3PLR – CHIEF MARTIN A. NNABUIFE V. ONWUKA NWIGWE
POLICY, PRACTICE AND PUBLISHING, 3PLR, LAW REPORTS
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CHIEF MARTIN A. NNABUIFE
V.
ONWUKA NWIGWE
COURT OF APPEAL
ENUGU DIVISION
4TH APRIL 2000
CA/E/159/98
3PLR/2000/62 (CA)
OTHER CITATIONS
9 NWLR (PT. 719) 710
BEFORE THEIR LORDSHIPS
NIKI TOBI
JOHN AFOLABI FABIYI
MUSA DATTIJO MUHAMMAD.
BETWEEN
- CHIEF MARTIN A. NNABUIFE
- BEN OKEZIE
- OKAFOR NWUGO (For themselves and on behalf of Umunwugo family Ubuluisiuzor)
AND
- ONWUKA NWIGWE
- ANGUS ONWUKA
- JOSEPH NWIGWE
- SAMUEL UMUNNA (For themselves and on behalf of Ihuejim people of Ihiala)
REPRESENTATION
MAIN ISSUES
REAL ESTATE – LAND LAW – Land in dispute – proof of ownership to same – Idundun v. Okumagba (1976) 9-10 SC 227 considered and applied.
PRACTICE AND PROCEDURE – ACTION – Grounds of appeal – where it contains a mixture of misdirection and error in law – attitude of appellate courts to such grounds of appeal – Nwadike v. Ibekwe applied.
PRACTICE AND PROCEDURE – EVIDENCE – Claim for a declaration of title to land – onus on plaintiff seeking a decree of declaration of title – whether plaintiff can rely on the weakness of the defence or the strength of his case to succeed.
MAIN JUDGEMENT
JOHN AFOLABI FABIYI, J.C.A. (delivering the leading judgment)
This judgment is sequel to the appeal cum cross appeal filed against the judgment of Nri-Ezedi, J. delivered on 27/6/97 at the High Court of Justice, Nnewi, Anambra State of Nigeria.
The suit has its genesis from the claim filed on behalf of the plaintiffs who are the appellants herein in September 1977. Parties exchanged pleadings as usual and had cause to amend same. Paragraph 10 of the amended statement of claim contains the plaintiffs’ desires. It states as follows:-
10 WHEREFORE the plaintiffs claims (sic) against the defendants jointly and severally as follows:-
(i) Declaration of title to the plaintiffs’ land known and called Akwu Agu land or Akwu Agu Nwugo” land situate at Ubuluisiuzor verged pink in survey plan No. (none stated).
(ii) N500 damages for acts of trespass on the said land in dispute.
(iii) Injunction restraining the defendants, their agents and servants from further entry on the area verged green on the said plaintiffs’ plan.”
The Plaintiffs’ case as can be garnered from their pleadings and which they tried to depict in their evidence, is that they are owners in possession of the land in dispute. The land was originally founded by their ancestor, one Ezeloma Nwugo according to P.W.1. But P.W.3 gave the name of their ancestor as Duru; not pleaded. After generations upon generations, the land devolved on them. The plaintiffs in their statement of claim did not plead specifically the mode of acquisition of the land in dispute. The plaintiffs also averred acts of possession in the nature of farming on the said land.
The plaintiffs maintained that the defendants encroached on the said land at a time when they were engaged in another land tussle with another neighbouring town to wit: Uli. They could not withstand land disputes on two fronts. The defendants took advantage of their weakness and poverty to erect structures on the land. The plaintiffs reported the situation to the Police. As well, they maintained that they wrote warning letters to the defendants.
On their own part, the defendants stated that the land put in issue by the Plaintiffs comprises of three different parcels of land lying contiguously to one another. They are ‘Ude Okobuizu’; ‘Alaoji’ and a portion of ‘Akwu Agu Ejimoke’ lands. They maintained that only a portion of Akwu Agu land is in dispute as they do not contest the portion of Akwu Agu land granted to the Plaintiffs’ ancestor by name Nwugo.
The defendants stand on the point that they inherited the land put in issue from their ancestor Ogbuagu Ejimoke who founded the land. The mode of founding of the said land was by systematic deforestation achieved by killing wild leopards which infested the bush.
