3PLR – JOSEPH CHIKE ODOGWU & ANOR V. SAMUEL NWAJEI & ORS

POLICY, PRACTICE AND PUBLISHING, 3PLR, LAW REPORTS

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JOSEPH CHIKE ODOGWU & ANOR

V.

SAMUEL NWAJEI & ORS

IN THE COURT OF APPEAL

(BENIN JUDICIAL DIVISION)

ON FRIDAY, THE 28TH DAY OF JUNE, 2013

SUIT NO: CA/B/147/2008

3PLR/2013/91 (CA)

 

OTHER CITATIONS

(2013) LPELR CA/B/147/2008

BEFORE THEIR LORDSHIPS 

SIDI DAUDA BAGE, JCA

AYOBODE OLUJIMI LOKULO-SODIPE, JCA

TOM SHAIBU YAKUBU, JCA

 

BETWEEN  

1. JOSEPH CHIKE ODOGWU
2. DONATUS IKECHUKWU ODIWE

(For themselves and on behalf of Olodi Family Daike/Olodi Village, Asaba) – Appellants

AND

1. SAMUEL NWAJEI
2. DR. J. B. AZINGE
3. CHIKE ANYAFULU
4. OKWUEGBUNE OBODOECHINA

(For themselves and on behalf of Daike Family, Daike/Olodi Village, Asaba)

5. IFEANYI NWOKOBIA
6. FIRST BANK OF NIGERIA PLC
7. PATRICK OFODILE
8. N. NDIGWE
9. ALBERT CHUKWUKELU – Respondents

 

REPRESENTATION

1. U. Oforlea – For the Appellants

Chike Onyememenam with O. Okelozo and S. I. Abudei – for the 1st – 5th and 7th – 9th Respondents

Morgan I. Solomon – for the 6th Respondent. – For the Respondents

 

ORIGINATING STATE

Delta state: High court (T. O. Diai J- Presiding)

 

MAIN ISSUES

REAL ESTATE/LAND LAW – DECLARATION OF TITLE TO LAND:- What the court must satisfied on in a claim for declaration of title to land – Precise nature of title claimed i.e. whether it is title by original ownership, customary grant, conveyance, sale under customary law, long possession or otherwise – Evidence establishing the nature of title claimed – Effect of failure thereto

REAL ESTATE/LAND LAW – DECLARATION OF TITLE TO LAND:- Claim of title under customary law – Whether can be proved via documentary evidence – Evidence proving long possession over land held under customary law – Whether can substitute for failure to prove root of customary law title

REAL ESTATE/LAND LAW – DECLARATION OF TITLE TO LAND:- Rule that the plaintiff must succeed on the strength of his own case and not on the weakness of defence – Meaning – Whether allows plaintiff to rely on evidence adduced by the defendant that supports his case –

REAL ESTATE/LAND LAW – FAMILY OR PERSONAL OWNERSHIP:– Where a party pleads and traces his root of title to a particular person or family – Need to establish how that person or family came to have title vested in them – Whether party not entitled to ignore the proof of his overlord’s title and rely on long possession

PRACTICE AND PROCEDURE – ACTION – ISSUES FOR DETERMINATION:- Law that it is the plaintiff who brings a suit before the court that also primarily nominates the issues for decision in the case – Effect – Whether requires a plaintiff to succeed on the strength of his case by proving the entire set of facts or circumstances giving rise to an enforceable claim – Relevant considerations

PRACTICE AND PROCEDURE – ACTION – DUTY OF DEFENDANT – COUNTERCLAIM:- Duty to resist the plaintiffs claims on the facts pleaded – Whether it is not for a defendant to set up facts which would convey that he is not just setting up a defence to the plaintiffs suit but setting up a new case of his own – whether a defendant is only permitted to set up a new case of his own when he is setting up a counter-claim

PRACTICE AND PROCEDURE – APPEAL – NOTICE OF APPEAL:- Rule that an appeal can only be initiated by the filing of the appropriate notice of appeal as prescribed by the rules of the relevant court – Where the notice is defective – Whether there cannot be said to be any appeal on which the powers of the appellate court could be invoked – Question whether particular processes as filed would satisfy the requirement of the relevant rules of court with regards to a valid notice of appeal – Whether both a procedural issue as well as jurisdictional issue

PRACTICE AND PROCEDURE – ACTION – PLEADINGS:- Meaning – What pleadings should contain – Purpose of pleadings – Bindingness on parties – Need for pleadings to be served on an opponent to enable him have notice of facts that will be in contention at the hearing – Whether the issues that call for resolution in a case being tried on pleadings are circumscribed and fixed by the pleadings of the parties of the parties before the court and parties are to adduce evidence in relation thereto only

PRACTICE AND PROCEDURE – EVIDENCE – TRADITIONAL EVIDENCE:- Law that documentary evidence is unknown to native law and custom – Effect on evidence documentary evidence tendered to establish acts of possession in recent times of land which title is asserted under customary law – Whether avails

MAIN JUDGMENT

AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A. (Delivering the Leading Judgment):

This appeal is against the judgment delivered on 14/7/2005 by the High court of Delta state (hereafter simply referred to as “the lower court”) presided over by the Hon. Justice T. O. Diai (hereafter simply referred to as “the learned trial Judge”) dismissing the case of the Appellants as Plaintiffs before the lower court.

The case was tried on pleadings filed and exchanged by the parties with the latest of the pleadings of the Appellants being their Amended statement of claim endorsed on the writ of summons dated 6/10/2003 and Amended Reply to the statement of Defence dated 5/3/2002; while the last of the Respondents, pleading were their Joint 2nd Amended statement of Defence of the 2nd-5th & 7th – 9th Defendants dated 19/1/2004 (shown on its face to have been filed for the 1st – 5th and 7th – 9th Defendants) and the Amended Rejoinder to Reply to the statement of Defence dated 31/7/2004.

