OGBUKA & ORS v AWA & ANOR

OGBUKA & ORS v AWA & ANOR


IN THE COURT OF APPEAL
IN THE OWERRI JUDICIAL DIVISION
HOLDEN AT OWERRI

ON WEDNESDAY, 17TH FEBRUARY, 2016


Appeal No: CA/OW/378/2013
CITATION:

Before Their Lordships:

ITA GEORGE MBABA, JCA.

PETER OLABISI IGE, JCA

FREDERICK O. OHO, JCA


BETWEEN

OGBUKA OGBUKA

UDO UMA

KALU UMA

KALU KALU AJIKE

UMA UMA

(APPELLANTS)

AND

OKORO AWA

OGBONNE UMA

(RESPONDENTS)


PRONOUNCEMENTS


A. ACTION
1. Pleadings – Effect of pleadings on parties
Whether parties are bound by their pleadings

“It was also held in that case of Eze v. Atasie (2000)9 WRN 73; (2000)10 NWLR (PT.676) 470, that:

“It is elementary law that parties are bound by their pleading and whatever evidence adduced in the course of a trial that is not in conformity with the pleading becomes a non-issue and must be ignored by the trial judge.” See also Abubakar & Anor v. Joseph (2008) LPELR 48 SC, (2008) 13 NWLR (Pt. 1104) 307; Olunde v. Adeyoju (2000) NWLR (Pt.676) 562.”Per MBABA, J.C.A. read in context

B. EVIDENCE
2. Onus of Proof – The duty of he who asserts to prove

Whether he who asserts must prove

“I think, it is now elementary knowledge relating to evidence, burden of proof and argument of appeal, that the party that alleges or makes a 17 claim that is saddled with the duty of proving his or assertion. See Section 131 to 133 of the Evidence, Act, 2011.”Per MBABA, J.C.A. read in context

3. Onus of Proof – Burden on the Claimant to establish his claim in civil actions

On whom lies the burden of proof in a claim for declaration of title to land

“Thus, in every civil claim, especially for declaration of title to land, the burden to establish the Plaintiff’s claim, remains, static, with the claimant and he must do so and succeed on the strength of his own case, not on the weakness of the defendant’s case. See Eyo v. Onuoha (2011) 3 – 4 MJSC 46 at 71; Agboola v. Uba & Ors 2 – 3 MJSC (Pt.II) 150. In the case of Yusuf & Ors v. Akande & ors (2011) LPELR – 511, this Court held:

“A Plaintiff who claims a declaration of title to land has the duty to prove his title by credible evidence, notwithstanding any weakness in the defence, unless the case of the defendant actually supports the Plaintiff’s claim. See also Akinduro v. Alaya (2007) 15 NWLR (Pt.1057) 312; Odunze v. Nwosu (2007) 13 NWLR (Pt.1050) 1; Ogunjemila v. Ajibade (2010) 11 NWLR (Pt.1205) 559 and Balogun v. Yusuf (2010) 9 NWLR (Pt.1200) 515.”Per MBABA, J.C.A. read in context

4. Onus of Proof – Whether weakness of the defence will avail the Plaintiff in an action for declaration of title to land

Whether plaintiff can rely on the weakness of defendant’s case to prove his case in an action for title to land

“Having earlier held that burden of establishing a claim for title to land abides with the claimant, and that the weakness of the defence cannot help the Plaintiff, except where he admits the case of the Plaintiff, it is implied in the above, that a defendant, who has not counter-claimed in a case of title to land, really has no case to prove, as his duty is, solely to defend the action. That duty to defend the action, is enforced only when the Plaintiff has led credible evidence to establish his case, requiring the defendant to lead evidence in rebuttal. See the case of Obiazikwor v. Obiazikwor (2007) 27 WRN 106 at 132 where, my lord, Abba-Aji JCA, said:

“Contradictions in the evidence of a defendant, who by the pleadings, has not the initial burden to prove his case, can only be material in the determination of the case, if the Plaintiff has, in the first place, proved his case. Where a Plaintiff, has not proved his case, contradictions in the evidence of the defendant will not avail or help the Plaintiff in sustaining his claim.” Per MBABA, J.C.A. read in context

5. Onus of Proof – Burden of proof in an action for declaration of title to land

Whether plaintiff’s burden in an action for declaration of title to land shifts

“I had earlier be stated that, in a claim for declaration of the title to land, or any claims for declaratory reliefs, the plaintiff’s burden to establish his case remains, static, and he must succeed on the strength of his own case, not on the weakness of his opponent’s case. See Eyo v. Onuoha (2011) 3-4 MJSC 46 at 71; Agboola v. UBA & Ors 2 – 3 MJSC (pt.11) 150; Nwokorobia v. Nwogu (2009) 10 NWLR (PT.1150) 553.”Per MBABA, J.C.A. (P. 26, Paras. C-E) – read in context

6. Contradiction in Evidence – Effect of contradictions in evidence tendered by the defence

When will contradiction in evidence of Defendant be material

“See the case of Obiazikwor v. Obiazikwor (2007) WRN 106 at 132, where this Court held;

“Contradictions in the evidence of a defendant who by pleadings had not the initial burden to prove his case can only be material in the determination of the case if the plaintiff has, in the first place, proved his case. Where a plaintiff has not proved his case, contradictions in the evidence of the defendant will not avail of help the plaintiff in sustaining his claim.” See also a recent decision of this Court in case of Martin Okorieocha & Anor v. Paul Emereni & Ors: CA/OW/233/2012 delivered on 10/2/16 (page 25) where we said: “Appellant had tried to point out what they claimed to be contradictions in the evidence of the Respondents as to traditional history presented by the Defendants Respondents)- such weakness, even if established, cannot accrue to the benefit of the Appellants, who had a duty to establish their claim of title, via traditional history, by credible evidence. The Respondents did not counter-claim in this case and so they had no burden to establish their claim, in the circumstances to enhance the claim/case of the Appellants, See Eyo v. Onuoha (2011) 3 – 4 MJSC 46 2- 3 KSC (pt11) 150 at 179.”Per MBABA, J.C.A. read in context

