st Respondent) was not in existence at the time of the alleged donation. (Grounds 2, 6 and 8).”

The Respondents’ Brief on the other hand is dated 27th March 2018 and filed on 29th March 2019. The said Brief which was deemed properly filed by an order of this Court made on 23rd May 2019 was settled by S.N. CHUKWUMA who at page paragraph 2.01 of the Respondents’ Brief distilled a sole issue for the determination of this appeal to wit:
“Whether the Plaintiffs proved their claims for trespass and injunction based on their pleadings and evidence proffered at the trial?”

The appeal was taken on 21st January 2020 wherein counsel to the Appellants and the Respondents adopted their respective briefs and made oral adumbrations in respect of their several postures in the appeal.

APPELLANTS ARGUMENTS
On the first issue distilled by learned counsel to the Appellants, counsel argued that for a plaintiff suing in trespass to succeed, he must show that he is the owner of the land or that he has right to possession of it. He referred this Court to OSHO V. FOREIGN FIN. CORP. (1991) 4 N.W.L.R (Pt. 184) 157, 191, R.23; AMAYO V. ERINMWINGBO (2006) 11 N.W.L.R (Pt. 992), 669, 683, R. 4. It is the submission of Counsel that the Appellants at the Court below proved their title to the land in dispute by traditional evidence. On the various ways to prove title to land, he referred this Court to the case of IDUNDUN V. OKUMAGBA (1976) 10 N.S.C.C. 445, 453 – 4. He submitted further that in the instant case, the traditional evidence relied on by the Appellants was fully admitted by the Respondents. It is his contention that the Appellant led evidence that they inherited the land in dispute from their great grandfather who according to the Appellants

was the original owner that deforested the virgin forest and founded the land in dispute. He submitted further that the Respondents expressly admitted all these relevant facts and a result of their admissions; the Appellants’ traditional evidence is not disputed.

Counsel also submitted that he Appellant through their witnesses at the Court below established acts of long possessions and enjoyment of the land in dispute. He argued that the law is settled that where a claimant based his claim on traditional history and he successfully discharged the onus of proof of the root of title, there is no need for him to lead evidence proving acts of possession or any other mode of proving title to land. He referred this Court to the case of ALIKOR V. OGWO (2010) 5 N.W.L.R. (Pt. 1187) 281, 298, R1.

He submitted further that it was when the Respondents’ efforts to purchase the land from the Appellants failed that they resorted to DW2 who according to Counsel admitted under cross-examination that he was not the biological son of Chief Molokwu’s family. He also submitted that without the authority or consent of the 1st Appellant, DW2 purported

to donate or sell the land to the 1st Respondent on February 26, 2004, even before the 1st Respondent came into existence as a legal person on 21/3/2004.

On issue two, Counsel argued that it is the law that an unregistered instrument affecting land must not be pleaded nor given in evidence in a Court of law. He referred this Court to Section 22 of the Land Instrument (Preparation and Registration) Law (Cap. 75) Revised Laws of Anambra State of Nigeria, 1991. On the premise of the provision of the law (supra), he submitted that the Respondent in paragraph 26 of their Statement of Defence pleaded a ‘Power of Attorney’ as the instrument entitling them to enter and own the land in dispute. He submitted that the said Power of Attorney tendered as exhibit ‘F’, is a registrable but an unregistered instrument as mandated by Section 22 of the Anambra State Land Instrument (Preparation and Registration) Law.

It is the contention of Counsel that during trial, the Respondents went contrary to their pleading and tendered the said Power of Attorney (Exhibit ‘F’) as a receipt; though nowhere in their statement of defence did

the Respondents plead the Power of Attorney as a receipt. He submitted that the Respondents did not even state in their pleading that the purported consideration was ever received by or paid to anybody or acknowledged by anybody to enable the Court imply that the Power of Attorney was pleaded as a receipt. He submitted further that in an attempt to overcome this problem, the learned trial judge supplied another element to the Respondents’ pleading by finding that “In paragraph 26 of the statement of defence of the defendants the Power of Attorney exhibit F was pleaded to show that there was a transaction between the DW2 and the 3rd Defendant”.

