Dominic Ugwu & Ors V. Egbuaba Igwe Ogbuzuru & Ors (1974)
LawGlobal-Hub Lead Judgment Report
SOWEMIMO, JSC.
When an aggrieved party or his counsel argues an appeal before us, it is necessary that such argument should come within the confine of a rehearing as provided by Order 7 Rule 2 of the Rules of the Supreme Court of Nigeria. The arguable area of grounds of complaints depends on a distinction being made between inferences drawn on fact and direct findings of fact based on an assessment of the credibility of witnesses as contained in the judgment of the lower court. While this court will freely reverse the judges’ findings in the former case, in the latter case it will seldom do so and even then, only with great reluctance. (See Sturge’s Basic Rules of the Supreme Court, 3rd Edition, page 139, paragraph 1). In the present appeal, it does not appear that attention was given to this distinction in the grounds of appeal canvassed before us.
PAGE| 2 The judgment of the lower court is basically one of fact, namely, whether the western boundary of the land in dispute as alleged by the plaintiffs, or whether that alleged by the defendants, is the correct one. The learned trial Chief Justice in this case, sitting at an Enugu High Court, held as a fact that the boundary as pleaded and as described in evidence by the plaintiffs is the correct western boundary and gave judgment granting a declaration of title of the disputed land to the plaintiffs. It is against that judgment that the defendants have appealed to this court.
The claim before the lower court as filed by the plaintiffs is for a declaration of title to a piece of land set out in plan Exhibit O, and this the defendants disputed. The learned trial Chief Justice set out the issue in dispute thus:- “Broadly speaking, the plaintiffs’ case is that the lands of the people of UBAHU clan, to which they belong, are separated from those of NIKE clan, of which the UGWU OMU and AMOJI defendants are members, by the Western boundary as described above; that all lands to the east of this boundary, and stretching therefrom, up to and beyond IDODO River (which include the disputed land) belong to the plaintiffs’ clan, and all lands west of the said boundary (the OGBA ACHIKPA and NGENE MBEKWU land of Amoji Nike people, and that of Nkwubo Uno Nike being contiguous thereto) are owned by NIKE (Defendants’) clan; that the disputed land is owned, from time immemorial, by the plaintiffs’ (OMUNO) people.
On the other hand, the defendants say that the natural boundary between the lands of their (NIKE) clan and those of the plaintiffs’ (UBAHU) clan is the IDODO RIVER: that the land in dispute is on their (that is, western or Nike) side of this natural boundary, and has been in their exclusive possession or ownership time without memory.” We are in complete agreement with this statement as a proper consideration of the pleadings and evidence before the court below. After an exhaustive consideration of the evidence of both parties before him, the learned Chief Justice in concluding his judgment said:- “To include, I accept the evidence of the Western boundary of the disputed land, given by Samuel Igwe Nnamene (P.W.12), a member of the plaintiffs’ family and by surveyor Chidolue (P.W.13), as establishing the point. That boundary stretches from OWO stream, in the south, to the Omijiakpa stream in the north, up to the point, where it joins the IDODO River. I am satisfied on the evidence as a whole, that all the land enclosed respectively in the Plan Exhibits ‘L’ and ‘O’ by the said western boundary, IDODO River and the Enugu/Oghahu railway line, which includes the whole of the disputed land, belongs to the plaintiffs, OMUNO (Ubaju) people; that it is the Western boundary aforementioned that separates the plaintiffs’ lands from those of the defendants.
Accordingly, I hold that the plaintiffs have discharged the burden of proof imposed on them by law. And I reject the defendants’ story. In the circumstances, I grant to the plaintiffs of OMUNO Ubaju, the declaration sought by them in this action.”