B. LAND LAW
7. Title to Land – Ways of establishing title to land

Ways of proving or establishing title to land

“To prove title to land, the claimant must plead and establish at least one of the five (5) methods/ways of proving title to land, namely:

1. By traditional history

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 so as to make it reasonable to infer that the person so exercising such right owns the land;

4. By proving acts of long possession and enjoyment of the land and

5. Proof of possession of connected of adjacent lands in the circumstances rendering it probable, that the owner of such connected and adjacent lands would be the true owner of the land in dispute. See Oyadare v. Keji (2005) ALL FWLR (pt.247) 1583; Idundun v. Okumagba (1976) 10 SC 227; Atufe v. Oghomienor (2004)13 NWLR (pt.890) 327; SUU v. Jobak Nig Ltd. (2012) LPELR 7932 (CA); (2012) 49 WRN 53; Ogah & Anor v. Gidado & Ors (2013) LPELR 20298 CA and Dada v. Falaye (2007) ALL FWLR (Pt.349) 1134.” Per MBABA, J.C.A. read in context

8. Traditional History – Requirements for reliance on traditional evidence to prove title to land

What a party who relies on traditional evidence must establish to prove his title to land

“And for a plaintiff, claiming title to land by traditional evidence, he has to prove how the land was founded, the original founder and the successive persons, through whom title devolved, right down to the plaintiffs, and the chain of ownership must not be broken, as failure to trace the linking chain of persons on whom the title devolved, right down to the plaintiff, can be fatal. See Akanni v. Olaniyan (2006)8 NWLR (Pt.983) 531; Popoola and Ors v. Oyeyemi (1992) LPELR 2922 SC; Ukariwo Obasi and Anor v. Eke Onwuka & Ors (1987) LPELR 2152 SC (1987) (NWLR pt. 61) 364.” Per MBABA, J.C.A. read in context

9. Traditional History – Effect of contradictory evidence of traditional history on an action for declaration of title to land

Effect of contradictory evidence of traditional history of ownership of land

“The law is that:

“Where the evidence of the witnesses of one party is contradictory on the traditional history of ownership the case should fail.” See Ogunjemila v. Ajibade (2010)11 NWLR (Pt. 1206) 559. See also the case of Eze v. Atasie (2000) 9 WRN 73 at 32, where the Supreme Court held: “Where a plaintiff by his pleadings and evidence relies on traditional history for his roof history- The traditional history is then accepted the authorities have established, that where evidence of traditional history is not contradicted or is not in conflict with another that was set up and found by the Court to be urgent, it can support a claim for declaration of title, without further requirement.” Per MBABA, J.C.A. read in context

10. Certificate of Occupancy – Whether Certificate of Occupancy can avail a party that has relied on traditional history

Whether production of certificate of occupancy is evidence of title

“Appellants had also argued that the certificate of occupancy obtained by the Respondents was procured while this Suit was pending and so cannot help the Respondent. I agree with them, that production of certificate of occupancy cannot help a party who failed to establish his title via traditional history relied on, before the issuance of the certificate of occupancy. See the case of SUU v. Jabakalig Ltd (2012) 49 WRN 52; Moggaji v. Cadbury Nig Ltd (004) 23 WRN 54; Ogunleye v. Oni (1990) 2 NWLR (Pt.135) 245.”Per MBABA, J.C.A. read in context


LEAD JUDGEMENT DELIVERED BY MBABA, JCA.


Appellants were the Defendants at the lower Court in Suit NO.HOH/31/2003, at Ohafia Division of Abia State High Court. The Respondents (as Plaintiffs) had taken out the suit against them, seeking the following reliefs:

1. A declaration that Plaintiffs are entitled to the right of occupancy of the parcel of land known as and called “EBE EGBURU ALAWARA” situate at Isiugwu Ohafia, which land was and is at all material times in the ownership and possession of the Plaintiffs, down the family line.

2. Five Million Naira being ordinary, exemplary, proximate, special and general damages for Defendants’ willful, spiteful and continuing trespass to the said land in possession of Plaintiffs.

3. An order of perpetual injunction, restraining the Defendants or any of them by themselves, or their heirs, workmen, servants, successors in title or anybody claiming through or in trust for them from entering into, or interfering with Plaintiffs’ possession and ownership of the said “EBE EGBURU ALAWARA” land” (page 18 of the Records of Appeal).

His Lordship, Hon. Justice, K.C. Nwankpa, after hearing the case and considering the evidence adduced by the parties, delivered judgment on 3/5/2013, upholding the claims of the Plaintiffs (Respondents) and awarding Five hundred Thousand Naira (N500, 000.00) general damages to them.

Dissatisfied, Appellants brought this appeal, as per the 2nd Notice of Appeal on pages 181 to 185 of the Records of Appeal, filed on 22/7/13, disclosing Six (6) grounds of Appeal. Appellants had filed 2 Notices of Appeal and at the hearing of the appeal elected to rely on the 2nd. Appellants filed their Brief of arguments on 17/11/14. The Records of Appeal was deemed duly transmitted to this Court on 12/11/14).

Appellants distilled four (4) Issues for the determination of the appeal as follows:

“(a) Whether the learned trial Judge was justified upon the oral and documentary evidence before Court, in holding that the Respondents proved title to the land in dispute, thereby entitling them to judgment against the Appellants? (Grounds 1, 4 and 6)

(b) Whether the learned trial Judge was right in holding that the Appellants did not prove title to the land in dispute and consequently awarding title to the land in dispute in favour of the Respondents? (Ground 5)

(c) Whether the learned trial Judge was right in disregarding some vital pieces of evidence adduced by the Appellants in proof of their case on the ground that the same were not supported by the pleadings? Same were (Ground 3)

(d) Whether the learned trial Judge was justified in making a finding of trespass against the Appellants and in awarding the sum of N500, 000 as general damages for trespass against the Appellants?” (Ground 2).