The case of the Appellants briefly stated is that they are joint owners of the land known as ANI-NGENE with the 1st – 4th Respondents. The reliefs which the Appellants claimed in the action against the Defendants jointly and severally as set out in their last pleading, are: –

“i.      A Declaration that it is wrongly (sic) of the 1st to 4th Defendants to exclude the Plaintiff (sic) from the affairs of the Daike/Olodi village.

(ii)     A Declaration that the Plaintiff (sic) and 1st to 4th Defendants are joint owners of Ani-Ngene, Ugbomanta Quarters, Asaba.

(iia)   A Declaration that under Asaba Native Law and custom where property is owned by two brothers of full blood who are of the same gaith or Akwukwa own a property jointly and they decided to form separate entities (or not do things in common) all their assets and liability are shared equally by them.

(iib)   An order of court directing that the joint landed property of the parties to this suit at Ani-Ngene be shared, equally between the Plaintiffs and the Defendants in (sic) with Asaba Native Law and Custom.

(iii)    An order setting aside the unilateral dissolution of the Daike/Olodi Land Committee and the unilateral reconstitution of some (sic) by the 1st to 4th Defendants.

(iv)    An Injunction restraining the 1st to 4th Defendants by themselves, servants or agents from  plotting out and/or snaring Ani-Ngene to the exclusion of the Plaintiff (sic).

(v)     An Injunction restraining the 1st to 4th Defendants from collecting rents from the 7th, 8th and 9th Defendants to the exclusion of the Plaintiff (sic).

(vi)    An order directing the 7th, 8th and 9th defendants to pay their rents only to the Daike/Olodi village Land committee which includes the Plaintiffs’ family.

(vii)   An Injunction restraining the 1st to 4th Defendants from operating at the 6th Defendant’s Asaba Branch (The Plaintiff is not able to secure the number of the account).”

 

Suffice it to say that the 1st – 5th and 7th – 9th Defendants (who will hereafter be simply referred to as “the Respondents”) in their pleadings controverted the case of the Appellants.

 

Oral evidence was led by the parties in the proof of their respective cases. Pieces of documentary evidence were also tendered at the hearing of the case before the lower court. Having had the benefit of addresses by the parties and after a review and evaluation of the evidence adduced by the parties, the lower in its judgment dismissed the case of the Appellants.

 

Being dissatisfied with the judgment of the lower court, the Appellants lodged an appeal against the same by a Notice of Appeal dated 20/9/2005 and filed on 29/9/2005. The Notice of Appeal contains 3 grounds of appeal.

They read thus: –

“GROUNDS OF APPEAL

GROUNDS (SIC) 1

The learned Trial Judge Erred in Law when he held that plaintiffs (sic) pleading is (sic) contradictory in terms on their traditional root of title.

PARTICULARS:

From the entire pleadings of the Plaintiffs, it is crystal clear that no material contradiction is contained therein. The Learned Trial Judge in coming to this erroneous conclusion dismissed the plaintiffs (sic) case is contrary to law.

GROUNDS (SIC) 2

The Learned Trial Judge erred in Law in holding that the there is (sic) no conflict in the traditional history ownership of Ani-Ngene Land from the pleadings and evidence adduced by the Parties before him.

PARTICULARS

The Evidence led by the parties as to the traditional methods of acquisition of the land in dispute were directly in conflict with one another. The learned Trial Judge was duty bound in law to resolve these conflicts. His failure to do so occasioned a miscarriage of justice.

GROUND 3

The Judgment is against the weight of evidence.

PARTICULARS

Upon it a (sic) careful perusal of the entire pleadings filed by the parties the evidence led by them before the Honourable Trial Court, it is crystal clear that had the Learned Trial Judge properly appraised same; he would not have arrived at the erroneous or incorrect legal conclusions reached in his Judgment.”

 

In accordance with the Rules of this Court parties filed and exchanged Briefs of Argument. Appellants’ Brief of Argument dated 23/3/2010 and filed on 29/3/2010 but deemed to have been property filed and served on 9/5/2012 was settled by Lawrence C. Egodike, Esq. Respondents’ Brief of Argument (excluding the 6th) dated 30/5/2012 and filed on the same date was settled by Chike Onyemenam, Esq. The appeal was entertained on 15/4/2013. Both A.U. Oforlea learned counsel to the Appellants and Chike Onyemenam learned lead counsel to the Respondents adopted and relied on the respective Briefs of their clients as hereinbefore identified in the aid of their positions in the appeal. Learned lead counsel to the Respondents at the hearing of the appeal drew the attention of the court to the fact that the Respondents raised and argued a preliminary objection in the Respondents’ Brief of Argument and that the appellants did not file any response thereto. He urged the court to uphold the preliminary objection and strike out the appeal. It is also worth mentioning that Morgan I. Solomon of counsel to the 6th Respondent stated expressly that the said party did not file any Brief of Argument and did not intend to file any.

 

The Appellants formulated three issues for determination in the appeal in their Brief of Argument. The issues read thus:-

“1.     Whether there is nothing in the pleadings and evidence of the parties to support the claim of the Appellants that Ani-Ngene is a joint family property of the family of the Appellants and Respondents (GROUND 1)

2. Whether the court below did not misconceive the case and thereby arrived at a wrong conclusion in his judgment in view of the conflicting traditional evidence led by both parties as to their root of title

(GROUND 2).

