Clement Okonkwo & Ors V. Ichie Peter Nwude Okafor & Ors (2016)

LawGlobal-Hub Lead Judgment Report

MASSOUD ABDULRAHMAN OREDOLA, J.C.A.

This is an appeal against the judgment of the Anambra State High Court, sitting in Awka (hereinafter referred to as the Lower Court), delivered by Hon. Justice M. I. Onochie, J. on the 10th day of September, 2009. The appellants were the defendants at the Lower Court and the respondents were the plaintiffs. The respondents in their statement of claim filed on the 3rd day of February, 2006 claimed against the appellants jointly and severally the following reliefs:
?(a) A declaration that the plaintiffs are entitled to the grant of a statutory right of occupancy over the parcel of land variously known as ?Ana Isi,? Obu Enika? or ?Okpuno Enika?, situate at Nkpu Odupa, Ifite Village, Enugwu Agidi and shown verged green in survey plan number AC/LD. 27/2005.
(b) N100,000.00 being damages for trespass.
(c) Injunction restraining the defendants by themselves or through their servants, workers, agents or in any manner howsoever from interfering with the plaintiff?s ownership and possession of the said land.?

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The parties duly filed and exchanged pleadings and the suit was heard on the state of pleadings. The respondents led evidence whereby they called two (2) witnesses; while the appellants followed suit and called five (5) witnesses. At the end of it all, the Lower Court entered judgment in favour of the respondents in the following terms:
?In conclusion, I hold that the plaintiffs? claim succeeds and I make the following orders:
(i) I hereby declare that the plaintiffs are the persons entitled to the right of occupancy over all that piece and parcel of land shown verged green in plaintiffs? survey plan No. AC/LD27/2007 prepared by A. S. C. Anaebonam, registered surveyor.
(ii) I award the sum of ?10,000.00 as general damages in favour of the plaintiffs against the 1st defendant.
(iii) There shall be an order of injunction restraining the 1st defendant, his servants, agents, workmen and privies from committing further acts of trespass on the land in dispute.
There shall be ?20,000.00 cost in favour of the plaintiffs against the 1st defendant.?

?Expectedly, the appellants being dissatisfied with the

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said judgment, appealed against it to this Court vide their notice of appeal dated and filed on the 10th day of December, 2010. It contained eight grounds of appeal. The said grounds of appeal without their particulars are reproduced below:
?(1) GROUND ONE-ERROR IN LAW
The learned trial judge erred in law in shifting the burden of proof on the defendants/appellants because of what the Court termed admissions in statement of defence.
(2) GROUND TWO-ERROR IN LAW
The learned trial judge erred in law and violated the principle in UKAEBGU VS. NWOLOLO (2009) 3 NWLR (Pt. 1127) 194 when he held that the plaintiffs proved their title to the land in dispute by traditional evidence.
(3) GROUND THREE-MISDIRECTION IN LAW
The learned trial Judge misdirected himself on law and therefore came to a perverse decision when he stated:-
?The plaintiffs in order to prove their title to the land in dispute in this case only needs to prove the particulars of the intervening owners through whom they claimed. The plaintiffs pleaded their line of descent to Gaga, their ancestor and their line of descent pleaded

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in paragraphs 13 to 17 of their statement of claim was admitted.”
(4) GROUNDS FOUR-ERROR OF LAW
The Court below erred in law in holding that the defendants accepted that the land in dispute was family land of the plaintiffs when the defendants never accepted plaintiffs thesis of reversion to plaintiffs family after the death of Onyeobuna childless and thus led to a perverse decision.
(5) GROUND FIVE ? ERROR IN LAW
The learned trial judge erred in law in failing to evaluate properly or to all (sic) the totality of evidence led in the case.
(6) GROUND SIX ? ERROR IN LAW
The learned trial judge erred in law in failing to evaluate properly or at all Exhibit ?D? ? the 1st defendant?s 1976 Deed of Conveyance ? and the significance of the 1st defendant surveying the land in dispute as far back in 1976.
(7) GROUND SEVEN ? ERROR IN LAW
The learned trial judge erred in law in entering judgment for the plaintiffs when they did not prove their case through any of the five ways of proving title to land.
(8) The

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Judgment is against the weight of evidence.?

In accordance with the rules of this Court, the parties duly filed and exchanged their respective briefs of argument. The appellants? brief of argument was prepared by Chief O. B. Onyali, SAN. It was filed on the 27th day of October, 2011. The respondents? brief of argument was settled by O. R. Ulasi, SAN. It was filed on the 9th day of December, 2011. In response to the respondents? brief, the appellants? counsel filed the appellants? reply brief on the 20th day of December, 2011.