The Respondents filed their Brief of arguments on 17/4/15, which was deemed duly filed on 22/9/15. They donated only two (2) Issues for determination, namely:

(1) Whether the Respondents proved their case as required by law in civil cases to warrant the judgment in their favour (Grounds 1 and 2)

(2) Whether the judgment of the trial Court is not consistent with the facts pleaded and evidence adduced at trial. (Grounds 3, 4, 5 and 6).

When the appeal came up for hearing on 1/2/16, Counsel, on behalf of parties adopted their briefs and urged us accordingly.

Arguing the Appeal, Chief E.O. Onyema, who settled Appellants’ brief, on issue one, said that the case of the Respondents as to how they acquired title to the land in dispute (as per paragraphs 3, 4, 5, 5(a) of the further Amended Statement of claim), had been challenged by the Appellants, as per paragraphs 3 -€“ 9 of the Amended Statement of defence, and so Respondents had the onus of establishing their claim; that in action for declaration of title to land, the claimants have a duty to establish their claim and succeed on the strength their case, not on the weakness of the defence. He relied on the case of Kodilinye v. Mbanefo Odu, 2 WACEA 336; Olohunde v. Adeyoju (2000) 76 LRCN 2297 at 2321; Ngene v Igbo (2000) 75 LRCN 451.

Counsel submitted that Respondents failed to prove their title to the land, as they led conflicting evidence on the person (their ancestor) who deforested the land or how he came into the land. He referred us to the evidence of PW1 (Mrs) Ogbonne Uwa) who said in her evidence in chief that the land was deforested by Chief Eke Kalu from Elu Ohafia, who was the founder of the land, but under cross examination said:

“I do not accept that I said that chief Eke kalu deforested the land. What I accept as the true position is that chief Eke kalu purchased the land” (See pages 46 and 79 of the Records of Appeal).

Counsel also referred us to the evidence by the PW2 (Mrs Jane Olugu), who said (in-chief):
“I now say that Eke Kalu from Elu Ohafia was the owner of the land in dispute” (Page 80 of the Records) Under cross examination, she (PW2) asserted the following positions:

“Eke Kalu was the original owner of the land in dispute (page 84 of the Records)

“Eke Kalu of Elu Ohafia became the owner of the land in dispute by purchase. It is true that I do not know from whom Eke Kalu got the land in dispute.” (Pages 84 -85 of the Records)

And that the PW3, under cross examination, said: “I do not know how Eke Kalu became the owner of the land but I know that it is his land,” (Page 91 of the Records)

Counsel said that an appraisal of the above evidence shows that the case presented by the Respondents in proof of the alleged title of Chief Eke Kalu was fundamentally contradictory, inconsistent and unreliable. He said that the Respondents were gambling, asserting right of ownership by deforestation of the land by Chief Eke Kalu and somersaulting to asserting of right by purchase by the said chief Eke Kalu, and even then without, stating or knowing the person from whom the said Chief Eke Kalu bought the land. He added that they claimed the agreement of purchases of the land by Chief Eke Kalu, was available, but failed to tender same in evidence. Counsel urged us to invoke Section 167 (d) of the Evidence Act against the Respondents, that the failure to produce the agreement showed that such evidence, if produced, would be against the Respondents.

Counsel submitted that, having failed to establish the title of the Chief Eke Kalu, the allege transaction between Chief Eke Kalu and Eke Ezema (the latter buying the land from the former) and the land being further sold to Kalu Kalu Mba (the maternal relation of the Respondents) suffered serious credibility problems.

Counsel further argued that the Customary right of occupancy (Exhibit B) which the Respondents also relied upon was obtained while the parties were already locked up in dispute over the land, as evidence showed they applied for the customary right of occupancy in 2002 and were issued same in 2003. He said that, as at 2002, the Respondents admitted they were already before a traditional arbitration, (before Enyinweoffia) over the land in dispute. He relied on the evidence of PW1 on page 76 of the Records, to show that the parties appeared before the Enyinweoffia in August 2002 and about 2 months, thereafter; he referred us to Exhibit A (Application for issuance of the right of occupancy) which, on the face of it, carries 5/9/2002 as the date the application was made; he also referred to the evidence of PW3, who said, under cross examination:

“It is true that the case of the land has gone before the Ezeugo of Isiugwu village before the Certificate of occupancy was issued.” Page 94 of the Records.

Counsel further said that since the Respondents did not prove their title to the land, the purported certificate of occupancy, procured by the Respondent, was a mere midum pactum, just an ordinary piece of paper conveying nothing. He relied on Ogunleye v. Oni (1990)2 NWLR (Pt.135)745; Auta v. Ibe (2003)7 SC 129; Kyari v. Alkali (200 ) 87 LRCN 2096. He added that Exhibits C and D were therefore, spurious and were made by Respondents for the purpose of the case.

He said it was surprising that the trial Court, having noted the contradictory positions of the Respondents, with regards to their evidence on the root of title (Pages 157 – 158 of the Records), turned round to hold for the Respondents (Page 67 of the Records. Counsel relied on the case of Nwokorobia v. Nwogu (2009)10 NWLR (Pt.1150) 550 at 557 to the effect that Evidence that is not consistent, but has discrepancies cannot sustain an action for declaration of little to land.” He also relied on Nsiegbe v. Mgbemena (2007) 10 NWLR (Pt.1042) 364 at 370; Olohunde v. Adeyoju (2000) 79 LRCN 2297.

He urged us to resolve the issue 1 for the Appellants.

On Issue 2, Counsel observed that the onus of proof remained with the Respondents, especially as they (Appellants) did not counter claim; thus, the Respondents were expected to succeed on the strength of their own case; he said that what the trial Court had to consider was whether the evidence given by the Respondents was capable of establishing their case, not whether Appellant proved their claim. He relied on Nrumah v. Ebuzome (2013) 221 LRCN (Pt. 1) 221 at 242; Agbana v. Owa (2004) 5 SC (Pt. II) 57 at 67 -68; Owoade v. Omitola (1988) 2 NWLR (Pt. 77) 413.

