3PLR – ANOZIE V. ALUKA
POLICY, PRACTICE AND PUBLISHING, 3PLR, LAW REPORTS
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ANOZIE
V.
ALUKA
COURT OF APPEAL
[PORT HARCOURT DIVISION]
DATE: 21ST FEBRUARY 2001
CA/PH/86/94
3PLR/2001/59 (CA)
OTHER CITATIONS
BEFORE THEIR LORDSHIPS
JAMES OGENYI OGBEBE, JCA (PRESIDED)
MICHAEL EYARUOMA AKPIROROH, JCA (DELIVERED THE LEADING JUDGMENT)
ABOYI JOHN IKONGBEH, JCA
BETWEEN
JOHN ANOZIE
AND
1.BARTHOLOMEW ALUKA
2.JULIUS OSUEKE
(FOR THEMSELVES AND AS REPRESENTING MEMBERS OF UMUATONTI COMMUNITY UMUARIAM OBOWO)
REPRESENTATION
L.C. Ugorji Esq. for the appellant.
C.M. Ezeigbo Esq. for the respondents.
MAIN ISSUES
LAND LAW – Ownership of land – ways of proving same – decision in Idundun AND Ors. v. Okumagba (1976) 9 – 10 S.C. 227 considered.
LAND LAW – Ownership of land – party relying on traditional history – particulars that must be pleaded.
PRACTICE AND PROCEDURE – EVIDENCE – Burden of proof in civil cases – burden on person who asserts to prove his case – standard of proof required in civil cases.
LAND LAW – Ownership of land – acts of possession in proof of same – when relevant.
MAIN JUDGMENT
MICHAEL EYARUOMA AKPIROROH, JCA (Delivering the leading judgment):The appellant was the defendant while the respondents were the plaintiffs in the lower court in this action which was instituted at Etiti in Imo High Court as suit No. HME/49/82.
Pleadings were ordered and duly delivered before the case went to trial before Acholonu J, (as he then was). The plaintiffs claim as set out in paragraph 12 of their amended statement of claim is as follows:-
“(1) Declaration of title to a parcel of land known as and called Ala Upa Umuatonti situate at Umuatonti Umuariam Obowo in the Okigwe Judicial Division, the annual rental value of which is N10.00 (ten naira)
(2) N400.00 (four hundred naira) being general damages for trespass.
(3) An injunction permanently to restrain the defendant, his servants, agents and/or workmen from entering upon or in any way interfering or dealing with the said land.”
The plaintiffs’ case put briefly in the lower court is that the land in dispute was founded by their ancestor, Atonti and it descended on them through their said ancestor through their father. They have been exercising maximum acts of possession on it such as farming, since it descended on them. It is also the plaintiffs’ case in the court below that the land in dispute is not the same as the lands which are subject matters of suits Nos. 241/57 and 247/57 which were between the people of Umariam (the plaintiffs/respondents inclusive) and the people of Umuezeagu, (the appellants inclusive) which suits were consolidated and decided in favour of the appellants’ people.
The appellant’s case in the court below is that he is the owner of the land in dispute and it descended on him from his ancestor Ezeagu (the original owner of the land) through Ekwelakan Abere and Anozie his father. It was also his case in the court below that the land in dispute was the subject matter in dispute between the appellants’ people of Umuezeagu and the respondents’ people of Umuariam in suit Nos. 241/57 and 247/57, which were consolidated and decided in favour of their people of Umuezeagu. Part of the land in dispute was also the subject matter in suit No. MOK/50/71, which was also decided in his favour. Both the plaintiffs and the defendants did not give evidence and called witnesses in support of their pleadings in the court of trial but relied on their pleadings, survey plans of the land in dispute tendered and certified true copy of the judgment in suit No. MOK/50/71. Thereafter, counsel addressed the court. At the conclusion of the trial the learned trial Judge granted the reliefs sought by the respondents.