In his appellants? brief of argument, learned senior counsel to the appellants formulated five (5) issues for determination in this appeal. The issues are reproduced below:
?(i) Whether the Court below was right in shifting the burden of proof on to the appellants because of what it termed admissions in the defence case. (Grounds 1 and 4)
(ii) Whether the respondents established their title to the land in dispute by traditional evidence. (Grounds 2 and 3)
(iii) Whether the Court below evaluated properly or at all the evidence led in the case. (Grounds 5 and 8)<br< p=””

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(iv) Whether the Court below evaluated properly Exhibit ?D? and the significance of the 1st appellant surveying the land in dispute as far back as 1976. (Ground 6).
(v) Whether the respondents proved title to the land in dispute through any of the five ways of proving title to land. (Ground 7).?

The learned senior counsel to the respondents on his own part formulated three (3) issues for determination in this appeal. The issues are as follows:
?1. Whether the learned trial judge was right in holding that the onus is on the appellants to prove not only the alleged sale but also that the respondents have ceased to be the owners of the land originally owned by their ancestor Gaga?(Ground 1)
2. Whether the learned trial judge was right in not placing any evidential value on exhibit D?(Ground 6)
3. Whether the learned trial judge was justified in entering judgment for the respondents based on the pleadings and the preponderance of evidence by the parties in this case? (Grounds 2, 3, 4, 5, 7, and 8).?

?After a careful and detailed analysis of the evidence on record, judgment of the Lower Court, grounds of

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appeal, issues formulated from the said grounds of appeal and arguments in support thereof; I am of the view that the real issues which calls for determination in this appeal and are sufficient for the resolution of the appeal are as follows:
1. Whether the respondents proved title to the land in dispute through any of the established five ways of proving title to land.
2. Whether the Lower Court was right in shifting the burden of proof on to the appellants.

The two (2) issue above form the fulcrum of the appellants? appeal and was equally shared by the respondents. Again, both are similar or akin to the issues formulated by the parties respectively.
Howbeit, the issues are intertwined and as such, they would be addressed and/or considered together in this judgment.

ARGUMENTS ON ISSUES: ISSUES 1 & 2
It was the contention of the learned senior counsel to the appellants that the respondents failed to prove their title to the land in dispute through traditional history as laid down in a plethora of authorities on the point. He referred us to the cases of Nkado v. Obiano (1997) 5 NWLR (Pt. 503) 32; Ukaegbu v. Nwololo (2009)

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3 NWLR (Pt. 477) 177; among others. The learned senior counsel submitted, that the respondents having failed to establish their title cannot rely on the weakness of the appellants? case. He went further to highlight the pieces of evidence given by the respondents before the Lower Court and concluded that it was not enough for the respondents to claim to have inherited the land in dispute from their ancestor (Gaga), they must also plead and prove how the said ancestor acquired or came to own the land, failure in respect of which, the respondents would be held not to have been entitled to the grant of declaration sought in their favour. He relied on the case of Ukaegbu v. Nwololo, (supra).

The learned silk also drew attention to what he considered as contradictions and inconsistencies in the evidence of the respondents. He submitted in this vein, that it is crystal clear that the respondents ?did not live up to the requirements of the law for the grant of declaration of title to land. Their evidence of traditional history is slipshod, inconclusive and indeterminate.? He further argued that, despite the obvious contradictions and

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inconsistencies in the respondents? evidence, the Lower Court over looked it, on the ?notion? that the appellants admitted the facts of the respondents? traditional history in appellants? statement of defence. The learned silk contended that the above standpoint of the Lower Court was (with due respect) wrong on the following grounds:
1. That the respondents needed to prove the particulars of the intervening owners through whom they claimed.
2. That the notion that the admission of the appellants in their statement of defence as to what the respondents pleaded as particulars of intervening owners through whom they claimed, and consequently absolved the respondents of the duty of proving the same was wrong in law.
3. That what the appellants admitted in portion of their statement of defence was radically different from what the Lower Court found.

Also, the learned silk contended that the Lower Court failed to properly evaluate or at all, the evidence led before it, in accordance with the dictates of the law. He referred us to the case of Dim v. Enemo (2009) 10 NWLR (Pt. 1149) 353; and Guardian Newspaper Ltd v.

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Ajeh (2005) 12 NWLR (Pt. 938) 205.