Thus, Counsel said, a declaration of title to land cannot be awarded in favour of a claimant, who did not establish his case, simply because the Defendant did not lead credible evidence in support of his defence; that to do so would amount to granting title to Plaintiff, not on the strength of his case but on the weakness of the defendant’s case. He relied on Bello v. Emeka (1981) 1 SC 101 at 122; Adegboyega v. Awe (1993) 3 NWLR (Pt.280) 224 at 241 – 242.

Counsel added that the Appellants could only have had a case to answer, if the Respondents had proved their title to the land; that it only after the Plaintiff has made out a case of title, that consideration of the defendant’s case will arise. See Lion Buildings Ltd v. Shadipe (1976)2 FNR 282 at 290; Umeojiako v. Ezenamuo (1990)1 NWLR (Pt 126) 253; Agu v. Nnadi (2003)10 LRCN 35 at 53; Matanmi v. Dada (2013) 221 LRCN 1 (PT 2) 223 at 241.

Counsel said that it was wrong for the trial Court to have placed the burden of proof on the Appellants in the case. Counsel added that the Appellants had rather given more credible evidence at the trial as to their root of title. He urged us to set aside the judgment, relying on Duru v. Nwosu (1989) 7 SC (Pt.1) 1; Onoburuchere v. Esegine (1985) 1 NWLR (Pt.19) 799.

On Issue 3, Counsel submitted that a party has duty to plead facts, not evidence, in his pleadings; that in the instant case, the trial Court had held on pages 151 to 157 of the Records, that certain pieces of evidence led by Appellants in proof of their defence were not pleaded; he said that a perusal of the pleadings, vis a vis, the evidence led by the Appellants, shows that the trial Court was wrong. He added that the trial Court did not evaluate the evidence of the Appellants properly.

On Issue 4, Counsel said the trial Court was wrong in making findings of trespass against Appellants when it was clear that the Respondents failed to establish their root of title to the land. He said that, where a Plaintiff fails to prove a better title against a defendant, who also claims ownership of the land in dispute, such a plaintiff is not entitled to judgment for trespass. He relied on Akpadiaha v. Owo (2008) 8 NWLR (Pt.669) 439 at 452.

Moreover, Counsel said the Respondent never established that they were in exclusive possession of the land in dispute as against Appellants; he said there was evidence that Appellants had been making use of the land and leasing portions thereof to seasonal farmers. He relied on paragraph 8 of the amended statement of defence and on the evidence, as per the arbitration, that when the Eze Ogo in Council arbitrated over the dispute over the land in dispute, they found in favour of Appellants as owners of the land in dispute. Counsel said this fact was admitted by PW3, under cross examination on page 92 of the Records lines 7 – 8. He also referred us to page 94 of the Records, where PW3 also admitted that when he purportedly sold a portion of the land in dispute to one Kalu Eke Ndukwe, Appellants prevented the said Kalu Eke Ndukwe from taking possession of the land, thereby forcing the PW3 to refund the purchase price to Kalu Eke Ndukwe , over the purported sale.

He submitted that Respondents were not entitled to the damages for trespass and that the amount was excessive, even if Respondents were entitled (which he did not concede). He relied on Umunna v. Okwuraiwe (1978) 6 -7 SC II; Osiji v. Isiocha (1989) 6 SC (Pt II) 158; Akinkugbe v. Ewurum Holdings Ltd (2008) 163 LRCN 119. He urged us to resolve the issues for the Appellants and allow the appeal.

The Respondents’ Counsel, Victor Onen Esq, on their Issue 1, asserted that they proved their case as required by law. He referred us to Exhibits C and D which he said, clearly showed how the Respondents derived title to the land in dispute. He relied on the case of Idundun v. Okumagba (1976) 9 -10 SC 227.

Counsel said the Respondents never pleaded deforestation of this land, anywhere, in the pleadings. He referred us to the further Amended Statement of Claim, pages 15 – 18, of the Records. Thus, he submitted that ppellants’ arguments touching on deforestation was not part of the Respondents’ case at the trial Court. He added that the argument that PW1 and PW2 did not know the person Eke Kalu purchased the land from was misconceived and misleading. He referred us to the evidence of PW1, where she said that “the owner of the land from whom Chief Eke Kalu purchased the land is in the document for the purchase of the land.” (Page 79 of the Records). He said that PW1 was referring to Exhibit C, by so saying.

On the testimony of the PW2, Counsel said there was no inconsistency in her evidence as to the ownership of the land, when she asserted “Eke Kalu was the original owner of the land in dispute” and that” Eke Kalu of Elu Ohafia became owner of the land in dispute by purchase” Counsel said this style of testimony is, perfectly in order, as her later assertion in this case cleared her earlier assertion of the type of ownership Eke Kalu had on the land in dispute. He submitted that the law is that where documentary evidence supports oral evidence, the oral evidence becomes more credible. He relied on Eya v. Olapade (2011) 11 NWLR (Pt.12590 510, ratio 5, Omoregbe v. Lawani (1980) 3 – 4 SC 108; Odunlami v. Nig Navy (2013) 12 NWLR (Pt 1367) 35 ratio 19.

Counsel further said that the law is settled that parties cannot vary or add by words of mouth, to the contents of a written document (Exhibit C in the instant case). He relied on Section 128(1) of the Evidence Act. Therefore, Counsel submitted that assertion in evidence by PW2 and PW3 that they did not know from whom the land came to Eke Kalu of Elu Ohafia or that they did not know how Eke Kalu became the owner of the land, would not count; that those assertions had no evidential value or input on the assessment of or evaluation of exhibit C by the trial Court; that this so, because the best evidence, with regards to document, is the document, itself, and oral evidence is inadmissible to modify, by adding to it, subtracting therefrom, challenging or contradicting the content of such document. Thus, Counsel said the Respondents case, as borne from the pleaded facts, evidence and records of the Court, is more probable, believable, consistent and weighty. He relied on Exhibits C, D and E and on the testimonies of PW1, PW2 and PW3, therefore.