The defendants pleaded further that the Plaintiffs’ ancestor, Nwugo was a maternal grandson of one Ekwegbara Dioha of Ihiala, defendants’ town. Nwugo’s mother from Ihiala married plaintiffs’ ancestor by name Igboanusi to seal a peace pact between the people of Ubuluisiuzor and Ihiala after years of hostilities. As a follow up, Ejimoke people made a grant of a portion of their Akwu Agu Ejimoke land to the plaintiffs’ ancestor by name Nwugo. That portion of land is not in dispute. The plaintiffs started to trespass on a portion not granted to them in recent years. Defendants plead various acts of ownership and possession to wit: farming, enjoying of economic trees, erection of buildings and structures, grants to other persons and payment of compensation by NEPA.The defendants denied allegations of trespass levelled against them and that they are not aware of police reports. They, as well, maintained that they did not receive warning letters from the plaintiffs. The defendants asserted that they wrote a letter dated 20/9/77 through their lawyer to warn the Plaintiffs for their acts of trespass on the land in dispute.
Both sides of the divide testified in a bid to buttress their respective standpoints. The learned trial judge appraised the evidence adduced by both sides. He felt that the pleadings on the mode of founding of the land, as averred by the plaintiff, was sufficient. He found serious conflict in the evidence of P.W. 1 and P.W.3 on the question of the founder or original owner of the land in dispute as put up by the plaintiffs. The learned trial judge also found that the evidence adduced by the Defence conflicted with the averments in their pleadings regarding the identity of the founder of the land in dispute. He concluded that the weakness in the defence case did not strengthen the plaintiffs’ case. The learned Trial Judge then held that the claim for declaration was not proved or made out.
On trespass and injunction, the learned Trial Judge found that the plaintiffs were not in exclusive possession of the land. The defendants were found to be exercising diverse acts of possession over the disputed land. Claims for damages for trespass as well as order of injunction were rejected. The Plaintiffs’ claim was dismissed in its entirety.
The Plaintiffs who are appellants herein, felt aggrieved. They filed their notice of appeal dated 24/7/97 on 28/7/97 complaining against the whole judgment. The notice of appeal was accompanied by three grounds of appeal. Without their particulars they read as follows:-
- Error in Law:
The learned trial court erred in law when the court disregarded and/or neglected the appellants’ root of title vividly traced in pleadings and dealt out in evidence, inspite of which the court still dismissed the appellant’s suit.
- MISDIRECTION
The learned trial court misdirected itself and fell into error in its judgment when it failed to appreciate that there was no valid defence to the plaintiffs’ claim as a result of which the claim ought to have succeeded.
- WEIGHT OF EVIDENCE
The judgment of the lower court is unreasonable, unwarranted and cannot be supported having regard to the weight of evidence.”
It must also be stated here that the defendants also picked holes in the judgment stated above. With the leave of the court granted on 18/5/99, the defendants entered a cross appeal against part of the judgement of the Trial Court dealing with the evaluation of evidence relating to defendants’ root of title as well as the sufficiency or otherwise of plaintiffs’ pleading on traditional history.
Two grounds of cross appeal accompanied the notice. Without their particulars, they read as follows:-
- Error-in-Law
The learned Trial Judge erred in law when he concluded and held that the evidence of the Defence regarding their traditional history ran contrary to their pleadings.
- Error-in-Law
The learned Trial Judge erred in law when he held thus –
(It seems to me that the original owner of land is the person who acquired the land by settlement or by being the first person to settle on the land, or in more familiar parlance, the person who deforested the land………………………….. It is my view therefore that the Plaintiffs’ pleading of traditional history in the present case complies or in any case substantially complies with the principle laid down in Anyawu’s case (Supra).”
As it is the usual practice before this court, briefs in respect of the main appeal were filed and exchanged. The Appellant formulated four issues, so to say, for determination:
- Whether the dismissal of the plaintiffs’ claim to declaration, damages for trespass and injunction, in the circumstances of the case was erroneous in law.
- Whether the lower court fully and fairly appreciated the whole case, when at the close of pleadings the only defence to the suit was an alleged grant by the defendants to plaintiffs, which grant was not proved, and yet the court, purporting to uphold the grant, dismissed the suit.
- i. Whether there was fair and correct appraisal of the evidence by the lower Court before arriving at its decision.
- Whether the judgement can stand in the circumstances.”
The respondents in the main appeal formulated two issues as follows:-
- Whether on the pleadings and evidence plaintiffs/appellants proved title to the land in dispute.
- Did the plaintiffs/appellants discharge the burden on them of proving ownership of the land in dispute?”
On behalf of the respondents/cross appellants as well, two issues were rightly distilled from their two grounds of cross-appeal for determination; namely:-
(i) Whether plaintiffs’ pleadings were sufficient on the requirements for proof of title by traditional evidence.
(ii) Was the Trial court right to have held that the evidence of the defendants regarding the founder of the land in dispute ran contrary to their pleadings?”
