OZOIGBO & ORS v. ONYEKAMMUO & ORS (2020)

OZOIGBO & ORS v. ONYEKAMMUO & ORS

(2020)LCN/15467(CA)

In The Court Of Appeal

(AWKA JUDICIAL DIVISION)

On Wednesday, December 16, 2020

CA/AW/605/2017

RATIO

LAND: PRACTICE OF THE COURT WHEN A PARTY GIVES EVIDENCE THAT IS CONTRADICTORY TO HIS PLAN

The law is trite that a Court may refuse to attach credibility to a Survey Plan, when a party gives evidence that is contradictory to his Survey Plan, for example as in the instant case where the Appellants gave evidence as to the boundaries of the land which did not correspond to the boundaries stated in their Survey Plan. – AKPAN & ORS V OTONG & ORS (1996) LPELR – 374SC. PER RITA NOSAKHARE PEMU, J.C.A.

TITLE TO LAND: FACTS TO BE PROVEN TO SUCEED IN A CLAIM OF DECLARATION OF TITLE TO LAND

The law is trite that for a plaintiff to succeed in a claim of declaration of title to land, he must prove with certainty, the location, boundaries and identity of the land in dispute. Decidedly there must not only be proof, but clear evidence to show that it was the same land that is being disputed. The land must be connected to the facts in issue.
A Plaintiff must prove the exact location of the land and the precise area to which his claim relates – AYODELE V OLUMIDE (1969) All NWLR 225, ONUWAJE V OGBEEDE (1991) 3 NWLR (Pt 178)8; BARUWA V OGUNSOLA 4 WACA 159. PER RITA NOSAKHARE PEMU, J.C.A.

TITLE TO LAND: WHETHER A PARTY MAY RELY ON ACTS OF POSSESSION TO PRPOVE TITLE TO LAND

One cannot really talk of acts of ownership without first establishing that ownership. Where a party’s root of title is pleaded as, say a grant, or a sale or conquest etc that root has to be established first, and any consequential acts following therefrom can then properly qualify as acts of ownership. In other words, acts of ownership are done because of, and in pursuance to the ownership. Ownership form the quo warranto of these acts as it gives legality to acts which would have otherwise been acts of trespass.
Having thus failed to prove title he pleaded it will be wrong of him to turn round to rely on acts of ownership or acts of possession, which acts are in the nature of things derivable from and rooted in the radical title pleaded.
A similar pronouncement of the Court was made in The Regd. Trustees of the Dioceses of Aba v. Helen Nkume, supra and Maneke v. Maneke supra, 332 A- D (CA). PER CHIOMA EGONDU NWOSU-IHEME, J.C.A.

DUTY OF COURT: EVALUATION OF EVIDENCE

It is trite law that it is the primary duty of a trial Court to evaluate the evidence of witnesses which it has the privilege of seeing and hearing, and its findings of facts arising therefrom are not lightly interfered with by an appellate Court. But where a trial Court fails to evaluate the evidence, or fails to evaluate properly, or where such evaluation results in a perverse conclusion, the appellate Court has a duty to reassess and re-evaluate the evidence in order to reach a correct conclusion: Anyanwu v. Uzowuaka supra, at p. 465C-E; Maneke v. Maneke [2020] 23 NWLR (Part 1741) 311, 334D-E (CA); Unilorin Teaching Hospital v. Abegunde [2015] 3 NWLR (Part 1447) 421, 456 A-B; Offodile v. Offodile supra, 205 H. PER CHIOMA EGONDU NWOSU-IHEME, J.C.A.

TITLE TO LAND: MEANS OF PROVING THE IDENTITY OF THE LAND

Before Our Lordships:

Chioma Egondu Nwosu-Iheme Justice of the Court of Appeal

Rita Nosakhare Pemu Justice of the Court of Appeal

Bitrus Gyarazama Sanga Justice of the Court of Appeal

Between

1. ANSELEM OZOIGBO 2. PAULICAP OZOIGBO 3. EMEKA OZOIGBO (For Themselves And On Behalf Of Other Members Of Late Ozoigbo Family Of Umuezike Eziama Uli) APPELANT(S)

And

1. TOBIAS IWUCHUKWU ONYEKAMMUO 2. PATRICK ONYEKAMMUO 3. LOUISE ONYEKAMMUO 4. ALFRED MBANASO (JOLLY PAPA) (For Themselves And On Behalf Of Other Members Of Onyekammuo Family) RESPONDENT(S)

CHIOMA EGONDU NWOSU-IHEME, J.C.A. (Delivering the Leading Judgment): This is an Appeal from the judgment of B. A. Ogbuli, J. delivered at the High Court of Anambra State, holden at Ihiaia, on the 19th June, 2017.

In the judgment, His Lordship dismissed the Appellants’ Suit and granted part of the reliefs sought by the respondents in their counterclaim. At pages 389 — 390 of the record of appeal, he held as follows:
1. The Plaintiffs claim entirely fails and it is hereby dismissed.
2. The claim of the Defendants for title fails and it is also dismissed.
3. The Plaintiffs by themselves, their servants, agents, workmen and privies are hereby restrained from trespassing or further trespassing into the land in dispute shown verged red in the defendants’ dispute survey plan No. THS/AN/017D/2012.
4. I award N100,000 damages to the defendants for the Plaintiffs’ trespass over the said land.
5. The Plaintiffs shall pay cost of N100,000 to the Defendants.

The Appellants herein were the Plaintiffs at the lower Court. In their Suit, at paragraph 62 of the further amended statement of claim, they sought the following reliefs, viz:
a. A declaration that the plaintiffs are the rightful persons entitled to apply and obtain the statutory right occupancy over the piece/parcel of land, now in dispute, belonging to late Charles Ozoigbo, inherited by the plaintiffs as family land, which land formed part of the expanse of land, known and called “Ala Buji” Ihiala L.GA. of Anambra State, Umuezike, Eziama-Uli, Ihiala L.G.A. of Anambra State, plan No. FEA/AN/D.001, prepared by Surv. F.E. Anoruo, dated 04/1/2012.
b. Five Million Naira (N5,000,000.00) being specific and general damages for trespass.
c. Perpetual injunction restraining the defendants by themselves and/or through their agents, privies, next-of-kin, heirs, allies, associates, assigns, representatives, administrators, workmen and or any person (s) taking instructions from them from further trespass into the said piece/parcel of land belonging to late Charles Ozoigbo, inherited by the plaintiffs as family land which land formed part of the expanse of land known and called “Ala Buji” Situate and lying at Urnuepum Umuezike, Eziama-Uli, Ihiala L.G.A. of Anambra State.

The respondents, who were the defendants at the lower Court, upon service of the appellants’ pleadings, filed their defence to the suit in which they counter-claimed in paragraph 76 of their amended statement of defence, thus:
1. A declaration that the 1st-3rd defendants representing Onyekammuo Ogualobi family are entitled to the customary Right of Occupancy in and over the piece of (sic) parcel of land known as and called “Mgbo Okohia Alukabia” verged red in the defendant survey plan of the land in dispute.
2. N500,000.00 (five hundred Thousand Naira) damages for trespass.
3. An other (sic) of perpetual injunction restraining the plaintiffs, their family servants, agents, workmen and privies from trespassing or further trespassing into the said land in Dispute and/or any other portion of land within the defendants land verged blue.

The suit proceeded to trial upon the amended pleadings of the parties, namely, further amended statement of claim, amended statement of defence and reply to statement of defence cum counter claim.

At the trial, the appellants fielded six witnesses, namely Peter Nwabueze as PW1; Titus Emebo as PW2; Alexander Mgbeadichie as PW3; Elder Joseph Nnabuko as PW4; Peter Ozoigbo as PW5; and Emeka Ozoigbo as PW6. The respondents, on their part, called three witnesses; Louis Onyemammuo as DW1; Luke Nwugo as DW2; and Sir Alfred Obi Mbanaso as DW3. At the close of evidence, the parties filed and exchanged written addresses which their respective counsel adopted on 22.7.2016. As stated above, the lower Court thereafter delivered its judgment, the summary of which has been set out at the beginning of this judgment.

SUMMARY OF FACTS:
The case of the appellants, as can be gathered from their pleadings and evidence, can be summarily stated. They claim to be the owners in possession of a parcel of land known as and called “Alabuji” situate at Umuepum, Umuezike, Eziama-Uli in Ihiala Local Government Area of Anambra State through customary inheritance from their ancestor, Epum, who allegedly deforested it. The land is verged red in their survey plan, exhibit P.23. They traced their genealogy from Epum to their father, Charles Ozoigbo, and to them. They described their various acts of ownership and possession of the land through the years such as farming, harvesting economic crops and trees, challenging trespass on the land and involvement in litigation concerning the land and neighbouring land.

The respondents, on their part, denied the appellants’ claim to the land in dispute which they call “Mgbo Okohia Alukabia”. Instead, they claim ownership of the land by inheritance from their ancestor Ogualobi through their father, Onyekammuo Ogualobi. They also claim that one Olemanya Ikegbaragu was the person who originally acquired title and possession to a larger area of land, which included the land in dispute, beyond human memory and exercised maximum acts of ownership and possession over the land such as farming, cultivation and harvesting economic crops thereon. The respondents described the land in a survey plan, exhibit ‘D1’, which they tendered.