Counsel asserted, again, that Appellants’ Counsel arguments of grounds 1, 4 and 6 at pages 6 – 10 of the Appellant’ brief are grossly misrepresentative of the pleadings, distortions, hypothetical and not borne out of the pleadings at the trial Court and should be discountenanced.

Counsel called our attention to the evidence of the Appellants at the trial Court were largely at variance with their pleadings, and in some cases, incoherent, distortions and outrightly inconceivable. He referred us to paragraph 4 of the Amended statement of defence (page 22 of the Records), and he urged us to compare same with paragraphs 6, 7, 8, 11, 12, 13 and 14 of the depositions of DW1, at page 32 of the Records, as well as with paragraphs 3, 4, 5, 6, 7, 10 and 11 of the depositions of DW3, at pages 37 – 39 of the Records. He also referred us to the cross examination of DW3, when he said;

“I did not inherit the land from anybody, the land is my own abinito”

He said DW3 further said:

“The persons who were present when I redeemed the land are:

i. Chief Uma Udo,

ii. Chief Ogbuka Kalu

iii. Chief Onyeani abosi

iv. Alfred Nkele

Counsel said the above depositions of DW1 and DW3 were at variance with Appellants’ pleadings and should be discontented. He relied on Eta v. Dazie (2013) 9 NWLR (Pt. 1359) 251. He also submitted that even unpleaded facts elicited under cross examination go to no issue. Okwejiminor v. Gbakeji (2008)5 NWLR (Pt.1079) 172; Olora v. Adegbite (2013) 1 NWLR (Pt 1334) 46 ratio 9.

Counsel said Exhibits H, and H1 by Appellants had no evidential value and should be discountenanced. Exhibits H, and H1 were exercise books containing the names of persons D2 said, he recorded upon sale of the land in dispute to them, as seasonal farmers. Respondents’ Counsel said the Exhibit were conceded by DW2 to deceive and misrepresent the issues. Respondents further submitted that, as Plaintiff, they did not need to establish all the five methods of proving ownership to land, to succeed; that the law allows them to plead any of the 5 methods, and to establish any of them. He relied on Ogunleye v. Jaiyeoba (2011) 9 NWLR (Pt.1252) 342, ratios 2 and 3; Onovo v. Mba (2014) 14 NWLR (Pt.1227) 369, ratio 3; Idundun v. Okumagba (supra). He urged us to resolve the issue for them (Respondents).

On Issue 2, Counsel said the judgment of the trial Court accorded with the case of the parties as borne out from the pleadings and evidence on the Records of the trial Court, and that the trial Court properly evaluated the evidence on both sides before reading its decision; he said that the Court does not consider the number of witnesses called by the parties, but considers the quality of evidence and its probative value. He relied on the case of Mogaji v. Odofin (1978) 4 SC 9; Odunlami v. Nigerian Navy (2013) 12 NWLR Pt.1367) 35, ratio 19; Omoregbe v. Lawani (1980) 3 – 4 SC 108.

Counsel said that, where a trial Court unquestionably evaluates the evidence and appraises the facts, it becomes unassailable and the adverse party can only de-bunk same by showing that it was done in a wrong premise or principle of law. He submitted that the arguments raised/articulated by the Appellants on his grounds 5, 3 and 2 failed in all material particulars, to impugn the judgment of the trial Court. He relied on the case of Oke v. Mimiko (No.2) (2014) 1 NWLR (Pt.1388)347 ratio 16; Ebba v. Ogodo (1984) 1 SCNLR 372.

He urged us to resolve the issues against the Appellants and dismiss the appeal.

RESOLUTION OF THE ISSUES

I think only two issues would arise for the determination of this appeal, going by the trend of the issues raised by the Appellant and the grounds of appeal, vis a vis as the judgment of the trial Court as per the Records of Appeal, and given the fact that Appellants never filed any counter- claim in the case (as they admitted in paragraph 5.02 of the Appellants’ Brief). That means, Appellants’ issue 3 cannot arise in the Appeal.

The Issue was:

“Whether the learned trial judge was right in disregarding some vital pieces of evidence adduced by Appellants in proof of their case on the ground that the same were not supported by the pleadings”

I think, it is now elementary knowledge relating to evidence, burden of proof and argument of appeal, that the party that alleges or makes a claim that is saddled with the duty of proving his or assertion. See Section 131 to 133 of the Evidence, Act, 2011.

Thus, in every civil claim, especially for declaration of title to land, the burden to establish the Plaintiff’s claim, remains, static, with the claimant and he must do so and succeed on the strength of his own case, not on the weakness of the defendant’s case. See Eyo v. Onuoha (2011) 3 – 4 MJSC 46 at 71; Agboola v. Uba & Ors 2 – 3 MJSC (Pt.II) 150. In the case of Yusuf & Ors v. Akande & ors (2011) LPELR 5114, this Court held:

“A Plaintiff who claims a declaration of title to land has the duty to prove his title by credible evidence, notwithstanding any weakness in the defence, unless the case of the defendant actually supports the Plaintiff’s claim. See also Akinduro v. Alaya (2007) 15 NWLR (Pt.1057) 312; Odunze v. Nwosu (2007) 13 NWLR (Pt.1050) 1; Ogunjemila v. Ajibade (2010) 11 NWLR (Pt.1205) 559 and Balogun v. Yusuf (2010) 9 NWLR (Pt.1200) 515.

Thus, in this case, Appellants, who did not file any counter claim, could not have had any case to prove, of which the trial Court disregarded vital pieces of evidence adduced to prove.

The two Issues thrown up for the determination of the appeal, therefore, are:

(1) Was the trial judge right in holding that Appellants did not prove their title to the land in dispute? and

(2) Given the state of pleading and the evidence adduced at the trial Court, was it proper to hold for the Respondent that they (Respondents) had proved their claims, to warrant the award of N500, 000.00 general damages for trespass against Appellants?

The 1st issue (above) agrees with Appellants’ Issue 2, while the 2nd Issue, by this Court, sums up the Issues 1 and 4 by the Appellants. I have, already, held that Appellants’ issue 3 has no place in the appeal, and the same is, hereby, struck out for incompetence. I shall therefore consider the appeal on the two issues. I formulated, above.