He submitted that in our adversarial system of jurisprudence, a Court of law should not make a case for a party which the party did not intend to make for himself. He argued that where evidence of a party is at variance with the averment in his pleadings, the Court is entitled to hold that the party did not prove his case. He referred this Court to the case ofBONIFACE ANYIKA & CO. LTD. V. UZOR (2006) 15 N.W.L.R. (Pt. 1003) 560, 572, R 8. He submitted that since the Respondents pleaded Exhibit

“F” as an instrument passing interest in the land in dispute to the 1st Respondent, and since the said Exhibit ‘F’ is an unregistered registrable instrument, the learned trial judge was precluded in law from admitting the said exhibit and from relying on it in dismissing the Appellants’ case.

On issue three, he submitted that although the Respondents admitted in paragraph 5 of their Statement of Defence that the land in dispute was part of the Molokwu unshared family land and that the 1st Appellant is the head of the Molokwu family, they attempted to explain the basis for their ownership of the land by alleging the theory of pledge/redemption and gift. He submitted that in this, the Respondents through their witnesses failed to produce any evidence in support of the theory other than the self-serving hearsay of DW1 and DW2. Relying on Section 38 of the Evidence Act, 2011, he argued that no Court of law will rely on hearsay to render a decision. He submitted further that the sole living person who would have testified on the said gift was Comfort who was allegedly given the gift but that the Respondents skillfully avoided

calling her as a witness. He argued that this is tantamount to withholding evidence as provided for under Section 167(d) of the Evidence Act, 2011. On this issue, Counsel concluded by submitting that the learned trial Judge erred in law to have relied on mere hearsay claim to find that there was pledge/redemption and gift of the land in dispute to Comfort, thereby dismissing the Appellants’ case.

On the last issue, Counsel argued that a person who has no valid title to a property has none to transfer to a third party. He submitted that in the instant case, the Respondents claimed title to the land in dispute from DW2 by virtue of Irrevocable Power of Attorney – Exhibit ‘F’ given by DW2 to the 1st Respondent but the Respondents failed to establish that DW2 had the valid right to make the said donation to the 1st Respondent. He argued that the law is clear that any alienation of family land without the authority of the head of the family and its principal members is void. He argued further that the head of the family or any member thereof can sue to recover the purported alienation of the family land. He referred this Court to the

case of OJUKWU V. OJUKWU (2008) 18 NWLR (Pt. 1119) 439, 459, R. 6.

RESPONDENTS’ ARGUMENTS
On the sole issue distilled by the Respondents, Counsel submitted that the Appellants as Plaintiffs in paragraphs 1, 2, 21 and 22 of the Statement of Claim at pages 4 to 9 of the Record of Appeal averred that they instituted the suit as representatives of Nwora – Molokwu family. He submitted further that the 1st Appellant who was the 1st Plaintiff in the Court below was the head of the extended Molokwu family and also head of Nwora Molokwu inner family and that the Plaintiffs averred that Oluchukwu and his children did not belong to Molokwu extended family in accordance with Amawbia native law and custom.

He submitted that the case of the Appellants is that only the descendants of Nwora Molokwu form the extended Molokwu family and were in possession of the land in dispute and were entitled to their claims for Trespass and injunction. He submitted further that the Defendants on the other hand in their Statement of Defence at pages 39 to 43 of the Record of Appeal in paragraphs 24 to 27 averred that they got the land in dispute from one Mr.

Chidozie Molokwu, the eldest son of late Okechukwu Molokwu who donated an irrevocable Power of Attorney to them for a consideration of One Million, Six Hundred Thousand Naira (N1, 600, 000.00). He contended further that the said land was in possession of Mrs. Ngozi Molokwu and Comfort her mother-in-law and that the Defendant allowed Mrs. Ngozi Molokwu and Comfort her mother-in-law to harvest their crops on the land before taking possession.

