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COURT OF APPEAL, PORT HARCOURT DIVISION
(1992] 1 FRIDAY 14TH JUNE, 1991
BEFORE THEIR LORDSHIPS
SYLVESTER UMARU ONU, JC.A.
REIDER JOE JACKS, J.C.A.
BRAIMAFI AMEN OMOSUN, J.C.A.
Mr. L.I. Okonkwo ‑ for the Appellants
Mr. M.S. Chukwunenye ‑ for the Respondents
APPEAL ‑ Findings of fact ‑ Trial court substituting its views for evidence led and making findings thereon ‑ Attitude of Court of Appeal.
APPEAL ‑ issues for determination ‑ Oral arguments based on grounds of appeal rather than on issues for determination ‑ Propriety.
COURT ‑ Native land tenure system ‑ Trial court disbelieving custom established by evidence ‑ Effect.
CUSTOMARY LAW ‑ Custom ‑ Nature of‑ How proved.
CUSTOMARY LAW – Native land tenure system ‑ Trial court disbelieving custom established by evidence ‑ Effect.
EVIDENCE ‑ Proof‑ Onus of proof in civil cases ‑ On whom lies ‑ How discharged.
EVIDENCE ‑ Proof ‑ Proof of custom ‑ How done.
LAND LAW ‑ Customary tenancy ‑ incidents of ‑ effect of payment of tribute.
LAND LAW ‑ Native land tenure system ‑ Trial court disbelieving custom established by evidence – Effect.
LAND LAW ‑ Traditional History ‑ Plaint if not pleading or tracing original settler on land in dispute to himself ‑ Effect.
LAND LAW ‑ Trespass. What constitutes‑ Who can sue therefor.
PRACTICE AND PROCEDURE ‑ Bindingness of ‑ Pleadings ‑ Evidence led on facts not pleaded ‑ How treated.
PRACTICE AND PROCEDURE ‑ Findings of fact ‑ Trial court substituting its views for evidence led and making findings thereon ‑ Attitude of Court of Appeal.
JACKS, J.C.A. (Delivering the Leading Judgment):
By their writ of summons issued on 7 June, 1977, the plaintiffs claimed against the defendants (now the appellants) a declaration of title, N1 ,000.00, damages for trespass and injunction.
After pleadings had been ordered on 22 July, 1977, the following persons namely,
(For themselves and representing the entire members of the Umuisigwe family of Owor Ahiafor village within Obioma Ngwa Local Government Area) applied and obtained an order of Court on 12 September, 1977 and were joined as second set of defendants to this action. They are hereinafter referred to as such in this judgment. In paragraph 27 (a) of the statement of claim the plaintiffs’ claim reads:
“Declaration of title to that certain piece or parcel of land known as and called “Okpulor Agwua” and Okpulor Uka” verged PINK PLAN NO. UE 46/77 lying together and situate at Owor Ahiafor, Village in Obioma Ngwa Local Government Authority, within jurisdiction annual value whereof is N10.00.
(b) N1000.00 (One thousand Naira) general damages for trespass committed on or about the month of March, 1977 by the Defendants on the aforesaid two portions of land without the consent and authority of the plaintiffs’ family.
(c) Perpetual injunction restraining the Defendants, their servants or Agents, from committing further acts of trespass on the aforesaid portions of land.”
The two sets of defendants filed separate statements of defence.
Briefly stated the plaintiffs’ root of title was based on grant to them by outright gift by an ancestor of the second set of defendants. Paragraph 8 of the statement of claim reads:
“8. The land in dispute is part and parcel of a vast area of land known as and called “Okpulor Aguwa” and “Okpulor Uka” lying together, which the second set of Defendants (Umuisigwe family) granted to the plaintiffs, by way of an outright gift in accordance with Ngwa native law and customs.”