Dissatisfied with the judgment, the appellant has appealed against the decision on seven grounds of appeal. In accordance with the rules of this court, the parties filed briefs of argument in which the appellant framed four issues for determination as follows:-
“i. Whether the learned trial Judge was right in holding that the plaintiffs have proved their case on balance of probabilities.
- Whether the learned trial Judge was right in treating pleadings as evidence before the court where the plaintiff and the defendant joined issues.
iii. Whether the learned trial Judge has jurisdiction to entertain the plaintiffs’ claim for title to the land in dispute having regard to the provisions of Land Use Act.
- Did the judgments in suit nos. 241/57, 241/57, 241/57 and MOK/50/71 created res judicata or estoppel against the plaintiffs in respect of the land in dispute.”
The respondents on the other hand identified three issues for determination as follows:-
“2.01. In a situation where the parties opted to tender various documents and rely on the state of their pleadings to address the court on what would the court rely in giving its decision in the case and how would the court decide the issue of balance of probability and did the learned trial Judge rightly approach and deal with the issue that arose in the case.
2.02. Had the learned trial Judge jurisdiction to continue to hear and determine the plaintiffs’ pending claim for title having regard to the Land Use 1987 when the action was filed in 1974 long before the commencement of the Act.
2.03. Did the defendants properly set up and establish their defence of res judicata in this case in view of their pleadings in relation to previous judgments in Native Court suit Nos. 241/57, 241/57, Magistrate’s Court No. MOK/50/71 and the admissions of the parties at the commencement of hearing.”
At the hearing of the appeal, learned counsel for the appellant applied to withdraw issue three and the argument on it. It was accordingly struck out and the issue on it discountenaced.
On the first issue, he submitted that the respondents failed to discharge the onus placed on them to adduce evidence to prove the issues joined on the pleadings as regards ownership and possession of the land in dispute. It was also his submission that they failed to prove their ownership of the land in dispute by traditional history. Reliance was placed on the cases of Idundun AND Ors v. Daniel Okumagba AND Ors (1976) 9-10 S.C. Kodilinye v. Odu (1935) 2 WACA 136.
He further contended that the learned trial Judge was wrong when he held that the plaintiffs proved their case on the balance of probabilities without making specific findings as to how they proved their case on the balance of probability. As to the identity of the land in dispute, learned counsel submitted that the respondents having put it in issue, the onus is on them to adduce evidence to established it with certainty the boundaries of the land in dispute which they failed to do and as such the learned trial Judge should have dismissed the claim.
On the question of injunction, he submitted that a claim for trespass being an ancillary relief in an action for declaration of title to land, an injunction cannot stand independently on its own and that since the respondents failed to prove their title to the land in dispute, the learned trial Judge was wrong in granting their claim for trespass.
On the second issue, learned counsel submitted, that as the plaintiff did not lead evidence to prove the issues joined as to the title, identity and possession of the land, the learned trial Judge was wrong in treating pleadings as evidence and came to the conclusion that the plaintiffs proved their case on the balance of probability.
On issues one and two, learned counsel for the respondents contended that the first ground of appeal as framed would appear to imply a complaint of misdirection and not error in law but no particulars of the misdirection were given pointing out, that it cannot be error in law to complain about what the learned trial Judge said:-
“Since I appreciate and understand the plaintiff’s case better it would seem to me that they have proved their case on the balance of probability. In the circumstance, the action succeeds.”
He finally urged the court to strike it out. I have looked at ground one of the grounds of appeal at pages 1 – 2 of the appellants brief and I am of the view that it is proper ground even though inelegantly framed.