It is revealed in the record that at the conclusion of evidence of the parties, the appellants were granted leave of Court to amend their survey plan, exhibit ‘P13’ in terms of a new survey plan, exhibit ‘P23’. As a result of this amendment, the respondents also amended their survey plan, exhibit ‘D1’ and tendered a fresh one marked as exhibit ‘D3′. The parties tendered other documentary evidence which shall be referred to in due course, where necessary.

The appellants were aggrieved with the judgment of the lower Court in which the entirety of their claim was dismissed. They filed a notice of appeal on 29.6.2017 in which they raised eight grounds of appeal. The respondents, it should be noted, did not complain about the lower Court’s dismissal of their claim to title to the land. They filed no appeal against the order of dismissal.

In the appellants’ brief of argument, adopted at the hearing of the appeal on 22.9.2020 by their senior counsel, J.T.U. Nnodum, SAN, they formulated three issues for determination. The learned senior counsel also adopted the appellants’ reply brief of argument. The respondents’ counsel, G.O. Eleanya, Esq. adopted the respondents’ brief of argument at the hearing in which the respondents formulated seven issues for determination.

I have compared the sets of issues for determination in the parties briefs of argument, and I am of the view that the appellants’ issues for determination duly reflect the complaints in the grounds of appeal. The issues are as follows:
(a) whether the Court was in error when it held that the appellants did not prove their case and dismissed their suit: Grounds One, Five, Six, Seven and Eight;
(b) whether the lower Court was in error when, after holding that the respondents’ traditional history was unsatisfactory and inconclusive, went on to hold that the respondents were in possession of the land in dispute and the appellants were liable in trespass: Grounds Two and Three;
(c) whether the lower Court was in error in relying on the respondents survey plan, which had been supplanted or amended, in granting perpetual injunction against the appellants: Ground Four.

This appeal shall be determined on the basis of the above issues for determination. In doing so, the respondents’ arguments in their issues for determination shall be taken into consideration.

In relation to the first issue for determination, the appellants contend that Epum, their ancestor, founded the land in dispute by deforestation and he was also the first person to settle on the land; that they traced their line of descent from Epum to themselves as well as their acts of ownership and possession thereon.

They listed their ancestors’ acts of ownership and possession to include the litigation initiated by Ozoigbo and Joseph Ozoigbo in 1921 and 1923 against certain persons: see exhibit P8; cultivation of cashew plants and palm trees on portions of the land; joint survey of respective portions of the land by their father, Charles and his brothers, Gilbert and Ignatius; the building and use of a hut by their father; the successful prosecution of trespassers on the land in Charge No. MOR/1039c/63: see exhibit P.7; their fathers’ rebuff of the respondents’ trespass on the land. The appellants attacked the various adverse findings of facts made by the lower Court and sought to show that the lower Court was in error in making those findings. In particular, the appellants complained that the lower Court did not consider all the evidence tendered by them before reaching the conclusion that they did not prove their case.

In reply to the above argument, the respondents contend that the appellants did not prove their case and that the lower Court was right in dismissing their case. They drew attention to the inconsistency between the pleadings of the appellants and the evidence of their witnesses; for example, the alleged contradiction between paragraph 45 of the appellants’ amended statement of claim and the evidence of Gilbert Ozoigbo in exhibit P1; between the evidence of PW1, PW2, and PW3 vis-a-vis exhibit P23. They argue that “in the instant case the principle on the need for oral evidence to be in agreement with area or boundaries or even location of the land in dispute as pleaded, was totally and violently violated by the appellants/appellants’ witnesses”. paragraph 3.00 of the respondents’ brief of argument.

The respondents harped on the alleged failure of the appellants to prove the identity of the land in dispute. This is buttressed by their submission in paragraph 5.02 of their brief of argument, part of which reads:
… even by only the inconsistencies, contradictions, and uncertainty in the appellants witnesses’ evidence on the fundamental issues of identity and location of the land in dispute and the discord in the exhibits, including survey plans of the appellants, the appellants have not made out a prima facie case to justify application of any test of proof in the appeal and it adversely affected also appellants roots of title, possession etc as there is “no definitive certainly” on the identity of the subject matter of the dispute …

The appellants challenged the respondents’ castigation of the quality of their evidence in their reply brief of argument in which, inter alia, they distinguished the decided cases relied on by the respondents and reiterated that they proved their case.

As stated earlier, both the appellants and the respondents each claimed title, by customary inheritance, to the land in dispute which they called different names. In its judgment, the lower Court dismissed both claims. It held at page 373 of the record of appeal:
For the above reasons, the evidence of traditional history led by both parties are quite unsatisfactory and are inconclusive. I hold that they cannot sustain either the claim of title by the plaintiffs or that of the defendants. In that event I hold that the claim of the plaintiffs for title and that of the defendants both fail.

The lower Court gave reasons for the dismissal of the appellants’ claim to title. These reasons have been admirably summarised by the appellants in paragraphs 4.06, 4.07, 4.08 and 4.09 of their brief of argument.

In respect of the respondents’ claim to title, the lower Court made the following devastating findings of fact. It said at page 374 of the record of appeal as follows:
The defendants did not fare any better on their traditional evidence. Only DW1, Louise Onyekamuo the 3rd defendant, gave evidence of traditional history of the land. His account as shown in paragraphs 9, 10, 11, 12, and 13 of his resworn statement on both of 05/06/14 is quite uncertain and inconclusive. It failed to even show the founding of the land. In his answers to some question in cross-examination on 10/06/14, DW1 answered thus:
Q. Do you know who founded the land on both the left and right sides of the road.
A. The land was founded by one Onogia and called “Mgbo Okohia Alukabia” Onogia begat Olemanya.
Q. Who was next to Olemanya in order of descent from Onongio
A. Olemanya begat to Obialo and Nzeobi.
This piece or evidence extracted from cross-examination is not borne out of the pleading of the defendants and therefore goes to no issue. The case of the defendants, from their pleadings, is that Olemanya Ikegbaragu acquired the “Mgbo Okohia Alukabia”. The defendants completely failed to show how he (Olemanya) acquired same and upon who the land devolved before it got to the 1st — 3rd defendants or all the defendants.

The respondents did not appeal against the dismissal of their claim to title, and against the above findings of fact. The implication is that they are bound by them, and those findings should be regarded as correct in this appeal: Onafowokan V. Wema Bank Plc. (2011) 12 NWLR (Part 1260) 24, 53H-54C. This state of affairs does not necessarily lead to the conclusion that the appellants’ claim to title must be accepted as proved for, as plaintiffs at the lower Court, they needed to prove their case on the strength of their own evidence: Soronnadi v. Durugo [2019] 6 NWLR (Part 1668) 281, 294H-295B, 297 C-D.

However, the acceptance of the dismissal of the respondents’ claim to title suggests that, in respect of traditional history which was the cornerstone of the parties’ respective claims, there would be nothing in the respondents’ scale to counter any credible evidence of the appellants in the event of such a finding by this Court.

The lower Court found that the appellants did not prove an unbroken chain of devolution of the land to them; that PW1, Peter Nwabueze, did not know the situs of the appellants’ fathers’ cashew plantation and hut because his description of those features of the land did not correspond or tally with the description in the appellant’s’ survey plan, exhibit P23; that, generally, the evidence of PW1, PW2, PW3 and PW5 was not in agreement with exhibit P23; that exhibit PG casts “a serious stricture on exhibit P23 and has made the cases of the plaintiffs very doubtful”; and that the appellants did not give evidence of their exclusive possession of the land in dispute as different from the lands of Gilbert Ozoigbo and Ignatius Ozoigbo.

In paragraph 20 of the amended statement of claim, the appellants pleaded a dispute survey plan which they would rely on at the trial of the suit. On 18.3.2014, PW6, Emeka Ozoigbo, tendered the Survey plan in evidence. It was admitted without objection and marked as exhibit P.13. But on 15.10.2014, the appellants moved an application for leave to amend their dispute survey plan, exhibit P.13. The application was not opposed by the respondents. The record of the lower Court, at p. 337, shows the ruling of the lower Court:
1. Leave is hereby granted the applicants to amend their dispute survey plan No. FEA/AN/D001/2012 as shown in exhibit A.
2. Leave is granted on the plaintiffs/applicants to rely on the amended survey, the necessary fees having been made.
3. Leave is granted the defendants to effect consequential amendment on their dispute survey plan, if need be, and file same within 14 days from today.

The appellants, thereafter, sought and obtained the leave of Court to recall PW6 to tender the amended survey plan of the appellants. The lower Court also granted leave to the respondents to “reopen their case and recall DW1 to tender the defendants’ survey plan”. On 6.6.2016, PW6 was recalled and he tendered in evidence the amended survey plan which was admitted, without objection, and marked as exhibit P23. He was cross-examined by the respondents’ counsel. In the same proceedings, the respondents recalled DW1, Louise Onyekamuo, who testified and tendered the respondents’ amended dispute survey plan. He testified inter alia: “I tendered survey plan No. THS/AN/017D/12 as exhibit D1 on 03/05/16 the Court granted the defendants leave to amend our survey plan. Our Survey plan no is survey No. CWAN/D.030/14 of 14/11/14”. The appellants did not oppose the admissibility of the new survey plan. It was admitted in evidence and marked as exhibit D3.