Learned counsel for the appellants in the brief of argument filed on their behalf, argued grounds of appeal and not issues formulated by him. I strongly feel that the learned counsel for the appellants goofed in this respect. He should have argued issues correctly distilled from the grounds of appeal. This is elementary and counsel should take note of same. The observations of G.M. Nwagboju Esq, learned counsel for the respondents/cross-Appellants, were well made and noted. The cases of Momodu v. Momoh (1991) 1 NWLR (Pt. 169) 608, Ojibah v. Ojibah (1991) 5 NWLR (Pt. 191) 296, Anie v. Uzorka (1993) 8 NWLR (Pt. 309) 1 at Pg. 16 and A.G. Kwara State v. Olawale (1993) 1 NWLR (Pt. 272) 645 are in point.
However, the arguments canvassed on behalf of the appellants must be considered for balanced appraisal of issues at stake. Learned counsel observed that the appellants pleaded their root of title and adduced evidence to prove same. He submitted that they were entitled to declaration of title as sought by them as well as damages for trespass and order of injunction. He referred to Ishmail Emegwara v. Noah Nwaimo (1953) 14 WACA 347, Ekpo v. Ita (1932) 11 NLR 68. Anyawn v. Mbara (1992) 5 NWLR (Pt. 242) 386 and Kalio v. Woluchem (1985) 1 NWLR (Pt. 4) 610.
Learned counsel for the appellants opined that the dismissal of the appellant’s claim by the Trial court is an error in law and should not be allowed to stand.
Learned counsel submitted that the evidence of witnesses on alleged grant of land by the respondents to the appellants conflicted in details and material particulars. He submitted that the respondents had no valid defence to the claim.
Learned counsel submitted that the judgment of the Trial Court is not in accord with the evidence before it. He contended that the land in dispute is in the plaintiffs’/appellants’ town. He maintained that the weight of evidence is in favour of the appellants and urged that the appeal be allowed.
G.M. Nwagbogu Esq., learned counsel for respondents, raised preliminary objection to grounds 2 and 3 of the grounds of appeal. Learned counsel observed that ground 2, although tagged misdirection, is a mixture of misdirection and error in law; rolled into one. A portion of the judgment of the trial court where the alleged misdirection occurred was not quoted. No substantial particulars were given; counsel submitted. He referred to Nwadike v. Ibekwe (1987) 4 NWLR (Pt. 67) 718, Igwe v. Alvan Ikoku College of Education, Owerri (1994) 8 NWLR (Pt. 363) 459, Atuyeye v. Ashamu (1987) 1 NWLR (Pt. 49) 267, Globe Fishing Industries Ltd. v. Coker (1990) 7 NWLR (Pt. 162) 265 as well as order 3 Rule 2(2) of the court of Appeal Rules, 1981 as amended.
On Ground 3, learned counsel submitted that same was not properly couched and as such, incompetent. He referred to order 3 Rule 2(4) of the Court of Appeal Rules, 1981, as amended as well as section 20 of the Court of Appeal Act, 1976. He urged that grounds 2 and 3 of the grounds of appeal be struck out.
As the appellants did not file a reply brief, no argument was canvassed on their behalf with respect to the preliminary objection taken against the propriety of grounds 2 and 3 of the grounds of appeal. I shall deal with the preliminary objection right away at this juncture for convenience.
I strongly feel that a close scrutiny of ground 2 as reproduced above shows a mixture of misdirection and error in law. The last particular to same, worthy of note, says that the Trial court should have found that there was no defence to the action. Such relates to law. But the two cannot be rolled into one ground as they are mutually exclusive, disjunctive and never conjunctive. See Nwadike v. Ibekwe (supra), Oge v. Ede (1995) 3 NWLR (Pt. 385) 564 at p. 584, Abbey & ors v. Chief Alex & ors (1991) 6 NWLR (Pt. 198) 459, Ogoloma v. International Technical and Safety Co. Ltd. (1993) 2 NWLR (Pt. 275) 357.
Apart from the point stated above, the alleged misdirection is vague. The nature of the misdirection is not clear as enjoined by order 3 r. 2(2) of the court of Appeal Rules 1981. Refer to Adeniji v. Disu (1958) 3 F.S.C. 104, Okorie v. Udom (1960) 5 FSC. 162 and Alade v. Ogundokun (1992) 5 NWLR (Pt. 239) 42.
Ground 2 of the grounds of appeal is, no doubt, incompetent and must be struck out. And, I order accordingly. Issue (b) distilled therefrom is to no avail.
Ground 3 of the grounds of appeal is headed weight of evidence. The ground says the judgment cannot be supported having regard to the weight of evidence.