3. Whether the trial court acted judicially and judiciously in the whole issue having regard to the evidence of parties, particularly the documentary evidence tendered by the Appellants (Ground 3).”

 

The Respondents likewise formulated three issues for determination in the appeal, in their Brief of Argument. They read thus:-

(i)      whether there are material contradictions in the pleadings and evidence led by the Appellants as to their traditional history or root of title so as to justify the learned trial judge’s dismissal of their claim of co-ownership of the land in dispute with the Respondents.

(ii)     whether there were material conflicts in the evidence led by non parties on traditional history, thus making it imperative that the learned trial Judge must resolve same by applying the rule in Kojo v. Bonsie.

(iii)    Whether the judgment of the leaned trial Judge is against the weight of evidence.”

 

As stated hereinbefore, the Respondents raised and argued a preliminary objection to the hearing of the appeal in their Brief of Argument. It is imperative that I first resolve the preliminary objection (hereafter simply referred to as “P. O.”). This is in time with the settled position of the law to the effect that upholding a preliminary objection to the hearing of an appeal will render it unnecessary to consider the appeal on the merit.

 

The Notice of P. O. of the Respondents and the arguments in respect of the P. O. are in paragraph 4.01 on pages 6 – 7, of their Brief of Argument. The paragraph reads thus:-

“NOTICE OF PRELIMARY OF OBJECTION:

The 1st – 5th and 7th – 9th Respondents doth hereby give notice of their intention to rely on the following preliminary objection challenging the competence of this Appeal on the following ground:

(a)     That there is no valid appeal pending before this Honourable Court in that the Appellants filed their Notice of Appeal from the High Court of Justice, Asaba, to the High Court of Justice, Asaba.

(i)      It is settled that by virtue of section 240 of the 1999 Constitution of the Federal Republic of Nigeria, all appeals from the judgment of the High Court shall lie or be brought to the Court of Appeal; and by Order 3 Rule 2 of the Court of Appeal Rules, 2002 (which was the subsisting rule at the time of filing the Notice of Appeal; now Order 6 Rule 2 of the 2007 Rules) a Notice of Appeal to the court of Appeal ought to be as in Form 3 to the Rules and failure to comply with the above Form renders a Notice of Appeal incurable defective and cannot sustain an appeal.

(ii)     It is equally settled that where a High Court judge delivers final judgment in any case, he becomes functus officio, and cannot sit on appeal over its own judgment.

(iii)    consequent upon the above, it is our respectful submission, that there is no valid appeal pending at the court of Appeal in this matter, regardless of the Record of Appeal wrongly forwarded to this Court and the Brief of Argument filed and exchanged, because ex nihilo nihil fit.

(b)     We consequently pray your Lordships to strike out the entire appeal on the ground that the Notice of Appeal on which it stands is irredeemably invalid and incompetent. We humbly refer to and rely on the following Supreme Court judgments:

(i)      ANADI v. OKOLI (1977) 3 S.C. page 110 at 116-117

(ii)     ALOR V. NGENE (2007) ALL FWLR (Part 362) Page 1836 at 1846 (D-F) S.C.N.

(iii)    NNB V. IMONIKHE (2002) FWLR (PART 118) page 1406 at 1417 (D-E).”

 

It would appear to be clear as crystal from what has been re-produced above, that the gist of the complaint/objection of the Respondents is that the Notice of Appeal filed by the Appellants does not comply with the Form required of a notice of appeal by the applicable Rules of this court in force as at the time it was filed in that it is headed or titled: “IN THE HIGH COURT OF JUSTICE DELTA STATE OF NIGERIA, IN THE ASABA JUDICIAL DIVISION, HOLDEN AT ASABA”. This defect or non-compliance, the Respondents have argued is a fundamental one as it means that the instant appeal is from the High Court to itself (which is in contravention of section 240 of the constitution) and has thereby rendered the instant appeal without foundation. The Respondents have further urged the Court to uphold their P. O. as the Appellants did not respond to it by filing a Reply Brief.

 

It is indeed true that the Appellants did not respond to the P. O. of the Respondents by filing a Reply Brief of Argument. Indeed at the hearing of the appeal, learned counsel to the Appellants made no attempt whatsoever to react to the P.O. of the Respondents. It would however appear that the failure of the Appellants to have responded to the preliminary objection of the Respondents by filing a reply brief of argument in the appeal, or to have alluded to it in any manner at the hearing of the appeal, does not automatically portend the success of the Respondents’ P. O. This is because the position of law would appear to be that the default of a party to react to a preliminary objection does not preclude the court from considering the merit and demerit of the same for the purpose of either overruling the objection or sustaining it, See BOB V. AKPAN (2010) ALL FWLR (PT.501) 896 at 941 in which the ratio to that effect in the case of Odunze v. Nwosu (2007) All FWLR (Pt.379) 1295 at 1314, was applied. This is particularly so as the P.O. in the instant appeal is goes to the jurisdiction of the court to entertain the appeal inasmuch as a valid Notice of Appeal is a sine qua non for the assumption of its appellate jurisdiction. The law is settled that parties cannot confer jurisdiction on a court by agreement, and/or by their acts of commission or omission. So, the pertinent question to resolve given the P.O. of the Respondents is whether the wrong heading of the Notice of Appeal in the instant appeal, is such that go to vitiate the appeal. An objection of the very kind as the one now raised by the Respondents herein, would appear not to be new in this court. It was raised in the case of CLEV JOSH LTD V. TOKIMI (2008) 13 NWLR (Pt.1104) 442 and I now re-produce what my learned brother Gumel, JCA; said on the matter. His lordship stated at pages 439 – 441 thus: –