Having earlier held that burden of establishing a claim for title to land abides with the claimant, and that the weakness of the defence cannot help the Plaintiff, except where he admits the case of the Plaintiff, it is implied in the above, that a defendant, who has not counter-claimed in a case of title to land, really has no case to prove, as his duty is, solely to defend the action. That duty to defend the action, is enforced only when the Plaintiff has led credible evidence to establish his case, requiring the defendant to lead evidence in rebuttal. See the case of Obiazikwor v. Obiazikwor (2007) 27 WRN 106 at 132 where, my lord, Abba-Aji JCA, said:

“Contradictions in the evidence of a defendant, who by the pleadings, has not the initial burden to prove his case, can only be material in the determination of the case, if the Plaintiff has, in the first place, proved his case. Where a Plaintiff, has not proved his case, contradictions in the evidence of the defendant will not avail or help the Plaintiff in sustaining his claim.”

I have said all that to emphasise that the Appellants had no case to prove in this appeal, as they made no formal claim by way of Counter-claim, which would have raised a case to put their title in issue, to prove, or to lead credible evidence to prove at the trial Court. Having not counter-claimed, or assert title to the land, as required by law, to warrant being called upon to prove it, the trial Court was therefore wrong, in my opinion, when it held that the Defendants (who filed no counter claim in the suit) did not provide urgent, credible and conclusive traditional history to sustain their traditional evidence of root of title. See page 167 -168 of the Records, where the trial Court held;

“All these gaps in the evidence, of the Defendants make their evidence of Traditional history inconclusive (see Nwokorobia v. Nwogu (2009) 10 NWLR (Pt.1150) 553 at 557, where the Supreme Court held:

“A party who seeks a relief of declaration of title to land predicated on traditional history, must plead and prove his case with cogent, credible, consistent and uncontradicted evidence. Evidence that is not consistent but has discrepancies cannot sustain an action for declaration of title to land.”

The above Principles of law, cited by the trial Court above, was sound and unassailable, but it was inapplicable in the circumstances, as Appellant, at the Court below, never filed a counter claim or sought a claim or relief for a declaration of title to land, predicated on traditional history. That claim/relief was made/sought by the Respondents. See page 18 of the Records (further Amended Statement of claim). The case of Nwokorobia v. Nwogu (supra) was, in fact, applicable to the Respondent’s who claimed title in the case and appeared to rely on traditional history.

I therefore resolve the 1st Issue for the Appellants that the trial Court was wrong to have placed the burden of proof of title by traditional history on the Appellants, who stated no claim or had no case before the Court.

Given the State of pleadings and the evidence adduced at the trial Court, was it proper to hold for the Respondents, that they had proved their claims, to warrant the award of N500, 000.00 general damages for trespass against the Appellants?

Respondents had claimed title to the disputed land and sought declaration of right of occupancy over the land, which land, they said was at all material times in their ownership and possession, down the family line. (See Paragraph 13 (1) of their further Amended Statement of claim on page 18 of the Records). 0n page 15 of the Records (paragraph 4 of the further Amended Statement of Claim), Respondents had deposed:

“The land was originally in the possession and ownership of Chief Eke Kalu, a native of Elu Ohafia and on 17th January, 1967, he customarily sold the land to one Eke Ezema, a native of Akanu Ohafia. There was a memorandum of customary sale written by one Mr Eke Agwu and executed in the presence of witnesses. The said document was not registered and but stamped. It shall be tendered during the hearing as a receipt to show that such transaction took place “and a copy which was given to their lawyer during settlement of pleadings in (sic) pleaded as the original was subsequently eaten by invading white ants” It was also as a result of that transaction that Mr. Eke Ezema took over the possession and ownership of the said land from that 1967.”

Paragraphs 5, 5a, 6 and 6a of the pleadings showed that the land was later sold to Kalu Kalu Mba by Osu Ezema, the younger brother of Eke Ezema (who succeeded Eke Ezema on the land, when Eke Ezema died) When Kalu Kalu Mba died, he was said to have been customarily inherited by his maternal relations, via his Sister the 2nd Plaintiff (and mother of PW2, called Jane Olugu, and he younger brother, 1st Plaintiff) Respondents also pleaded that, under the Isiugwu native law and custom, inheritance of real property is matrilineal, that is, the maternal relations of ‘Ikwu’ of the deceased inherit him; they said that the plaintiffs were the maternal relations’ or Ndi Ikwu of Kalu Mba. It also states that the 1st Defendant witnessed the sale transaction between, Osu Ezema and Kalu Kalu Mba, and had signed as a witness to Kalu Kalu Mba on 10/11/74, when the sale agreement was written.

The paragraph 5a, of the pleading also said that plaintiffs and Defendants come from the same Umu Olugu but from different houses and mothers; that while the 1st, 2nd, 3rd and 5th Defendants are from the same mother, the mother of 4th Defendant is related of the mother of their mother; that 1st Defendant knows that the land belongs to the plaintiffs and only tries to snatch the land from the plaintiffs, because he saw that there are no longer any substantial men left in the plaintiffs’ family, being ambitious.”

Of course, Respondents had a duty to lead evidence to establish the above claims, to succeed, and their case was by right of purchase/inheritance. While asserting right of inheritance from Kalu Kalu Mba, who purchased the land from Osu Ezema, who inherited the land from Eke Ezema, who bought the land from Chief Eke Kalu, they (Plaintiffs/Respondents) also gave themselves a duty to establish how Chief Eke Kalu came by the land. That appeared to be the kernel of their case.

To prove title to land, the claimant must plead and establish at least one of the five (5) methods/ways of proving title to land, namely:

1. By traditional history

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 so as to make it reasonable to infer that the person so exercising such right owns the land;

4. By proving acts of long possession and enjoyment of the land and

5. Proof of possession of connected of adjacent lands in the circumstances rendering it probable, that the owner of such connected and adjacent lands would be the true owner of the land in dispute. See Oyadare v . Keji (2005) ALL FWLR (pt . 247) 1583; Idundun v. Okumagba (1976) 10 SC 227; Atufe v. Oghomienor (2004)13 NWLR (pt.890) 327; SUU v. Jobak Nig Ltd. (2012) LPELR 7932 (CA); (2012) 49 WRN 53; Ogah & Anor v. Gidado & Ors (2013) LPELR 20298 CA and Dada v. Falaye (2007) ALL FWLR (Pt.349) 1134.