In the judgment of the lower Court, it suo motu held that the respondents did not amend their pleadings to accommodate the new survey plan. It, therefore, held that “though exhibit D3 was admitted it was done in error for there was no basis for that. In the circumstance, I hereby expunge exhibit D3 from the record. The relevant survey plan of the defendants is exhibit D1 Which was duly pleaded and admitted in evidence.” The decision of the lower Court to rely on the earlier survey plan, exhibit D1, is part of the complaints in this appeal. It shall be dealt with later in this judgment.

The appellants contend that, having tendered their amended survey plan, without objection, they have proved the identity of the land in dispute which is a prelude to their proof of their case. They rely on Obi v. Uzor (1991) 9 NWLR (Part 213) 94, 105. The respondents counter by submitting that the evidence of the appellants’ witnesses on the identity of the land vis-a-vis exhibit P.23 (survey plan) is riddled with contradictions such that the identity of the land is in doubt. They rely on Arabe v. Asanlu (1980) 5-7 S.C. 78, 90; Odofin v. Ayoola (1984) 11 S.C. 72, 118 and A.G. Enugu State v. Avop Plc. (1995) 6 NWLR (Part 399) 90, 120-121.

It is trite law that a party may prove the identity of the land in dispute by tendering oral evidence of the boundaries, features and abuttals of the land such that a surveyor armed with such evidence can produce a survey plan of the land. However, the regular means of proving the identity of the land in dispute is by producing and tendering in evidence a dispute survey plan of the land made by a licensed surveyor showing the boundaries, features and abuttals of the said land: Oke v. Sotunde, [2019] 4 NWLR (Part 1661) 119, 135A.
The appellants chose the latter. I have read the decided cases cited by the respondents in support of the appellants’ alleged failure to prove the identity of the land. I have also read the evidence which the respondents refer to as introducing uncertainty in the identity of the land. I am satisfied, having regard to the state of the pleadings and the evidence of both parties, particularly exhibit P.23, that the identity of the land in dispute is certain and was proved by the appellants. It is reiterated that the survey plan was tendered in evidence without objection: see Offodile v. Offodile [2019] 16 NWLR (Part 1698) 189, 210H-211A. This is a case in which the respondents raised a counter claim in reaction to the claim of the appellants. It is settled law that where a defendant counterclaims in a land suit, it does not generally lie in his mouth to allege that the identity of the land in dispute is not known or certain. This is because it would be unreasonable for him to state that the land in respect of which he was sued, and for which he counterclaims, is not certain or known to him: Anyanwu v. Uzowuaka [2009) 13 NWLR (Part 1159) 445, 476. As the Supreme Court stated in the decided case, “the very argument is a contradiction to their counter-claim, because they cannot counterclaim to their land which identity they do not know”. See also Oke v. Sotunde, supra, at p. 136F.

The lower Court stated in regard to the identity of the land in dispute as follows (at pp 381-382 of the record):
A close study of exhibit P23 (the dispute plan of the plaintiffs) clearly shows a disagreement with any of the descriptions of the land in dispute by either PW1, PW2, PW3 or PW4. The land in dispute is on the left side of the road from Ihiala to Eziama Uli and not on the right side. That exhibit P23 did not feature the cashew plantation or lands of Gilbert Ozoigbo or Ignatius Ozoigbo or even the compound of Alexander Mgbeadichie as sharing boundary with the land in dispute. The exhibit does not also show any residence of Ozoigbo family as described by PW2.

I have examined closely the evidence of the appellants’ witnesses mentioned in the excerpt above. I am satisfied that the lower Court made the above adverse findings of fact primarily on its interpretation of the evidence of PW1 in cross-examination. The last question put to PW1 and his answer are recorded thus:
Q. The only cashew plantation owned by Uli people including Charles Ozoigbo is on the right hand side of that road.
A. That is true but the cashew is owned by Charles Ozoigbo on the right hand side. Earlier, the witness had denied the suggestion that neither Charles Ozoigbo nor anybody whatsoever from Ozoigbo family of Uli had cashew plantation on the land in dispute.

In interpreting the last question to, and answer from, PW1, the lower Court said at pp. 379-380 of the record:
It is obvious that Pw1 who should know better the situs of Charles Ozoigbo cashew plantation and where the said Charles built a hut has located it at the right hand side of the road coming from Ihiala to Ubuluisiuzo to Uli. The land in dispute is not on the right hand side but on the left as clearly shown in the plaintiffs’ survey plan, exhibit P23.

I agree with the appellants’ submission in their brief of argument that the words “coming from Ihiala to Ubuluisiuzo to Uli” were not part of the question to PW1 nor part of the answer he gave. Those words, unfortunately, came from the lower Court. I also agree with the appellants’ contention that it was this extraneous material (not evidence) which influenced the lower Court’s appreciation of PW1’s evidence and the evidence of the other appellants’ witnesses so much that the lower Court placed no premium on the entire evidence of the appellants in respect of the situs and features of the land in dispute as well as their acts of ownership and possession.

It is to be noted that, in a matter such as the present case, the standard of proof is on the balance of probabilities. It is not unnatural that witnesses may not testify on exactly the same details of a transaction or a scenario.
As the Supreme Court held in Makinde v. Akinwale [2000] 2 NWLR (Part 645) 435, 477, 450-451, a party is not deemed to put a different case from the one pleaded just because in adducing evidence in support of his case, he is seen to have contradicted himself in some aspects which are not material.

I had stated earlier in this judgment that the parties predicated their respective claims of ownership of the land in dispute on traditional history. In the case of the appellants, the relevant averments can be found in paragraphs 3, 4, 5, 6, 7, 8, 9, 14, 15 and 18 of the further amended statement of claim. Averments in respect of acts of ownership and possession are also available in paragraphs 10, 11, 12, 15, 16, 19, 22, 23, 25, 26, 27 et seq. of the same further amended Statement of claim. Some of them concern the land in dispute while others relate to the neighbouring lands.

The appellants’ witnesses, particularly PW1, PW2, PW5 and PW6, gave evidence largely in line with these averments and they were subjected to rigorous cross-examination by the respondents’ counsel. The lower Court did not find merit in the appellants’ traditional history. It found that the appellants did not show, through an unbroken chain, how the land devolved on them. In particular, the lower Court found at p. 373 of the record of appeal that the appellants did not “show how the persons mentioned by PW5 in paragraph 6 of his deposition came to own and possess the land before it came to them.” It also found that PW6, Emeka Ozoigbo, did not give “evidence of either the founding of the land or how the land devolved on his successive ancestors until it got to them”. It is noteworthy that the Court made no mention of the evidence of PW2, PW3 and PW4 in the course of its evaluation of the appellants’ traditional history.

It is the duty of a trial Court to review or consider every relevant piece of evidence tendered by a party at the hearing of the case in order to reach a fair decision: Okonkwo v Okonkwo [2014] 17 NWLR (Part 1435) 18, 70. When a trial Court fails to consider the entirety’ of a party’s case, its judgment or decision on the point becomes vulnerable, liable to be set aside on appeal, upon a proper complaint of a miscarriage of justice. In the present case, the trial Court ignored the evidence of the above-named three witnesses of the appellants who also testified on traditional history and acts of ownership and possession. Their evidence, I observe, was not as broad as those of PW5 and PW6, but they deserved a mention in the Court’s evaluation of evidence.

It is now necessary to pay close attention to the evidence of PW5 and PW6 which the lower Court found unsatisfactory. The lower Court stated that PW5 did not demonstrate in paragraph 6 of his deposition how the persons mentioned therein became owners of the land before it came to the appellants. I have read the totality of the deposition of PW5 running into 47 paragraphs. I find paragraphs 5, 6, 7, 8, 9, 10, 11, 16 thereof particularly relevant to the traditional history of the appellants in relation to the land in dispute. Paragraphs 5, 6, 8 and 16 of the deposition read:
5. That according to history handed down to us by our ancestors, late Epum was the progenitor of Uli people, he was the person that founded the entire expanse of land called Alabuji, part of which is now in dispute, being the first to deforest the said land and also the first to settle therein, having lived in a cave located in the said land.
6. That I know that our linage can be traced in the following order to wit: Epum was survived by Uke and Uke gave birth to Awuchi and Awuchi became the father of Mgbale and Mgbale became the father of Anyaogu and Anyaogu gave birth to Emejulu, Emejulu became the father of Mkpogu. Mkogu then became the father of Ozoigbo, our grandfather. And Ozoigbo had several children, which included Joseph Ozoigbo, Gilbert Ozoigbo, Ignatius Ozoigbo and Charles Ozoigbo.
8. That the entire Alabuji, according to our family history, as handed down to us by our ancestors was being jointly cultivated in the past by all the sub families that traced their origin from Epum ….
16. That I know as a fact that several people of Epum descent, had in one time or the other, farmed, built and lived on the Alabuji land, part of which is now in dispute. Some of the people who built and live on the land included the following: (1) Patrick Mgbeadichie; (2) Obiomolo Mgbeadichie; (3) Peter Mgbeadichie; (4) Michael Iheanyichukwu; (5) Ozuruigbonu Mmdukozo; (6) Ibenge Mmadukozo; (7) Mbaegbu Onuwegbule; (8) Obi Ojimba; (9) Gilbert Ozoigbo; etc.