He submitted that the Respondents in paragraphs 7 to 17 of their Statement of Defence averred that Molokwu extended family consisted of two branches which are Nwora Molokwu and John Molokwu branches, representing the two sons of Chief Molokwu the progenitor of the Molokwu family. Counsel submitted further that the land in dispute which was originally Molokwu family land was given as gift to one Comfort who is the only child of John Molokwu by the family on occasion of her marriage to one Chiwendu Ugorji on about 1954. He submitted that Comfort Molokwu, the only child of John Molokwu had a son as a spinster named Oluchukwu who was adopted by John Molokwu as his heir and successor in titles and that the land in dispute

was in exclusive possession of Comfort who farmed same until 1977 and when Oluchukwu Molokwu got married, the land in dispute was transferred by Comfort to Oluchukwu whose wife joined in the cultivation of the land exclusively until 2004 when it was donated to the Respondent.

In his final analysis on the sole issue distilled by him, counsel submitted that the Appellants failed to prove by their pleadings and evidence that they were in possession of the land in dispute before the commencement of the suit or that they have better title to the land. On the whole he urged this Court to resolve this issue in favour of the Respondents and against the Appellants.

RESOLUTION
I have read through the pages of the record of appeal before this Honourable Court and the adopted briefs of argument of counsel in support of their postures in this appeal. The issues for determination canvassed respectively by the parties are well examined and considered.

obscure the crucial and real issues that would properly, adequately and finally determine the dispute, the Court would be entitled to distil such or other issues from the Grounds of Appeal filed. In such a situation, the Court of Appeal has the power and discretion to formulate issues from the Grounds of Appeal, which will determine the vital question between the parties. See KALU V UZOR (2006) 8 NWLR (PT. 981) 66.

In effect of the above, I consider the issue stated below apt and germane for the determination of the instant appeal.

ISSUE FOR DETERMINATION
“WHETHER THE LEARNED TRIAL JUDGE WAS RIGHT TO HAVE DISMISSED THE CLAIMS OF THE APPELLANTS?”
It is trite law that where a case is brought before the Court by pleadings and issues are joined on the pleadings filed by both parties, issues must be tried and settled on the pleadings. See WIRI & ORS. V. WUCHE & ORS (1980) LPELR – 3498 (SC) AT 18 (A). It is also trite that parties and the trial Court are strictly bound by the pleadings and issues raised by the parties in their pleadings. Their case succeeds or fails on the basis of their pleadings and evidence led. See

ETIM V. CLASEN VENTURES & ORS (2011) LPELR – 3827 (CA) AT 18-19 (G-D).

The Appellants predicated their ownership and possessory right to the land in dispute on traditional evidence claiming that their grandfather, Molokwu was the original owner who deforested the virgin land and found the land in dispute, cleared it, planted and reaped economic trees and lived thereon before his death in the eighteenth century. (See paragraphs 9 & 11 of the Statement of Claim at page 5 of the record of appeal).

The Respondents on the other hand relied on purchase as their root of title to the land in dispute having bought same from the family one Chidozie Molokwu, the eldest son of Oluchukwu Molokwu for a consideration of the sum of N1, 600, 000.00 (One Million, Six Hundred Thousand Naira only). The Respondents relied on an Irrevocable Power of Attorney executed in their favour by the said Chidozie Molokwu for himself and on behalf of the Molokwu family of Umueze village Amawbia, the said document admitted in evidence as “Exhibit F” during trial. (See paragraph 26 of the Statement of Defence at page 42 of the record of appeal).

It should be stated that some issues are not in dispute in the pleadings of the parties. As gleaned from the Respondents’ Statement of Defence at pages 39 – 43 of the record of appeal, the Respondents admitted paragraphs 1, 2, 11, 12, 13, 14, 16, 18, 19, 24 and 23 of the Appellants’ Statement of Claim. The admitted paragraphs are hereunder reproduced as follows:
“1. Plaintiffs are members of Nwora Molokwu Family in Umueze Village, Amawbia Town, and bring this action for themselves and on behalf of other members of Nwora-Molokwu family.
2. The 1st Plaintiff is the head of Molokwu extended family and also the head of Nwora-Molokwu inner family and is a businessman, doing business in PortHarCourt, Rivers State, where he has been residing since 1987. Plaintiffs hereby plead and will rely at the trial on the Decision of Isi-Isiakpu Umueze of January 4, 2005, showing that the 1st Plaintiff is the head of Molokwu family.
11. The original owner who deforested the virgin forest and found the land in dispute is Chief Molokwu, who lived and dies in eighteen century. When he found the land, he cleared it and cultivated it and planted