“An appeal can only be initiated by the filing of the appropriate notice of appeal as prescribed by the rules of the relevant court. Where the notice is defective, there cannot be said to be any appeal on which the powers of the appellate court could be invoked. It goes without saying therefore that whether particular processes as filed would satisfy the requirement of the relevant rules of court with regards to a valid notice of appeal is as much a procedural issue as well as jurisdictional issue. It could be surmised that appellate jurisdiction cannot be invoked on the basis of a defective or invalid notice of appeal. It is only a valid and competent notice of appeal that can effectively kick-start the appellate process and jurisdiction. Learned counsel to the 1st respondent, Mr. Oke has challenged the competence of the notice of appeal as contained in exhibit B attached to the attached to the main affidavit in support of this application. Learned counsel challenged exhibit B principally on 2 grounds. The first ground is that is headed “In the Federal High Court”

 

In my view, it is very important to resolve this issue first and foremost before any other issue or aspect of this application. Let me then proceed to answer the very formidable and crucial question whether there is valid and competent notice of appeal is exhibit B.

 

A very good starting point to assist in the answering of this crucial question, in my view would be Order 3 r. 2(1) of the Court of Appeal Rules, 2002. It provides thus:

“Order 3 r. 2(1) All appeals shall be by way of rehearing and shall be brought by notice (hereinafter called “notice of appeal”) to be filed in the registry of the court below which shall set forth the grounds of appeal, stating whether the whole or part only of the decision of the court below is complained of (in the latter case specifying such part) and shall state also the exact nature of reliefs sought and the names and addresses of all parties directly affected by the appeal which shall be accompanied by a sufficient number of copies for service on all such parties; and it shall also have endorsed on it an address for service.”

 

This provision no doubt lays down the foundation of an appeal. The marginal note to O. 3 r. 2(1) refers to Civil Form 3 in the 1st schedule to the 2002 rules for guidance as to the content of a notice of appeal.

 

Civil Form 3 requires that an appeal to this court from the Federal High Court, High Court of a State, Sharia Court of Appeal or Customary Court of Appeal etc must be headed “In the Court of Appeal. It has been conceded by learned counsel, Mr. Ogundana that the notice of appeal in exhibit B was headed “In the Federal High Court”. There is an apparent mix-up which has engendered a non-compliance with O. 3 r. 2(1) and Civil Form 3 by the appellants/applicants herein. This type of mix-up is not altogether unknown or unheard of. In the case of Addis Ababa v. Adeyemi (1976) 12 SC 51 in an appeal from the High Court of Lagos State, the Supreme Court considered inter alia the effect of a notice of appeal to the Supreme Court, which was wrongly headed: “In the High Court of Lagos State: in the Ikeja Judicial Division”. The Supreme Court held that such a notice of appeal was fundamentally defective and incurable that it ought to be struck out. However, the same Supreme Court graciously subsequently overruled itself. In the case of Surakatu v. Nigeria Housing Development Society Ltd. & Anor (1981) 4.SC 26, the Supreme Court held that a wrongly headed notice of appeal may be allowed in order to do substantive justice by hearing the appeal on the merits. In overruling itself, the Supreme Court clearly stated that Addis Ababa v. Adeyemi was no longer good law. See Surakatu (supra) as per Fatayi-Williams, CJN at page “.

 

On the basis of the Supreme Court’s decision in Surakatu (supra), the wrong heading of the notice of appeal herein can be treated as in irregularity that ought to be condoned. The 1st leg of the objection of learned counsel to the 1st respondent, Mr. Oke must be totally rejected as a misconception and also because it does not represent the state of the law. ”

 

This court is bound by its decisions. The cases cited by the Respondents do not actually dwell on wrong heading of a notice of appeal. There is absolutely no basis for me to depart from the well reasoned speech of my learned brother re-produced above, particularly as it relates to the Supreme Court decisions considered and applied therein. In the circumstance, I hold that the wrong heading of the Notice of Appeal upon which the instant appeal is founded is not a fundamental defect as argued by the Respondents and that same cannot and has not vitiated the appeal and all that has been done and/or filed therein. Flowing from all that has been said is that I find no merit in the P.O. of the Respondents and the same is hereby overruled.

 

Having overruled the P.O. of the Respondents, I now proceed to consider the appeal on the merit and in doing this, I will adopt the issues for the determination of the appeal as set out by the Appellants in their Brief of Argument. This is against the backdrop of the fact that I consider the issues formulated by the Respondents as dwelling on the matters raised in the issues formulated by the Appellants.

 

APPELLANTS’ ISSUE 1:

Dwelling on this issue, the Appellants submitted to the effect that they testified as to the native law and custom of Asaba relating to the sharing of family property amongst the male children through Pw1 and referred to relevant pages of the record. Also the Appellants submitted that a custom may be adopted as part of the law governing a particular set of circumstances, if it can be noticed judicially or can be proved to exist by evidence and referred to section 14 of the Evidence Act LFN, 1990 in this regard. The Appellants also not only submitted that they give evidence regarding the custom that when a member of a particular Akwukwa travels out and later returns, the fact of his leaving does not deprive him of his entitlement to the share of the property through PW1 but that PW2 corroborated the same. It is the stance of the Appellants that in the circumstances, the denials of the Respondents that Ani-Ngene is not owned jointly, because the Olodi purportedly traveled out of Asaba does not hold water as such contention is contrary to natural justice, equity and good conscience and also referred to section 14 of the Evidence Act (supra) in this regard. It is also the submission of the Appellants that a particular fact is deemed to be relevant when it shows in a particular instance how a custom is understood and section 15 of the Evidence Act (supra) was cited in aid. It is the stance of the Appellants that the lower court should have been minded to form its opinion of the special knowledge of the witnesses for both parties that testified that Daike/Olodi are the same and own Ani-Ngene property together and referred to section 64 of the Evidence Act (supra) in aid. It is also the submission of the Appellants that when title is in issue, oral evidence of family or communal tradition concerning such land is relevant and referred to section 45 of the Evidence Act (supra). Again, referring to the evidence of witnesses on record, the Appellants submitted that their claim that Ani-Ngene is jointly owned by them and the Respondents cannot be otherwise. This is because a claim for joint ownership presupposes ownership by more than one person and cited “OSUJI V. LRCN 134 AT 150 Ratio 17 particularly page 185 PU” (re-produced as contained in the Appellants’ Brief of Argument).