I have also considered the cross-examination of this witness and I cannot find that he was discredited on any material aspects of his evidence. It is my firm view that if the lower Court had given due consideration to the totality of PW5’s evidence, especially the paragraphs reproduced above, it would not have come to the decision that the evidence of the witness did not show how the persons mentioned in paragraph 5 of the deposition came to own and possess the land before it came to the appellants. I recognise that the form of the averments may not have been in the usual manner, but what matters is the substance. It is my understanding of the evidence that persons of Epum descent mentioned therein inherited the land and exercised acts of ownership and possession. I do not therefore endorse the adverse finding of the lower Court on the evidence of PW5.
Now, I turn to the evidence of PW6 which the lower Court also found unreliable and unsatisfactory because he did not give evidence of either the founding of the land or how the land devolved on his ancestors until it got to the appellants. I have read the depositions of this witness. His evidence-in-chief did not dwell much on the traditional history of the land in dispute. It appeared to have focused more on the acts of ownership and possession. This is understandable because PW5, Peter Ozoigbo, who gave evidence as “the oldest surviving son of late Gilbert Ozoigbo, the brother of full blood of late Charles Ozoigbo, the plaintiffs’ father and as such very conversant with the facts and circumstances of this suit” had already testified on the traditional history of the land.

In the circumstance, the failure of PW6 to repeat the traditional history of the land in his deposition does not derogate from the potency of PW5’s evidence. It is not a requirement of the law that every witness in a land case must repeat the traditional history of the land in order to generate credibility or weight: Ezekwesili v. Onwuegbu [1998] 3 NWLR (Part 541) 217, 240.
I am therefore satisfied that the lower Court did not make use of the advantage it had of seeing and hearing PW5 and PW6 before it made those adverse findings of facts which are hereby set aside as being perverse.
It is the law that a finding in favour of a party’s traditional history suffices to give judgment to the party concerned, for traditional history is one of the five ways of proof of title to land: Idundun v. Okumagba (1976) 9-10 S.C 227.

In addition to the traditional history, the appellants gave evidence of acts of ownership and possession which were copiously pleaded in their further amended statement of claim, but which did not find favour with the lower Court.

One of the grounds for disbelieving the evidence of the appellants was the purported misdescription of the location of the land in dispute. I have already held in this judgment that the lower Court introduced extraneous matters into the evidence of PW1 which led it to hold that the appellants did not know the land in dispute. That finding has been set aside by me.

The lower Court, in disbelieving the case of the appellants on acts of ownership and possession, held that exhibit P.6, a property survey plan, cast a “serious stricture on exhibit P23 and has made the case of the plaintiffs very doubtful”: see p. 383 of the record of appeal. It also held that the appellants did not give “evidence of their exclusive possession of the area now in dispute as distinct and different from that of Gilbert Ozoigbo and Ignatius Ozoigbo ….”

I have examined exhibit P6. It is a property survey plan, made in 1988, tendered by the appellants to show that a large expanse of land, part of which is now in dispute, was owned by three brothers, namely, Charles (appellants’ father), Gilbert and Ignatius. In his testimony in 2014, PW6 said that a foot path which traversed the said land was in 1999 widened into a major road by the government of Anambra State and for that reason, altered the boundaries of the land in dispute belonging to Charles vis-a-vis the lands of his brothers. It followed that exhibit P23, the dispute survey land in the suit, which was made in 2012, could not have reflected the same boundaries and abuttals of the lands as shown in exhibit P6. Again, it is common knowledge that a property survey plan is scanty with regard to detail on boundary neighbours and features of the land.

Exhibit P23, on its own, shows the portion of “Alabuji” which is said to belong to Charles Ozoigbo, father of the appellants. It is verged blue, it also shows the area said to have been trespassed on by the respondents, verged red. The trespass is shown to be concerned with the appellants’ cashew plantation. PW5 and PW6 testified on the exclusive possession of the land, acts of possession and the respondents trespass on it. These pieces of evidence were not effectively challenged by the respondents. I hold, having regard to the foregoing, that the lower Court was not justified in making those adverse findings of facts suggesting that the appellants did not prove either their acts of ownership or exclusive possession of the land in dispute.

The appellants pleaded their involvement in some litigation concerning the land in dispute or neighbouring lands: see paragraphs 10, 11 and 12 of the further amended statement of claim. In paragraph 30 of the further statement of defence, the respondents reacted to the averments in paragraphs 10, 12, and 12 of the further amended statement of claim. Part of the averments in paragraph 30 afore-mentioned are as follows (at pp. 119-120 of the record): 38. ….
i. The defendants or their ancestors never had any land dispute in 1921 or any other date with plaintiffs or any of their ancestor or anybody whatsoever at the native council Orlu or any other Court on the land in dispute.
ii. The so-called Mmaduagorom Ekele in the purported Suit No. 340 is not known to the descendant or their ancestors and the defendants had nothing whatsoever to do with alleged suit and the land in dispute in this case was never in dispute in the said case or case or any suit except the present.
iii….
vi. The defendants shaft at the trial contend that Suit No. 340 and ISU/NC/193/23 or any other referred are irrelevant, immaterial and of no value and the defendants shall urge the honourable Court to dismiss and strike out the exhibits/evidence for being in breach of the evidence law.

The respondents’ reaction to the alleged litigation pleaded by the appellants is that of disavowal. The appellants tendered in evidence the proceedings in Suit No. 340 at the Native Council, Orlu (exhibit P8) which was pleaded in paragraphs 10 and 11 of the further amended statement of claim, thus (at p. 106 of the record):
10. The plaintiffs aver that in 1921, their grandfather Ozoigbo, had a land dispute with one Mmaduagorom Ekele, at the native council, Orlu, with Suit NO. 340.
11. In the said suit, both the plaintiff and one of his witnesses called Okoronkwo Ujuigwe, made references in their evidence to Alabuji, as belonging to the ancestors of Ozoigbo, the grand father of the Plaintiffs. The Plaintiffs hereby plead and shall rely on the certified true copy of the proceedings conducted in the said suit, obtained from National Archives during trial.

I have read exhibit P8, particularly page 3, lines 18-21 thereof, to which the appellants have drawn attention. It shows that one Mmaduagorom of Uli stated that “Alabuji” was the property of Ozoigbo. The lower Court made no reference to the exhibit apparently because it regarded it as irrelevant, as suggested by the respondents.

The appellants also tendered exhibit P.7, the proceedings and judgment in Charge No. MOR/1039c/63, pleaded in paragraphs 25, 26, 27 and 28 of the further amended statement of claim to show that the land concerned in the criminal proceedings belonged to Gilbert Ozoigbo and had a common history with the land in dispute; and that the 4th respondent father testified as a witness for Gilbert Ozoigbo and admitted that the accused persons uprooted the cassava belonging to the complainant in the case. The Magistrate who tried the case visited the locus in quo and made findings of facts which indicated that Gilbert Ozoigbo had been in possession of the land; that he planted economic trees on the land; and that the huts on the land and neighbouring land belonged to the relatives of Gilbert Ozoigbo. In the judgment of the Court, the Magistrate confirmed the complainants’ ownership and possession of the land and convicted the accused persons of stealing his cassava. The document/judgment, though arising from a criminal proceedings, should be regarded as a relevant fact in so far as it affected a piece of land sharing a common history with the land in dispute. The lower Court ignored exhibit P7 in its judgment in the same manner that the respondents did not pointedly react to those averments in their amended statement of defence. The respondents should have been regarded as having admitted paragraphs 25, 26 and 27 of the further amended statement of claim: Okafor v. INEC [2010] 3 NWLR (Part 1180) 1, 49; Lewis & Peat (NRI) Ltd. v. Akhimien (1976) 1 ALL NLR 292, 313; (1976) ANLR 237, 252-253 (Reprint). There is no justification for the disregard of exhibit P7.

The appellants further tendered exhibits P2, P3, P4 and P5 in evidence. They are survey plans of the parties in Suit No. HN/36/77, a land dispute between PW4’S family and DW2’s family concerning a piece of land sharing common boundary with the land in dispute. The judgments of the High Court, Nnewi and the Court of Appeal, Enugu in the case were exhibits P4 and P5 respectively. The appellants pleaded the litigation in paragraph 46 of the further amended statement of claim. The respondents’ reaction to the averment, as disclosed in paragraph 57 of their amended statement of defence, was that neither ” the defendants nor the plaintiffs were parties to the suit no HN/36/77 Nnabuife & Ors. V. Nwaigwe & Ors and in that case both parties failed in their traditional history/claim over the land. The defendant shall contend that the suit is irrelevant and should be struck out/ dismissed as such.” PW4, Elder Josephat Nnabuko, who was a member of the victorious party in Suit No. HN/36/77, testified as a boundary neighbour in the present case. His evidence and the exhibits were disregarded by the lower Court as they were considered irrelevant to the present proceedings.
There were other pieces of evidence which the lower Court failed to consider because of alleged irrelevance.
Section 9(b) of the Evidence Act provides that facts not otherwise relevant become relevant if “(b) by themselves or in connection with other facts they make the existence or non-existence of any fact in issue or relevant fact probable or improbable”. The documents above which the lower Court gave no consideration because they did not concern the parties in this suit could become relevant if they made reference to the land in dispute or neighbouring land. It is my view that the lower Court was in error to have ignored those exhibits.