PAGE| 3 Learned counsel for the appellants filed and argued three grounds of appeal. Grounds 2 and 3 were argued together, and his submissions on these two grounds were that the plaintiffs’ plan, Ex. O, was not admissible in evidence. In our view this does not seem to be in accord with page 104 of the record of proceedings under “re-examination”, where the following was recorded:- “Re-examined by Anyamene: Q You have drawn a new plan No. EC 301/71 of the land in dispute, in which you incorporated your evidence last week as to the north-east boundary, eastern boundary and southern boundary of the land in dispute, which you said you adopted from Exhibit ‘A’, the plan made by Surveyor Chukwura for the Plaintiffs in this case? A. Yes. Q. On this plan No. EC 301/71, the land in dispute in this case is shown verged pink? A. Yes Plan No. EC 301/71 tendered. Exhibit ‘O’. Q. You superimposed Exhibits ‘C’ and ‘D’ (plans of Nos. 1 to 5 defendants and of Nos. 6 to 8 defendants, respectively) on Exhibit ‘O’ (amended plaintiffs’ plan)? A. Yes, I did. And the resultant plan is Plan No. EC 301B/71, and it supersedes Plan No. EC 236B/71 (Exhibit ‘M’) Q. And you have also super-imposed Exhibit ‘A’ (Plan No. MEC/79/65) made by Chukwura on Exhibit ‘O’ made by you, which shows that while the western boundaries of the two plans differ, the north-east, eastern and southern boundaries are the same?
PAGE| 4 A. Yes. Plan No. EC 301B/71 tendered. Exhibit ‘P’ plan No. EC 301A/71 tendered. Exhibit ‘Q’ supersedes Exhibit ‘N’. ANYAMENE: I apply to amend PLAN No. MEC/79/65 in the Writ and in paragraphs 3 and 9 of the amended Statement of Claim to Plan No. EC 301/71. OBI OKOYE – No objection. Orefo- No objection. COURT: Application granted and amendment sought made accordingly. Close of case for the Plaintiffs.”
It would appear from the record that Exhibit ‘O’ was admitted in evidence without any objection by the defendants/appellants as the amended plan of the plaintiffs/respondents which was made by surveyor Chidolue (P.W. 13). Learned counsel contended that the surveyor did not carry out the survey of the land in a true and precise manner, that is physically, and that, therefore, the dimensions given by him should not be admitted as being so satisfactory as to justify a court in granting the declaration sought. It would seem that learned counsel did not consider what the learned trial Chief justice stated in his judgment to be the land in dispute. We wish to refer in this respect to this portion of the judgment, especially when we consider that what was actually in dispute was the Western boundary.
With regard to the plaintiffs claim, the learned Chief Justice had this to say:- “Accordingly, Surveyor Chidolue has produced two plans of the land in dispute, namely, Exhibits ‘L’ and ‘O’, in which he surveyed only the Western boundary of the said land. With regard to the northern, eastern and southern boundaries of the disputed land, as depicted on these two plans, he adopted the corresponding boundaries of the said land as shown on Surveyor Chukwura’s plan, Exhibit ‘A’, which the plaintiffs agree were accurately delineated by him. While on the plan, Exhibit ‘O’, the southern boundary of the disputed land is shown verged pink, on the other plan, Exhibit ‘L’, the same is shown by means of broken red lines.
From the foregoing it follows that the western northern and eastern boundaries of the land in dispute verged pink on the plan, Exhibit ‘O’ are the same as the corresponding boundaries edged pink on the plan, Exhibit ‘L’, but that the southern boundary of the said land, bordered pink on Exhibit ‘O’, corresponds to, and is the same as, the southern boundary indicated by red broken lines on Exhibit ‘L’. The whole of the Western boundary surveyed by Mr. Chidolue, as shown on his two plans, Exhibits ‘L’ and ‘O’, is constituted from South to North as follows:-
PAGE| 5 (1) by the OWO stream, from its junction with the Enugu-Ogbaho railway line due north-west, to its junction with the Owachi stream; (2) then due north-west, along Isi-Okakpu stream, to the junction of that stream with Ngene Akpatawo stream; (3) Approximately due west and north-west across two foot-paths, then along Iyiura stream due north, crossing another footpath near Olu (Mahogany) tree; (4) still approximately due north to a second Olu (mahogany) tree; (5) still due north to another footpath near Inyi tree; (6) then approximately due north-east to Mba tree, and thence to Uchakulu tree; (7) finally, still due north-east to the Omijiakpa Lake, the source of Omijiakpa stream, then along that stream to a point where it crosses the eastern boundary of the disputed land, as it flows on to empty itself into the Idodo River.”