and reaped economic trees therefrom.
12. Molokwu begot two sons, namely: Nworah and John. Nworah is the first son.
13. In his lifetime Molokwu did not divide his landed property among his two sons nor did he share the numerous pieced and parcels of land he had acquired, including the land in dispute. Molokwu died in eighteenth century.
14. The sons of Molokwu never divided Molokwu’s lands after his death but enjoyed them in common as communal property; so also their sons and their grandsons of today who form Molokwu extended family never shared Molokwu’s lands.
16. Augustine begot six sons: Chinyelu (1st Plaintiff), Kachi, Nchekwube (2nd Plaintiff), Nworah died in 1993.
18. John, the second son of Molokwu had no male issue but had a daughter, called Comfort. Comfort begot a son in her father’s (John’s) compound by ‘ime-mkpuke’ (illegitimate pregnancy) before getting married. The name of the son whom Comfort begot in her father’s compound by ‘ime-mkpuke’ is Oluchukwu.
19. Comfort later got married to Ugorji of Ngene village, Amawbia. She had issues for her husband at Ngene

village.
23. Oluchukwu begot four sons: Chidozie, Obum, Okechukwu and Chibuike, also known as and called ‘senior’.

As gleaned from the above pleadings of the Appellants which were admitted by the Respondents, the Appellants and the sons of Oluchukwu whom the Respondents claimed to have derived their title to the land are from the same family only to the extent that Oluchukwu was the son of Comfort, the daughter of John Molokwu. They all descended from a common ancestor i.e. Chief Molokwu. Downsizing the family tree, while the Appellants are the further descendants of Nworah Molokwu, the first son of Chief Molokwu, the sons of Oluchukwu are the great grandchildren of John Molokwu, the second son of Chief Molochukwu. Oluchukwu their father was the son of Comfort who was the only child of John Molokwu.

While the Appellants in Statement of Claim averred that Oluchukwu who was the child Comfort had no right to the inheritance on the side of the mother’s father under Amawbia native law and custom, having been born out of wedlock without the necessary ceremony of ‘nrachi nwanyi’ i.e. leaving a woman to remain unmarried

in her father’s compound to breed children for the father. In essence, the Appellants averred that Oluchukwu and his children have no right of inheritance to the property of Chief Molokwu as they do not belong to Molokwu extended family in accordance with Amawbia native law and custom. (See paragraph 22 of the Statement of Claim at page 6 of the record of appeal).

On the other hand, the Respondents averred in paragraph 8 – 14 of the statement of defence as follows:
“8. John Molokwu was a devout Christian of the Jehovah witness faith and lived by their tenet. He had a daughter named Comfort who became pregnant as a spinster and had a baby boy named Oluchukwu.
9. John Molokwu was initially not happy with the situation but was persuaded and convinced by his nephew Augustine the father of the Plaintiffs to adopt Oluchukwu as his son in accordance with Amawbia native law and custom.
10. Nworah Molokwu in his lifetime pledged the land in dispute to raise money for personal problem, which land was redeemed by John Molokwu who farmed the land exclusively.
11. On or about the year 1954, Comfort Molokwu married one Chinwendu

Ugorji from Ngene Village Amawbia and was given the land in dispute as a gift by Molokwu family (John and his nephew Augustine) in appreciation of her contribution to the family.
12. Oluchukwu Molokwu, the adopted son of John Molokwu grew up in his house and under his tutelage as a member of the Molokwu family.
13. Oluchukwu Molokwu got married in 1977 and in grand reception sponsored by John Molokwu, publicly proclaimed to the Umueze village and the general public the said Oluchukwu as his heir and entitled to his share of Molokwu landed properties…”
14. The land in dispute was subsequently farmed and owned exclusively by Comfort until 1977 when she transferred it to Oluchukwu Molokwu; whose wife joined in the cultivation of the land.
15. John Molokwu died in March 1985 and his funeral ceremony was performed by Oluchukwu Molokwu and received condolences as Chief Mourner.”