On the first issue, learned counsel submitted that as the parties did not lead oral evidence but relied on their respective pleadings and exhibits tendered, what was left for the trial Judge to consider was the fact as contained in the pleadings and exhibits relied upon by them and that in deciding the proof in the case, he only needed to consider what is pleaded in the statement of claim and denials or admission of such evidence in the statement of defence. He then relied on pages 111 lines 11-12 of the records. He further argued that contention of the appellant on traditional history of the plaintiffs as pleaded in their amended statement of claim does not arise in the case because the plaintiffs pleaded copiously in their amended statement of claim the traditional history of the land in dispute. It was also his submission that as no oral evidence was led in the case on the agreement of the parties, the appellant cannot insist on proof by oral evidence.
Learned counsel further contended that the submission of learned counsel for the appellant that the identity of the land was not proved is misplaced because both parties agreed that the identity of the land was not in dispute and relied on page 97 lines 1-3 of the records. In this case, the parties did not lead evidence in the lower court in support of their pleadings but relied on their respective pleadings and exhibits tendered by agreement.
It is now well settled that there are five ways of proving ownership of land as laid down in the celebrated case of D. O. Idundun AND Ors v. Daniel Okumagba (1976) 9-10 S.C. 227. They are:-
- By traditional evidence
- By document of title
- By various acts of ownership, numerous and positive and extending over a length of time as to warrant the inference of ownership.
- By acts of long enjoyment and possession of the land
- By proof of possession of adjacent land in circumstances which render it probable that the owner of such adjacent land would in addition be owner of the disputed land.
In this case, the respondent pleaded the traditional history of the land in paragraph 4,5, 6 of the amended statement of claim. They read:-
“4. The land in dispute has from time immemorial been in the possession of the plaintiffs whose ancestor was Atonti hence the plaintiffs are known as members of Umuatonti kindred and the land known as “Ala Upa Umuatonti.”
- The plaintiffs inherited the land from their fathers who inherited it from their grand fathers who inherited it from their grandfather and fathers before them have been exercising maximum acts of ownership over the said land e.g. by farming on it, cutting palm fruits thereon, harvesting the Ichoku trees therein. The plaintiffs planted raffia palms on the land which are harvested and tapped by them.
- The plaintiffs are the owners in possession of the said land. The land is divided and owned in portions by members of the plaintiffs’ kindred. There are other portions of the land Ala Upa Atonti on both sides of the land in dispute. The portion verged pink (now in dispute) is part of the large area of land verged green showing the land called Ala Upa Atonti.”
As no oral evidence was led in support of the above paragraphs, it follows naturally they failed woefully to prove how their ancestor Atonti came to own the land they inherited. A party who relies on traditional history to assert ownership must plead his traditional history by stating the names and histories of his ancestors right from the founder of the land, he asserts ownership, to the last person from whom he inherited and lead cogent and credible evidence in support. See Total Nyema Ltd v. Wilfred Nwako (1978) 5 S.C. 1 at 12, Elias v. Omo Bare (1982) 5 S.C . 25 In the case of Ueojiako v. Ezenamuo (1990) 1 NWLR (Pt. 126) 253, Belgore J.S.C. said at page 267:-
“In all civil cases, the person who asserts must prove his case and make it strong enough to support his pleading. Should he fail to do this case will remain unproved, however elegant his pleadings. The failure of the defendants to prove his refusal to testify cannot alleviate the primary burden on the plaintiff to prove his case. In the instant case the plaintiffs’ case was far from being proved and in the absence of admission of their case by the pleading and or evidence of the defendant, the case of the plaintiffs had been doomed from the trial court…………………………”
A look at the amended statement of defence does not show that they admitted the plaintiff’s case. In paragraph 7 of their amended statement of defence, they specifically pleaded: –
“The defendant denies paragraph 6 and 7 of the statement of claim. In further answer to the said paragraph the defendant avers that the land in dispute was originally that of one Ezeagu the defendant’s great ancestor. This Ezeagu who lived many years ago had three male sons viz: Ekweleakan, Elenwa and Ofeiyi in that order. Those three sons had long divided their father’s landed properties and the land now in dispute is the share of Ekweleakan the eldest son of Ezeagu.”