Disallowing same may portray a technical semblance or colour. It is in substantial compliance with the tenor of order 3 rule 2(4) of our Rules. I strongly feel that ground 3 should stand. The defect pin-pointed relates to form; not substance. Objection to ground 3 is hereby over-ruled. Refer to Anyaoke v. Adi (1986) 3 NWLR (Pt. 31) 731 Pwajiok v. Nyam (1994) 2 NWLR (Pt. 324) 81. The Supreme Court gave a clear insight to the principle in Elijah Okezie v. The Queen (1963) 1 SCNLR 24, (1963) 1 All NLR1 at p. 31, Mobil Oil Nig. Ltd. v. Coker (1975) 3 S.C. 175.
I must note it here that issues C. (i) and (ii) appear hair splitting. Even then issue C. (ii) which is &whether the judgment can stand in the circumstance” is not clear. I do not want to say that it is vague. But definitely it cannot be fitted into any of the existing grounds of appeal. It appears to be at large and must be discountenanced. Refer to Ugo v. Obiekwe (1989) 1 NWLR (Pt. 99) 566 at 580, Oniah v. Onyia (1989) 1 NWLR (Pt. 99) 514 at p. 527; Okpala v. Ibeme (1989) 2 NWLR (Pt. 102) 208 at 220.
Arguing issues (i) and (ii) formulated on behalf of the rspondents together, learned counsel observed that both parties pleaded roots of title in support of traditional histories. Each side gave evidence in support of traditional history put up by it. He further observed that it is not true that the respondents’ only defence was an alleged grant made by their ancestors. Learned Counsel observed that the Trial Court found that the evidence of the appellants conflicted as to the founder of the land and ran contrary to pleadings as well. He submitted that the court cannot pick and choose the probable version for them. He referred to Mogaji v. Cadbury (1985) 2 NWLR (Pt. 7) 393, Are v. Ipaye (1990) 2 NWLR (Pt. 132) 298 at p. 312, Balogun v. Akanji (1988) 1 NWLR (Pt. 70) 301, Ohiaeri v. Akabeze (1992) 2 NWLR (Pt. 221) 1 at p. 19.
Learned Counsel further observed that the trial court also found that there was a conflict in the traditional history of the respondents but that such did not strengthen the Plaintiffs/appellants’ case. He maintained that the respondents never conceded in the statement of defence that the land in dispute is in Ubuluisiuzor but rather in Ihiala, their hometown. Appellants failed to prove their root of title based on traditional history.
Learned Counsel submitted that one of the five ways of proving title to land is by traditional evidence. He maintained that since the appellants failed to adduce cogent evidence to prove their case, the claim failed. He referred to Balogun v. Akanji (supra), Fasoro v. Beyioku (1988) 2 NWLR (Pt. 76) 263, Nwofor v. Nwosu (1992) 9 NWLR (Pt. 264) 229.
Learned Counsel observed that before dismissing the Plaintiffs/Appellants’ case, the Trial court considered the question of damages for trespass and injunction. The Trial court made crucial findings of fact which were not challenged.
I have already reproduced the issues formulated from the grounds of appeal in the
cross-appeal. No respondents’ brief was filed in the cross-appeal. On issue 1 in the cross-appeal which relates to the sufficiency or other-wise of the plaintiffs’ pleadings on their root of title, learned counsel submitted that they have to plead and prove-
- the founder of the land;
- the mode of founding or discovery of the land and
- the history of the devolution of the said land to the present claimants.
He referred to Piaro v. Tenalo (1976) 12 S.C. 31, Ohiaeri v. Akabeze (1992) 2 NWLR (Pt. 221) 1, Anyanwu v. Mbara (1992) 5 NWLR (Pt. 242) 386, Mogaji v. Cadbury (supra).
Learned Counsel observed that the mode of founding by Plaintiffs’ ancestor, Ezeloma Nwugo, was not pleaded. He opined that it is not the duty of the Trial court to extend or embellish averments in pleadings where they are found to be defective. He submitted that traditional history was not properly pleaded. He urged the Court to so hold.
On issue II of the Cross-Appellants, learned counsel contended that evaluation of evidence of defendants’ traditional history was erroneous.
Whenever title to land is in dispute, the Supreme Court has set out five ways of proving ownership to same in the case of Idundun v. Okumagba (1976) 9-10 S.C. 227. They are (1) By traditional evidence. (2) By production of document of title duly authenticated and executed. (3) By acts of ownership extending over a sufficient length of time numerous and positive enough as to warrant the inference of true ownership. (4) By acts of long possession and enjoyment. (5) By proof of possession of connected or adjacent land in circumstances rendering it probable that the owner of such connected or adjacent land would in addition, be the owner of the land in dispute. Idundun v. Okumagba (supra) was closely followed by Piaro v. Tenalo (1976) 12 S.C. 31. As well, refer to Mogaji & Ors v. Cadbury (Nigeria) Ltd. (supra) Omoregie v. Idugiemwanye & Others (1985) 2 NWLR (Pt. 5) 41; Ezeoke & Others v. Nwagbo and Another (1988) 1 NWLR (Pt. 72) 616; Fasoro and another v. Beyioku and others (1988) 2 NWLR (Pt. 76) 263; Okpunwu and others v. Chief Okpokam and another (1988) 4 NWLR (Pt. 90) 554 and Oladipupo and Another v. Olaniyan and others (2000) 1 NWLR (Pt. 642) 556 at Pg. 564.