The contentions of learned counsel for the appellants that the identity of the land was not established would seem to be a misconception of the portion of the evidence of plaintiffs’ surveyor, Mr. Chidolue (P.W. 13) which we have earlier on quoted. An amended plan was prepared and tendered in evidence without any objection by the defendants and marked Exhibit ‘O’. In that plan evidence was led that the plan of 1st to 5th defendants, Exhibit ‘C’ and that of the 6th to 8th defendants, Exhibit ‘D’, were super-imposed on the amended plaintiffs’ plan, Exhibit ‘O’.
We are, therefore, clearly of the view that not only was the plan of plaintiffs’ land properly delineated on Ex. ‘O’ but also that that of the defendants’ was super-imposed, so that all matters in dispute on the boundaries were clearly before the court. We, therefore, do not agree with the contention of learned counsel for the appellants on grounds 2 and 3, but agree with the learned trial Chief Justice that Ex. ‘O’ to which he tied his award of declaration of title in favour of the plaintiffs was clearly identified as the land in dispute. We are also of the view that the case of Mathew Akubueze and Others v. Nzonwanene Nwakuche (1959) 4 F.S.C. 262 is distinguishable from this case because in that case the plaintiffs’ evidence in respect of the land claimed by them was at variance with the contents of their plan and therefore the identity of the land was not clearly established there. For the above reasons, the complaints on grounds 2 and 3 as canvassed before us fail.
In this judgment we have drawn attention to the fact that this court will freely reverse any findings based on inferences drawn from any fact where it is established that such inferential findings are wrong. On ground 1, learned counsel for the appellants contended that the judgment is against the weight of evidence because the learned Chief Justice based his judgment on wrong inferences drawn by him from facts that were established.
In opening this very long argument, he rightly conceded that the trial Chief Justice “took care to examine each fact of the case.” He then contended that the case, as it appeared to him, was not one in which the trial Chief Justice believed one side or the other, and that all that the learned trial Chief Justice did was to draw wrong inferences of fact on which he then based his judgment.
PAGE| 6 Learned counsel proceeded to review the evidence in support of the appellants’ case, but failed completely to relate these to the alleged wrong inferences drawn by the learned trial Chief Justice on such facts in the judgment. In view of the large area of land involved in this case, in view of the fact that the parties had been litigating this land since 1962 and finally because of the attacks made by learned counsel, we think, that in fairness to the parties and to the learned trial Chief Justice, we should refer at length to the relevant portion of the judgment, which reads:- “In a case of declaration of title to land, the burden of establishing their title lies on the plaintiffs: Kuma v. Kuma (1934) 2 WACA 178 at 179.
The plaintiffs must prove acts of ownership extending over a sufficient length of time, numerous and positive enough to warrant the inference, that they are exclusive owners; Ekpo v. Ita (11 NLR 68 at p. 69). And the result depends, not on the weakness of the defendants’ case, but on the strength of the plaintiffs’ case: Amodu Rufai v. J. Ricketts and Ors. (1934) 2 WACA 95 at p. 97. But there may be cases, where the weakness of the ‘defendants’ case may become a source of strength for the plaintiffs’ case: Akunwata Nwagbogu v. M.O. Ibeziako (FSC 205/59).
Applying the above guidelines to the evidence in the case in hand, I have come to the following conclusions: The plaintiffs have led traditional evidence to the effect, as they pleaded in para. 5(d) of their amended statement of claim, that their ancestors settled some stranger elements on ABORI land, which is situated west of Idodo River, and east of the Western boundary as described by them in court, and delineated on their two plans, Exhibits (‘L’ and ‘O’).