It was also pleaded in paragraphs 8 ‑ 11 that by virtue of the said grant, the ancestors of the plaintiffs were also granted the following portions of land, namely “Ohia Nkpagwu”, “Ohia Ohie”, “Alaoji Uzoumuobiakwa” and “Ohia Ukwu‑apu”, including the land in dispute, making five portions of land. That from time immemorial they exercised maximum acts of ownership and possession over these portions of land by allocating farm strips to deserving farmers on payment of rents, reaping economic trees such as harvesting of palm nuts and kernels. That they have at various times allocated portions of land for residential and firming purposes only to the 1st set of Defendants as their tenants and to other tenants named in paragraph Ii of the statement of claim. it was averred in paragraph 12 that in their plan No. UE.46/77, two portions of land verged BLUE were granted to the first set of defendants for farming purposes, while their present houses are indicated on the North‑Eastern side of the land in dispute. They pleaded in paragraphs 13‑15 that one AZUGWO, their grandfather. while living on the land in dispute had a good friend by name Ugwuala (grandfather of the defendants) who, being poor and had many children including his son Agomun, the father of the first set of defendants, upon his request was allowed to live with Azugwo as his servant. That the said Agomuo, being a happy servant, was allowed by his master to make “use of the traditional farm strips known as “Okwuoru” in those five portions of land granted to the plaintiffs’ family, including the areas verged BLUE in the plaintiffs’ plan, as well as the 1st set of defendants’ homestead shown in the said plan No. UE.46/ 77. Agomuo and his children (the 1st set of Defendants) never lived on the land in dispute, but used other lands aforementioned”, ‑ paragraph 15. It was also averred that at the time Agomuo lived in the area verged BLUE, Aguwa and Uka of the Plaintiffs’ family also inherited the land in dispute verged RED but after their deaths, their children moved to other family lands, and the land in dispute became Okpulor Aguwa, and Okpulor Uka. That on or about 1968, the 4th plaintiff moved from Okpulor Aguwa (land in dispute) to a new site or land he bought and regarded that portion of the land in dispute as bona fide property of the family, ‑ (see paragraphs 20 and 21 of the statement of claim).
It was pleaded in paragraph 22 that between 1968 and February 1977, the plaintiffs’ family in general and the 4th plaintiff in particular exercised maximum acts of ownership and possession over the land in dispute by farming thereon, reaping cash crops etc. without let or hindrance by the 1st set of defendants. However, on or about March, 1977, the 1st set of defendants, their servants and agents, without plaintiffs’ leave or consent broke and entered the land in dispute, brushed it, uprooted some economic trees and “quickly put up a remshakle hut”.
The case of the 1st set of defendants as pleaded in paragraph 4 of their statement of defence reads:
“The land in dispute is part and parcel of a vast area of land known and called “ISIAFOR” which the ancestor of the second set of Defendants, one Isigwe, granted to one Azugwo on a customary tenancy and on the condition that the grantee and his descendants pay a customary annual tribute of N2,l0 to the grantor and his descendants and on absolute right of grantor and his descendants to tap palm wine on land in dispute on any “one ukwu” market day.”
They pleaded that they and plaintiffs are “direct descendants of the original grantee, the said Azugwo having begotten Uka, Wogwugwu, Aguwa, Ochia, Ukaegbu, Obirnba, Agomuo and Nwachukwu”. That Umuazugwo family comprising them and the plaintiffs cannot “claim title to the land in dispute being customary tributary tenants of the second set of Defendants who own the land in dispute.”
They averred that according to the custom of Ngwa people when customary tenants moved away from land granted them on customary tributary tenancy, the land reverted to the landlords. That in 1964 the plaintiffs left the land in dispute and moved their households to another location leaving behind the first set of defendants on the land in dispute which would have reverted to the grantors if they had not remained on the land. Hence they are the only recognised tenants of the owners of the land who are entitled to receive the annual tribute payable on the land. That the five pieces of land claimed by the plaintiffs are the ones granted to their common ancestor Azugwo on which they farmed on rotational basis according to custom. That the plaintiffs, having abandoned the said pieces of land, and are no longer paying tribute to the second set of defendants, have also abandoned all rights to the aforementioned pieces of land. That they are children of Agomuo who was a son of Azugwo while the plaintiffs are children of Uka and Aguwa, also sons of Azugwo. They denied any relationship with Uguala and averred that before 1964 they and plaintiffs occupied almost in equal shares the whole of the land in dispute; that while plaintiffs lived on the portion verged YELLOW in Defendants plan No. SE/NA/78/78, they lived and still live on the portion verged GREEN. But when the plaintiffs left the portion verged YELLOW in 1894, the whole of the portion verged PINK in Defendants’ plan devolved on them and by virtue of that fact they H continued to pay tribute to the owners of the land as the recognised customary tenants in respect of the land in dispute.
The second set of defendants in their own pleadings averred that the land in dispute known and called “ISIAFOR” or “EZI UMU AZUGWO” was the ancestral property of their UMUISIGWE family of which the 5th defendant (Samson Nwohu) is the present head. That the land in dispute was acquired by Isigwe, their ancestor by deforestation under Ngwa Customary Law. That strangers from Owor, including one Azugwo were settled on the land by Isigwe as his customary tenants. That the plaintiffs and the 1st set of defendants are descendants of the said Azugwo from whom they inherited the customary tenancy granted by Isigwe. That Azugwo paid tribute to Isigwe by giving him wine as customary landlord and “later his heirs on Eke and One days” and by other customary incidents. That plaintiffs’ claim to the land in dispute was being looked into by an arbitration of Owor Ahiafor Amalas. They denied plaintiffs’ authority to allocate any portion of the land to anyone. They further pleaded that the plaintiffs and first set of defendants were their co‑tenants until 1964 when the former vacated and abandoned the land, and by so doing terminated their customary tenancy.