On the whole, after due consideration of the appellants’ complaints under this issue for determination and the reaction of the respondents, where necessary or relevant, I have come to the decision that the grouse of the appellant has merit. Accordingly, I resolve the first issue for determination in this appeal in favour of the appellants and against the respondents. Consequently, I hold that the lower Court was in error when it held that the appellants did not prove their case and dismissed their suit.

The second issue for determination is whether the lower Court was in error when, after holding that the respondents’ traditional history was unsatisfactory and inconclusive, went on to hold that respondents were in possession of the land in dispute and the appellants were liable in trespass.

The appellants had complained, under the first issue for determination, that the lower Court wrongly dismissed their case. That complaint has been considered in this judgment and found to be meritorious.

Their contention under the present issue for determination is that the lower Court was wrong to have upheld the respondents’ act of possession and damnified the appellants in damages whereas the said acts of possession were predicated upon their traditional history which the lower Court disbelieved and thereafter, dismissed the claim of ownership. In reaching its decisions, the lower Court relied on the cases of Amakor v. Obiefuna (1974) 3 S.C. 67, 75-76 and Oduola v. Coker (1981) 5 S.C. 197, 214-215.

The appellants argue that the failure of the respondents’ traditional history should lead to the failure of the claim for possession and/or damages for trespass. In further arguments, they contend that the respondents did not prove exclusive possession of the land in dispute to entitle them to an award of damages and injunction. They x-rayed the evidence of DW1 and DW3 to buttress their contention.
The respondents’ fourth issue for determination ex facie is related to the appellants’ second issue for determination. The said fourth issue was argued together with the respondents’ fifth, sixth and seventh issues for determination. However, I have searched in vain for the respondents’ reply argument to the arguments of the appellants. Rather, what I find is a repetition of the argument which should come within the purview of the first issue for determination.

After dismissing both parties’ claim for title, the lower Court turned to the acts of possession of the parties and “determine on whose side the presumption in Section 143 of the Evidence Act will operate.” The Court evaluated the evidence of the parties and held that “the defendants are in possession of the land in dispute and that being so they can maintain an action against the plaintiffs in trespass even though they are not the true owners or privies of the true owner. This is because the defendants are in exclusive possession of the land and, therefore, have the right to retain it and to be in an undisturbed possession of it”: see p. 389 of the record of appeal.

The lower Court concluded, thus:
The law is trite that the claim for trespass is not dependent on the success of a claim for declaration of title. Both are quite separate and independent of each other.

It is now the duty of this Court to determine whether, by the respondents’ averments in their amended Statement of defence, they made a case for declaration of title independent of the claim for possession and damages for trespass and injunction.

I have read paragraphs 14, 15, 16, 17, 18 and 19 of the amended statement of defence to which the appellants have drawn attention. I am satisfied that the respondents’ claim to be in possession of the land in dispute was contingent upon their traditional history. In paragraph 19, for example, it is averred that one Olemanya Ikegbaragu originally acquired title/possession to a larger area of land including the land in dispute and had “for a time beyond human memory’ exercised maximum acts of ownership and possession over the land in dispute.

The lower Court appears to have had a misapprehension of the respondents’ averments when it held that, in the circumstances of this case, the claim for trespass which rested on possession and traditional history was independent of the claim for declaration of title. The appellants have referred to the cases of Fasoro. v. Beyioku (1988) 2 NWLR (Part 76) 263, 271 and the Regd. Trustees of the Dioceses of Aba v. Helen Nkume (2002) 1 NWLR (Part 749) 726, 738 to submit that the lower Court fell into a deep error when it failed to hold that the respondents’ claim for possession and trespass was separate and independent of the claim for title.

I agree with the lower Court that, in appropriate cases, failure of the claim for declaration of title might not necessarily lead to a failure of a claim for trespass: Ayinde v. Salawu [1989] 3 NWLR (Part 109) 297, 316. However, it depends on the pleadings.
In Fasoro V. Beyioku, supra, the Supreme Court held:
One cannot really talk of acts of ownership without first establishing that ownership. Where a party’s root of title is pleaded as, say a grant, or a sale or conquest etc that root has to be established first, and any consequential acts following therefrom can then properly qualify as acts of ownership. In other words, acts of ownership are done because of, and in pursuance to the ownership. Ownership form the quo warranto of these acts as it gives legality to acts which would have otherwise been acts of trespass.
Having thus failed to prove title he pleaded it will be wrong of him to turn round to rely on acts of ownership or acts of possession, which acts are in the nature of things derivable from and rooted in the radical title pleaded.
A similar pronouncement of the Court was made in The Regd. Trustees of the Dioceses of Aba v. Helen Nkume, supra and Maneke v. Maneke supra, 332 A- D (CA).
I agree with the appellants that, having regard to the pleadings of the respondents, their alleged acts of ownership and possession were dependent on their traditional history. I hold, therefore, that the respondents’ traditional history having failed and was dismissed, there was no basis for the lower Court’s assessment and finding in favour of those alleged acts of ownership and possession. The said finding is hereby set aside.

The appellants have further argued, in the alternative, that the respondents did not prove exclusive possession of the land in dispute to entitle them to an award of damages for trespass and an injunction.
They made reference to the decision of the lower Court which discountenanced the respondents’ amended survey plan, exhibit D3 and reinstated the supplanted survey plan, exhibit D1; they also referred to the evidence of DW1, DW2, and DW3 vis-a-vis the survey plan, exhibit D1 which, to use the language of the respondents elsewhere, was riddled with contradictions and inconsistencies. I have myself read the evidence of the three witnesses and examined the survey plan, exhibit D1, especially those portions of the evidence highlighted in paragraphs 4.84 to 4.88 of the appellants’ brief of argument, and without the benefit of opposing argument of the respondents, and come to the conclusion that the evidence of the witnesses in respect of the acts of ownership and possession is muddled. There is no room for this Court to pick and choose: Esika v. Medolu (1997) 2 NWLR (Part 485) 54, 169.

The result is that the respondents did not prove exclusive possession of the land in dispute without which they were not entitled to an award of damages for trespass and a perpetual injunction. Consequently, the said award is hereby set aside and the claim dismissed. The second issue for determination is therefore resolved against the respondents and in favour of the appellants.

The third and final issue for determination is whether the lower Court was in error in relying on the respondents’ survey plan, which had been supplanted or amended, in granting perpetual injunction against the appellants. The appellants’ argument, in summary, is that the respondents having amended their survey plan, exhibit D1, in favour of exhibit D3 which was later discarded by the lower Court on the ground that it was not pleaded, the lower Court was in error to have resorted to the supplanted survey plan to tie the order of injunction.
The respondents have no answer to the above argument in their respondents’ brief of argument.

It seems to me that, having resolved the second issue for determination against the respondents and set aside the award of damages for trespass and an injunction, it is needless dealing with this third issue for determination since the injunction, the subject matter of the complaint, is no longer extant.

In the final result, this appeal is found to be meritorious. It is hereby allowed. The judgment of Ogbuli, J in Suit No. HIH/15/2011 dated 19.6.2017 is hereby set aside. I make the following orders:
a. The Appellants’ reliefs in paragraph 62 of the further amended statement of claim, set out in this judgment, are hereby granted with the proviso that the sum of N500,000.00 (five hundred thousand naira) is awarded against the respondents as general damages for trespass;
b. The Respondents’ reliefs in paragraph 76 of the amended statement of defence are hereby dismissed;
The Respondents shall pay costs assessed at Two Hundred Thousand Naira to the Appellant.
BITRUS GYARAZAMA SANGA, J.C.A.: I have the privilege of reading a draft of the judgment just delivered by my learned brother Nwosu-Iheme JCA. I adopt as mine the finding and conclusion reached in the lead judgment that this appeal is meritorious for the reasons stated therein. My learned brother in the lead judgment sublimely and dexteriously sifted through the chaff from the wheat in his analysis of the evidence adduced before the lower Court before reaching the inevitable conclusion that this appeal has merit and ought to be allowed. I join my brother in allowing the appeal and abiding by the consequential order as to cost.

RITA NOSAKHARE PEMU, J.C.A. (DISSENTING): This is an Appeal against the judgment of the Anambra State High Court holden at Ihiala Judicial Division delivered on the 21st of March 2017 in Suit No HIH/15/2011.