This evidence was neither challenged nor contradicted. I accept it. There is also the admission made in evidence in chief by the 5th defendant, Christian Ugwu (D.W.1), that there are EZZA people on the disputed land, who are plaintiffs’ tenants. The plaintiffs testified, and I accept their testimony, that these EZZAS farm on the said land, cut and reap palm fruits thereon, and pay them an annual rent of £5 per person.
And I also accept the testimony of two Ezza people, Nwali Obu Onwe (P.W.9) and Nweke Orata (P.W.10), in support of the plaintiffs’ title. Furthermore, if the evidence of surveyor Chukwura (P.W.1) as to the age of the three old houses of mud walls and palm mat roofs built by the plaintiffs’ people near Iyiura stream is accurate, as I find it so, this means that these houses were erected about 1955 on the disputed land, nec vi, nec clam nec precario, to the west of the IDODO RIVER, and close to the said Western boundary to the southward, long before any dispute over the land ever arose.
The 5th defendant also admitted in evidence in chief that the plaintiffs now have dwelling houses on the said land. Under cross-examination, he said he did not know if the plaintiffs’ people built thereon before 1965; that in 1965 they began to build houses all over the disputed land as delineated on Ugwu Omu plan. PAGE| 7 There is further the evidence given by and on behalf of the plaintiffs in regard to the acts of possession which the plaintiffs and their tenants exercise in and around OMIJIAKPA LAKE and OMIJIAKPA BUSH – fishing, farming, tapping palm wine, lumbering and offering sacrifices to the OMIJIAKPA juju.
On the issue of lumbering, the evidence given by the 1st plaintiff (P.W.2) was unchallenged by both sets of defendants; the evidence given by Olinye Abenyi (P.W.8), another member of the plaintiffs’ family, with regard to the tapping of palm wine at OMIJIAKPA, and that given by yet another member, Olinye Nnamuchi (P.W. 11), who said he fished for 35 years at Omijiakpa, were respectively unchallenged by Amoji and Ugwu Omu defendants.”
Learned counsel referred to the following portions of the judgment as based on wrong inferences drawn from fact. These are:- “(i) It is my finding that the OMIJIAKPA LAKE belongs to, and is worshipped by the plaintiffs’ people; and that the plaintiffs’ people exercise the acts of ownership claimed by them in and around this lake and Omijiakpa bush in their own right, as owners. This finding is important, as the OMIJIAKPA LAKE is part of the Western boundary claimed by the plaintiffs in this case, as separating their lands from those of the defendants. Because of its position on this boundary and in view of this finding, the alleged acts of possession claimed by the defendants in relation to it, have little or no probative value in their favour.
It is noteworthy that Exhibit ‘D’ and the Amoji Nike defendants’ plan, does not show Omijiakpa Lake as a juju (Shrine), nor does it contain any reference to Okokulu juju, alleged to be a juju on the disputed land by Ugwu Omu defendants………. (ii) There remain a few necessary comments on the alleged admissions made by the plaintiffs in Case No. 1/41/ of the Nike Native Court, Exhibit ‘R’; and in the instant case, upon which the defendants have placed so much reliance. In the 1941 case – Case No. 1/41 of Nike Native Court, Exhibit ‘R’ – One Julius Ugwu of Ugwu Omu, on behalf of Ugwu Omu quarter on Nike sued Nnamuoh Nwoke and 19 others of Nkubo quarter of Nike for damages for trespassing on NGENE MBEKWU land of Ugwu Omu, and cutting several Ugba trees thereon. At the hearing of the Suit in the Nike Native Court, Egbuaba Ede, 2nd plaintiff in present suit, gave evidence for the Ugwu Omu (Nos. 1 to 5 defendants’) people, and said that many years ago the Ugwu Omu people ‘leased’ their farming land NGENE MBEKWU to his (present plaintiffs’) people of OMUNO UBAJU: and that shortly before his evidence in that case, he saw 17 men from Nkwubo quarter of Nike cut Ugba trees thereon.