The parties gave evidence and called witnesses. At the end of trial the learned trial judge considered the evidence and made various findings. Some of the findings include who is qualified to hold the “ofor” or juju priesthood of the Azugwo family. At page 108 lines 18 ‑ 22 he found thus:
“Indeed the first set of defendants could rightly be regarded as members of Azugwo’s household since their father lived there with Azugwo as his servant and had his children in Azugwo’s home. This would not make them blood relations. They are not.”
In particular, he found as a fact that the land in dispute was an outright grant to plaintiffs’ ancestor by the ancestor of the second set of defendants. In the end he gave judgment in favour of the plaintiffs in the following terms:
“In the final result this action succeeds and I declare in favour of the plaintiffs by virtue of section 40 of the Land Use Act 1978 the right to customary certificate of occupancy over the land in dispute called “Okpulor Agwu” and Okpulor Uka” verged pink in plaintiffs’ plan No. UE146177 received as Exhibit ‘A’ in this suit.
For trespassing into the land the first set of defendants shall pay general damages fixed at N 100.00.
I order a perpetual injunction restraining all the defendants and all members of their respective families, servants/or agents from doing anything in the land without the consent of the owners the plaintiffs”.
Being dissatisfied, the first set of defendants appealed to this Court. The notice of appeal contains five original grounds of appeal. They subsequently sought and obtained leave of this Court and amended the original grounds by four grounds of appeal. The five original grounds were abandoned and struck out.
The amended grounds of appeal (with their particulars) read:‑
GROUND1. ERROR IN LAW
“The Learned Trial Judge erred in law when he held that for the purposes of trespass, the plaintiffs who jointly occupied the land in dispute could maintain an action in trespass when they voluntarily vacated leaving the Appellants in possession.
PARTICULARS OF ERROR
The Plaintiffs admitted that their grandfather took the father of the defendants as a servant and they lived together in one vast compound. Later between 1964 and 1967, the plaintiffs vacated leaving the Appellants in possession. Then in 1977, the plaintiffs took out action in trespass. The court at page 108 held “indeed the first set of defendants (Appellants) could rightly he regarded as members of Azugwo’ s household since their father lived with Azugwo as his servant had his children in Azugwo’s home. “Since the Appellants and before them their fathers were lawfully on the land, could they be successfully sued in trespass?
GROUND 2. ERROR IN LAW
That the Learned Trial Judge erred in law when he granted perpetual Injunction against the Defendants/Appellants when in fact the court found that they were in lawful possession from the time of their ancestors till the time when the plaintiffs vacated.
PARTICULARS OF ERROR
The court found that Azugwo (plaintiffs’ ancestors) was joined by Agornuo (defendants/Appellants’ ancestors) to live on the land in dispute, that is, that both ancestors lived on the land; there was no demarcation of the areas. The court did not specifically delimit the area where the defendants were restrained from. In the evidence before the court and the exhibits, the land in dispute is called OKPULOR AGUWA AND OKPULOR UKA by the plaintiffs, later the said name OKPULOR AGUWA AND OKPULOR UKA was restricted to the area verged PINK in Exhibit “A”. If that is so, what is the area the defendants/appellants are restrained from, the whole of Okpulor Aguwa and Okpulor Uka said to be in dispute or area verged PINK.
GROUND 3. ERROR IN LAW
The Learned Trial Judge erred in law when he failed to consider the various traditional history of the parties before accepting that of the Plaintiffs/Respondents.
PARTICULARS OF ERROR
As to the payment of tribute, PWI and PW2 differed in time when tribute was paid by the Defendants/Appellants. PW I said last tribute was paid in 1967. PW2 said formerly the tribute was tombo but we have not in this generation received any tribute from them. The Learned Trial Judge devoted a greater part of the judgment to the fact of holding of the Ofor which in fact could not detract him from the fact that defendants were in lawful possession. If the defendants were lawfully on the land and are regarded as Azugwo ‘s house‑hold, then their history is interwoven with plaintiffs and the onus on the plaintiffs to dislodge it is great and they failed to discharge it.
GROUND 4. MISDIRECTION
The Learned Trial Judge misdirected himself when he failed to distinguish between abandonment of farm land, ancestral home and land jointly occupied. this misdirection has occasioned miscarriage of justice making it possible for the defendants to lose their rights over their ancestral homes.