Again, the learned silk contended that the Lower Court failed to properly evaluate Exhibit D and the significance of the 1st appellant?s surveying the land in dispute as far back as 1976. The learned senior counsel opined that Exhibit D and survey plan attached thereto having been properly executed before a Magistrate amounted in essence to sufficient acts of ownership which spanned over a period of over 27 years. He submitted that the 1st appellant?s acts of possession are superior to that of the respondents which was basically on oral evidence. According to the learned senior counsel, this is more so, in circumstances where documentary evidence should be preferred to oral evidence. He referred us to the case of Udeorah v. Nwakonobi (2003) 4 NWLR (Pt. 811) 643. He also submitted that Exhibit D being a document over 20 years old as at the time of the institution of this suit, and which was also executed before a Chief Magistrate, the presumptions created by Sections 162 and 168 of the Evidence Act, 2011 enures in their favour. He concluded on this point by stating that the failure of the Lower Court to

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evaluate Exhibit D either properly or at all, greatly affected the decision of the Lower Court and led to a perverse decision.

Finally on this point, the learned silk submitted that there are five ways of proving title to land and he enumerated them as follows:
(i) By traditional evidence
(ii) Production of documents of title
(iii) By proof of acts of ownership extending over a sufficient length of time, numerous and positive enough to warrant the inference that the persons exercising such acts are the true owners of the land.
(iv) By proof of long possession and
(v) By proof of possession of connected or adjacent land in circumstances rendering it probable that the owner of such land would in addition be the owner of the land in dispute.

He referred us to the case of Nkado v. Obiano (supra); Idundun v. Okumagba (1976) 9 – 10 S. C. 227.

?Additionally, the learned silk submitted that respondents failed to establish their title through any of the above modes. He submitted that the Lower Court found in error that the respondents established their title through traditional evidence based on inconsistent and contradictory

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accounts or evidence of the respondents? witnesses. He insisted that the Lower Court was also in error to hold that the respondents establish their title also through acts of possession and ownership, because the facts being relied upon in this regard are essentially the same facts with the inconsistent and contradictory accounts or evidence of traditional history. Thus, the learned senior counsel urged this Court to resolve these issues in favour of the appellants.

On the second issue, the learned silk contended that the Lower Court?s judgment was determined in such a manner as to absolve the respondents of the duty of proving their case for declaration of title to land based on strength of their case; and shifted the burden of proof on the appellants, who were defendants and had no counter claim. He submitted that the above posture taken by the learned trial judge is with due respect a profound error. He submitted further that, in a long line of cases; it has been established that the burden is on the plaintiff to prove his title to the land and convince the Court that he is entitled to the declaration; that he is the rightful party entitled

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to register certificate of title in his name; he does not rely on the weakness of the defendant in proof of his case. He referred us to the cases of Bello v. Eweka (1981) 1 S. C. 101; Kodilinye v. Odu (1935) 2 WACA 336; and host of others. He also submitted that the purported admission by the appellants does not absolve the respondents of the discharge of this burden, especially in the light of the contradictory and inconsistent evidence of the respondents. He referred us once again to the case of Bello v. Emeka (supra).

The learned silk also contended that the learned trial judge did not properly grasp the claim of the respondents and the general circumstances of the case; thus it reached a perverse decision. He thereby urged this Court to interfere with the findings of the Lower Court and resolve this issue in favour of the appellants.

The learned senior counsel to the respondents on his own part made the following observations before addressing the issues on the merits:
?(a) The appellants did not counter claim for any reliefs against the respondents.
(b) It is the respondents who primarily have the burden of proving their case

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against the appellants.
(c) Where a defendant concede or admits that the original owner of the land in dispute was the plaintiff?s ancestor the onus shifts to the defendant to prove the sale or grant which he claims.?

The learned silk submitted also that there are five ways of establishing title to land; and they are:
(i) Traditional evidence;
(ii) Production of document of title;
(iii) Acts of ownership extending over a sufficient length of time, numerous and positive enough as to warrant the inference that the persons exercising such acts are the true owners;
(iv) Acts of long possession; and
(v) Possession of connected or adjacent land in circumstances reading it probable that the owner of such land would in addition be the owner of the land in dispute.

