Okorie Echi & Ors. V. Joseph Nnamani & Ors (2000)
LAWGLOBAL HUB Lead Judgment Report
EJIWUNMI, J.S.C.
The action that led to this appeal was commenced by the appellants at the High Court of the defunct Anambra State High Court presided over by Okadigbo J. The appellants had in that action sued the respondents claiming the following reliefs:-
“(a) Declaration of title to the piece and parcel of land known as and called Agbirigba and Ogoye situate at Awkunanuw in this judicial division.
(b) N200.00 being general damages for trespass.
(c) An order of perpetual injunction to restrain the defendants their agents and assigns from further trespass into the said land.”
Pleadings were filed, exchanged and amended with the leave of the trial court. Though the respondents were sued jointly by the appellants, the suit was defended upon two separate statements of defence. The 1st-3rd respondents filed their own statement of defence, and the 4th-6th respondents also filed their own separate statement of defence.
At the hearing, both sides, i.e. the appellants and the 1st-3rd respondents, called witnesses in support of their respective cases. The 4th-6th respondents offered no evidence at the trial in the High Court. Exhibits were also admitted in evidence at the trial. The case for the appellants was that the land in dispute was communally enjoyed by them and the two sets of respondents until 1943. The appellants claimed that at a family meeting held that year between the parties, it was resolved that the respondents should be the exclusive owners of Achara Ukwu (now Achara Layout in Enugu) and Owerre Agbai lands. And that the appellants, were given to own exclusively Agbirigba and Ogoye lands. In their capacity as owners of the said lands, the appellants claimed that as owners of the said land, which are now in dispute, they enjoyed maximum acts of ownership over them by farming on them, reaped economic trees thereon, and leased/let out portions thereof.
The 1st-3rd respondents denied that no family meeting was held in 1943 with the appellants and the 4th-6th respondents when lands were shared as claimed by the appellants. They claimed that the appellants as well as the 4th-6th respondents were strangers (Awbias) in Awkunanaw and such do not own any land in common with the free borns (Amadis). They denied that the appellants exercised acts of possession over any part of the disputed lands. The only land that the appellants are entitled to is the Ugwuaji settlement granted to them in 1928 by the free borns. The 4th-6th respondents, were according to the 1st-3rd respondents, equally Awbias whom they also granted land.
The 4th – 6th respondents by their pleadings also, on their part, denied that the lands in dispute belong to the appellants. They claimed that the lands in dispute were jointly owned by them and the 1st- 3rd respondents. Also pleaded was suit No. E/165/71 where it was allegedly held that Achara Ukwu land is jointly owned by the 1st-3rd respondents and the 4th-6th respondents. With the conclusion of the hearing of evidence, and addresses by learned counsel for the parties, the learned trial judge delivered a considered judgment. By that judgment the appellants claims were dismissed. Dissatisfied with that judgment, the appellants appealed to the Court of Appeal. Enugu Division. They lost again in that court, and have now further appealed to this court, following the leave granted to them. At the hearing before this court, the learned counsel appearing for the parties pleaded reliance on their respective briefs, and also addressed the court thereon. The appellants in their brief raised three issues for the determination of the appeal. Also three issues were raised in the brier filed for the 1st-3rd respondents. For the 4th – 6th respondents, two issues were raised in their brief.
After due consideration of the issues so raised in the briefs filed on behalf of the parties, it is my view that the issues set down in the various briefs, are similar in terms of their purport and intent. I will. However, consider this appeal on the basis of the issues identified in the appellants’ brief. They read thus:-
“1. Were the learned Justices of the Court of Appeal right when they held that the failure of the plaintiffs to lead evidence on how the two families (plaintiffs and defendants) acquired title to the lands in dispute was fatal to their claim when the plaintiffs did not rely on traditional evidence in proof of their title’
- Were the learned Justices of the Court of Appeal right when they held that the plaintiffs did not rely on acts of possession in proof of their title but rather on the alleged sharing of the land in dispute in 1943 If answered in the negative, were the learned Justices of the Court of Appeal right when they failed to investigate the plaintiffs’ complaint that they have proved the ownership of the land in dispute by adducing acts of possession sufficient and numerous to warrant the inference that they were the exclusive owners of the lands in dispute,
- Were the learned Justices of the Court of Appeal right when they failed to pronounce on issue No, 2 raised by the plaintiffs before them on the ground that a resolution of the said issue is not material for determining the live issue in controversy in this case
On a proper appraisal or issues 1 & 2 raised in the appellants’ brief, I think that they could be conveniently considered together. This is because the argument proffered in their brief and during the oral hearing before us is concerned with whether the court below appreciated their claim with regard to their root of title to the disputed lands. It is therefore argued for the appellants that as the court below had rightly held that the trial court was in error when it held that the appellants relied on traditional history in proof of their title, the court below, however, fell into error by holding that the appellants did not lead evidence of traditional history in support of their case. It was therefore submitted that as the court below contradicted itself by demanding that evidence of traditional evidence should have been led to support appellants’ case, having already held that their case was nor based on traditional history, their appeal should he allowed.
On issue 2, it is contended for the appellants that the court below misdirected itself when it held that the appellants did not rely on acts of possession in proof of their title to the land. But rather on the alleged sharing of the lands in dispute in 1943. It is the further contention of learned counsel for the appellants that as sharing of land is not one of the five methods of proving title to land, the appellants are not required to lead evidence in that regard. Their counsel has therefore argued for the appellants that as their root of title is based on possession, the court below should have accepted their evidence on acts of possession as given in relation to the use to which the disputed land was put by them. In support of all the arguments advanced for the appellants in respect of the two issues, reference was made to the following cases: Nelson Nwosu Onwugbufor & 2ors v. Herbert Okoye & 3ors (1996) 1 NWLR (Pt.424)252; (1996) 1 SCNJ 1 at pages 20-21; Chief Oyelakin Balogun & 2ors v. Oladosun Akanji & Anor (1988) 1 NWLR (Pt.70) 301; (1988) 2 SC (Pt.2) 199 at 239; Wuta Ofei v. Danguah (1961) 1 WLR 1238 at 1243; Osafi v. Odi (1994) 2 NWLR (Pt.325) 125 at 141; Oluwi v. Eniola (1967) NMLR 339 at 340; Adegbite v. Ogunfaolu (1990) 4 NWLR (Pt.146) 578 at 597.
The response of the 1st – 3rd respondents as could be gathered from their brief may be put thus – The court below was right to have observed that the appellants ought to have in the first place pleaded traditional history and led evidence to establish that they were joint owners of the disputed land with the 1st -3rd respondents. This point, it is argued must first be established for the appellants to prove their claim that the disputed land was shared or partitioned to them in 1943. If on the other hand it is held that the Court below was wrong in that regard. That observation is not enough to conclude that there was a miscarriage of justice to entitle the appeal to be allowed. Moreso, as the dismissal of the appellants’ appeal was based on the ground that they failed to establish their claim as per their pleadings.
On issue (2), the argument proffered for the 1st – 3rd respondents is simply to the effect that the appellants cannot be complaining about the failure of the court below to acknowledge and accept their evidence of acts of ownership on the disputed land, when they had failed to establish their claim to the possession of their disputed land by sharing. It is therefore urged that the appeal be dismissed. The arguments offered for the 4th – 6th respondents in their brief is not dissimilar to that which have been noted above for the 1st – 3rd respondents. I therefore do not consider it necessary to relate them.
In support of their submissions, the following authorities were brought to our attention – Linus Onwuka & anor. v. R.I. Omogui (1992) 3 NWLR (Pt. 230) 393, (1992)} SCNJ 98; Fashoro & Anor v. Beyioku & Ors( 1988) 2 NWLR (Pt.76)26}.
Having regard to the argument proffered for the parties, it seems to me that the primary question which falls for determination in respect of this issue is whether the onus of proof was wrongly placed by the Court below and the trial court. To properly determine this question, I must refer to the pleadings. It is undoubtedly trite that parties are bound by their pleadings. See Incar (Nig.) Ltd. v. Benson Transport Ltd. (1975) 6 SC 117; Solana v. Olusanya (1975) 6 SC 55; Metal Construction (W.A.) Ltd. v. Migliore (1979) 6-9 SC 163; Kano v. Ojelakin (1993) 3 NWLR (Pt.282) 399.
For this purpose I will reproduce paragraphs 4, 4(a), 5 and 6 or the appellants Amended Statement of Claim, and also paragraphs 3, 5, 6, & 7(a) of the 1st- 3rd respondents Statement of Defence. Paragraphs 4, 4(a), (5) and 6 of the appellants Amended Statement of Claim read thus:-
“4. About 1943 the members of the plaintiffs’ family and those of the defendants at a family meeting resolved that Nduno Isiagu should own exclusively the Achara Ukwu and Owerre Agbai lands and while the plaintiffs should take exclusively Ogoye land and Agbirigba land with the Ayo stream forming a common boundary.
4(a) The land in dispute is bounded as follows:-
(a) On the East by the land of Umuagwula family of Ndiaga and the land orUmuna-Ugwu family which are separated from the land in dispute by the Ngene-Ekwe stream.
(b) On the West by the land of Umuna-Ugwu family and the lands of Umuzeoha.
(c) Un the North by the land of Umuewonkwu-Ochio family of Umunnaji Ngene now army Barracks and separated from the land in dispute by the Enugu to Ugwaji road.
(d) On the South by the land of Umuezeoha family and Owerri Abai, the land of Isiagu Ndiuno people separated by the Ndem Nde Stream on the plaintiffs’ boundary with Umezeohaand the Ayo Stream on the plaintiffs’ boundary with Owerri Abai land of lsiagu Ndiuno people.
(5) By 1958 the economic value of Achara Uku land increased considerably. The defendants granted bases and sold various parts of the said land and enjoyed all the proceeds exclusively.
(6) As the said owners in possession of the said Ogoye and Agbirigba lands the plaintiffs have since the family resolution which led to the partition, enjoyed maximum rights of ownership and possession over the area by farming the land and enjoying the economic trees without let or hindrance. The plaintiffs also allowed farming tenants who paid tribute to them.
Paragraphs 3, 5, 6 and 7(a) of the 1st – 3rd respondents Statement of Defence read thus:-
“(3) The 1st, 2nd and 3rd defendants deny paragraphs 4 and 4(a) of the Statement of Claim and will put the plaintiffs to the strictest proof of the allegation therein. The 1st. 2nd and 3rd defendants further say that their families had held no meeting with the plaintiffs since 1928 when the plaintiffs together with other Awbias, (strangers) from Amechi and Okeagu were given the Ugowe settlement where they now live.
(5) As regards paragraph 5 of the Statement of Claim, the families of the 1st, 2nd and 3rd defendants had been enjoying Achara Ukwu land from time immemorial …..
(6) The 1st, 2nd and 3rd defendants deny paragraph 6 of the Statement of Claim and will put the plaintiffs to the strictest proof of the allegations therein.
7(a) The 1st, 2nd and 3rd defendants deny paragraph 7 of the Statement of Claim. The 1st, 2nd and 3rd defendants further say that their families had been farming on the lands in dispute from time immemorial and various sections of the families had planted pillars in their own portion before 1970.”
It is manifest from a perusal of the above pleadings that the appellants had the burden of establishing that the disputed lands were shared to them in 1943, and they would have to also establish what relationship they had with the 1st – 3rd respondents with regard to the lands to entitle them to the lands allegedly shared to them.
In its consideration of the appeal, the Court below noted that although issues were joined in the pleadings, the issues so joined did not include traditional history. The learned trial judge was therefore wrong to that extent. But having said that, the court below then considered the evidence relied upon by the appellants to ground their claim to the disputed land. In this regard reference was made to paragraph 4 of the appellants Amended Statement of Claim wherein they had alleged that they became owners in possession of the disputed lands following the
grant made to them by the 1st – 3rd respondents.
Then upon that pleading of the appellants, the Court below observed thus:-
“This seems to assume that the two families previously owned the entire land involved. How they came to own the land was in no way pleaded, They ought to have pleaded dearly in what way the two families became exclusive owners of the land originally, that is to say, their root of title and led evidence in support. When Nwobodo Agu gave evidence as P.W.1. he said:-
“I know the land in dispute which is the property of the plaintiffs. About the year 1943 the plaintiffs’ family and the defendants’ family held a meeting in which it was agreed that the defendants family should own exclusively Achara Ukwu and Owerre Abias bnds while the plaintiffs should own exclusively Ogoye and Agbirigba land.”
When cross-examined, he said inter alia:- .
“It is not true that the Ugwuaji land was originally owned exclusively by the Amechi people. It was jointly owned by Amechi and Obuagu people. There are some land communally owned by the families in Amechi.”
Thereafter, the court below, per Uwaifo, J.CA. (as he then was) said:-
“It was this bare evidence that the plaintiffs’ relied on as root of title. I cannot see how this can avail them in support of a declaration of title. In Mogaji & Ors. v. Cadbury. (Nigeria) Ltd. and Anor (1985) 2 NWLR (Pt.7) 393. the Supreme Court held that a person who traces his title to a particular person or family must establish the root of title of that person or family. Without the plaintiffs ill the present cast establishing how the two families mentioned by them acquired the land said to have been shared, they can never rely on the alleged sharing to obtain a declaration of title.”
The appellants’ have attacked the judgment of the Court below on the ground that having held earlier that the trial court was wrong to have in their judgment faulted the appellants for not leading evidence on traditional history. This complaint of learned counsel for the appellants is a total misconception of the judgment of the court below. At the risk of repetition, it must be said that what the court below emphasised in its judgment was that the appellants were required to prove how they became entitled to be granted the disputed lands as they have claimed. They, certainly as they have sought to argue, pleaded that they suddenly found themselves on the land, and have remained in undisturbed possession since they round themselves on the land in 1943. They have not as found by the court established their claim to the disputed land, upon the evidence led at the trial. It is also noteworthy that though the trial court found against them on the sharing of the land, as they have alleged, they did not as rightly observed by the court below, appeal against that finding. It is manifest that there is no merit in respect of the two issues and I so hold.
The appellants have by their issue 3, complained that the court below was wrong to have failed to consider issue 2 in the course of the judgment of that court. I think that complaint was misconceived by their learned counsel. The question raised before the appellant court was duly considered. But because the court below having considered that the failure of the trial court to make a finding as to whether the appellants could hold land with the 1st-3rd respondents is not crucial for the success of the appeal since they have not established or led evidence to establish that they enjoyed such a historical right with the 1st- 3rd respondents, then went on to consider the other issues raised in the appeal.
As I do not find any merit in the complaint of the appellants on this issue. I must resolve it against them. Before concluding, I must allude to the settled principle that in all cases where a plaintiff is seeking for declaration of title to land, the burden lies on such a plaintiff to prove his case on his evidence. And will fail if he fails to discharge that burden. See Kodilinye v. Odu (1935) 2 WACA 336; Elufisoye v. Alabetutu (1968) NMLR 298: Gankon v. Ugochukwu Chemical Industries Ltd. (1993) 6 NWLR (Pt.297) 55: The appellants in this appeal failed to discharge that burden as found both by the trial court and the court below. These are concurrent findings against which the appellants have to advance any cogent argument for them to be disturbed. It must be borne in mind that for such findings to be interfered with by this court, exceptional circumstances must be shown by the appellants. See -Ntiaro v. Akpan (1918) 3 NLR 10; Lawal v. Dawodu (1972) 1 All NLR (Pt.2) 270; Lengbe v. Imade (1959) SCNLR 640; (1959) WNLR 325; Anaeze v. Anyaso (1993) 5 NWLR (Pt. 291) 1.
In this appeal, no such circumstances have been shown to persuade me to interfere with the concurrent findings of the court below and the trial court. In the result this appeal is dismissed, and I affirm the judgment of the court below, N10.000 costs are awarded to the two sets of respondents.
SC.127/1994