 

It is the stance of the Appellants that one party cannot claim exclusive possession of Ani-Ngene as the said property was shared to Daike/Olodi family. The Appellants submitted that as the Respondents did not counterclaim, the lower court was bound to decide on their claims as endorsed on the writ of summons.

 

Dwelling on their issue 1 (which in my view clearly relates to Appellants issue 1), the Respondents referred to the averments in paragraphs 5 and 11(a) of the Appellants’ pleading as they relate to their traditional history concerning the land in dispute. It is the stance of the Respondents that it is clear that the Appellants after pleading in paragraph 5 that their ancestor Olodi, and the Respondents’ ancestor Daike, got the land in dispute by inheritance from their father – Ezeobom, turned around to plead in paragraph 11(a) that their ancestors Olodi and Daike were the direct children of Ugboma from whom they inherited the land in dispute by sharing in accordance with the number of wives who had male issues. In other words, that Ezeobom whom the Appellants inherited the land from in paragraph 5 and who gave birth to Daike and Olodi their ancestors, suddenly disappeared in paragraph 11(a) and gave way to Ugboma who now became the direct father of Dike and Olodi who inherited their father, Ugboma’s land.

 

It is the stance of the Respondents that as if the fundamental conflict as to who was the father of Daike and Olodi and from whom the Appellants’ inherited the land in dispute was not enough, the Appellants’ star and only witness in relation to the Appellants’ traditional history and how they inherited or came to be co-owners of the land in dispute – Pw1, compounded the matter. The Respondents also submitted that Appellants never pleaded the name of the original owner or founder of the land in dispute, Ani-Ngene; or the name of the man who deforested same as they were obligated in law given their reliance on traditional history in respect of the land. The cases of Meka v. Anyafulu (2006) All FWLR (pt. 309) 1465 at 1472; Nwokorobia v. Nwogu (2009) 4-5 SC (pt.II) 144 at 162; and Piaro v. Tenalo (1976) 12 SC 19 at 27 were cited in aid. Having further dwelled on paragraphs of the Appellants pleadings the Respondents summarized that the Appellants’ claim of co-ownership of the land in dispute with the 1st – 4th Respondents’ family based on traditional history woefully failed due to: (a) failure to plead and prove the original founder of the land; (b) failure to plead and prove how the land devolved from the original founder down to the Appellants; (c) fundamental conflicts as to the root of the Appellants’ title; and (d) material contradictions or variance of the Appellants’ evidence with their pleadings as to their root of title or traditional history.

 

The parties in the instant case conducted the hearing before the lower court upon pleadings which have hereinbefore in this judgment been identified. The law is settled as to what pleadings should contain and the purpose of pleadings. The courts have consistently held to the effect that “pleadings” are summary of the facts of a case that must be served on an opponent to enable him have notice of facts that will be in contention at the hearing. Hence the courts have also consistently held to the effect that the basic purpose or function of “pleadings” is to avoid springing surprises on the other party; accordingly parties are bound by their “pleadings” and must not go beyond what they have pleaded in their evidence, as doing this will render evidence so given, to be in respect of a non-issue, and liable to be struck out or discountenanced by the court. See AGBOOLA V. UBA PLC (2011) 45 NSCQR 335 at 358; ALIBO V. OKUSIN (2010) ALL FWLR (Pt.529) 1059 and ANAMBRA STATE ENVIRONMENTAL SANITATION AUHTORITY V. EKWENEM (2009) 40 NSCQR 51 at 72. In other words, the issues that call for resolution in a case being tried on pleadings are circumscribed and fixed by the pleadings of the parties of the parties before the court and parties are to adduce evidence in relation thereto only.

 

It is also settled law that it is the plaintiff who brings a suit before the court that also primarily nominates the issues for decision in the case. See LONGE V. FIRST BANK OF NIGERIA PLC (2012)  ALL FWLR (PT.525) 258; and NKUMA V. ODILI (2006) ALL FWLR (PT.313) 24. A plaintiff therefore, to succeed on the strength of his case must action, i.e. the entire set of facts or circumstances giving rise to an enforceable claim. And these include all those things necessary to give right of action and every fact which is material to be proved to entitle the plaintiff to succeed. See SULGRAVE HOLDING INC. V. FEDERAL GOVERNMENT OF NIGERIA [2013- ALL FWLR (PT.659) 1050 at 1063.  This being the situation, all that a defendant need do, is to resist the plaintiffs claims on the facts pleaded. It is not for a defendant to set up facts which would convey that he is not just setting up a defence to the plaintiffs suit but setting up a new case of his own. A defendant is only permitted to do this, when he is setting up a counter-claim. See DIAMOND BANK PLC v. MONANU (2013) 7 NRN 110 at 122- 123 and 125.The Appellants by their issue 1 which has hereinbefore been set out have argued to the effect that the pleadings and evidence of the parties support their claim that the land in dispute is joint property of the families of the Appellants and the Respondents. It is my considered view that the Appellants would appear not to appreciate the position of the law that they can only succeed in the case which they brought on the strength of the same. The Appellants would also appear to have lost sight of the fact that it is in the pleadings of parties that their respective cases are actually made; in that evidence adduced is only in aid of the case made on the pleading(s) by a party. This is the justification for the position of the law that evidence at variance with the averments in the pleadings of a party go to no issue and is worthless. See AGBOOLA V. UBA PLC and ALIBO v. OKUSIN (both supra).