SYNOPSIS OF FACTS
The Appellants (Plaintiffs at the Court below) instituted an action against the Respondents (Defendants/Counter Claimants), essentially for a declaration that the Plaintiffs are the rightful persons entitled to apply and obtain the Statutory right of occupancy over the piece and parcel of land belonging to late Charles Ozoigbo, inherited by the Plaintiffs as family land, which land formed part of the expanse of land known and called “ALA-BUJI” situate and lying at Umuepum Umuezike Eziama-Uli, Ihiala Local Government Area of Anambra State. They also claim the sum of five million naira in specific and general damages as well as an order of perpetual injunction against the Respondents. – Page 2 of the Record of Appeal and Paragraphs 62 of the Further Amended Statement of Claim filed on the 15th of May 2013. Page 113 of the Record of Appeal.

The Defendants on their part Counterclaimed while filing their Amended Statement of Defence on the 5th of June 2014. Pages 128 – 141 of the Record of Appeal.

The 1st – 3rd Defendants had Counterclaimed as follows:- in Paragraph 76 of their Amended Statement of Defence and Counterclaim
1. A Declaration that the 1st-3rd Defendants representing Onyekammuo Ogualobi family are entitled to the customary Right of Occupancy in and over the piece or parcel of land known as and called “Mgbo Okohia Alukabia” verged Red in the defendant survey plan of the land in dispute.
2. N500.000.00 (Five hundred thousand naira) damages for trespass.
3. An Order of perpetual injunction restraining the Plaintiffs, their family servants, agents, workmen and privies from trespassing or further trespassing into the said land in dispute and/or any other portion of land within the defendant’s land verged blue”. – Pages 128 -141 of the Record of Appeal.

The Appellants narrative is that the land, the subject matter of the Suit is that piece or parcel of land situate at Umuepum Umuezike Eziama-Uli, in Ihiala Local Government Area of Anambra State, which land is delineated and verged red in the Appellant’s survey plan No FEA/AN/D001/2012, which land the Appellants called “ALABUJI”.

They owned the land by customary inheritance. That the land was founded by EPUM their ancestor, who deforested it and was the first person to settle on the land.

They trace their lineage from EPUM to late Charles Ozoigbo, who was their father. They cultivated on the land, exercising their rights of ownership. They had also had a lot of litigation regarding the land. Issues of trespass and stealing on the land had also come up.

In the year 2011, the Defendants trespassed on the land and cut down cashew trees, in collaboration with Ubuluisiuzo Vigilante Group, which gave rise to the Suit, the subject matter of this appeal.

On the part of the Respondent, they had averred that the land in dispute is known as and called “MGBO OKOHIA ALUKABIA”. Their own version of traditional history in respect of the land in dispute is that the 1st – 3rd defendants’ father Onyekamuo Ogualobi acquired title and possession to the land in dispute.

They also in another breath alleged that Olemanya Ikegbaragu who originally acquired title/possession to a larger area of land, (including the land in dispute) had from time immemorial exercised maximum acts of ownership and possession over the land, like farming, cultivation and harvesting economic crops.

The Plaintiffs/Appellants survey plan is Plan No FEA/AW/D001/2012 – Exhibit P23, while that of the 1st-3rd Defendants/Respondents is Exhibit D1, and described as Plan No THS/AW/017D/2012.

It is the Appellants case that they had amended their survey plan in the course of hearing, and had maintained the same particulars/identification as the one already in evidence. But that the Respondents who consequentially amended their survey plan Exhibit D1, presented another survey plan altogether which bears the No CU/AN/D.030/2014 made on the 14th of November 2014 – Exhibit D3.

At the end of the trial, the Court below dismissed the Appellants Suit and delivered judgment in favour of the Respondents.

Dissatisfied, the Appellants filed a Notice and Grounds of Appeal pursuant to the Practice Direction of this Court, on the 19th of June 2017 – Pages 391-397A of the Record of Appeal – with eight (8) Grounds of Appeal.
The Appellants filed their brief of argument on the 9th of March 2018. It is settled by E. M. Alinnor Esq.
The Respondents’ brief of argument was filed on the 5th of February 2019. It is settled by Eleanya G. O. Esq.
The Appellants’ Reply brief was filed on the 21st of July 2020.
The Appellants had urged this Honourable Court to allow the Appeal except the part dismissing the Respondents’ claim to title.

That this Honourable Court dismisses the Respondents’ claim in their Counterclaim.

By motion filed on the 1st of September 2020, this Court was urged to strike out the Appellants’ reply brief and same was accordingly struck out on the 22nd of September 2020. This is because the Reply brief filed on the 21st of July 2020 was said to amount to re-argument.
On the 22nd of September 2020, Counsel to the parties adopted their respective briefs of argument.

The Appellant distilled three (3) issues for determination from the Grounds of Appeal which are:
(a) WHETHER THE LOWER COURT WAS IN ERROR WHEN IT HELD THAT THE APPELLANTS DID NOT PROVE THEIR CASE AND DISMISSED THEIR SUIT: (Grounds One, Five, Six, Seven and Eight;)
(b) WHETHER THE LOWER COURT WAS IN ERROR WHEN, AFTER HOLDING THAT THE RESPONDENTS’ TRADITIONAL HISTORY WAS UNSATISFACTORY AND INCONCLUSIVE, WENT ON TO HOLD THAT THE RESPONDENTS WERE IN POSSESSION OF THE LAND IN DISPUTE AND THE APPELLANTS WERE LIABLE IN TRESPASS: (Grounds Two and Three);
(c) WHETHER THE LOWER COURT WAS IN ERROR IN RELYING ON THE RESPONDENTS’ SURVEY PLAN, WHICH HAD BEEN SUPPLANTED OR AMENDED, IN GRANTING PERPETUAL INJUNCTION AGAINST THE APPELLANTS: (Ground Four).

On their part, the Respondents proffered Seven (7) issues for determination from the Grounds of Appeal. They are:
(a) WHETHER THE LOWER COURT (IN THE FACE OF INCONSISTENT, INCOHERENT AND CONTRADICTORY EVIDENCE OF THE APPELLANTS’ WITNESSES ON IDENTITY OR LOCATION OF THE LAND IN DISPUTE) WAS WRONG WHEN IT HELD, THAT THE LAND WHICH THE APPELLANTS ARE CLAIMING “THAT THEIR FATHER CHARLES CULTIVATED CASHEW AND PALM CROPS (NOW SAID TO BE IN DISPUTE) IS NOT AND CANNOT BE THE LAND IN DISPUTE”.
(b) WHETHER THE APPELLANTS PROVED THE TITLE OF THE LAND IN DISPUTE.
(c) WHETHER THE APPELLANTS AS “DIRECT SONS OF LATE CHARLES OZOIGBO” SUB-FAMILY OF OZOIGBO FAMILY OF UMEUEPUM UMUEZIKE EZIAMA ULI PROVED TITLE/POSSESSION TO THE LAND IN DISPUTE.
(d) WHETHER WITH EVIDENCE OF POSSESSION IN THE RESPONDENTS, THE LOWER COURT WAS WRONG IN GRANTING POSSESSION TO THE RESPONDENTS BY VIRTUE OF RESPONDENTS’ COUNTER CLAIM.
(e) WHETHER IN THE CIRCUMSTANCE OF THE CASE, THE LOWER COURT WAS WRONG IN HOLDING THAT THE EXHIBITS PARTICULARLY EXHS. P9, P10, P11, P12, P14A – P21A CANNOT AVAIL THE APPELLANTS AND WERE IRRELEVANT TO THE CASE.
(f) WHETHER THE TRIAL COURT WAS WRONG WHEN SHE HELD THAT THE PLAINTIFFS FAILED TO PROVE THEIR ROOT OF TITLE.
(g) WHETHER IN THE CIRCUMSTANCE OF THE CASE, THE LOWER COURT WAS WRONG IN HOLDING THAT “THE PLAINTIFFS CLAIM ENTIRELY FAILS AND HEREBY DISMISSED”.

I shall consider this appeal based on the Appellants’ issues proffered for determination.

ISSUE NO1
The appellants submit that they owned the land in dispute by virtue of customary inheritance. That Epum was their ancestor and that he founded the entire land called Alabuji. That he deforested the land and was the first person to settle therein —paragraph 3 of the further amended statement of claim.

They averred their line of descent from Epum and act of ownership and possession of their ancestors and themselves on the land.
That their forebears initiated litigation (Ozoigbo and Joseph Ozoigbo (Exhibit P8)) in 1921 and 1923 respectively against certain persons; cultivation of cashew plant and palm trees on portions of the land; the Joint survey of portion of the land by the Appellants’ father, Charles and his two brothers Gilbert and Ignatius – showing respective interest of the three brothers; the building and use of a hut on the land by the Appellants’ father; and successful prosecution of trespassers on the land.

That the Appellants and their witnesses gave evidence buttressing the above.
That a claimant for a declaration of tittle to land first duty is to establish the identity of the land in issue. That he can achieve this by describing in evidence the size, features, location etc. of the land, such as can enable a surveyor produce a survey plan of the land showing all the features and the boundaries. That the tendering of the Appellants’ dispute survey plan in evidence and the admission thereof without objection, affects the identity of the land in dispute as well as the features and location thereof.
That Exhibit P23 represented the true location, size and features.
That the Exhibit D3 (the Respondents amended survey plan) was discountenanced on the ground that it was not pleaded.
They submit that PW4 a boundary neighbour testified on the identity, location and boundaries of ALABUJI, part of which is in dispute.

ISSUE NO 2:
The Appellants submit that the Respondents’ claim to ownership and possession of the land in dispute was predicated on traditional history. That the question is whether the Respondents could rely on acts of possession predicated on traditional history already found to be unsatisfactory and inconclusive. That it was the lower Court who suo motu jettisoned Exhibit D3 and relied on Exhibit D1 to find that the Respondents were in exclusive possession of the land in dispute and therefore entitled to perpetual injunction.
That the land in dispute is called “MGBO OKOHIA ALUKABIA” while the Appellants call it “ALABUJI”

That the Respondents could not identify the land in dispute, and therefore did not establish exclusive possession of same to entitle them to an award of damages for trespass and perpetual injunction.

That there is no valid basis for the lower Court’s finding of exclusive possession of the land in dispute in favour of the Respondents and the award of damages for trespass and a perpetual injunction against the Appellants.

ISSUE NO 3:
They submit that the Court below suo motu expunged Exhibit “D3” from the record on the ground that same was not pleaded. The Respondents did not appeal against that decision.

Submit that in the absence of Exhibit “D3,” the Respondents did not have any other extant survey plan. It was ultra vires the lower Court to have brought back Exhibit “D1” to life, and use same to give an order of injunction.

RESOLUTION OF ISSUES
ISSUE No. 1
The Court held that in all, the Defendants/Respondents are in possession of the land in dispute, and that being so, they can maintain an action against the Plaintiffs in trespass, even though they are not the true owners or privies of the true owners of the land. This is because the defendants are in exclusive possession of the land, and have the right to retain it and to be in undisturbed possession of it.
On the issue of title to land, the Court held that the Respondents were in exclusive possession of the land.

PW1 – Peter Nwabueze testified on the 7th of February 2013, that coming from Ihiala by that route to Ubuluisiuzor before getting to Uli, by the left hand side of that road, the people of Ubuluisiuzo live on the left side of that route, that the people of Uli live on the right hand side. One of those that live there from Uli is Patrick Mgbadichie and his people.

On the left side, people like Moses Ozoigbo, and Basil Ozoigbo live there. One Raphael Obi and late Simeon Obi who are Ubulisiuzo people live on the left side. Paragraphs 3, 6, 7, 8, 9 of the Plaintiffs amended Statement of claim pins the land in dispute to ALABUJI land.

I shall reproduce paragraph 6 verbatim:
Paragraph 6 “The entire Alabuji was being jointly cultivated in the time past by all the sub families that traced their origin from Epum. Later, after the land Suit won by late Joseph Ozoigbo sometime in 1923, in which 20 pounds was awarded in his favour against Udunwoke, Abazu and Otutubuike, for trespassing on the land, that is Alabuji (Ala Epum), it became the custom of the descendants of Epum that every member of the family that make up the entire Epum larger family, is authourised to possess any part of the land of Alabuji, which he used to cultivate during farming season”.
In paragraphs 7 it has this to say
“It also became the custom of the family that where any member of the family leaves any portion of the land, which he used to cultivate and goes to another portion, the earlier portion he left ceases to be his own instead, the later portion he has gone to will then belong to him.”.
Paragraph 8
“It was also the family custom that what any member of Epum larger family owns in the Alabuji is possessory right unless such a member take step further to build on the land in his possession or cultivate perennial trees on the land, in which case the portion of the land become his own forever, capable of being inherited by his own children after him.”

Paragraphs 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, and 19 are a rebuttal of Plaintiffs/Appellants claim regarding the identity of the land in dispute. It is the Defendants/Respondents contention that the land in dispute is said to be that land:
“Between the Plaintiffs and Defendants with other parcel of land not in dispute known as and called “Mgbo Okohia Alukabia” (a thick forest) which in the older days extended from the land in dispute at Ubahiogu Ubuluisiuzor belonging to defendants to Mgbachi Market Eziama Uli which said land originally completely belonged to the members of Ubuluisisuzor Community” –Paragraph 7 of the Amended Statement of Defence and Counterclaim. – Page 129 of the Record of Appeal.
There is no doubt that both parties are at par as to the identity of the land in dispute.

The reasons for the decision of the Court below on the identity of the land, is that the land of the Appellants where their father planted Cashew and Palm Crops is situate on the right hand side of the road from Ihiala to Ezeama Uli – that the description of the land which is said to be in dispute by PW2 as sharing boundary with the Cashew Plantation of the Ozoigbo family as well as sharing boundary with the residents of Ozoigbo family is very clear. That there is no resident of any member of Ozoigbo family in Exhibit P23 (Appellants survey plan).

The Court below held that the land where the Plaintiff’s father planted his Cashew and Palm Crops, and which land shares boundary with the Cashew plantation of PW5’s father, or the residents of Ozoigbo family is certainly not the land in dispute.

The acts of possession claimed to have been exercised on the said land like planting and harvesting of Cashew and Palm Crops, warding off trespassers therefrom, removal of juju placed on same by the 1st – 3rd Defendant’s father, or even extracting an undertaking – (Exhibit 22) from Umudinmogo Ihiala people who trespassed on same, were not related to the land in dispute. They relate to the land where the Plaintiff’s father planted his Cashew and Palm crops in 1958, and which PW1 has located as being at the right hand side of the road from Ihiala to Ezeama Uli.

The Court below had dismissed both claims for declaration of title to land, but granted Claim for trespass to the Defendants on the ground that they had shown possession to the land, as reflected.
The parties have made attempts to establish their respective titles by traditional history. A painstaking look at the pleadings and evidence of the parties show that the traditional history proffered by the Appellants is more plausible.

On the issue of the identity of land, the subject matter of this Appeal, Exhibit P23 on the area verged black shows that it shares boundaries with the land in dispute. It was next to the land in dispute. No witness was called to buttress this. That portion however has Palm trees and other economic trees.

The area verged orange shows that it was granted to the 4th Defendant’s father. But the question is who gave that grant and when was the grant made. The 4th Defendant’s father built a story building thereon.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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The Area verged purple – was granted to one Chukwuma Onyekamuo. The question is who offered the grant, and when was it offered?
On the area verged brown, the extent of the land was too much.
There are two beacons identified on exhibit P23, as distinct from the 20 beacons pleaded. These two beacons identifiable are CAM 286 73 and CAM 286 74 respectively.

From the judgment of the Court below, it observed, having appraised the evidence (both documentary and oral) that there were various acts of possession and ownership by the Defendants/Respondents.

PW1’s evidence tells how that the plaintiffs father was seen planting on the land in dispute. He testified under cross-examination that on the road from Umunemehni Ihala through Ubuluisizo Uli, the Ubuluisizor people live on the left hand side of that road, while Uli people live on the right hand side of the road.
PW3, one Alexander corroborated PW1’s evidence regarding this issue of the identity of the land.

The Court below had observed thus – That “PW1 who knows better the situs of Charles Ozoigbo cashew plantation and when the said Charles built a hut has located it at the right hand side of the road. The land in dispute is not on the right hand side but on the left hand side of the road as clearly shown in the Appellant survey plan- Exhibit P23”.

The Appellants had produced Exbibit P6 – a joint Survey Plan made by the Appellants’ father, Gilbert Ozoigbo and Ignatius Ozoigbo, tendered by PW5 – Peter Ozoigbo eldest son of the Gilbert Ozoigbo.
PW5’s testimony that his portion of land and that owned by Ignatius Ozoigbo share common boundary with the land in dispute is not shown on P23.

The Court below was at a loss as to the identity of the land in dispute. It was right to hold that the Appellants did not prove their case thereby dismissing same. This is regrettable because as I earlier observed, the root of title proffered by the Appellants seem to me more plausible than that of the Respondents, but they failed to positively identify the land disputed.

ISSUE NO 2: It is one thing to establish traditional history and another thing to establish possession and title to land. The tort of trespass is predicated on possession. But possession does not mean that the person has title to that piece of land.

The defendant had counter claimed. The Court below had observed thus:
“for the above reason the evidence of the traditional history led by both parties are quite unsatisfactory and are inconclusive. I hold that they cannot sustain either the claim of title by the plaintiffs or that of the defendants. In that event I hold that the claim of the plaintiffs for title and that of the defendants both fail”.

I would have held a different opinion if the Appellants had with specificity identified positively the land in dispute.
Again it held:
“it is trite that where and when traditional evidence is inconclusive, the Court will be obliged to look at the acts of possession of the parties and there from determine on whose side the presumption in Section 143 of the Evidence Act will operate.”

The Court observed thus:
“it is obvious that PW1 who should know better the situs of Charles Ozoigbos’ cashew plantation where the said Charles built a hut has located it at the right hand side of the road coming from Ihiala to Ubaluiuzo to Uli. The land in dispute is not in the right hand side but on the left as clearly shown in the Plaintiff’s Survey Plan, exhibit P23”.