And for a plaintiff, claiming title to land by traditional evidence, he has to prove how the land was founded, the original founder and the successive persons, through whom title devolved, right down to the plaintiffs, and the chain of ownership must not be broken, as failure to trace the linking chain of persons on whom the title devolved, right down to the plaintiff, can be fatal. See Akanni v. Olaniyan (2006)8 NWLR (Pt.983) 531; Popoola and Ors v. Oyeyemi (1992) LPELR 2922 SC; Ukariwo Obasi and Anor v. Eke Onwuka & Ors (1987) LPELR 2152 SC (1987) (NWLR pt. 61) 364.

I had earlier be stated that, in a claim for declaration of the title to land, or any claims for declaratory reliefs, the plaintiff’s burden to establish his case remains, static, and he must succeed on the strength of his own case, not on the weakness of his opponent’s case. See Eyo v. Onuoha (2011) 3-4 MJSC 46 at 71; Agboola v. UBA & Ors 2 – 3 MJSC (pt.11) 150; Nwokorobia v. Nwogu (2009) 10 NWLR PT.1150) 553.

The Respondents had traced their radical title in the land to Chief Eke Kalu of Elu Ohafia, as the one originally in possession and ownership of the land and the said Chief Eke Kalu customarily sold the land to one Eke Ezema (paragraph 4 of the pleadings).

The Respondents’ evidence on the above pleaded facts rather assumed conflicting and confusing scenarios. Pw1 (Mrs. Ogbonne Uma) on page 46 of the Records of Appeal, said:

“The land was deforested by one Chief Eke Kalu. On 17th January 1967, the founder of the land Chief Eke Kalu sold the land to one Eke Ezema from Akanu Ohafia. The sale transaction between Chief Eke Kalu and Eke Ezema in respect of Ebe Egburu lawara land was reduced into writing. One Eke Agwu wrote the Agreement…”

The Agreement was tendered as Exhibit C. She then traced the land by sale and inheritance to Kalu Kalu Mba, (a maternal uncle of the Plaintiffs) whom she said, finally bought the land from Osu Eze, a brother of Eke Ezema (who bought the land from Chief Eke Kalu).

Under cross examination, PW1 introduced the confusion when she said on page 79 of the Records:

“I do not accept that I said that Chief Eke Kalu deforested the land. What I accept as the true position is that Chief Eke Kalu purchased the land. I know the history of the land in dispute. The owner of the land from whom Chief Eke Kalu purchased the land is in the document for the purchase of the land…”

The PW2 (Mrs. Jane Olugu) did not do fare any better. She said on page 80 – 81 of the Records:

“I now said (sic) that Eke Kalu from Elu Ohafia was the owner of the land in dispute. He later gave the land to his relation, Eke Ezema and Eke Ezema gave the land to his brother Osu Ezema and it was Osu Ezema that sold the land to Kalu Kalu Mba. The transaction between Eke Kalu and Eke Ezema was written. I do not know when the transaction between Eke Kalu and Eke Ezema took place. All I know is when my younger brother, Kalu Kalu Mba purchased the land…, my brother Kalu Kalu Mba handed the documents concerning the land to me…”

Under cross examination on page 84 – 85 of the Records of Appeal, PW2 said:-

“It is true I told the Court that the land in dispute came into the family through one Eke Kalu. It is true that the land in dispute is situate at Isiugwu Ohafia… The true position is that some of the land in dispute is that of Akanu Ohafia People. It is true that Eke Kalu was from Elu Ohafia. Eke Kalu was the original owner of the land in dispute. It passed to Eke Ezema after the death of Eke Kalu. Eke Ezema gave it to Osu Ezema. The land was purchased from Osu Ezema my younger brother now late called Kalu Mba. It is true that the people Elu Ohafia do no share common boundaries of land with Isiugwu people. Eze Kalu of Elu Ohafia became the owner of the land in dispute by purchase. It is true I do not know from whom Eke Kalu got the land in dispute. It is true that the Defendants are from Ndi Okpo Compound of Isiugwu Ohafia…” (Underlining mine).

PW3 spoke in the same way, when he said: I do not know how Eke Kalu became the owner of the land…” See page 91 of the Records.

Appellants did not plead that Chief Eke Kalu acquired the land by right of purchase. They said he was “originally in possession and ownership” of the land, and led evidence to that effect, only to somersault, to assert ownership by purchase, upon production of Exhibit C, said to be memorandum of customary sale of the land by Chief Eke Kalu to Eke Ezema. (See page 191 of the Records of Appeal).

Did the Counsel for the Respondents not see the document (Exhibit C) before pleading the same and were the plaintiffs and/or Counsel so naive, legally, to confused acquisition of land as original owner by deforesting it, with acquisition by right of purchase? Certainly, the two cannot co-exist, and where there is a document, memorandum of customary sale (Exhibit C), showing how that the radical title holder, from whom a claimant had the land, got the land by purchasing it, it is unpardonable to plead and led evidence to the effect that then said radical title holder was Original owner of the land, especially where the said holder is a stranger in the place the land situates.

The Respondents had admitted that Chief Eke Kalu was of Elu Ohafia and that situates in Isiugwu Ohafia, and yet they, severally, said he (Chief Eke Kalu) ‘deforested’ the land, and was the ‘founder of the land’ and ‘original owner’.

Such claims and assertions are not compatible with ownership of the same land by purchase. If Respondents intended to rely on the Exhibit C, which showed that Chief Eke Kalu bought the land in dispute (which he sold to Eke Ezema) from different people, namely Ulunjo of Ama Udara Isiugwu, Ohafia and Okpo Okorie of Ndiokpo Isiugwu, at different times, they ought to have pleaded such facts, by amending their pleading to reflect it and to protect the subsequent evidence by PW1 and PW2, that Chief Eke Kalu had the land by purchase.