In the recent case of Ikyereveiodye v. Tor Ihayambo S.C 112/93 delivered on 15th December, 2000 Wali J.S.C. said:-
“In civil cases, judgments are given on preponderance of evidence. The absence of oral evidence showing the extent of the land in dispute and its boundaries as separating the same from that of the defendant/respondent are fundamental impediment to the appellant succeeding in his claims to declaration of title in this case.”
On acts of possession pleaded by the respondent for which no evidence was led in support, it is also well settled that finding as to acts of ownership numerous and positive is only relevant where traditional evidence is inconclusive and the case had to be decided on the question of acts of possession. See Onobruchere AND Anor v. Esegine (1986) 1 NWLR (Pt. 19) 799 at 800. There is no doubt whatsoever that the learned trial Judge was in error by relying solely on the pleadings of the parties without a scintilia of evidence led in support of them and arrived at his conclusion.
Using the cases I cited above as guidelines, there is merit in this appeal and it ought to be allowed. Accordingly, it is allowed and the judgment of the trial court is hereby set aside. The respondents’ claims in the court below are accordingly dismissed. The appellant is entitled to costs assessed at N5, 000.00 against the respondents.
JAMES OGENYI OGEBE, JCA: I read in advance the lead judgment of my learned brother Akpiroroh JCA just delivered and I agree with his reasoning and conclusion.
I allow the appeal, set aside the judgment of the lower court and dismiss the respondents’ claim before that court. The appellant is entitled to costs of N5, 000.00.
ABOYI JOHN IKONGBEH, J.C.A: The respondents, as plaintiffs in the court below, embarked upon a foolhardy venture when they agreed to dispense with oral evidence without ensuring that the documents put in evidence supported the traditional history they had pleaded as to their root of title in their statement of claim. As events turned out, none of the documents before the learned trial Judge went anywhere near the direction of establishing the traditional history. There were 5 of them. Exh. A was the record of proceedings in an Okigwe Magistrate’s court case between one Sunday Iwu as plaintiff and the present defendant/appellant and another as defendants. Exh. B was a statement of claim in another trespass case. Exhs. C and D were the survey plans submitted by the parties herein. Exh. E was another plan. None of these had any bearing whatsoever on the traditional history as to root of title pleaded by the plaintiffs/respondents in paragraphs 4-6 of their statement of claim.
The fact that the appellant too had agreed to this arrangement did not mean that he had admitted the facts as to the traditional history pleaded. It only meant that he had agreed that the plaintiffs/respondents could rely on any documents they wanted, provided they supported the traditional history pleaded. He had in paragraph 7 of his own pleading stoutly denied the averments in the statement of claim and thus joined issue on them with the respondents. The burden of proving these averments, therefore, still rested squarely on the respondents to establish same. They were perfectly at liberty to opt not to call oral evidence but rely only on documentary evidence. If those documents fail to establish their traditional history, especially as to their root of title, as has happened here, they would have themselves to blame as their claims must fail, as they clearly failed in this case.
Looking at everything, I too see merit in the complaint by the appellant that the learned trial Judge based his decision not on evidence but on the averments in the statement of claim, which, to make matters worse, were clearly and unequivocally denied and not proved by the plaintiffs. The respondents gambled and lost. They, and not the appellant, should be left to hold the bag.
This appeal succeeds and I tool allow it. I abide by all the consequential orders.
Cases referred to in the judgment
Elias v. Omo Bare (1982) 5 S.C.25.
Ikyereveiodye v. Tor Ihayambo S.C 112/93.
Idundun v. Daniel Okumagba (1976) 9-10 S.C. 227.
Kodilinye v. Odu (1935) 2 WACA 136.
Onobruchere v. Esegine (1986) 1 NWLR (Pt. 19) 799.
Total Ltd v. Nwako (1978) 5 S.C. 1.
Ueojiako v. Ezenamuo (1990) 1 NWLR (Pt. 126) 253.