PAGE| 8 There was no plan in that case to fix the position of the said NGENE MBEKWU land either in relation to the surrounding physical features and landmarks, or with regard to the two boundaries claimed by the parties in the instant case, namely, the IDODO RIVER and the WESTERN BOUNDARY of the disputed land, as constituted by OWO ISIOKAKPU and IYIURA streams and the OMIJIAKPA LAKE. Furthermore, the outcome of that case was inclusive, as the judgment given for the plaintiffs of Ugwu Omu by the Nike Native Court, and confirmed on appeal, was set aside on review by the Assistant District Officer, Mr. Geoffrey Horne, who ordered a retrial……… (iii) The plaintiffs of OMUNO UBAHU tendered in that case PLAN NO. MEC/197/62, Exhibit ‘E’ in these proceedings: and the defendants of UGWU OMU NIKE filed PLAN NO. R. 112/62, Exhibit ‘C’. In regard to the Plan, Exhibit ‘E’, it is important to notice that (1) there are two portions of land involved, namely the undisputed area, which was verged yellow; and the disputed portion comprising OBERA, OGBAGBA AND IYIURA lands which were verged pink; (2) the disputed area which includes NGENE MBEKWU land is well to the West of OMIJIAKPA land and stream and IYIURA stream………… In Suit No. E/8/64, Exhibit ‘S’ brought by the plaintiffs’ people in the High Court at Enugu, they claimed title to OBERA, IYIURA or NGENE MBEKWU. Mr. Obi Okoye, learned counsel for the Ugwu Omu defendants, in the hope of relying on the admission made in 1941 by the 2nd plaintiff in the Nike Native Court suit, Exhibit ‘R’ in Exhibit ‘F’ that NGENE MBEKWU belonged to the Ugwu Omu people, put to the 1st plaintiff in cross-examination that IYIURA land his people claimed in 1964 in Exhibit ‘S’ is another name for NGENE MBEKWU land. To this question the 1st plaintiff (P.W.2) replied in the negative, and added that, if it was so written, it was a mistake.
Similarly, Mr. Eze Ozobu, learned counsel for the Amoji Nike defendants, relying on the admission he had earlier elicited from the 1st plaintiff under cross-examination, to the effect that Amoji Nike people ‘leased’ OGBA ACHIKPA and two other lands to his (1st plaintiffs’) people, he put to him that OGBA-ACHIKPA and IYIURA are names for the same piece of land. The 1st plaintiff replied in the negative, and said that they are two different pieces of land separated by OKPOKORO Iyiura.
And learned counsel sought to contradict him, in my view, quite improperly, by putting in Exhibit ‘F3’ the evidence given in the 1962 suit, Exhibit ‘F’ by one Ani Edeoga, a member of the plaintiffs’ family, to the effect that OGBA ACHIKPA AND IYIURA are the same piece of land but differently named. It is enough to dispose of this matter to say that Ani Edeoga’s evidence in the 1962 is not evidence in this suit, and is not binding on the plaintiffs. .”
PAGE| 9 Apart from drawing attention to these portions, we are unable to find any wrong inferences drawn from facts and with respect, learned counsel himself failed completely to pin-point any such wrong inferences. We, therefore, hold that ground 1 also fails. The appeal, therefore, fails.
The judgment of the learned trial Chief Justice of the East Central State given in suit No. E/92/65 on 20/11/72, whereby the plaintiffs were granted a declaration to all that parcel of land shown on plans Exs. (‘L’ and ‘O’) is upheld.
The appeal is dismissed with costs assessed at N397.00 against the defendant/appellants. And this shall be the judgment of the court.
Other Citation: (1974) LCN/01360(SC)