I think the Respondents were simply gambling. When they discovered their folly, that could not prove how Chief Eke Kalu of Elu Ohafia, could have deforested land, or original owned land in another community, Isiugwu Ohafia, they resorted to the evidence of purchase, which was on exhibit C and which was not pleaded and they did not amend the pleading to accommodate it.

The learned trial Court appeared to have sported the irreconcilable evidence of the plaintiffs, vis a vis their pleading, when it noted on pages 157 and 158 as follows:

“The evidence of CW1 at the initial stage was that Eke Kalu deforested the land. But when asked under cross examination of how Eke Kalu, not from Isiugwu Ohafia deforested the land, CW1 now said that the correct position which she wants the Court to accept as her evidence is that Eke Kalu bought the land and when asked under cross examination of the person Eke Kalu bought from, CW1 stated she did not know but that the name of the person is in the document (ie. Exhibit C).

Evidence of CW2 and CW3 on how Eke Kalu acquired the land accorded with the changed position of CW1 i.e. that Eke Kalu acquired the land by purchase and not pledge and that the name of the original owner from whom he bought the land is in the document (Exhibit C)”

Having made such findings, that the plaintiffs changed their evidence at will to align with realities, thrown up under cross examination, and as per Exhibit C, which exposed the weakness (or falsehood) of their earlier position, how come the trial Court, readily accepted the reversed position of the plaintiffs (which they wanted the Court to accept) when the original and contrary evidence, which accorded with the pleading, was still before the Court and had not been withdrawn?

I think the trial Court was in a grave error by allowing the plaintiffs to play such prangs and profit from what was obvious gambling and distortion of facts and conflicting evidence. The law is that:

“Where the evidence of the witnesses of one party is contradictory on the traditional history of ownership the case should fail.” See Ogunjemila v. Ajibade (2010)11 NWLR (Pt. 1206) 559. See also the case of Eze v. Atasie (2000) 9 WRN 73 at 32, where the Supreme Court held:

“Where a plaintiff by his pleadings and evidence relies on traditional history for his roof history, The traditional history is then accepted the authorities have established, that where evidence of traditional history is not contradicted or is not in conflict with another that was set up and found by the Court to be urgent, it can support a claim for declaration of title, without further requirement.”

It was also held in that case of Eze v. Atasie (2000)9 WRN 73; (2000)10 NWLR (PT.676) 70, that:

“It is elementary law that parties are bound by their pleading and whatever evidence adduced in the course of a trial that is not in conformity with the pleading becomes a non-issue and must be ignored by the trial judge.” See also Abubakar & Anor v. Joseph (2008) LPELR 48 SC, (2008) 13 NWLR (Pt. 1104) 307; Olunde v. Adeyoju (2000) NWLR (Pt.676) 562.

It is surprising that the trial Court rather shifted the burden of proof in the case to the Appellants, who were only defending the suit, without any counter-claim. The trial Court therefore, in my view, misdirected itself to task the Defendants, as if they had a case to prove, to establish their claims, including the issue of pledge raised by Appellants in their pleadings. Even if Appellants failed to prove the alleged pledge, that did not entitle the Respondents to award of title and damages, in the face of their (Respondents) conflicting evidence. See the case of Obiazikwor v. Obiazikwor (2007) WRN 106 at 132, where this Court held;

“Contradictions in the evidence of a defendant who by pleadings had not the initial burden to prove his case can only be material in the determination of the case if the plaintiff has, in the first place, proved his case. Where a plaintiff has not proved his case, contradictions in the evidence of the defendant will not avail of help the plaintiff in sustaining his claim.” See also a recent decision of this Court in case of Martin Okorieocha & Anor v. Paul Emereni & Ors: CA/OW/233/2012 delivered on 10/2/16 (page 25) where we said:

“Appellant had tried to point out what they claimed to be contradictions in the evidence of the Respondents as to traditional history presented by the Defendants (Respondents)-€¦ such weakness, even if established, cannot accrue to the benefit of the Appellants, who had a duty to establish their claim of title, via traditional history, by credible evidence. The Respondents did not counter-claim in this case and so they had no burden to establish their claim, in the circumstances to enhance the claim/case of the Appellants, See Eyo v. Onuoha (2011) 3 – 4 MJSC 46 2- 3 KSC (pt11) 150 at 179.

Appellants had also argued that the certificate of occupancy obtained by the Respondents was procured while this Suit was pending and so cannot help the Respondent. I agree with them, that production of certificate of occupancy cannot help a party who failed to establish his title via traditional history relied on, before the issuance of the certificate of occupancy. See the case of SUU v. Jabakalig Ltd (2012) 49 WRN 52; Moggaji v. Cadbury Nig Ltd (004) 23 WRN 54; Ogunleye v. Oni (1990) 2 NWLR (Pt.135) 245.

I therefore resolve this issue for the Appellants too. I see merit in the appeal and therefore allow it and set aside the decision of the trial Court made on 3/5/2013.

I think, in the face of the obvious blunders by Counsel and the plaintiffs, in the suit, it would have been an appropriate situation to enter a non-suit at the end of the trial. I therefore non suit the case as none of the parties is entitled to judgment, in the circumstances. See First Bank of Nig Plc v. Okon (2009) LPELR – 8346 CA; Jaiyeola v. Abioye (2002) LPELR CA/1/121/93.

Parties to be at their respective Costs.

IGE, JCA.

The judgment just delivered by my learned brother MBABA, JCA was read by me in draft before now.

I am also of the view that the Appellant’s appeal be allowed. I endorse the consequential order contained in the said judgment.

OHO, JCA.

I have been privileged to have preview of the draft of the judgment prepared by my learned Brother, ITA G. MBABA, JCA and I am in agreement with his reasoning and conclusions in non-suiting the case as was presented in the Court below as none of the parties is entitled to the Judgment of the Court.