From the above, I am of the opinion that the grouse of the Appellants is whether the Respondents could be said to have a valid title to the land in dispute when the origin of their root of title is not proved.

The law is trite that where a plaintiff

claims for damages for trespass and injunction and the defendant alleges that the land belongs to him, the plaintiff in order to succeed has to prove not only that he was in possession of the land when the trespass was committed on it but also that his own title to the land in dispute is better than that of the defendant. This is because in the circumstances, title to the land in dispute is put in issue. See OGBECHIE & ORS. V. ONOCHIE & ORS. (1988) LPELR –2277 (SC).

Claim at page 5 of the record of appeal).

The Respondents on the other hand relied on purchase as their root of title to the land in dispute having bought same from the family one Chidozie Molokwu, the eldest son of Oluchukwu Molokwu for a consideration of the sum of N1, 600, 000.00 (One Million, Six Hundred Thousand Naira only). The Respondents relied on an Irrevocable Power of Attorney executed in their favour by DW2, one Chidozie Molokwu for himself and on behalf of the Molokwu family of Umueze village Amawbia, the said document admitted in evidence as “Exhibit F” during trial. (See paragraph 26 of the Statement of Defence at page 42 of the record of appeal).

It suffices to say that the Appellants in the instant appeal can only succeed in their claim of trespass and damages if is sufficiently established to the satisfaction of the Court that they and not the Respondents have a better title to the land in dispute. The Appellants and DW2, who on behalf of himself and on behalf of the Molokwu family of Umueze village Amawbia executed Exhibit F in favour of the Appellants traced their title to a common progenitor but differed as the chain

of succession expands. While they agreed to be common descendants of a common ancestor, Chief Molokwu and all maintained that the family property had not been shared; the grandchildren of Comfort Molokwu maintained that the land in dispute was given to their mother by her father John Molokwu with the consent of Augustine Molokwu who happens to be the father of the Appellants. The Respondent’s witnesses went further to substantiate their claim when DW1 and DW2 testified that the land in dispute was being cultivated by Comfort and DW1 before its sale to the Respondents. The Appellants denied the fact that Comfort was in possession of the land before the land in dispute was sold. However the testimony of PW5 gives credence to the case of the Respondents’ witnesses that Comfort, the daughter of John Molokwu was in possession of the land before it was sold. At page 201 of the record of appeal, PW5 under cross-examination testified as follows:
“Q. Before the land in dispute was sold, Comfort the daughter of John Molokwu and Oluchukwu her son were in possession of the land in dispute.
A. It is not true.
Q. When the land was sold,

Comfort and the family of Oluchukwu had crops and economic trees on the land in dispute were harvesting on them.
A. There were economic trees which were left there for his children. Comfort cultivated there with permission. She was not even cultivating it alone. Ngozi was Oluchukwu’s wife who also cultivated the land. They got permission to cultivate from my father when he was alive. And now from me.

At pages 242 – 243 of the record of appeal, the trial Court undertook an appraisal of the issue of possession when it held as follows:
“The above evidence of P.W.1 during cross examination substantially support the evidence of D.W.1 and D.W.2 that the land in dispute was being cultivated by Comfort and Ngozi Molokwu and also the evidence of the 3rd defendant that the family of Oluchukwu Molokwu was in possession of this land in dispute at the time it was donated to the defendants. Given the extent of animosity that pervades this case, I deduce that if the land in dispute was not given to Comfort as testified by the defendants, the plaintiffs would have taken it from her long before the donation of the land in dispute.
My

view therefore is that the family of Oluchukwu Molokwu from John Molokwu’s branch of Molokwu family was in possession of the land in dispute at the time they donated to the defendants.”