PARTICULARS OF MISDIRECTION
The land really in dispute is the area formerly lived on by the plaintiffs and the defendants. The plaintiffs vacated for another location leaving the defendants to continue in possession. There was no demarcation of the areas where each party lived. The evidence was that both lived in one vast compound. The trial judge did not find as a fact the respective areas each party dwelt to enable him ascertain the correct dwelling places of each. The Trial Judge made no specific finding that the Appellants were or were not in lawful possession or entered lawfully.”
It is pertinent to state here that the second set of defendants did not appeal against the judgment.
Briefs of argument were filed and exchanged. In the appellants amended brief dated 24/9/87 and filed on 16/10/87 the following four issues are formulated for determination:
“(a) Are the Appellants trespassers in the land in dispute when the evidence showed that their father lived on the land without payment of tribute to anybody and the Appellants after their father continued to live on the land without payment of any tribute to the Respondents and their ancestors before them.
(b) Can the Appellants be perpetually restrained in a piece of land where their father lawfully occupied and after him his children (the Appellants). If the Appellants are not trespassers, could they be restrained from the land? (Ground 2)
(c) Have the Plaintiffs/Respondents proved exclusive ownership to entitle them to a declaration of title?
(d) Did the Plaintiffs/Respondents establish or lead evidence to their Traditional History which the court preferred to that of the Defendants/Appellants?
It is necessary to note at this stage that although the appellants filed an amended brief on 16/10/87 in relation to the amended grounds of appeal, learned counsel for the respondents adopted and relied on respondents’ brief dated 22/2/ 86 and filed on 25/2/86. In the brief, objections were raised as to the competency or otherwise of some of the original grounds of appeal. However, during the hearing of this appeal, learned counsel conceded that no respondents’ reply brief was filed, and that the amended grounds of appeal are competent. Issues were not formulated in the brief, consequently I will consider this appeal in the light of the issues raised in appellants’ brief and arguments relating to them in respondents’ brief.
Although issues were formulated in appellants’ brief which appear to cover the four amended grounds of appeal, learned counsel in the brief left the issues and proceeded to argue the grounds of appeal in his brief. The Supreme Court has frowned on this approach, and has advised counsel arguing appeals to rely on the issues formulated rather than the grounds of appeal in view of the principle that it is on the basis of the issues that the parties found their contention ‑ See Macaulay vs’. NAL Merchant Bank Ltd. (1990)4 NWLR (Pt,144) 283 at 321
Be that as it may, learned counsel for the appellants adopted arguments in their brief. The plaintiffs will hereinafter be referred to as the respondents. The arguments in appellants’ brief in respect of issues (a) and (b) which seem to encompass grounds (I) and (2) are directed against the conclusion reached by the learned trial judge that the appellants are trespassers and the order of perpetual injunction against them. I have earlier in this judgment reproduced in part and summarized the main facts pleaded by the parties. They joined issue as to whether the appellants are respondents’ customary tenants. Issue was also joined as to whether the appellants lived on the land in dispute. It was common ground that the respondents vacated the land in dispute either in 1964 as pleaded by the appellants or 1968 as pleaded by the respondents.
Now, under native law and custom, a customary tenant pays tribute and enjoys perpetuity of tenure subject to good behaviour. It means in practice that a customary tenant may forfeit his holding only as a result of an order of court ,for forfeiture at the instance of the customary landlords. See Ejanalonye & Ors v’ Omabuike & Ors (1974) 1 All NLR 298 at 303.
An incident of customary tenancy under native law and custom is the payment of tribute to the overlord. In Chief Alhaji K.O.S. Are & Ors vs. Raji Ipaye & Ors (1990) 2 NWLR (Pt. 134) 298 at 321 the purpose of payment of tribute is stated thus:
“Tribute is paid as a mere mark of respect for a previous overlord: its payment does not signify a subsistence at the overlord’s reversionary interest. Rather it is a customary incident of occupation of land by a stranger and is usually voluntary and does not depend upon any agreement: see Chief Braid v. Chief Ka!io (1927) 7 NLR 34’.
Now, what is the evidence led by the respondents in proof of their pleading in paragraph 11 that the appellants are their customary tenants. The 4th respondent on record described by the learned trial judge as the star witness of the respondents testified as P.W. I . In his evidence‑in‑chief at page 60 he merely stated that the appellants are their tenants. Under cross‑examination at page 64 lines 1 ‑ 2 the witness stated thus:
“Defendants 1 ‑ 4 are our tenants. Where they now live in (sic) a part of Okpulor Aguwa land.”
The next question and answer are as follows:
“Q. What do they pay you for living in the area you claim to be your land?