It is not compulsory for a plaintiff to prove all the five enumerated ways as listed above to be entitled to judgment. If he proves one of the five ways, that will suffice. But he must prove his title by cogent, satisfactory and conclusive evidence. See Onibudo v. Akibu (1982) 7 S.C. 60; Aikhionbare v. Omoregie (1976) 12 S.C. 11.
In this appeal, the appellants attempted to place reliance on traditional evidence. As Plaintiffs, they can only succeed on the strength of their case and not on the weakness of the defence; if any. Refer to Kodilinye v. Odu (1935) 2 WACA 336. However, if the defendants’ case supports that of the Plaintiffs, they are entitled to rely on same to fortify their case. See Akinola v. Olowu (1962) 1 All NLR 224.
In paragraph 4 of the amended statement of claim, the plaintiffs gave the name of the original owner of the land in dispute as Ezeloma Nwugo. The 1st Plaintiff testified as P.W.1. He is the traditional ruler of Ubuluisiuzor who should know his tradition and history very well. In examination in chief, he gave the name of his ancestor as Ezeloma Nwugo. During his cross-examination, he bent backwards and gave the name of Ezeloma Onongaya as one of his ancestors. Indeed, he said Ezeloma Nwugo is the son of Ezeloma Onongaya who was not mentioned in the amended statement of Claim.
According to P.W.3- Onwura Nwachukwu, Duru is the founder of Ubuluisiuzor. Nwugo the son of Duru got Akwu Agu land as his share. The name of Duru did not feature at all in the amended statement of Claim.
It is clear from the above that the plaintiffs’ story called traditional evidence is a web of contradictions and uncertainty. I am at one with the learned Trial Judge that the plaintiffs adduced through P.W.1 and P.W.3 two competing and conflicting traditional histories of their ownership of the land in dispute. To compound their position, the conflicting traditional histories had no root in their pleadings to wit – amended statement of claim. The conflict dealt a devastating blow on the plaintiffs’ case. On this score, the case was rightly dismissed. See Mogaji v. Cadbury (Nigeria) Ltd. (supra) where in a similar situation, the Supreme Court held that where a party adduces two competing histories of his ownership, he has failed to make out a case and his claim must be dismissed. See Balogun v. Akanji (supra) and Nwafor v. Nwosu (supra) as well.
The next point that is worthy of consideration is contained in paragraph 8 of the amended statement of claim. Therein, it is averred ‘that the defendants also tried to give a portion of the land in dispute to the Government for building a stadium but the plaintiffs resisted it. The issue of the ownership was gone into. The defendants’ representatives admitted that the land belonged to the plaintiffs. And in support, P.W.1 at page 38, lines 26-29 of the transcript record of appeal stated as follows:-
&Simon Mbachu one of the leaders of Ihuejim admitted that the land is that of Ubuluisiuzor people. This is contained in the minutes of the Ihiala Local Government Council.”
It must be noted here that P.W.1 merely made this assertion in the air. The Plaintiffs should have called an official of the Local Government to testify and the alleged minutes of the Council should have been tendered to prove the alleged admission against interest by the defendants. But they did not. This is an appropriate situation to invoke section 149(d) of the Evidence Act, 1990 against the Plaintiffs/appellants herein. I presume that the minutes of the Local Government which could be produced but was not produced, would if produced have been unfavourable to the appellants. Refer to Bello v. Kassim (1969) 1 NMLR 148 and Onuwaje v. Ogbeide (1991) 3 NWLR (Pt. 178) 147.
The appellants tendered Exhibit ‘C’ a Supreme Court judgment in Suit No. FSC 377/1959 in support of their ownership of the land in dispute. The learned Trial Judge found that the case dealt with another piece of land different from the subject matter herein. The Plaintiffs in Exhibit ‘C’ are not specifically Umunwugo the plaintiffs herein but Umuzu Ubaliogu quarters of Ubuluisiuzor. There is no specific complaint against the cogent findings of the Trial Judge in this respect. I cannot see how he can be faulted on this point. It is not sufficient to dangle a former judgment in the air. Its correlation with the current suit and worth must be clearly depicted. And such was not done by the appellants herein.
The next point which was amply covered by the Learned Trial Judge relates to claim for damages for trespass which is generally rooted in exclusive possession. He placed reliance on the cases of Amakor v. Obiefuna (1974) NMLR 331, Osafile v. Odi (1994) 1 LRCN 37, Ojibah v. Ojibah (1991) 4 LRCN 215; Adegbite v. Ogunfaolu (1990) 4 NWLR (Pt. 146) 578 and Bamgboye v. Olusoga (1996) 4 S.C.N.J. 154.
It should be stated here that the Learned Trial Judge after a very thorough and careful appraisal of the evidence adduced, made some revealing findings of fact on possession. It was found that Exhibit ‘B’ the defendants’ survey plan, shows that up to one third of the land in dispute is under the habitation of the defendants and their grantees. The evidence of D.W.1 supports this fact. The Learned Trial Judge also found that since the Plaintiffs limited the area they were seeking injunction order against the defendants to the portion verged green in their survey plan, Exhibit ‘A’, the conclusion is that they have conceded possession of the whole of the Northern part and the south eastern portion of the land in dispute to the defendants. The Plaintiffs issued no warning to the defendants and did not protest the defendants’ building on the land. The Plaintiffs did not stop the Ihiala Local Government from acquiring part of the land in dispute for a stadium. D.W.4, a member of the defendants’ family received payment of N100.00 about ‘26 years ago’ as compensation for damages done to his crops by NEPA electric lines which passed through his compound as shown in Exhibit ‘B’. Even in Exhibit ‘A’, the plan of the plaintiffs, the electric lines are shown. The defendants’ family made grants of portions of the land in dispute to persons including D.W.5 as shown in Exhibit ‘B’. The Learned Trial Judge found that the Plaintiffs are not in exclusive possession. Evidence clearly shows that the defendants have been exercising diverse acts of possession on the land.
The Learned Trial Judge found as a fact that the Plaintiffs had no boundary man in support of their case. Defendants on the other hand, called D.W.2 who testified that the defendants and his Okwuetiti village in Mbosi town share a common boundary, as in Exhibit ‘B’. He finally held that the Plaintiffs are not entitled to damages for trespass. And on the stand that where a claim for trespass fails, that for order of injunction should also fail, he referred to Oladimeji v. Oshode (1968) 1 All NLR 417; Olayiyoye v. Oso (1969) 1 All NLR 281. He rightly refused to decree an order of injunction against the respondents.
The above findings of fact were well made. I endorse them. It is clear beyond par-adventure that the case made up by the Plaintiffs completely failed to match that of the defendants in all ramifications. By virtue of section 135 of the Evidence Act, 1990, the Plaintiffs have the duty to prove their case on preponderance of evidence. See Ikwuka v. Anachuma (1996) 3 NWLR (Pt. 437) 453. The Plaintiffs failed in this direction.
I wish to state it that weighing of evidence on an imaginary scale as stated by Fatayi-Williams, JSC as he then was, in Mogaji v. Odofin (1978) 4 S.C. 91 at page 94 is an off-shoot of proof based on preponderance of evidence. The facts proved by each side will be put on an imaginary scale to see which side the pendulum goes. In this appeal, the pendulum swings against the Plaintiffs/appellants. See also Bello v. Eweka (1981) 1 S.C. 101; Aromire v. Awoyemi (1972) 1 All NLR (Pt. 1) 101; Owoade v. Omitola (1988) 2 NWLR (Pt. 77) 413 at 427. Adisa v. Ladokun (1973) 1 All NLR (Pt. 2) 18.
In short, the main appeal lacks merit. And it must be dismissed at the tail end.
CROSS-APPEAL
Issue 1 in the cross appeal relates to the sufficiency or otherwise of the Plaintiffs’ pleadings on their root of title. It is clear that a party who relies on traditional history must plead specifically and prove – (1) the founder of the land, (2) the mode of founding or discovery of the land and (3) the history of the devolution of the said land to the present claimants. In Anyanwu v. Mbara (supra), the Supreme Court set down the requirements. None of the three requirements can be left out.
In this instant matter, the Plaintiffs did not expressly plead the mode of founding or discovery of the land. The Learned Trial Judge attempted to fill in the gap for the Plaintiffs. It was not his duty to do that. And so, the yawning gap in the Plaintiffs’ pleadings remains unfilled. Plaintiffs’ pleadings on their root of title is clearly insufficient. The issue is resolved in favour of the cross-appellants.
Issue 2 in the cross-appeal is whether the Trial Court was right to have held that the evidence of the defendants regarding the founder of the land in dispute ran contrary to their pleadings.
Paragraph 7 of the amended statement of defence averred that Akwu Agu became habitable when defendants’ ancestor called Ogbu-Agu Ejimoke cleared the wild leopards therein.
D.W.1 who testified said it was Chimezie Ogbuagu, a distant descendant of Ejimoke of fifth generation who killed the leopards in Akwu Agu land. I agree with the Learned Trial Judge that there is a conflict on who killed the leopards. Such remains unresolved. I am unable to tamper with the finding of the Trial Judge in this respect. This issue is resolved against the cross-appellants.
As stated earlier on, the main appeal is devoid of merit. It is accordingly dismissed in its entirety. The cross-appeal is allowed in part only. The respondents/Cross-appellants are entitled to costs which I assess at N4,000 against the appellants.
NIKI TOBI, JCA.
The general burden of proof in a suit or proceedings lies on that person who would fail if no evidence at all were given on either side. See Are v. Adisa and others (1967) NMLR 304. The burden of proof of any issue before evidence is gone into is upon the party asserting the affirmative of the issue. See Okechukwu and Sons v. Ndah (1967) NMLR 368.
In a claim for a declaration of title to land the onus is on the plaintiff to prove title to a defined area to which a declaration can be attached. See Odesanya v. Ewedemi (1962) 1 All NLR 320. Generally, it is on the plaintiff, seeking a decree of declaration of title that the onus of proof usually rests. See Onobruchere v. Esegine (1986) 1 NWLR (Pt. 19) 799. Kuma v. Kuma (1936) 5 WACA 4; Nwokafor v. Udegbe (1963) 1 All NLR 104.
Where a plaintiff fails to prove his title to land, he is not entitled to judgment. See Oyeyiola v. Adeoti (1973) NNLR 10. One area in which the court will hold that a plaintiff has not proved his title to land is where there are contradictions in the evidence of his witnesses. The contradictions must be material and of great magnitude to the extent that they raise substantial doubt in the mind of the judge as to the authenticity or veracity of the case of the plaintiff. And here, I would like to recall the evidence of PW1 and PW3 which are contradictory in material particular.
In the light of the above and the fuller reasons given by my learned brother, Fabiyi, JCA, I also dismiss the appeal and allow the cross appeal in part. I award N4, 000.00 costs against the appellants.
MUSA DATTIJO MUHAMMAD, (JCA)
I had a preview of the lead judgment of my learned brother Fabiyi JCA, with whose reasoning and conclusions I agree.
It is trite that a plaintiff in a declaration of title to land must succeed or fail on the strength of his case. Although he can exploit the evidence adduced by the defendant, such a plaintiff is not by law allowed to rely on the weakness of the defendant’s case as proof of his own.
No worth-while quarrel can be taken against respondents counsel’s submissions and the authorities he referred thereto regarding what the appellant needed but failed to prove before the lower court could find for him. At the end of appellants’ case, irreconcilable conflict in the testimonies of their witnesses as to who founded the land, mode of doing same and the history of the devolution of the land in dispute to the appellants persisted. I agree with respondents/cross Appellants’ counsel that in circumstances such as the one appellant presented to the lower court, the trial court was correct in not acceding to Appellants’ prayers. I find the decisions in Idundun v. Okumagba (1976) 9-10 SC 227, and Piaro v. Tenalo (1976) 12 SC 31 instructive as to how appellant was to prove his title. The fate which appellant must bear for not congently proving his title through any of the ways enunciated in these decisions, has been stated in other like decisions. Where evidence of title is not satisfactory and conclusive as in the instant case of the appellant, a party will not succeed at trial. See Anibudo v. Akibu (1982) 7 SC 60 and Aikhionbare v. Omoregie (1976) 12 SC 11.
The trial court had thoroughly and painstakingly appraised the evidence before it and the conclusions reached are beyond reproach. I am satisfied that appellant had provided no basis for overturning a decision so arrived at. For this and for the more elaborate reasoning in the lead judgment I dismiss the Appeal.
I also find the Cross-Appeal meritorious in part and allow it to the extent done in the lead judgment. I make same orders as to cost too.
Counsel:
O.A. Ubachukwu – for the appellants.
G.M. Nwagbogu Esq., with C.A. Nwagbogu Esq. and V.A. Ikeme – for the respondent/Cross-Appellants.
Cases referred to in the judgment
A.G. Kwara v. Olawale (1993) 1 NWLR (Pt. 272) 645.
Abbey v. Chief Alex & Ors. (1991) 6 NWLR (Pt. 198) 459.
Adegbite v. Ogunfaolu (1990) 4 NWLR (Pt. 146) 578.
Adeniji v. Disu (1958) 3 F.S.C. 104.
Adisa v. Ladokun (1973) 1 All NLR (Pt. 2) 18.
Aikhionbare v. Omoregie (1976) 12 S.C. II
Akinola v. Oluwo (1962) 1 All NLR 224.
Alade v. Ogundokun (1992) 5 NWLR (Pt. 239) 42.
Amakor v. Obiefuna (1974) 1 NMLR 331.
Anibudo v. Akibu (1982) 7 S.C. 60.
Anie v. Uzorka (1993) 8 NWLR (Pt. 309) 1.
Anyanwu v. Mbara (1992) 5 NWLR (Pt. 242) 386.
Anyaoke v. Adi (1986) 3 NWLR (Pt. 31) 731.
Are v. Adisa (1967) NMLR 304.
Are v. Ipaye (1990) 2 NWLR (Pt. 132) 298.
Aromire v. Awoyemi (1972) 1 All NLR (Pt. 1) 101.
Atuyeye v. Ashamu (1987) 1 NWLR (Pt. 49) 267.
Balogun v. Akanji (1988) 1 NWLR (Pt. 70) 301.
Bamgboye v. Olusoga (1996) 4 S.C.N.J. 154.
Bello v. Eweka (1981) 1 S.C. 101.
Bello v. Kassim (1969) 1 NMLR 148.
Ekpo v. Ita (1932) 11 NLR 68.
Emegwara v. Nwaimo (1953) 14 WACA 347.
Ezeoke v. Nwagbo (1988) 1 NWLR (Pt. 72) 616.
Fasoro v. Beyioku (1988) 2 NWLR (Pt. 76) 263.
Globe Fishing Industries Ltd. v. Coker (1990) 7 NWLR (Pt. 162) 265.
Idundun v. Okumagba (1976) 1 NMLR 200; (1976)9-10 SC 227; (1976) NSCC 445.
Igwe v. Alvan Ikoku College of Education Owerri (1994) 8 NWLR (Pt. 363) 459.
Ikwuka v. Anachuma (1996) 3 NWLR (Pt. 437) 453,
Kalio v. Woluchem (1985) 1 NWLR (Pt. 4) 610.
Kodilinye v. Odu (1935) 2 WACA 336.
Kuma v. Kuma (1936) 5 WACA 4.
Mobil Oil v. Coker (1975) 3 S.C. 175.
Mogaji v. Cadbury (1985) 2 NWLR (Pt. 7) 393.
Mogaji v. Odofin (1978) 4 S.C. 91.
Momodu v. Momoh (1991) 1 NWLR (Pt. 169) 608.
Nwadike v. Ibekwe (1987) 4 NWLR (Pt. 67) 718.
Nwofor v. Nwosu (1992) 9 NWLR (Pt. 264) 229.
Nwokafor v. Udegbe (1963) 1 All NLR 104.
Oge v. Ede (1995) 3 NWLR (Pt. 385) 564.
Ogoloma v. International Technical & Safety Co. Ltd. (1993) 2 NWLR (Pt. 275) 357.
Ohiaeri v. Akabeze (1992) 2 NWLR (Pt. 221) 1.
Ojibah v. Ojibah (1991) 5 NWLR (Pt. 191) 296.
Okechukwu v. Ndah (1967) NMLR 368.
Okezie v. Queen (1963) 1 SCNLR 24; (1963) 1 All NLR 1.
Okorie v. Udom (1960) 5 F.S.C. 162.
Okpala v. Ibeme (1989) 2 NWLR (Pt. 102) 208.
Okpunuwu v. Okpokam (1988) 4 NWLR (Pt. 90) 554.
Oladimeji v. Oshode (1968) 1 All NLR 417.
Oladipupo v. Olaniyan (2000) 1 NWLR (Pt. 642) 556.
Olayioye v. Oso (1969) 1 All NLR 281.
Omoregie v. Idugiemwanye (1985) 2 NWLR (Pt. 5) 41.
Oniah v. Onyia (1989) 1 NWLR (Pt. 99) 514.
Onibudo v. Akibu (1982) 7 S.C. 60.
Onobruchere v. Esegine (1986) 1 NWLR (Pt. 19) 799.
Onuwaje v. Ogbeide (1991) 3 NWLR (Pt. 178) 147.
Osafile v. Odi (1994) 1 LRCN 37; (1994) 2 NWLR (Pt. 325) 125.
Owajiok v. Nyam (1994) 2 NWLR (Pt. 324) 81.
Owoade v. Omitola (1988) 2 NWLR (Pt. 77) 413.
Oyeyiola v. Adeoti (1973) NNLR 10.
Piaro v. Tenalo (1976) 12 S.C. 31.
Pwajiok v. Nyam (1994) 2 NWLR (Pt. 324) 81.
Ugo v. Obiekwe (1989) 1 NWLR (Pt. 99) 566.
Statutes referred to in the judgment
Evidence Act, Cap 112, Laws of the Federation of Nigeria, 1990; s.s 135; 149(d).
Court of Appeal Act, 1976; s.20.