I find it difficult to hold differently as held by the trial Court on the issue of possession. The Respondents’ witnesses already testified that Comfort was given the land in dispute by John Molokwu and I too, find it hard to believe that Comfort could be in possession of the said land for a long period of time with the consent of PW5 considering the animosity and the tussle for the ownership of the land by the parties.

The Respondents joined issue with the Appellants on the title to the disputed land and since the Appellants are duty bound to establish superior title. The law is settled that the burden of proof in a claim for declaration of title to land lies on the plaintiff, who generally must rely on the strength of his own case and not on the weakness of the defendant’s case. See WOLUCHEM V. GUDI (1981) SC 291, PIARO V. TENALO (1976) 12 SC 31. In this case, the Appellants who were the plaintiffs at the trial Court had the burden to prove

that they are entitled to the declaration which they sought at the trial Court and they were required to discharge this burden of proof on preponderance of evidence.

The learned counsel to the Appellants made heavy whether on the admissibility of Exhibit F tendered and relied on by the Respondents as proof of ownership of the land. I do not intent to overstretch this issue as I find the trial Court’s evaluation of same unquestionable. The circumstances surrounding the said Exhibit and the purport which same seeks to establish has been dealt with by the trial Court. The Court at page 246 of the records while evaluating Exhibit F held as follows:
“The admissibility of an unregistered registrable instrument such as exhibit F depends on the purpose for which it was tendered in evidence. In the instant case Exhibit F was not tendered to prove title but to show that the transaction actually took place. I ought to remind myself that what is involved in this case is whether the defendants are trespassers on the land in dispute. The question whether the land in dispute was validly sold or transferred to the defendants is not the issue here since

the donors of the land are not joined or made parties in the suit.”

Flowing from all that had been said earlier in this judgment, I agree with the trial Court that the Respondents are not trespassers on the land in dispute because their defence is that the land in dispute was donated to them for a consideration of N1.6m by a member of the same Molokwu family who claimed that the land belongs to him. The Appellants having failed to legally challenge the right of the donor over the land in dispute cannot maintain an action for trespass against the Respondents.

Before concluding, I would like to express my dissatisfaction with the way and manner in which the Respondents’ Brief of Argument was written. The Respondents’ Brief of argument is nothing but an 8 page document containing a summary of the parties’ pleadings and majorly excerpts of the decision of the Court below. The said brief is bereft of substance and I must confess that same offered this Court no assistance in the resolution of this appeal. It is not surprising that the Appellants did not find it expedient to file a Reply Brief to same. As a matter of fact, there is

nothing contained therein that requires the filing of a Reply Brief. There is no single authority cited by the Respondents’ Counsel. The Brief is dry, lacks substance and ought not to be called a brief to be filed in a Court of this pedigree. Brief writing is a very serious business and must be taken very seriously. The Respondents’ brief in this appeal can best be described as bare and lazy. Counsel should be reminded that the fate of his client’s case may well depend on the persuasive quality of his brief and as such some level of industry must be put into the making or writing of his clients brief. I need to add that one of the purposes of brief writing in the Appeal Courts is to assist the administration of justice by making the work of both counsel and the Court easier. A brief that is written from the first page to the end without a single legal authority is to say the least, inadequate and cannot assist the Court.

On the whole, I resolve the sole issue distilled by this Court against the Appellants and in favour of the Respondents. This appeal lacks merit and same is hereby dismissed.
The decision of the trial Court, Per C. O.

Nweke, J., delivered on the 13th day of March, 2012, wherein the Appellants’ claims were dismissed is hereby affirmed. Parties shall bear their respective costs.

MISITURA OMODERE BOLAJI-YUSUFF, J.C.A.: I agree.

JOSEPH OLUBUNMI KAYODE OYEWOLE, J.C.A.: I have had the privilege of reading the draft of the lead judgment just delivered herein by my learned brother ABUBAKAR SADIQ UMAR, JCA and I totally endorse the reasoning and conclusion therein.
I adopt the consequential orders in the lead judgment as mine.

Appearances:

E. S. C. OBIORAH ESQ.
For Appellant(s)

N. CHUKWUMA ESQ. For Respondent(s)