The 2nd respondent on record under cross‑examination at page 69 lines 9 ‑ 11 stated thus:
“In the olden days the fathers of defendants 1 ‑ 4 paid tributes of tombo to our fathers, but they later stopped. We have not in this generation received any tribute from them.”
It is clear from the above that the respondents, on whom the onus lies, did not adduce clear evidence in proof of payment of any tribute in support of their pleading that appellants are their customary tenants. They have not discharged the onus by unequivocal evidence. The learned trial judge in his judgment at page 103 lines 20 ‑ 24 observed thus:
“Therefore apart from the lack of consensus about the tribute as pleaded by both sets of defendants, the evidence does not support the contention that the plaintiffs (respondents) have ever paid any tribute to anyone for occupying and using the land in dispute”. (brackets supplied)
From the above observation the learned trial judge was considering the evidence in relation to the tribute which the appellants stated they paid to the second set of defendants. He did not consider the tribute, if any, that was paid to the respondents who pleaded that the appellants were their customary tenants. He did not advert his mind to the onus on the respondents to prove that appellants are their customary tenants paying tribute to them. Again, as stated earlier, issue was joined as to whether or not the appellants lived on the land in dispute.
Now the land in dispute is part and parcel of a vast area known and called “Okpulor Aguwa” and Okpulor U ka” lying together and verged green in respondents’ plan Exhibit A. The portion claimed b the respondents is the area verged pink within Exhibit A. The respondents concluded paragraph 15 of their statement of claim by pleading thus:
Agomuo and his children (the 1St set of Defendants) never lived in the land in disputes …….”
The evidence of the 4th respondent who testified as P.W. 1 was to the effect that the two parcels of land form one stretch of land: that the respondents do not now live in the area verged pink in Exhibit A, that he left the area in 1968, while the 3rd, 1st and 2nd respondents vacated the area in 1975, 1977 and 1972 respectively. He testified that he had been farming the portion where he lived. He asked the Court to grant them ownership of the area the appellants trespassed into and verged pink in their plan Exhibit A. He also asked for N 1,000.00 damages and injunction. Under cross‑examination at page 64 he admitted that the land verged pink in Exhibit A is called “Okpulor Aguwa” and “Okpulor Uka”.
The second respondent testified as P.W.2. He said the two pieces of land are one and the same parcel of land without any boundary between them; that they and the appellants lived together before they vacated the land in dispute. P.W.3 also testified that the land in dispute is one stretch of land without any demarcation between them. P.W.6 at page 75 lines 24 ‑ 28 testified under cross‑examination:‑
“The plaintiffs and defendants I ‑ 4 lived together in one vast compound. Later plaintiffs vacated. The plaintiffs houses in the compound were mud houses so when they vacated and the houses became vacant they collapsed.”
Learned counsel for the appellants at pages 4 and 5 of the brief referred to some paragraphs of the statement of claim and the evidence led in line with what I have set out above. He submitted that the pleadings are at variance with the evidence and goes to no issue on the fact pleaded by the respondents that the appellants never lived on the land in dispute. He cited the case of Emegokwue v. Okadigbo (1973) NMLR 192 at 193. He also referred to page 108 lines 18 ‑ 21 of the judgment where the learned trial judge found as follows:
‘………….Indeed the first set of defendants could rightly be regarded as members of Azugwo’s household since their father lived with Azugwo as his servant and had his children in Azugwo’s home.”
In view of the above finding and the evidence adduced by the respondents, it was submitted to the effect that the appellants did not commit any trespass on any portion of the land in which both families have been living until the respondents vacated the land between 1968 and 1977 on their own admissions. Relying on some of the Supreme Court cases including Oluwi vs. Eniola (1967) NMLR 339; Arnakor vs. Obiefuna (1974) 1 Al 1 NLR 119; and Otuagha Akpapuna vs. Ohi Nzeka 11(1983)7 SC. 1. (1983)2 SCNLR It was further submitted that there was no proof that the respondents were in actual or exclusive possession of the land in dispute to maintain an action in trespass, and consequently an order of perpetual injunction against the appellants was wrong.
On the other hand, learned counsel for the respondents in his brief submitted to the effect that although the respondents alone vacated the land where both parties lived, yet they were still in peaceful possession of the land in dispute. He further submitted that the learned trial judge’s findings and conclusion were justified on the evidence adduced before him.
Now, it is common ground that the respondents vacated the land on which they and appellants lived, while the latter still remained in possession. Since the respondents and their witnesses admitted that the two parcels of land form one stretch of land, which includes the portion verged pink without any demarcation, and that the respondents vacated the land in dispute leaving the appellants in occupation, the latter could not commit trespass on any portion of the land in which they and their ancestor had been in continuous possession. The admissions were largely extracted under cross‑examination of the respondents and their witnesses as amply demonstrated in the various portions of the evidence reproduced above by me.
They are in support of the appellants’ case that the parties lived together on the land in dispute until the respondents vacated it. The learned trial judge observed at page 108 lines 15 ‑ 21 thus:‑
“There is evidence that the plaintiffs (respondents) and the first set of defendants (appellants) lived together. They would do a lot of things in common.
Indeed the first set of defendants (appellants) could rightly be regarded as members of Azugwo’s household since their father lived with Azugwo as his servant and his children Azugwo’s home.” (brackets mine)
In the light of the above observations, and in addition to what has been stated elsewhere in this judgment, could it be said that the appellants committed any acts of trespass on the land in dispute which is called “Okpulor Aguwa” and “Okpulor Uka” lying together and includes the area verged pink in respondents plan Exhibit A? I would answer the question in the negative by reason of the proven facts that the appellants are in possession of the land in dispute based on the respondents case alone, it is manifestly clear in the respondents own showing that they are not in exclusive possession of the land in dispute.
The tort of trespass to land is committed, when an unauthorised person or persons enters a piece of land in the exclusive possession of another or one who has a right to such exclusive possession. It is trite law that it is actionable at the instance of such a person or persons. See Amakor vs. Obiefuna (1974) 3 SC. 67 at 76‑77; (1974)1 All NLR 119; Ogunghemi vs. Asamu(1986) 3 NWLR(Pt.27) 161 at 162.
It seems to me on the printed record that the learned trial judge did not adequately consider the respondents’ case against the appellants on the issue under consideration. He appears to have been more pre‑occupied with the respondents’ case against the second set of defendants. In the light of what has been demonstrated above, it cannot be said that the respondents are in possession of the land in dispute which they vacated as pleaded by them and admitted by them on the evidence before the Court. On the contrary, since the appellants are still in possession, there is no basis for concluding that they committed trespass on any portion of the land in dispute. He who asserts must prove. That primary burden has not been discharged by the respondents in this case. In Umeojiako vs. Ezenamuo (1990) (Pt. 126)1 NWLR 253 Belgore J .S.C. at page 267 of the report stressed the well‑known primary burden of proof thus:
“In all civil cases, the persons who asserts must prove. In the case of the plaintiff it is he that must first prove his case and make it strong enough to support his pleading. Should he fail to do this, his case will remain unproved, however elegant his pleadings. The failure of the defendant to prove, even his refusal to testify cannot alleviate the primary burden on the plaintiff to prove his case.”
I agree with the submission of learned counsel for the appellants to the effect that the appellants are not customary tenants of the respondents. Even if such relationship was proved, the appellants would hold the land in perpetuity, subject to good behaviour. They can only be dislodged by a claim for forfeiture for any reason under native customary tenure. See LJEANALONYE & ORS VS. OMABU1KE & ORS. (supra); ARE VS, IPAYE (1990)2 NWLR (Pt. 134) 298 at 321.
In view of all that I have said, Issues (a) and (b) in the appellants’ brief are answered in the negative.
I will now deal with Issue (d) in appellants’ brief which seems related to ground 3 of the amended grounds of appeal. Issue was joined as to whether or not the parties are descendants of Azugwo. in my view it is a question of lineage. The respondents did not name the sons of Azugwo, their grand‑father anywhere in their pleadings. Rather, they pleaded that one Ugwuala, a good friend of Azugwo had many children including Agomuo, Nwaogwugwu and Obimba. That the appellants are the sons of Agomuo. On the other hand the appellants pleaded in paragraph 5 of their statement of defence that they are direct defendants of Azugw whose children are Uka, Wogwugwu, Aguwa, Ochia, Ukaegbu, Obimba, Agomuo and Nwachukwu. in paragraph 10 they pleaded they are children of Agomuo who was a son of Azugwo. Although the 4th respondent who gave evidence as P.W. I testified that the respondents “are members of the two families of Aguwa and Uka who are plaintiffs in this case, the relationship between Aguwa and Uka and Azugwo was not pleaded. He testified at page 60 that they have no blood relationship with Agomuo. However, under cross‑examination he stated:
“Azugwo was our ancestor. He had the following children viz::
Nwachukwu, Uka, Aguwa, Ukaegbu. He had others but I have forgotten their names.” (See page 63 lines 25 to 27). When it was put to him that Azugwo also had Nwogwugwu, Ochia, Obimba and Aguwa. He answered thus:
“I now remember that Nwogwugwu was one of his sons. Ochie and not Ochia was a brother to Azugwo.”
(See p. 63 lines 30 ‑ 31)
The above evidence is clearly inadmissible even though it was given under cross‑examination since the children of Azugwo were not pleaded by the respondents in their statement of claim. It is settled law that parties are bound by their pleadings, consequently a party cannot give evidence of facts not pleaded. ‑See Emegokwue vs. Okadigbo (supra). The learned trial judge at pages 106 and 107 of the judgment summarized the evidence of the 4th respondent (P.W. 1) to the effect that the appellants and the respondents are not related by blood; that the priesthood of the two juju shrines was reserved exclusively for the oldest member of the family who also held the “Ofor” of the family. He emphasised the fact that Agomuo, father of the appellants, who was the oldest in the “Azugwo household”, not being a son of full blood could not hold the “ofor” of the family; that a younger person Ikongwa, being a son of full blood, held the “ofor” and was also the juju priest. The learned trial judge then found that this aspect of P.W. I ‘s evidence was never challenged in cross‑examination, and that it clearly supported paragraphs 18 and 19 of the statement of claim.
Now paragraphs 18 and 19 of the statement of claim read:‑
“18. The plaintiffs’“Ihuifania” and Ihuela”jujus shown in the plaintiffs’ plan No. UE.46/77, are always controlled and sacrifices offered to them by the oldest member of the plaintiffs’ family, who holds the family’s sacred “Ofor” symbol, as the head of the family.
The learned trail judge’s comments and appellants’ reply to the above are at page 107 lines 8‑33. They read:
“In their statement of defence the first set of defendants had nothing to say about the fact that Agomuo their father did not and (Quid not hold the ofor of Azugwo family. Surely if he ever hold (sic) the “Ofor” such an important flier would have ftn1nd a prominent place in their pleadings.” The averment would have been pungent ‑ having no room for any guess. As it were, their reply was timid and gives the impression that they know the truth. They merely in par. 12 of their statement of defence denied these paragraphs of the statement of claim (i.e. pars. 18 and 19) where the plaintiffs made the allegation and called for strict proof as they were, of course, entitled to do. In the last sentence of par. 11 of their statement of Defence the first set of defendants also pleaded as follows:
“The “Ihu fania” and Ihu ala” shrines on the land in dispute have been worshiped since time immemorial by the ancestors of both plaintiffs and first set of defendants but since the plaintiffs abandoned the land in dispute the shrines are not now worshiped as first set of defendants all practicing Christians who do not indulge in idol worshiping hut these shrines were last worshiped by A gomuo the father of 1st, third and fourth defendants.”
Thereafter, the learned judge at page 108 stated as follows:“This does not provide an answer to the allegation that Agomuo did not hold the “Ofor” of the Azugwo family. The “Ofor” symbol amongst the Ibos is so sacred that its importance in the family is paramount. I believe and accept the evidence that only consanguinity determines who holds the “Ofor”. Only sons of full blood in the family are entitled to hold the “Ofor”. The evidence was that in Azugwo’s household although there was a time Agomuo was the oldest, he could not hold the “Ofor”. Ikongwa who was younger held the “Ofor”.
I accept this unchallenged testimony of P.W. 1 and find it as a fact.
The first set of defendants have talked about sharing of bride price of their daughters when their daughters are given away in marriage. This is not all a way of showing blood relationship among the ibos. There is evidence that the plaintiffs and the first set of defendants lived together. They do a lot of things in common. Indeed the first set of defendants could rightly be regarded as members of Azugwo’s household since their father lived with Azugwo as his servant and had his children in Azugwo’s home.
This would not make them blood relations. They are not.”
With due respect to the learned trial judge, his belief and acceptance of P.W.1’s evidence that only sons of full blood in the family are entitled to hold the “Ofor”: that only consanguinity determines who holds it, are equally important
facts which are not pleaded by the respondents. They are inadmissible evidence, and ought to have been discountenanced on the authority of Emegokwue vs. Okadigho (supra). The observation that “the symbol amongst the Ibos is so sacred that its importance in the family is paramount” appears to be a substitution of his own views of a custom among the Ibos as determining blood relationship. These are some of the factors which led the learned judge in his finding of fact that the appellants and the respondents are not descendants of Azugwo. On the other hand, the appellants pleaded their lineage from Azugwo and gave evidence in support as to their relationship with the respondents. Since the respondents did not plead the names of the son or sons of Azugwo, there is a gap between them and Azugwo’s children to show that Agomuo is not a direct descendant of Azugwo. It is not enough to plead that Azugwo was their grand‑father. There is no linkage or nexus between them and Azugwo’s children to oust the relationship between the parties on which issue was joined. Since this has not been pleaded, their purported non‑relationship by blood with Agomuo is let in the airand consequently not established.
See Mogaji vs. Cadhury Nig. Ltd. (1985) 2 NWLR (Pt.7)393
The situation thus posed is that the trial court abdicated its role as master of the facts. It considered evidence of the respondents which were not pleaded and clearly inadmissible. It enthroned the holder of an “ofor” symbol among the Ibos as one of the determining factors in proving consanguinity. In view of the foregoing, it cannot be said that the respondents have proved that the appellants are not direct descendants of Azugwo instead of Ugwuala who they described as a stranger and father of Agomuo. Consequently the finding of fact that the parties are not related by blood is manifestly wrong. Hence this Court will rise to the call of duty in the interest of justice and reverse the finding by the lower court that the parties are not related by blood. See Kuforiji vs. V.Y.B. Ltd (1981) 6‑7 SC.40 at pages 84 ‑ 85; Ebba vs. Ogodo (1984)4 SC. 84 at 98; (1984) 1 SCNLR 372.
For the reasons given above, I agree with the submission of learned counsel for the appellants that the respondents never traced their lineage while the appellants did from Azugwo to the present time. Accordingly the answer to Issue (d) in appellants” brief is in the negative.
Finally, in view of my conclusion in respect of Issues (a) and (b), the answer to Issue (c) is also in the negative.
I have already dealt with Issues (a) and (b). It is not in dispute that the respondents vacated the land in dispute. The whole of the land claimed by the respondents verged green in Exhibit A is called “Okpulor Aguwa” and Okpulor Uka”. The area verged pink is part of the two parcels of land lying together. The appellants in their pleadings call the land “Isiafor” and that the area verged pink is also called “Okpulor Aguwa” and “Okpulor Uka”. (See page 64 lines 18 ‑21.) He also agreed in lines 22 ‑ 23 that the whole Isiafor land was granted to Azugwo by Isigwe according to Ngwa custom. He also agreed that under Ngwa custom when a person vacates land which was granted to him, he is only entitled to farm on the land for only one year and then he has no more right over the land and the land reverts to the original owner. ‑ (See lines 28 ‑ 33). At page 104 of the record, the learned trial judge concluded that the identity of the land in dispute was not in dispute by reason of the evidence of D.W.4. He did not observe that the star witness has admitted this fact.
However, the learned trial judge in finding the appellants liable for trespass on the land in dispute at page 109 lines 11 ‑ 23 stated:
“In par. 10 of their pleadings the first set of defendants averred amongst tither things that “now that plaintiffs have abandoned the land in dispute all rights they might have had on it are extinguished”. The idea of abandoned land so that an owner loses his right over it is unknown amongst the Ibos. I dare say that such an idea is anathema to the traditional land tenure system. The land in dispute still remains the land of the plaintiffs even if they no longer have their houses in it. They are owners and therefore in possession and anyone who does anything in it without their consent will he trespassing.”
With respect to the learned trial judge, the views expressed above, and in particular the underlined portion, is not supported. by evidence. Indeed the admissions of P.W. I as to Ngwa custom clearly runs counter to his views. The custom involved here is Ngwa native custom. Since a particular custom is a question of fact which must be proved or admitted, and varies from one community to another, it cannot be said that the idea of abandoned land is unknown amongst the Ibos. There is no evidence of uniform customary land tenure governing the B various communities which constitute the whole of the land. In Otogbolu vs. Okeluwa (1981)6 ‑ 7 Sc. 99, Obaseki j.s.c. at page 115 observed thus:
“ …………….I must say that at his stage of our knowledge of Native Land Tenure System acquired from cases coming to our courts, I can safely say that there is no uniform customary land tenure spanning the length and breadth of Nigeria …………”
In views of the above, and in addition to all that I have said in respect of Issues (a), (b) and (d), I will again answer Issue (c) in the negative.
In the result the appeal succeeds and it is hereby allowed. The judgment of the lower court together with its order for costs is set aside. In its place I enter a dismissal of the plaintiffs’ case.
The appellants are entitled to their costs of this appeal and of the costs in the court below which I assess at N500.00 and N350.00 respectively inclusive of out‑of‑pocket expenses.
ONU, J.C.A: Having been privileged to read before now the lead judgment of my learned brother Jacks, J.C.A. just delivered, I agree that this appeal is meritorious and ought to succeed. I therefore allow it and subscribe to all the consequential orders made.
OMOSUN, J.C.A.: I have had the opportunity to read in advance the judgment of my learned brother JACKS, J.C.A. just delivered. I agree that the appeal be allowed. I subscribe to the order of costs made by him.