Both PW3 and PW5 (witnesses to the Plaintiffs/Appellants) in this appeal testified as members of the Plaintiffs family of Umuepum Eziama Uli. PW5 is the eldest surviving son of Gilbert Ozoigbo, the brother of Charles Ozoigbo (Plaintiffs’ father).

One would expect the Plaintiffs (whose claims include a declaration that they are the rightful persons entitled to apply and obtain the statutory right of Occupancy over the piece/parcel of land, now in dispute, belonging to late Charles Ozoigbo, inherited by the plaintiffs as family land, which land formed part of the expanse of land known and called “Ala – Buji”, situate and lying at Umuepum, Umumezike Eziama – Uli, Ihiala L.G.A. of Anambra State) and their witnesses owed a duty to establish their claim with cogent and credible unchallenged evidence.

It is therefore expected that PW1, PW3 and PW5 – should know the exact land where Charles Ozoigbo planted his cashew crops which the Plaintiffs claim, and on which the Defendants trespassed upon.

The witnesses stated that the land is at the right hand side of the road coming from Ihiala to Ubuluisiuzo/Uli. Indeed PW3 and PW5 averred that the land in dispute shares boundary with their own land. PW3 did testify that the land shares boundary with his compound while PW5 said it shared boundary with his fathers’ cashew plantation.

Curiously, a painstaking perusal of Exhibit P23 (which is a dispute Survey plan tendered by the Plaintiffs), show a sharp contrast with the evidence elicited from the Plaintiffs witnesses. This is because the land in dispute is on the LEFT HAND SIDE of the road from Ihiala to Eziama Uli and not on the right hand side.
This fact clearly collapses the declaratory claim to statutory right of occupancy by the Appellants You cannot claim for title to land, trespass and injunction where the land, the subject matter of the cause is not identifiable.

Exhit P23 shows no cashew plantation, or lands of Gilbert Ozoigbo, or Ignatius Ozoigbo, or the compound of Alexander Mgbeadiche as sharing boundary with the land in dispute. No residence of Ozoigbo family was shown on Exhibit P23.

On the issue of possession, there is evidence that the defendants (Respondents in this appeal) started being in possession since 1950s and 1960s (The 1st – 3rd defendants) and 1970s (for the 4th defendant). On the 13th of January 2014, PW4, while answering questions put to him in cross examination, did testify that the 1st, 2nd and 3rd Respondents live in Akwuagu land of PW4’s people of Umuejimeke Ihiala. That the 4th defendant lives in Alabuji. Indeed, Exhibit P23 buttresses this evidence. Therein the defendants are shown as having their residences within the portion verged yellow and which is called “ALABUJI LAND”

There is no evidence of who granted the portion verged orange on Exhibit P23 to Ikerulanwa Mbalaso, or the land verged purple to the 1st Respondent Iwuchukwu Onyekammuo.

Exhibit P23 merely showed that these portions of land were granted to them by Umuepum family. There is no evidence as required by law as to the time of grant and the grantor for that matter.

In the area verged brown, PW6 testified that it was trespassed upon in 1984 by the 2nd Respondent who forcibly built a house thereon.

Exhibit P6 is a joint property Survey Plan. It was put in place by the Appellants’ father and his brothers with respect to the individual cashew and palm plantation in 1988. The land marked “A” in Exhibit P6 is in my view the same as the land shown in Exhibit P23, part of which is in dispute.

Exhibit P6 was jointly made for the Plaintiffs’ Father Charles Ozoigbo and two of his brothers, as belonging to them. But the area of land marked “A” in Exhibit P6 is that which comprises the entire land verged yellow in Exhibit P23. It includes the land of Ikelulanwa Mbalaso, Iwuchukwu Onyekammuo, Obi Ojimba and the 2nd defendant (Respondent Partrick Onyekammuo) (an area not in dispute).

The Court below observed thus: <br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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“Secondly, if the 4th defendant had been in the area verged purple since the 1970s and the 1st, 2nd and 3rd defendants live in their fathers’ compound which has been existing since the 1950s or 1960s why did Exhibit P6 not feature the area verged purple, brown, orange and black as belonging to other persons? In other words, the entire area marked “A” in exhibit P6 cannot be the cashew and palm plantation of Charles Ozoigbo, Gilbert Ozoibgo and Ignatius Ozoigbo when the sundry persons mentioned in Exhibit P23 have been in their various holdings at least before 1988 when Exhibit P6 was made” – page 385) of the Record of Appeal.

There is no evidence of the Plaintiffs exclusive possession of the land in dispute, as distinct from that of Gilbert Ozoigbo and Ignatius Ozoigbo. Exhibit P23 is bereft of the area of land that belongs to Gilbert Ozoigbo or Ignatius Ozoigbo.

The Appellants had asserted that the Plaintiffs uncle Joseph Ozoigbo obtained Judgment in Suit No ISU/N.C./193/23 against trespassers over ALABUJI LAND. No evidence was tendered to buttress this assertion. The said Judgment was not produced in Court.

I am of the view that the acts of possession claimed did not relate to the land in dispute. These acts of trespass relate to the land where the Plaintiffs father planted his cashew and palm crops in 1958 and which PW1 located as being at the right hand side of the road from Ihiala to Eziama Uli.

The Court below was right to have come to the conclusion that DW1 and DW3 were right when they testified that no Uli man own land on the left side of the road from Ihiala to Eziama Uli which is the land in dispute. This is simply because of the evidence of PW1, PW3 and PW4.

The Respondents through DW1 were able to establish that the boundary neighbour of the land in dispute to the west was Moses Ozoigbo who is a relation to 1st – 3rd Respondents’ father Onyekmmuo Ogualobi which evidence was not challenged by the Appellants.
Buildings of the Respondents all over the portion of lands surrounding the land in dispute were admitted by PW4, PW5 and PW6.

All these are overt acts of possession by the Respondents. Some of the houses of the Respondents were in existence since 1970s, 1980s and 1990s. Gilbert Onyekamuo started building on the land in dispute in 2003 before he died in 2007. The Appellants did not challenge these acts of possession, which they claim ownership. The Respondents built on the land. The appellants did not complain. Their failure to challenge the defendant’s presence on the land shows unequivocally that the land in dispute cannot be ALABUJI land claimed by the Appellants.

In the circumstances the Court below was satisfied that the Respondents were in possession of the land in dispute. I share the view of the Court below. This issue is resolved in the favour of the Respondents and against the Appellants.

ISSUE NO 3 – During the cause of hearing, the Appellants tendered Exhibit P13, later substituted by Exhibit P23.
The Defendants tendered Exhibit D1 and sought to substitute same with Exhibit D3. In writing the Judgment, the Court below expunged Exhibit D3 on grounds that it was not pleaded and the pleadings of the Defendants was not amended.

The Court below did not base its judgment on Exhibit D3. It expunged it because it was erroneously admitted.
The Court below had this to say
“the plaintiffs by themselves their servants, agents, workman and privies are hereby restrained from trespassing or further trespassing into the land in dispute shown red in the defendant dispute survey Plan No THS/AN/0717D/2012.”

The Court observed that –
“the defendant did not amend their amended statement of defence and counter claim and did not plead the survey plan Exhibit D3. The law is trite that evidence led on facts not pleaded certainly goes to no issue, even though Exhibit D3 was admitted it was done in error for there was no basis for that. In that circumstance, I hereby expunge Exhibit D3 from the record. The relevant survey plan of the defendant was Exhibit D1 which was duly pleaded and admitted in evidence.”

At page 348 of the record of Appeal, the record states that Exhibit D3 was admitted without objection. It did not indicate that Court had jettisoned Exhibit D1, neither did it state whether Exhibit D1 was substituted by Exhibit D3.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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Let me, for purposes of elucidation reproduce verbatim the Court proceedings of the 6th of June 2016 viz:
Counsel for the defendant seeks to tender survey plan no CU/AN/D030/14.
Counsel for the plaintiff does not object.
COURT:
“Survey plan No CU/AN/0030/14 OF 14/11/14 is tendered with no objection and admitted in evidence and marked as Exhibit D3.”

On the 3rd of May 2016 counsel to the Defendant sought to tender Exhibit D1 (the first Survey Plan). It was admitted as Exhibit D1 without objection.

The Court below gave credible reasons why Exhibit D3 had to be expunged. That it was not pleaded neither was there an application to amend same.
The act of expunging Exhibit D3 in my view did not occasion miscarriage of justice to the Appellants.

The answer to issue No 3 is answered in the negative. This issue is resolved in favour of the Respondents and against the Appellants. Let me reiterate by way of emphasis that the Appellants root of title as pleaded was much more established but there was no basis as the land on which that title was predicated was not identifiable by them. The Respondents on their part are only entitled to possessory rights as proved and lack title to the land in dispute which they were unable to establish. The Appeal is bereft of merit and same is dismissed in its entirety.

The judgment of the Anambra State High Court holden at Ihiala Judicial Division in Suit NO HIH/15/2011 delivered on the 21st of March 2017 is hereby affirmed.
No order as to costs.

Appearances:

J. T. U. NNODUM, OFR, SAN with him, B. U. IWUALA, ESQ., and O. G. ADINDU, ESQ. For Appellant(s)

ELEANYA G. O. ESQ. For Respondent(s)