 

In the instant case, the Appellants are the ones alleging the joint ownership of the land in dispute with the Respondents and for this purpose relied on traditional history. It is clear from the pleadings of the Respondents that they dispute the claim of the Appellants, and they too (Respondents), rely on traditional evidence in their claim to the sole ownership of the said land. In ADESANYA V. ADEROUNMU (2000) FWLR (PT.15) 2493 the Supreme Court decided amongst others to the effect that in a claim for declaration of title to land, the court must be satisfied as to (i) the precise nature of title claimed i.e. whether it is title by original ownership, customary grant, conveyance, sale under customary law, long possession or otherwise; and (ii) evidence establishing the nature of title claimed. The Appellants in their pleadings and in the arguments in their Brief of Argument clearly do not claim title to the land in dispute by original ownership. They claim title to the land in dispute jointly with the Respondents, by inheritance under the Native Law and custom of Asaba. It is therefore clear that the Appellants having known the person, from whom they derived their title to the land in dispute, equally knew that they were obligated by law to satisfy the court as to the title of the source from whom they claim to have derived their title to the land in dispute. See ADESANYA’s case (supra). It was towards this end that the Appellants relied on traditional history in the proof of their joint title to the land in dispute with the Respondents. As the Respondents clearly did not concede joint ownership of the land in dispute with the Appellants, the Appellants who apparently relied on traditional evidence concerning the said land in dispute by law are obligated to plead and prove the source or sources from which the person through whom the land was inherited, derived his title to the land in dispute. Anything short of this cannot entitle them to judgment in respect of the land in dispute.

 

The lower court having regard to its extensive consideration of the case of the Appellants at pages 351 – 353 of the record, clearly appreciated this position of law. The lower court in this regard, stated that the following questions arise regarding the root of title of the Appellants or their claim to co-ownership of the land in dispute to wit (i) how did the Appellants become part owners of the rand; (ii) was it by inheritance by Daike and Olodi from Ezeobom as pleaded in paragraph 5 of their Amended statement of claim or by inheritance as from Ugboma as pleaded in paragraph 11 thereof; and (iii) was it by sharing of the land by Ezeobom during his life time to Olodi and Ojetete the son of Daike as alleged in the Amended Reply to the statement of Defence. The lower court having evaluated the evidence adduced by the Appellants found the same to contradict their pleadings on the issues. Aside from the contradictory averments in the pleadings of the Appellants regarding the vital issues highlighted by the lower court, the said court found the evidence of PW1 on the matter to go to no issue. The Appellants have not suggested that the finding of the lower court that the averments in their pleadings regarding their root of title are contradictory, is a figment of the imagination of the lower court and that this is not so. In any event, I have perused the pleadings of the parties and it is obvious as found by the lower court and aptly set out in the Brief of Argument of the Respondents that the Appellants pleaded contradictory facts regarding the source from which they jointly inherited the land in dispute with the Respondents. This is aside from the fact that the Appellants never pleaded the source of title of the person from whom they inherited the said land and how that source too came about the land in dispute to the original source. Given the pleadings of the Appellants, it is simply impossible to rack up evidence in their favour to support their claim to the joint ownership of the land in dispute with the Respondents.

 

Flowing from all that has been said is that Appellants’ issue 1 is resolved against them.

APPELLANTS’ ISSUE 2:

Dwelling on this issue, the Appellants stated to the effect that the lower court believed that the parties relied on traditional history. Haven referred to pieces of evidence of their witnesses, the Appellants submitted to the effect that the pleadings of the Respondents and evidence adduced by them (i.e. Respondents) were diametrically opposite to theirs (i.e. Appellants). The Appellants also submitted that it was as a result of the conflict in the evidence before it that the lower court posed the question relating to their (Appellants) root of title to wit: “How plaintiffs became part owners, is it by inheritance by Daike/Olodi from Ezebom or from Ugboma. Was it by Ezebom during the life time of Olodi/Ojetete as alleged in the amended rely.” It is the stance of the Appellants that the questions posed by the lower court had been answered by them in their pleadings and evidence. Against the backdrop of this, the Appellants submitted that the rower court misconceived their case. That this being so, the lower court in all probability arrived at a wrong conclusion and cited the case of Ladejobi v. Oguntayo (2004) Vol. 121 LRCN 4912 at 4915, in aid.

The Appellants also submitted to the effect that given the conflicts in the evidence adduced by the parties, the lower court ought to have resorted to the rule as enunciated in Kojo v. Bonsie to resolve the same and which the said court did not do in the instant case. The case of Karibo v. Grend (1992) 3 NWLR (pt.230) 426 at 433, was cited in aid. It is the stance of the Appellants that in view of the pleadings and evidence of parties, this court should disregard the decision of the lower court and grant their claims having regard, to their evidence as shown or contained in Exhibits B, C, D, E and E1, which showed joint ownership of the land in dispute by both parties, The dissenting judgment of Kargo, JSc; in Okhurobo v. Aigbe (2002) Vol. 97 LRCN 1033 at 1075 was cited in aid.