?The learned silk then contended that the title of the respondents was deeply rooted in traditional evidence and acts of possession, and that the respondents have led credible evidence to establish their claim. He maintained that the respondents led cogent evidence before the Lower Court whereat they stated the original settler and how the land was

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transferred from the original settler to the plaintiffs. Consequently, the respondent have successfully established their title to the land. He relied on the case of Ohiaeri v. Akabeze (1990) 2 NWLR (Pt. 221) 5. The learned silk further submitted ?that where two persons make conflicting claims to possession of land, the law ascribe possession to the person that can prove a better title to the land.? He referred us to the cases of Ojelade v. Soroye (1998) 5 NWLR (Pt. 549) 284; and Adeagbo v. Williams (1998) 2 NWLR (Pt. 536) 120. He went further to submit that the respondents have successfully discharged the onus on them by successfully tracing their traditional history, whereas the appellants have failed to do so.

Also, the learned silk contended that the alleged contradictions and inconsistencies to which the appellants made heavy weather of was minor and not substantial enough to impugn the entire evidence of the respondents. He relied on the cases of Lawson v. Afani Cont. Co. Ltd. (2002) 2 NWLR (Pt. 752) 585; and Aremu v. Board of Customs & Excise (1965) NMLR, 258.

?On the second issue, the learned silk for the respondents submitted

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that even though the general rule is that in an action for declaration of title to land, the burden of proof is always on the plaintiff to satisfy the Court that he is entitled on evidence adduced by him to the declaration he seeks; but in a situation where the defendant admits or concedes that the original ownership or radical title resides in the plaintiff, the onus shifts onto such a defendant to prove the grant or sale which he claims. He referred us to the case of Onobruchere v. Eswgie (1986) 1 NWLR (Pt. 19) 799; Ituama v. Akpe-Ime (2000) 12 NWLR (Pt. 680) 156; and Awure v. Iledu (2008) 12 NWLR (Pt. 1098) 249. Drawing strength from the above authorities, the learned senior counsel maintained and strongly too, that the appellants having admitted the respondents traditional history in both their pleadings and evidence adduced; the respondents? burden has been alleviated and onus has now shifted to the appellants to prove to the Court how they acquired the land in dispute.

?It is now well settled in law, that there are five (5) modes of proving title to land in a claim for declaration of title to land. They are:
i. By evidence of traditional

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history;
ii. By documentary evidence;
iii. By acts of a person claiming the land such as selling, leasing or renting out all or part of the land or farming on it over a sufficient length of time as to warrant the inference that he is the owner;
iv. By acts of long possession and enjoyment of the land; and
v. By proof of possession of connected or adjacent land.
See Udeorah v. Nwakonobi (2008) 4 NWLR (Pt. 811) 643 @ 665-666.
One of the above modes of proving title to land is sufficient for a party seeking for the declaration of title to land to earn his relief. See Ojelade v. Soroye (1998) 5 NWLR (Pt. 549) 284 @ 301.

In the instant case, the respondents succinctly pleaded and proffered proof in evidence of the traditional history as how they came to own the land. They also established in evidence their acts of long possession and enjoyment of the land in dispute. These findings were arrived at by the learned trial judge after properly evaluating the evidence adduced before him by the parties. Although, it could be observed that the evidence of traditional history as adduced by the respondents at the Lower Court was not

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complete as rightly observed by the learned senior counsel to the appellants. However, the said traditional history was affirmed by the appellants both in the pleadings as well as during evidence. This admission was clearly demonstrated in the testimony of D.W.4 (Vincent Okonkwo, 2nd appellant/defendant) when he stated thus: ?The original owner of the land in dispute was Gaga.? See page 294 of the records.

Now, it is instructively significant to note, that it was not in dispute, that the said ?Gaga? was the forefather or ancestor of the respondents, from whom they claimed to have inherited the land. It is trite law that in land cases, the plaintiff must rely on the strength of his own case and not on the weakness of the defendant?s case, although the weakness of the defendant?s case may be employed so as to enhance the plaintiff?s case and pull it out of the doldrums of the weakness of his case. See the case of Udeorah. V. Nwakonobi; (supra).
Thus, I agree with the learned trial judge, that the admission of the respondent?s traditional history by the appellants is a sufficient proof to establish their

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traditional history. This position has equally been endorsed by the Supreme Court?s decision in Adedeji v. Olosu (2007)5 NWLR (Pt. 1026) 133 @ 165, (which have similar circumstances with this present case), where His Lordship, Oguntade, JSC, restated and quoted thus:
?An onus of proof does not exist in vacuo. The onus or burden of proof is merely an onus to prove or establish an issue. There cannot be any burden of proof where there are no issues in dispute between the parties. For example, if the plaintiff?s claim is admitted, that will be the end of the story. Similarly, if a particular averment of the plaintiff is admitted, there will no longer be an onus to prove what has been admitted by the opposite party. Therefore to discover where the onus lies in any given case, the Court has to look critically at the pleadings. