3PLR – AJA V. OKORO

POLICY, PRACTICE AND PUBLISHING, LAW REPORTS  3PLR

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AJA

V.

OKORO

IN THE SUPREME COURT OF NIGERIA

FRIDAY, 27TH SEPTEMBER, 1991

SC. 3/1990

3PLR/1991/25  (SC)

 

OTHER CITATIONS

 

BEFORE THEIR LORDSHIPS

ADOLPHUS GODWIN KARIBI-WHYTE, J.S.C. (Presided)

SAIDU KAWU, J.S.C.

ABUBAKAR BASHIR WALI, J.S.C.

EPHRAIM OMOROSE IBUKUN AKPATA, J.S.C. (Read the Leading Judgment)

UCHE OMO, J.S.C.

 

BETWEEN

1. AJA MAZI AJA
2. EUGENE CHUKWU (For themselves and as representing the members of Ogwor village Ishiagu Afikpo Divisions).

 

AND

1. JOHN OKORO
2. CHUKWU NNEOKORIE
3. OKPE OJUBI
4. AJA OKPIRIKPI (For themselves and as representing the members of Umobor village in Akeze Afikpo Division).

 

REPRESENTATION

Emeka Offodile – for the appellants

Prof. A.B. Kasunmu, S.A.N. (with him, Miss O. R. Ogunlana and Miss O. T Kasunmu) – for the respondents

 

MAIN ISSUES

APPEAL- Grounds of appeal – Where of mixed Law and fact -Leave of court to be obtained. Arguments – On what based – Whether on grounds of appeal or issues formulated – Issues for determination -Formation of-Determination of matters not in issue-Effect Of

CONSTITUTIONAL LAW -Judicial powers of courts – Exercise of- Not beyond limits granted by Constitution.

LAND LAW – Evidence – Ownership of land – Proof of title – Burden of proof- On whom lies.

PRACTICE AND PROCEDURE Judgment – Declaration of title – Where no evidence supports such declaration – Party not entitled thereto – Judgment only for what is claimed and proved on evidence before court.

 

MAIN JUDGEMENT

AKPATA J.S.C. (Delivering the Lead Judgment)

This is an appeal in a land case with all the intricacies associated with land dispute between neighbouring communities. The main issue in this appeal however relates to wrong delineation of the land in dispute in the defendants’ plan. There is also the question, among others, whether arguments should be based on the issues formulated in the brief of argument or on the grounds of appeal filed.

In February, 1971, the people of Ogwor Village in Ishiagu, Afikpo Division, Imo State, represented by the plaintiffs, instituted an action against the members of Umobor Village in Akeze, Afikpo Division claiming:

(i)      A declaration of title to ‘Elueke’ land alleged by the plaintiffs to situate at Ogwor village,

(ii)     N200.00 being damages for trespass, and

(iii)    A perpetual injunction.

Pleadings were ordered and exchanged. Before the defendants were served with the statement of claim along with the plan of the ’Elueke’ land put in dispute by the plaintiffs had, by their surveyor, prepared a plan of the parcel of land regarded by them as the ’Elueke’ land in dispute and of the adjoining area claimed by them, the defendants, as not in dispute.

Going by the statement of claim, it was the plaintiffs’ case that it was their ancestors who named the land ‘Elueke’ and that their ancestors granted the defendants ancestors permission to farm on a certain portion of ‘Elueke’. As customary tenants the defendants were obliged to pay the customary “Oji-Ala” (tribute) to the plaintiffs ancestors. It was further alleged in the statement of claim that it was in 1946 the defendants refused for the first time to pay tribute. However, one Okoroji, now deceased, a member of the defendants’ village was paying the necessary tribute up to the time of his death in 1965 for himself and his family.

Going by the evidence of the plaintiffs at the trial, and contrary to their averment in the statement of claim, their ancestors made no grant of any description to the defendants’ ancestors in respect of ‘Elueke’ land. Only one Okoroji of the defendants ’village was granted in 1934 a small portion of the land in dispute for farming purposes on condition that he paid tribute.

In the month of June, 1967, the defendants without the consent of the plaintiffs went into some portion of the ‘Elueke’ and cleared same and erected huts and farmed thereon”. The said area trespassed on is shown in plan No. OG/4/71, Exhibits A, dated 12th September, 1971 prepared by p.w.5 Matthias Chukwurah, a licensed surveyor. In their evidence in court the plaintiffs admitted that as far back as 1947 about twenty of the defendants has already built houses on the land and that the number had risen to sixty as at 5th of April, 1973 when the first plaintiff testified.

Going by the evidence of p.w.5, the plaintiffs’ surveyor, the approximate area of the land in dispute in Exhibit A. is about 800 acres. The land put in dispute by the defendants in their plan Exhibit B is about four times the size of the land in dispute as shown in Exhibit A falls outside the land edged pink as being in dispute in Exhibit B. Also in his evidence d.w.1. George Arinze Obianwu, a licensed surveyor, agreed that “the land in dispute by the plaintiffs’ plan is just a small portion of the land in my plan” that is, Exhibit B prepared by him.

The learned trial judge Araka, J. (as he then was) found in part at page 66 to 67 of the record of appeal thus:

“In my judgment, therefore, the plaintiffs have woefully failed to account for the presence of the Umobor people on the ‘Elueke land’ in such a large number (at least some 27 years ago) and now spread over an area of 4 miles square. I do not believe the story that it was through Okoroji that the defendants were first introduced into the land. I am perfectly satisfied that long before Okoroji (who it was said died in 1965) Umuobor people have been living and farming on the ‘Elueke’ land. This is even well borne out by the plaintiffs’ pleadings. I accept the defendants’ case that no Umuobor man (including Okoroji) has ever paid any rents or tribute to the plaintiffs. I do not believe the plaintiffs’ story that Okoroji paid tributes to them until he was killed by his son in 1965. If it was only Okoroji who has been paying the tributes to the plaintiffs why should the plaintiffs plead in paragraph 7 of the statement of claim that “the first plaintiff witnessed as a young man and indeed collected the customary ‘Oji Ala’ from the defendants’ fathers?” Indeed, the first plaintiff never witnessed and never pretended to have witnessed nor did ever collect any tributes from the defendants’ fathers (ancestors).”

He also made a finding as to ownership of Ezeoba pond in respect of which evidence was led by both sides. He observed and found as follows at page 69:

“Certainly, the weight of evidence is on the defendants’ side to the effect that the Ezeoba pond, which situates on the land adjoining the ‘Elueke’ land belongs to the defendants. If the pond belongs to the defendants then the land surrounding the pond also belongs to the defendants. Therefore the statement or contention by the plaintiffs that to get to the Elueke land from the defendants’ village one will have to pass through Okue land is not very correct. I am more inclined to accept the defendants’ case that their land does not touch the main Okigwe/Afikpo motor road, but is far away from the motor road and that it would be easy to get to the Elueke land from the defendants’ village without necessarily passing through Okue land which is along the main motor road.”

On the whole the learned trial judge was not satisfied that the plaintiffs had discharged the onus of proving that they were the owners of the ‘Elueke’ land. Their claim for declaration of title, trespass and injunction over the ‘Elueke’ land as shown in plan No. OG/4/71, Exhibit A, was dismisses with costs.

Against this decision the plaintiffs appealed to the Court of Appeal. Three issues for determination were formulated in the appellants original brief of argument in that court. They read:

“1.     Whether the learned trial judge was right in dismissing the entirety of the plaintiffs/appellants claim when the defendants/respondent joined issues with the plaintiffs/respondents only in respect of a portion of land verged Blue in identification ’B’ (later Exhibits ’B’) defendants plan.

2. What is the effect of the failure of the learned trial judge to make specific findings of fact on issues before the Court?
3. Can the judgment of the learned trial judge be supported having regard to the evidence before the court?”

The appellants filed an amended brief of argument wherein four issues for determination were identified. The Court of Appeal apparently did not advert to them. They read:

(i)      Whether the learned trial judge was right in dismissing the entirety of the plaintiffs/appellants claim when the defendants/respondents joined issues with the plaintiffs/appellants only in respect of a portion of land verged Blue in identification ‘B’

(ii)     Whether the learned trial judge was right in making use of evidence respecting a piece of land unconnected with the land in dispute to disprove the case of the plaintiffs.

(iii)    In view of the fact that one of the principal acts of possession pleaded by the plaintiffs/appellants was the sale of the Iroko tree on the land in dispute to one Isaac Chukwu; whether the learned trial judge can rightly enter judgment against the plaintiffs/appellants without making a specific finding of fact on whether or not the plaintiffs/appellants sold the Iroko tree on the land in dispute.

(iv)    In view of the nature of the evidence offered by the Surveyors whether the learned trial judge could rightly hold for the defendants without making a specific finding of fact on the evidence of the Surveyors.”

In an exhaustive consideration of the arguments advanced by counsel, Nnaemeka-Agu, J.C.A. (as he then was) in his judgment (concurred in by Ogundare and Macaulay, JJ.C.A.) did not resolve any of the issues in favour of the plain tiffs/appellants. The decision of the trial judge Araka, J. (as he then was) was affirmed and the appeal was accordingly dismissed.

The plaintiffs appealed to this court. Two original grounds of appeal were filed. Three additional grounds were subsequently filed with leave of this court. A number of particulars of error in respect of the five grounds were supplied. I shall however reproduce grounds 1, 3 and 4 without the particulars as the said particulars have been proffered before us inform of argument by learned counsel for the appellants. It is however necessary to set out grounds 2 and 5 in full for the reason which will apparent presently. The five grounds read:

“1. ERROR IN LAW AND MISDIRECTION IN LAW:

The learned justices of the Court of Appeal erred in law and misdirected themselves in the following portion of their judgment.

“I do not believe it is a correct general proposition of law to say that in all cases in which a defendant does not join issues with the plaintiffs on the whole of the area claimed by the plaintiffs the latter will be entitled to judgment over the area which the defendant has not joined issues……………………..

2. The learned justices of the Court of Appeal erred in law and misdirected themselves on the use made by the learned trial judge of the Ezeoba pond – a land far away and unconnected with the land in dispute in this case in arriving at his decision in this case.

PARTICULARS OF ERROR

1. In his judgment, the learned trial judge stated as follows:

“If the pond belongs to the defendants then the land surrounding the pond also belongs to the defendants.”

2. Ezeoba pond was used by the learned trial judge to raise a presumption under section 45 of the Evidence Act in favour of the defendants.
3. D.W.2 – John Okoro at page 35 of the record of proceedings stated that Ezeoba pond is more than 2 miles away from the land.
4. The act of possession exercised by the parties on Ezeoba pond was never an issue before the court.
5. As the defendants did not plead that they worship at the Ezeoba pond, evidence given in that regard goes to no issue.”
6. The learned justices of the Court of Appeal erred in law when they held as follows:

“Before I proceed to consider the above issues I must observe that one concrete act of possession which the appellants had relied upon in their earlier briefs Id est, sale of an Iroko tree on the land in dispute to one Isaac Chukwu which act had been claimed by both sides and which the learned judge had resolved against the appellants, is not contained in the above issues. I take it as having been abandoned.”

4. The learned justices of the Court of Appeal erred in law when they held as follows:

“I may observe in passing that the learned judge found that even though the appellants pleaded that they sold the Iroko tree in Elueke land in dispute, to Isaac Chukwu, the 1st appellant testified that Isaac Chukwu cut some trees from the appellants’ Okofia land. The 1st appellant himself testified that Elueke is only a grass land and has no big trees in it.”

5. The learned justices of the Court of Appeal erred in law when they held as follows:

“In my judgment the appellants misconceived the use the learned judge made of Ezeoba pond. The appellants’ case is that they have no common boundary with the respondents. While admitting that the respondents worship Ezeoba pond their contention is that that pond is not in the respondents’ land; but that the respondents must have to pass through it before reaching the Elueke and in dispute. The respondents, on the other hand, stated that Ezeoba pond is in their Okue land and that they have juju in the pond which is worshipped by one Ngwa Chukwu (d.w.4).

PARTICULARS OF ERROR

1. The plaintiffs/appellants pleaded in paragraph 5 of their statement of claim that the boundary between Okue Community of Ishiagu and Akeze town is the lyinu Stream.
2. The plaintiffs/appellants are from Ogwor Village Ishiagu while the defendants/respondents are from Umuobor Village Akeze.
3. The plaintiffs/appellants’ case is that going from the Elueke land in dispute one passes Okue land in Ishiagu, lyinu Stream before one gets to the defendants’ village in Akeze.
4. The defendants/respondents pleaded in paragraph 5 of their statement of defence that Eme stream is the boundary between Akeze and Ishiagu and not lyinu stream and that lyinu stream is right in their (defendants) land.
5. D.W2 said in his evidence that lyinu stream is in Ihenta land, that their (defendants) land does not touch lyinu stream anywhere.
6. Defendants’ plan shows Eme stream to be the boundary between the Ogwor people (i.e. the plaintiffs) and the defendants.
7. D.W.4 under cross examination said that they have boundary with Okue at Eme side.
8. The defendants’ plan does not show that they (defendants) have boundary with Okue anywhere.
9. The evidence of d.w2 and d.w 4 in relation to lyinu and Eme-streams respectively are at variance with their pleadings – and therefore goes to no issue.
10. There was no resolution/finding on whether the lyinu or Eme stream is actually the boundary between Okue in Ishiagu and the defendants/respondents village.
11. The plaintiffs/appellants never admitted either in their statement of claim or in their evidence in the course of trial that the defendants/respondents worship the Ezeoba pond.
12. The facts about the juju in the Ezeoba pond and it’s worship by one Ngwa Chukwu was never pleaded by either of the parties to this case.
13. The plaintiff/appellants pleaded Ezeoba pond in paragraph 4 of their statement of claim to show that it has boundary with the land in dispute.
14. The finding that there is a juju in the Ezeoba pond which is worshipped by the defendants/respondents (despite the fact that these facts were not pleaded) weighed so much in the minds of Justices of the Court of Appeal and resulted in their entering judgment for the defendants/respondents.”

Six issues were formulated in the appellants’ brief as arising from the grounds of appeal. They read:

“1.     In a claim for declaration, where the defendants fail to join issues with the plaintiffs with respect to the entire land in dispute, are the plaintiffs entitled to judgment with respect to the portions of the land in dispute not in issue between the parties?

2. Can a court rely on the evidence given in respect of a piece of land unconnected with the land in dispute to disprove the case of the plaintiffs especially when the acts of possession exercised by the defendants on Ezeoba pond situate on the said unconnected land were never pleaded by either of the parties?
3. Whether the issue of the sale of an Iroko tree on the land in dispute to one Isaac Chukwu by the plaintiffs/appellants was abandoned by them (plaintiffs/appellants) in their brief of argument?
4. On the state of the pleadings of both parties were the plaintiffs still required to lead evidence to prove that Isaac Chukwu fell timber on Elueke land in dispute when the defendants did not join issue with the plaintiffs in respect of this?
5. Whether there was any finding on which of these two streams; lyinu and Eme, should be regarded as the boundary between Ishiagu and Akeze or between the plaintiffs/appellants and the defendants/respondents?
6. Was the court right in holding that the plaintiffs admitted that the defendants worship the Ezeoba pond when the fact about this worship was neither pleaded by any of the parties nor admitted by the plaintiffs?

The only issue for determination as identified in the respondent’s brief reads:

“Whether or not the Court of Appeal was right in confirming the judgment of the trial court having regard to the evidence before him and the findings of fact made by him.”

This issue as formulated to my mind is the broad issue which arises invariable in every appeal and has no specific relevant to the peculiar issues in this appeal. The issues for determination in any appeal must have a direct bearing on the ground of appeal. They are to project succinctly and clearly the substance of the complaints contained in the grounds of appeal requiring resolution. There is no doubt that a number of grounds of appeal may raise a single issue but it is over simplification of the Issues in an appeal to say that the Issue is “whether or not the trial court or Court of Appeal was right in its judgment having regard to the evidence and the findings of fact made.

The formulation of an issue in this manner is only appropriate if the only ground of appeal is that the judgment is against the evidence or weight of evidence as the case may be. Happily, the arguments in the respondents’ brief are directed at the issues formulated in the appellants’ brief. I have earlier reproduced grounds 2 and 5 fully. Issues 2,5 and 6 arise from them. It can be seen, having regard to the particulars of errors supplied, that the two grounds, put at the highest, are grounds of mixed law and facts, if nor entirely of facts. In the appellants’ brief it was indicated at page 5, paragraph 5.01 that “the plaintiffs/appellants shall seek leave of this Honourable Court to argue these two grounds particularly ground 5 which raises inter alia the issue of boundary.

Ground 2 is one of the original grounds and ground 5 is one or the additional grounds filed following the order of this court on 10th December, 1990 “that leave to file additional grounds (iii) to (v) be granted as prayed” and “that the applicants be granted 15 days within which to file the additional grounds of appeal. This order was sequel to the application of the appellants for leave to amend their original grounds of appeal by filing additional grounds of appeal. There was no subsequent application following the filing of the brief of argument seeking leave to argue the two grounds of appeal being of mixed law and facts. Grounds 2 and 5 and issues 2,5 and 6 arising therefrom are therefore incompetent and are accordingly struck out.

In respect of the first issue it was the submission of learned course for the appellants that from the evidence of the licensed surveyors, p.w.5 and d.w.1., it is clear that the plaintiffs/appellants and defendants/respondents joined issues only in respect of a portion of the land claimed by the plaintiffs/appellants. He contended that part of the land in dispute which fell outside the defendants’ plan after it was superimpose on that of the plaintiffs need not to be proved. In this regard he referred the cast of Mogo Chinwedu v. Nwanegbo Mbamali and another (1980) 3-4 S.C. 31 at page 68 where Obaseki, J.S.C., said:

“It is settled law that where in a claim for declaration of title the dispute is proved to be confined to a smaller area than originally set out in the claim, judgment should be limited to the area in dispute. The court’s power of adjudication are never invoked on matters not in dispute or controversy and to complain of the court’s action in limiting the declaration to an area proved to be the area in dispute borders on frivolity.”

He also cited Roland Omoregie and Other v Oviamwonyi Idugiemwanye and Others (1985) 2 N.W.L.R. (part 5) 41 at page 60 where Oputa J.S.C. explained thus:

“Now the Onus of proving the material averments in the plan of the plaintiffs will arise if the extent of the land, it’s boundaries or other features are put in issue by the defendants…………………………………………………………………………………….. But where the defendant wants to make the plaintiffs’ plan an issue he should be quite clear and specific on the points in controversy – is it the area, the boundaries or the loci in quibus of the various acts of possession alleged?”

According to learned counsel the plaintiffs’ claim ought not to have been dismissed in its entirety but only to the extent the defendants’ plan Exhibit B put the claim in dispute. The plaintiffs should have been given judgment, according to him, in respect of the area in their plan over which the defendants did not join issue with them. Learned counsel submitted in the alternative that if the plaintiffs’ “case is too bad or that the area over which issues were joined is not discernible and cannot easily be hatched out from and exercised from the area over which issues were joined they ought to have been non-suited.” He cited in support Chief Adebayo Olufosoye and Others, v Johnson Olorunfemi 1 N.WL.R. (part 95) 26 at pages 57 to 58 where this court entered a non-suit and remitted the case for retrial.

In meeting the argument of the appellants’ counsel in respect of issue 1, the respondents’ counsel adopted the reasoning of Nnaemeka-Agu, J.C.A. (as he then was) in his leading judgment. He quoted him in extenso. The then learned justice of the Court of Appeal made the point that it is not in all cases in which a defendant does not join issue with the plaintiff on the whole area of land claimed by the plaintiff that the later will be entitled to judgment over the area over which the defendant has not joined issue, particularly as a decree of declaration of title is discretionary.

The learned justice was of the view that the trial judge came to the right decision because he found the whole evidence tendered by the appellants, as plaintiffs, to be unsatisfactory, incredible and unreliable, and “there is therefore no satisfactory evidence in support of a verdict in respect of even the area over which no issue was joined.

It is the third reason given by the Court of Appeal for agreeing with the trial judge in dismissing the plaintiffs’ claim in its entirety that appears to me to resolve the issue. It reads:

“Thirdly, it is noteworthy that even that portion of the appellants plan, Exhibit A, which is not covered by the respondents’ Exhibit B is not conceded to the appellants by the respondents. It is referred to by the respondents as “Land known as and called Okwe Umuobor not in dispute.” Several acts of possession and ownership by Umuobor people are shown on the land. It was blame worthy of the respondents’ surveyor to have gone ahead to prepare their plan without first asking to see the plan of the appellants, Exhibit A. But considering the fact that in a case for declaration of title the onus is on the plaintiff to prove his title relying on the strength of his own case and not on the weakness of the defence, I cannot grant them title to land which they did not prove merely on that ground.”

There is no doubt that the superimposition of Exhibit A or Exhibit B makes it abundantly clear that only about 1/4 of the land said to be in issue in Exhibit A falls within a larger area the defendants regarded as “Elueke Umobor”. I however think it is wrong to hold that the defendants did not join issue with the plaintiffs in respect of the remaining 3/4 of the land referred to by the plaintiffs as Elueke and said to be in dispute by them. The defence of the defendants/respondents as projected by the plan Exhibit B put simply is that 1/4 of the land in Exhibit A called Elueke belongs to them and that it forms a part of a larger area they regard as “Elueke Umobor” The remaining 3/4 which the plaintiffs erroneously, going by the defendants, referred to as “Elueke” is not “Elueke” but “Okwe Umobor.” It would appear that the defendants did not regard “Okwe Umobor” as being in dispute because the plaintiffs did not refer to it as “Okwe Umobor”

In his evidence the first defendant who testified as 2nd defence witness asserted thus:

“Our ancestors who founded Umobor land was known as Obor by name and we got our name Umobor from him. When he settled at Umobor he farmed “Okwe” and “Elueke” lands.”

This witness was saying in effect that the defendants’ ancestor farmed on the entire land put in dispute by the plaintiffs which lie within “Elueke” “Umobor” and “Okwe Umobor” parcels of land. Indeed in Exhibit A, within the area corresponding with ’Okwe Umobor’ land in Exhibit B, farms of the defendants are indicated therein as “1971 farms of the defendants cause of this dispute, ”and” 1970 farms defendants cause of dispute”. Also shown are scattered farm huts of the defendants built in 1967, cause of dispute.

It is obvious that if d.w.1, the defendants’ surveyor had seen Exhibit A before preparing Exhibit B he would have indicated that ‘Okwe Umobor’ land which the plaintiffs claim as part of ‘Elueke’ land was in dispute. The contention of learned counsel for the appellants would have been valid if the defendants had laid no claim to ’Okwe Umobor’ land which is roughly 4 of the Elueke land claimed by the appellants. The case of Mogo Chinwendu v. Mbamali and another (supra) are not applicable to this case. Apart from laying claim to ‘Okwe Umobor’ land the pleadings clearly show that the defendants disputed the ownership of the entire land ‘Elueke’ put in dispute by the plaintiffs.

Paragraphs 3,4 and 5 of the statement of claim read:

“3.     The said parcel of land, “ELUEKE” is situate at Ogwor village in Ishiagu town, Afikpo Division Within the Abakaliki judicial Division and has from time immemorial been the exclusive property and farmland of the plaintiffs.

4. The said “Elueke” land is bounded in the North by the Ezeoba and Obe Stream; in the South by land of Ateni Village in Ugwueke town; in the East by land owned by the people of Okue village in Ishiagu town and in the West by land owned by the people of Amagu village Ishiagu. These boundaries are shown in the said plan No. OC/4/71 filed along with the statement of claim.
5. The defendants are of Umuobor village in Akeze town of Afikpo Division, a distinct and separate town from that of the plaintiffs. The boundary between Okue Community of Ishiagu and Akeze town is the lyinu Stream shown in the said plan No. OC/4/71 and thereon verged Black.”

The defendants joined issue with the plaintiffs at paragraphs 3 to 5 of the statement of defence thus:

“3.     The defendants deny paragraph 3 of the statement of claim. In further answer thereto the defendants state that the land called Elueke is situated at Umobor village in Akeze clan, Afikpo Division and has been the exclusive property of the defendants from time immemorial.

4. The defendants deny paragraph 4 of the statement of claim. The defendants further state that Elueke is bounded by Eme stream on one side and this is the boundary between the plaintiffs and the defendants, on another side by Ovia Umuanu stream which is the boundary between the defendants and Amagu Ishiagu; by Atani stream which is the defendants boundary with Amarama Eze Akeze and by an ancient foot path running from Eme steam to Atani Stream and this separates Elueke from the defendants’ other piece of land called Okwe. These boundaries are shown on Plan No. E/CA/246/72 filed by the defendants with this statement of defence.
5. The defendants admit that they are of Umuobor village in Akeze or Afikpo Division but deny that lyinu stream is the boundary between Ishiagu and Akeze. The defendants state that the boundary Between Akeze and Ishiagu is the Eme stream which is a very high stream and not the small lyinu which is right in the defendants’ land.”

Going by the boundaries indicated in Exhibit B, Eme stream is the boundary between the plaintiffs’ land and the defendants’ land. It was therefore the case for the defendants that the plaintiffs’ village and farm land are completely outside the area in dispute and that the ‘Elueke’ claimed by the plaintiffs fall within the defendants’ parcel of land.

Where a defendant claims in his plan the ownership of a parcel of land but purports that it is not in dispute, and the plaintiff in his plan also claims ownership of it, issue is obviously joined as to which of the parties owns the land. This Is more so where by his pleadings the defendant avers that the plaintiff’s land does not extend to the said parcel of land said by the defendant not to be in dispute. In essence therefore this is not a case where the defendants failed to join issue with the plaintiffs with respect to the entire land put in dispute by the plaintiffs.

In respect of issue No. 3 in this court, learned counsel for the appellants drew attention to the fact that issue No. 3 canvassed in the Court of Appeal was not considered by that court. That issue which has already been reproduced and will again be set out for ease of reference, reads:

“In view of the fact that one of the Principal arts of possession pleaded by the plaintiffs/appellants was the sale of the Iroko tree on the land in dispute to one Isaac Chukwu; whether the learned trial judge can rightly enter judgment against the plaintiffs/appellants without making a specific finding of fact on whether or not the plaintiffs/appellants sold the Iroko tree on the land in dispute.”

This issue, according to learned counsel, was vehemently canvassed by the plaintiffs/appellants in their amended brief of argument which can be found at page 96 of the record. He therefore submitted that the learned justices of the Court of Appeal were not right when they held that since the issue of the sale of an Iroko tree to one Isaac Chukwu was not contained in the issues for determination, it must be taken as having been abandoned. It is true that Nnaemeka-Agu, J.C.A. (as he then was) seemingly erroneously held in his judgment, concurred in by his learned brothers, that the question of the sale of Iroko tree on the land in dispute to one Isaac Chukwu was not contained in any of the issues formulated and therefore was abandoned. He however went on to observe:

“Or is it contained in the second issue, as framed above? I may observe in passing that the learned judge found that even though the appellants pleaded that they sole the Iroko tree in Elueke land, in dispute, to Isaac Chukwu, the 1st appellant testified that Isaac Chukwu cut some trees from the appellants’ ‘Okofia’ land. The 1st appellant himself testified that Eluke land is only a grass land and has no big trees in it. From this state of the facts the learned judge found that the appellants were in no position to differentiate between acts of ownership exercised over Okofia land and those exercised over Elueke land, in dispute.”

It is thus clear that although the then justice of the Court of Appeal was seemingly in error in not adverting to the issue framed in the amended brief of argument, he had to consider, ex abundanti cautella the question of the sale of the Iroko tree in respect of issue 2 formulated in the appellants’ original brief which can be said to cover the question although not directly. The said issue 2 reads:

“What is the effect of the failure of the learned trial judge to make specific findings of fact on issues before the court.”

I have used the expressions “seemingly erroneously” and “seemingly in error” advisedly. Although in the amended brief of argument the plaintiffs/appellants identified the necessary issues arising from the grounds of appeal, (see page 94 of the record of appeal), arguments were canvasses at page 96 not on the issues formulated but on the grounds of appeal themselves. The relevant submission at page 96 reads:

“ARGUMENTS OF GROUNDS 1,2 and 3 (Original Ground of Appeal):

With leave of this Honourable Court, we intend to argue grounds 1,2 and 3 of the Original Grounds of Appeal together. The plaintiffs pleaded that they sold an Iroko tree on the land in dispute to one Isaac Chukwu. The defendants case was that it was they (defendants) who sold the Iroko tree to Isaac Chukwu. It is submitted that issues were joined in respect of this vital point. That being the case, the Learned Trial Judge ought to have made a specific finding of fact on whether or not the plaintiffs sold an Iroko tree on the land in dispute.”

This is a flagrant disregard of the settled principle laid down by this court that arguments are to be canvassed on the basis of issues formulated and not to be based on the grounds of appeal. See Adejumo v. Ayantegbe (1989) 3 N.W.L.R. (part 110) 417 at page 430. While a resolution of an issue which is a question in dispute between the parties may determine an appeal, a ground of appeal which forms a part of that issue may not. It is meaningless formulating issues arising for determination and then proceed to argue the appeal on the grounds of appeal and not on the issues formulated for determination.

It is thus clear that “this particular Issue” said to have been “vehemently canvassed by the plaintiffs/appellants in their amended brief of argument at page 96 of the record” was not in fact canvassed. It was the ground of appeal that was canvassed. In essence “the error” of the Court of Appeal has turned out to be right. Therefore, from whatever angle one views issue No.3, it stands resolved against the appellants.

Dealing with issue No. 4, which is closely related to issue No. 3, learned counsel for the appellants referred to paragraph 10 of the statement of claim which reads:

“Some time before the Nigerian Civil War one Isaac Chukwu of Ihenta Akeze cut timber in the Elueke forest and paid the plaintiffs the agreed price of £100. The transaction was then recorded in the account book of Ogwor Community.”

Learned counsel also adverted to paragraph 9 of the statement of defence which is the respondents’ answer to paragraph 10 of the statement of claim. Paragraph 9 reads:

“The defendants in answer to paragraph 10 of the statement of claim state that Isaac Chukwu felled timber on the side of the defendants and paid £80;-: – d to the defendants. In further answer thereto the defendants state that they are not in a position to know if Isaac Chukwu felled timber on the plaintiffs’ side.”

Learned counsel then submitted that on the state of the pleadings alone, the trial court ought to have resolved the issue of felling of timber in Elueke land by the said Isaac Chukwu in favour or the appellants. He claimed that the defendants did not deny that Isaac Chukwu felled timber in Elueke forest and paid £100 to the appellants. He contended that the averment by the defendants that “they are not in a position to know if Isaac Chukwu felled timber on the plaintiffs’ side” is not a traverse.

I find no merit in this submission. As rightly submitted in the respondents’ brief of argument, paragraph 9 of the statement of defence is to the effect that Isaac Chukwu felled Iroko tree on the plaintiffs’ land which, according to the respondents, is outside Elueke land. It will, in my view, be encouraging a defendant to be mendacious to insist that he must deny flatly the fact of something he knows nothing about.

The respondents had denied that the plaintiffs own ‘Elueke’ land. In deciding the import of an averment that “the defendant is not in a position to deny or accept” a particular assertion in a statement of claim the averment should be related to the proceeding and subsequent paragraphs of the statement of defence. The authorities cited by learned counsel for the appellants, including Lewis and Peat v. Akhimien (1976) 1 All N.L.R. 460 at 465, Akintola v. Solana (1986) 2 N.W.L.R. (part 80) 1 at page 10 to 11 are not applicable, to the facts of this case.

On the whole the appeal fails. It is accordingly dismissed. The judgment of the Court of Appeal affirming the decision of the trial court is hereby upheld. I assess costs of this appeal at N1,000.00 in favour of the defendants/respondents.

KARIBI-WHYTE, J.S.C. I have read the judgment of my learned brother, Akpata, J.S.C., in the appeal: I agree with him that the appeal fails and should be dismissed. I only wish to comment in amplification, of the point in the 1st issue for determination, which learned counsel for the appellants was tenaciously hanging on. The first of Appellants’ issue for determination was thus formulated:

“In a claim for declaration, where the defendants fail to join issues with the plaintiffs with respect to the entire land in dispute, are the plaintiffs entitled to judgment with respect to the portion of the land in dispute, not issue between the parties?”

It is apparent on examination of the pleadings in the case that the dispute between the parties is the ownership of Elueke land. This is clear from paragraph 2, 3, 4, 5, 6, 7, 8 of the statement of claim, where plaintiffs averred as follows:-

“2.     The parcel of land in dispute in this case is called “ELUEKE” and is more particularly delineated and shown verged PINK in the Plan No. OC/4/71 herewith filed with this statement of claim and it was made and signed by Mr. Chukwurah, licensed surveyor who has his office at Onitsha and counter- signed by the Surveyor-General, Enugu.

3. The said parcel of land, “ELUEKE” is situate at Ogwor village in Ishiagu town, Afikpo Division within the Abakaliki Judicial Division and has from time immemorial been the exclusive property and farmland of the plaintiffs.
4. The said “Elueke” land is bounded in the North by the Ezeoba and Obe Stream; in the South by land of Ateni Village in Ugwueke town; in the East by land owned by the people of Okue village in Ishiagu town and in the West by land owned by the people of Amagu village in Ishiagu. These boundaries are shown in the said plan No. OC/4/71 filed along with the statement of claim.
5. The defendants are of Umuobor village in Akeze town of Afikpo Division, a distinct and separate town from that of the plaintiffs. The boundary between Okue Community of Ishiagu and Akeze town is the lyinu Stream shown in the said plan NO. OC/4/71 and thereon verged Black.
6. It is the plaintiffs’ ancestors who named the land in dispute “Elueke”. The plaintiffs have exercised maximum acts of ownership over the land in dispute from time immemorial by undisturbed farming, hunting, felling timber and letting portions of the “Elueke” land to tenants who paid “Oji Ala” from the defendants’ fathers. At the death of the defendants’ elders, the defendants continued to live and farm on the portion of “Elueke” land allowed their ancestors for farming.
7. In 1946, the plaintiffs demanded the customary “Oji Ala” which is paid yearly but the defendants for the first time ever refused to pay and thereupon the plaintiffs instituted action for ejection and possession against the defendants in the Native Court. Receipts of Court fees and Inspection fees paid by the plaintiffs will be founded upon.”

“2.     The defendants admit paragraph 2 of the statement of claim is dispute is called “Elueke” but state that Elueke is more particularly delineated and shown verged pink in Plan No. E/CA/246/72 herewith filed with this statement of defence.

3. The defendants deny paragraph 3 of the statement of claim. In further answer thereto the defendants state that the land called Elueke is situated at Umobor village in Akeze Clan, Afikpo Division and has been the exclusive property of the defendants from time immemorial.
4. The defendants deny paragraph 4 of the statement of claim. The defendants further state that Elueke is bounded by Eme stream on one side and this is the boundary between the plaintiffs and the defendants, on another side by Ovia Umuanu stream which is the boundary between the defendants boundary with Amarama Eze Akeze and by an ancient foot path running from Eme stream to Atani Stream and this separates Elueke from the defendants’ other piece of land called Okwe. These boundaries are shown on Plan No. E/CA/246/72 filed by the defendants with this statement of defence.
5. The defendants admit that they are of Umuobor village in Akeze of Afikpo Division but deny that lyinu stream is the boundary between Ishiagu and Akeze and Ishiagu is the Eme stream which is a very high stream and not the small stream lyinu which is right in the defendants’ land.
6. The defendants deny paragraph 6 of the statement of claim. In further answer the defendants’ ancestors and the plaintiffs call their own land separated from the defendants land by Eme stream “Elu Ogurugu.” The defendants have since time immemorial owned Elueke land and farmed on it. Due to inter- tribal wars ended some of the defendants’ people built houses and settled there since over 50 years ago.

The defendants deny paragraph 7 of the statement of claim, and will put the plaintiffs to the strictest proof of the allegations contained therein.”

Paragraph 3 of the statement of defence is particularly relevant Apart from joining issues on the ownership, the boundaries pleaded by the plaintiffs in paragraph 4 of the statement of claim is disputed in paragraph 4 of the statement of defence.

Learned counsel to the appellants Emeka Ofodile, both in his brief of argument, and oral expatiation thereto contended that a plaintiff in an action for declaration of title to land, should only fail to the extent to which he has been unable to establish the portion in respect of which issues have been joined. Plaintiff should not be declared to have failed in respect of the portion in which issues were not joined. It was submitted in support of this proposition that there were areas in dispute as contained in the plaintiffs plan Exhibit “A”, which, superimposed on the defendants plan Exhibit B, fell outside the area indicated in Exhibit B. Learned counsel contended that defendants joined issues only in respect of part, and not the entire land in dispute. The area not in dispute should be deemed admitted.

Learned counsel relied on the evidence of the surveyor of the parties, for the contention that issues was joined only in respect of part of the land claimed by the plaintiffs. It was submitted that plaintiffs need only prove title in respect of the area in dispute; as the courts judicial power is not to be invoked with respect to matters not in dispute, or controversy. Learned counsel relied on Chinwendu v Mbamali & Anor. (1980) 3-4 S. C. 31 at p. 69, Omoregie & Ors. v Idugienwange & Ors. (1985) 2 N.W.L.R. (part 5) 41 at p. 60; Olufosoye & Ors. v. Olorunfemi (1989) 1 N.W.L.R. (part 95) 26.

In this case it was submitted that plaintiffs should have been given judgment in respect of the areas to which defendants did not join issues. To dismiss plaintiffs’ case in its entirety, it was contended, is to make the defendants derive benefits from the portion of land over which they did not join issues with the plaintiff, and in respect of which plaintiffs were not required to lead evidence.

In his reply to the above arguments learned counsel to the respondents, Professor A.B. Kasunmu adopted and relied on the reasoning for rejecting the same argument by Nnaemeke-Agu, J.C.A. (as he then was) in the Court below.

It cannot be disputed that by the Constitution our courts are vested only with jurisdiction for the determination of matters in dispute as between the parties – See section 6(6) (b) Constitution 1979. The determination of matters not in issue and specifically relating to land, has been lucidly expressed by Obasekl, J.S.C. when he declared in Chinwendu & Ors. v. Mbamali & Ors. (supra) at p. 68.

“The Court’s power of adjudication are never invoked on matters not in dispute or in controversy; and to complain of the court’s action limiting the declaration to an area proved to be the area in dispute borders on frivolity.”

It is in controvertible that the judicial powers of the Constitution vested in the courts cannot be exercise beyond the limit granted by the Constitution. I have already reproduced the pleadings of the parties in this case. I do not think learned counsel on a careful examination can seriously argue that there is any portion of Elueke land, not put in issue. It is conceded that on superimposition of ‘Exhibit A” on ‘Exhibit B’; only one quarter of the land said to be in issue in “Exhibit A” falls within the larger area the defendants regarded as Elueke Umuobor.

A reading of the statement of defence and the evidence at the trial clearly and unequivocally disclosed that defendants did not concede ownership of the three quarters to plaintiffs. The one quarter in dispute referred to as Elueke by the plaintiffs, forms only part of the three quarters not so indicated, but referred to by the defendants as “Elueke Umuobor”. The defendants refer to the same land as “Okwe Umobor”. It seems that defendants did not indicate “Okwe Umuobor” as the land in dispute because the plaintiffs did not refer to it as “Okwe Umuobor.”

It is helpful to refer to the evidence of 2nd d.w. Chief John Okoro. He said in his evidence in Chief at p. 46

“I know the land in dispute in this case. It is called Elueke Umuobor. It is called Elueke land. But originally, it was called Okwe.”

After giving evidence of first settlement, and evidence of acts of possession for over 60 years, such as building houses, farming, worship of gods, he went on to claim as follows at p. 47

“Our ancestor who founded Umuobor land was known as Obor my name and we got our name from him. When he settled at Umuobor, he farmed on Okwe and Elueke lands.”

By the boundaries indicated in “Exhibit B”, Eme stream as claimed by the defendants forms the boundary between the plaintiffs land and the defendants land. Hence the case of the defendants is that the plaintiffs village, and farm land are clearly outside the area in dispute. Accordingly, the Elueke land claimed by the plaintiffs fall within defendants’ land.

It is an elementary but fundamental principle of our administration of justice that a plaintiff is only entitled to judgment only for what he was claimed and proved on the evidence before the court. It is not in dispute that In a declaration of title, if the plaintiff proves title to a smaller area than he had claimed, he will be entitled to a declaration to such smaller area – See Chinwendu v Mbamali & Anor (supra), Odofin v Ayoola (1984) N.S.C.C. (Vol. 15) 111. But there must be evidence in proof of his title to such smaller area from the larger area claimed.

But where the plaintiff has failed Intoto to prove title to any portion of the land in dispute, as in this case, it seems to me that the Court can only dismiss the claim.

In the instant appeal. I entirely agree with Nnaemeka-Agu, J.C.A. (as he then was but now J.S.C.) and as I have already shown in this judgment, that,

………… even that portion of the appellants plan Exhibit A which is not covered by the respondents’ Exhibit B is not conceded to the appellants by the respondents. It is referred to by the respondents as “Land known as and called Okwe Umobor not in dispute” Several acts of possession and ownership by Umuobor people are shown on the land. It was blameworthy of the respondents’ surveyor to have gone ahead to prepare their plan without first asking to see the plan of the appellants; Exhibit A. But considering the fact that in a case for declaration of title the onus is on the plaintiff to prove his title relying on the strength of his own case and not on the weakness of the defence. I cannot grant them title to land which they did not prove merely on that ground.”

In essence plaintiffs are asking for a declaration of title to land on the failure or the statement of defence to put their title in issue. That is title should be granted them on the admission of the defendants.

It is settled law that even if it were conceded, which is not, in the circumstance claimed by the plaintiff, the court will not declare title In a plaintiff who has not offered any evidence in support of such declaration. This is essentially an extension of the old principle enunciated in Kodilinye v Odu 2 W.A.C.A. 336, that in an action for declaration of title, the plaintiff can only succeed on the strength of his own case, and not on the weakness of the case of the defendant. However, there is an exception where the weakness of the case of the defendants reinforces and strengthens the case of the plaintiff – See Elufisoye v. Alabetutu (1968) N.M.L.R. 298.

In Bello v Eweka (1981 N.S.C.C. 48 at p.58 Kayode Eso, J.S.C. relying on Kodilinye v Odu 2 W.A.C.A. 336, Jules v Ajani (1980) 5 – 7S.C. 96, Atuanya v. Onyejekwe (1975) 3 S.C. 161 and other cases, put the position very forcefully and clearly when he said:

“In my view it would be a wrong exercise of discretion on the part of a court, which is aware of the issues of competing interests joined by the parties, to close its eyes, against those issues and award declaration to a plaintiff who had adduced no evidence in regard thereto. Indeed to shift the onus on to the defendant at that stage would be awarding declaration not on the strength of the plaintiff’s case but on the weakness of the defendants case.’The principles enunciated in Bello v. Eweka (supra) apply appropriately to the instant appeal. Appellants have failed to prove their case on the evidence. It has been shown that issues was joined with respect to the entire Elueke land, whether it is described as “Elueke Umobor’ or “Okwe Umobor.” Plaintiffs did not adduce any evidence of their title to the land. The Court was therefore right to decline to make a declaration of title in favour of the plaintiff in respect of any of the portions of the land in issue.

For the above and the much fuller reasons given in the judgment of my learned brother, Akpata, J.S.C., I hereby dismiss this appeal. I affirm the decision of the Court of Appeal. Appellants shall pay costs assessed at N500.00 to the respondents.

KAWU, J.S.C. I have had the advantage of reading, in draft, the lead judgment of my learned brother, Akpata, J.S.C. which hasjust been delivered. I am in complete agreement with his reasoning and also with his conclusion that the appeal lacks merit and should be dismissed. I see no justification for our interfering with the concurrent findings of fact of both the trial court and the Court of Appeal.

I too will dismiss the appeal and affirm the judgments of the lower courts. Costs assessed at N 500.00 are awarded to the respondents.

WALI, J.S.C. I have had the privilege of reading in advance, a copy of the judgment of my learned brother, Akpata, J.S.C., which has just been delivered. All the issues raised in the appeal have been adequately dealt with by him. I entirely agree with the reasoning and conclusion.

For these same reasons, I find no merit in the appeal and it is accordingly dismissed.

I abide by the order of costs contained in the lead judgment.

UCHE OMO, J.S.C. I have been privileged to read in draft the lead judgment of my learned brother, Akpata, J.S.C., just delivered. I agree with him that this appeal should be dismissed with costs as set out in his judgment . 1 will add only a few comments to his judgment which has covered all the important points raised.

With regards to Grounds 2 and 6 which were struck out, the Constitution of this country makes it mandatory that leave to argue grounds of mixed law and facts in an appeal to this court must be first obtained from this court before such grounds can be canvassed vide section 213(3) of the 1979 Constitution. Although leave to file and argue additional grounds had been granted , the appellants should have subsequently filed another application seeking leave of this court to argue those grounds which are of mixed law and fact. Instead of doing so, the appellants perhaps assuming it was sufficient that leave to file and argue additional grounds had been given, proceeded to argue those grounds In their brief. In so doing they erred. The need to obtain a specific order of court to argue grounds of mixed law and facts cannot be overemphasised. It is certainly not enough to rely on a general order permitting the filling and argument of additional grounds.

The only issue for determination which raises any point of law worthy of serious consideration is the first which is stated thus –

“In a claim for declaration, where the defendants fail to join issues with the plaintiffs with respect to the entire land in dispute, are the plaintiffs entitled to judgment with respect to the portion of the land in dispute not in issue between the parties?”

In the case, the land claimed by the appellants (as plaintiffs) verged pink on their plan Exhibit A, is much smaller (than the land claimed by the respondents (as defendants) in their plan Exhibit B. It is the contention of the appellants therefore that even though they failed to establish their claim to the “land in dispute”, they should be either granted a declaration of title to the area of the land which they claim and which is outside the are averged pink (“in dispute”) in respondents plan, or (at the very least) that their claim to that area should be nonsuited instead of being dismissed. For this proposition they have relied on this court’s decision in Olufosoye & Ors. v. J. O. Olorunfemi (1989) 1 N.W. L.R. (part 95) p. 26. In that case, an action for a declaration of title, it was argued that an order of non-suit in the circumstances is a “harsh, oppressive and irregular order” against the respondent. This court (per Oputa,J.S.C.) made an order of non-suit because in its view no wrong will be inflicted on the defendant –

“except to take away from him an empty victory won, not on any findings of fact in his favour, not on the merits of his case, not on the true bearing of the law on the rights of the parties but by a slip or mistake on the part of the trial judge in concentrating wholly on the issue of boundaries and ignoring other equally relevant issues of title and (Note: italics substituted for underlinings in the judgment as reported).

Also vide Onyekaonwu & Ors. v. Ekwubiri & Ors. (1966) 1 All N.L.R. 32 (35) and Ozibe & 4 Ors. v. Chief Aigbe & Ors. (1977) 7 S.C. (10/11) where failure to make appropriate findings of fact also resulted in an order of non-suit being made.

In the present case however, the situation would appear to be quite different. Copious and “far reaching” findings of fact were made which, as correctly observed in his judgment, by the learned justice of the Court of Appeal, Nnaemeka-Agu, J.C.A. (as he then was), were not challenged on appeal. In addition, the decision of the trial court was clearly on the merits of the case, the learned trial judge finding the evidence tendered by the appellants in respect of the whole land claimed by them (both that described”) as “in dispute”, and those areas marked “not in dispute”, as “Unsatisfactory, incredible and unreliable.” Having so found, it would be wrong for the trial court to grant the discretionary remedy of a declaration of title to the plaintiffs/appellants. It may have been different if the evidence led was confirmed solely to the area verged pink on Exhibit A. That was not however the case because evidence was led by both sides over much of the larger area verged pink in Exhibit B. Furthermore, I agree with my learned brother, Akpata, J.S.C. that from the pleadings it is clear that the respondents claimed areas outside the area verged pink in Exhibit A to belong to them, a claim challenging that of the appellants. Issues were therefore joined as to which of the two sides owns those pieces of land. On a finding therefore that the evidence led as to those pieces of land is also unsatisfactory and unreliable the only proper order to make is one of dismissal.

The other issues canvassed challenged what are really findings of fact by the trial court which have been confirmed by the Court of Appeal. The attitude of this court where there are concurrent findings by the two courts below which has been oft – stated, is that it will not dislodge such findings unless they are shown to be perverse vide. Mogo Chinwendu v Nwanegbo Mbamali (1980) 3/4 S.C. 31. Victor Woluchem & Ors. v Simon Sudi & Ors. (1981) 5 S.C. 319 (326). These findings cover, possession of the land, the allegation that parts of the land in dispute were granted by the appellants to the respondents, whether or not tributes were even paid to the appellants by the respondents. All these were resolved against the appellants.

In conclusion, I am of the view that there is really no merit in this appeal and it is hereby dismissed with costs as set out in the lead judgment.

Appeal dismissed.