 

Dwelling on this issue, the Respondents submitted to the effect that the arguments of the Appellants that there were material conflicts between the traditional history presented by the parties and that consequently, the lower court was duty bound to apply the Rule in Kojo v. Bonsie to wit: considering the evidence of recent acts of ownership and possession on the land in dispute, in order to resolve same, have no basis, The Respondents cited the cases of Mogaji v. Cadbury Nig. Ltd (1985) 2 NWLR (Pt.7) 393 at 430-431; Falomo v. Onakanmi (2006) All FWLR (Pt.298) 1242 at 1261-1262; and Adekanmbi v. Jangon (2007) All FWLR (Pt.383) 152 at 161, as laying down the circumstances in which the rule in Kojo v. Bonsie would apply. The Respondents submitted to the effect that the lower court could not have resorted to the rule in Kojo v. Bonsie as the Appellants not only failed to plead and/or prove the original owner or founder of the land in dispute, but also led conflicting evidence which was at variance with their pleadings on traditional history.

 

The complaint of the Appellants having regard to this issue essentially is that it was the misconception of their case that resulted in the failure of the lower court to have resorted to the rule in the case of Kojo v. Bonsie in resolving the conflict in the traditional evidence of the parties.

 

The Appellants would clearly appear not to have a good comprehension of the rule in Kojo v. Bonsie vis-a-vis the situation in their own case. The Appellants pleaded contradictory facts regarding how they came to inherit the land in dispute with the Respondents as alleged by them. The lower court found the evidence led by the Appellants on their contradictory averments to go to no issue. The case of BALOGUN V. AKANJI (2005) ALL FWLR (PT.262) 405, (2005) Vol. II MJSC 175, clearly shows when the rule in Kojo v. Bonsie comes into play. In the case what Oputa, JSC; stated in the case of Balogun v. AKANJI (1988) 1 NSCC 180), was set out in extensor with approval. In his pronouncement Oputa, JSC: stated to the effect that testing the traditional histories of parties against acts of recent possession will not apply where the root of title pleaded is Sale and Conveyance nor will it apply where the root of title pleaded and relied upon is Traditional Evidence (as in this case). It is only where and when traditional evidence is inconclusive that the court will be obliged to look at the acts of possession of the parties and therefrom determine on whose side the presumption in Section 145 Evidence Act will operate. That, acts of ownership become material only where the traditional evidence is inconclusive and that cases like Ekpo v. Ita, or Kojo v. Bonsie (1957) 1 W.L.R. 1223; deal with cases where there is a conflict of traditional history. That in such cases the best way is to test the traditional history by reference to the facts in recent years as established by evidence and by seeing which of the two competing histories is more probable. That such a situation does not arise where the trial court was satisfied with the plaintiffs traditional evidence but not with that of the Defendants.

 

As it obtains that acts of ownership and possession in recent times have no application where the trial court is satisfied with the traditional evidence of the plaintiff, it is in my considered that the position of the law is also that where a plaintiff fails to prove or establish the traditional history he relies on in the first place, acts of ownership and possession in recent times, do not apply. The rule in Kojo v. Bonsie is not used to resolve inconsistency in a party’s case. The lower court brought out this position admirably when it stated at page 353 of the record thus:-

“In view of the position of the case of the respective parties, the Court cannot declare both traditional histories inconclusive, which is the basis for the application of the rule in Kojo v. Bonsie. In this case the averments in the plaintiffs’ pleadings as to the root of their title are inconsistent and evidence adduced by them is also inconsistent with their pleading. It is a matter of the plaintiffs not having made out any cast whatsoever in proof of their claim to co-ownership of Ani Ngene. In the, circumstances, the court can on the evidence before it resolve the question on which of the evidence of traditional history is more probable without having recourse to the rule in Kojo v. Bonsie. The court is of the view therefore, in the circumstances of this case that the evidence of traditional history of the defendants is more probable than that of the plaintiffs and I so hold.”

 

I cannot but join the lower court in holding as it did. The lower court clearly showed a clear and proper understanding of the respective cases of the parties in the portion of the judgment re-produced above. In the circumstances, Appellants’ issue 2 is resolved against them.

 

APPELLANTS’ ISSUE 3:

The grouse of the Appellants under this issue is that the lower court did not act judiciously and judicially in the whole, haven regard to the evidence of the parties particularly the documentary evidence of the Appellants.

 

Dwelling on this issue, the Respondents restated the position of the law to the effect that the burden of proof is for the party seeking for a declaration of title to establish his case on the balance of probability’ And that it is for the plaintiff to adduce credible evidence in this regard. That, where the plaintiff fails in this regard, there will be nothing to place on his side of the imaginary scale. It is the stance of the Respondents that the lower court was right in its decision as the Appellants adduced conflicting and/or evidence completely at variance with their pleadings as to the founder of the land in dispute and how same came to devolve on them by traditional history. This is particularly so as were no two competing stories presented due to the conflicting accounts of the Appellants.

 

Haven regard to their arguments, the Appellants definitely placed no document that could establish the traditional history they pleaded, before the lower court. In any event, the position of the law is that documentary evidence is unknown to native law and custom. See OLUDOTUN V. LAWAL (2008) All FWLR (pt.434) 1468. Whatever documentary evidence the Appellants placed before the lower court were tendered to establish acts of possession in recent times. The Appellants having failed to prove the traditional evidence they relied upon cannot rely on acts of possession in the proof thereof. That is the position of the law. See BALOGUN V. AKANJI (supra). See in addition the cases of DABO V. ABDULLAHI (2005) ALL FWLR (Pt.255) 1039; and OYADARE V. KEJI (2005) ALL FWLR (Pt.247) 1583.I have hereinbefore set out the reliefs the Appellants seek in the instant action, against the Respondents jointly and severally. It is in my considered view indisputable that the declaration to the effect that the land in dispute is jointly owned by the Appellants and the Respondents is the central claim. Therefore, a finding that the Appellants are entitled to the same is a sine qua non for the grant of the other reliefs in their favour. The law is settled concerning a concerning a claim for declaration of title to land and it is that “in a claim for declaration of title to land, the plaintiff must succeed on the strength of his own case and not on the weakness of defence”. The plaintiff however can always rely on evidence adduced by the defendant that supports his case. See ANUKAM V. ANUKAM (2008) ALL FWLR (PT.413) 1255 and in which case it was also held amongst others that once a party pleads and traces his root of title to a particular person or family, he must establish how that person or family came to have title vested in them. That he cannot ignore the proof of his overlord’s title and rely on long possession. The respective cases of the parties in the instant action are obviously divergent inasmuch as the Respondents denied joint ownership of the land in dispute with the Appellants as alleged by them. The parties also obviously adduced different evidence in the proof of their respective cases with the Appellants adducing conflicting evidence and indeed evidence that was in line with their pleaded root of title. Against the backdrop of these, and in the light of the cases cited hereinbefore, I do not see how it can be successfully argued that the lower court did not act judiciously and judicially in this case in dismissing the case of the Appellants. Indeed, it would have been a finding in favour of the Appellants in any manner in the face of their pleadings, evidence adduced thereon and position of the law regarding a claim for declaration of title to land, that would have amounted to an injudicious and unjudicial act on the part of the lower court.

 

Flowing from all that has been said above, is that Appellants’ issue 3 is resolved against them.

 

In the final analysis, and having resolved all the issues formulated by the Appellants against them, I find the appeal to be unmeritorious and it fails. The judgment of the lower court delivered on 14/7/2005 dismissing the case of the Appellants in its entirety, is affirmed.

 

Costs in the sum of N50,000.00 is awarded to the Respondents (save the 6th which filed no Brief of Argument) and against the Appellants jointly and severally.

 

Appeal dismissed.

 

 

SIDI DAUDA BAGE, J.C.A.:

I had the privilege of reading in draft the leading Judgment of my learned brother, Lokulo-Sodipe JCA. I am in complete agreement with. The appeal lacks merit and thus dismissed by me. The Judgment of the lower court delivered on the 14/7/2005 dismissing the case of the Appellant in its entirety is also affirmed by me.

 

I abide by the order as to costs contained in the leading Judgment.

 

 

TOM SHAIBU YAKUBU, J.C.A.:

I read before now, the judgment just delivered by my Lord, AYOBODE OLUJIMI LOKULO-SODIPE, JCA.

 

I am in complete agreement with his reasoning and the conclusion he arrived at, that the appeal is unmeritorious and so it failed

 

I only need to add a few words of my own, in support of the lead judgment, particularly with respect to issue 2. The rule in Kojo V. Bonsie (1957) 1 NWLR 1223 is certainly not a magic wand or a talisman to be invoked in all land matters fought on traditional history of acquisition of land. The principle in that case is to the effect that where the traditional history projected by the plaintiff is found to be in conflict with the one projected by the defendant and the trial court cannot find any of them as being conclusive nor one of them is more probable that the other, then the best option left for the trial court to take, is to test the projected traditional histories of the acquisition of the land by the opposing parties by reference to acts of possession and ownership performed by them recently as established and/or demonstrated by evidence, viva voce. Then the court will determine which of the two competing traditional histories, is more probable.

 

The Supreme Court more recently in Ireju Nwokidu & 3 Ors. v. Mark Okanu (2010) 1 SCNJ 167 at page 196, (2010) 3 NWLR (pt.1181) 362 at 398 paras. A-C, gave a guide, thus: “In the scenario before the court, where the case is fought on evidence of traditional history which in other words becomes a matter of hearsay upon hearsay which is the nature of traditional evidence, the trial court in its traditional role of an umpire has a duty to examine the evidence of the parties and come to the conclusion which is more probable in the circumstances of the case, by testing it against the other evidence. Where witnesses of one party contradict each other on the traditional history relied upon, the trial court will be right to reject the traditional history. If the evidence adduced on one side is supportive of the traditional history relied on by the other side, the trial court will be right in accepting the traditional history. It is only when it can neither find any of the two histories probable nor conclusive that he will declare both inconclusive and proceed to decide the case on numerous and positive acts of possession and ownership”.

Hence, the pieces of evidence given by the parties, could all be true or even untrue as they constitute hearsay upon hearsay. Therefore, the question of the credibility of their pieces of evidence does not normally arise. They can be honestly true or honestly untrue. Thus, a trial Judge faced with competing histories regarding the acquisition of a piece of land, through traditional history, has to determine the truth of the histories on the basis of probability that either of them could be true.

See also Jauro Jabbon Shukka & Ors v. Alh. Muktar Bello Abubakar (2012) 4 NWLR (pt.1291) 497, CA.

 

In the circumstances of this case, the learned trial judge at p.353 of the record of appeal, ably and rightly found that even from the pleadings of the appellants, there were inconsistencies as to their root of title to the land in question and so also that their evidence ran against each other, therefore their claim simply failed, therefore a reliance on the rule in Kojo v. Bonsie was not available to them. Hence, the learned trial judge came to the conclusion that the traditional history projected by the respondents, was more probable than that of the plaintiff, which was yet to get up from their side,

 

I, entirely agree with the well considered reasoning and judgment of the learned trial judge, T. O. Diai, J.

 

It is for this and the better articulated reasoning and conclusion of my Lord in the lead judgment that I agree that this appeal is devoid of merits and it stands dismissed.

 

I, abide by the order as to costs contained in the lead judgment.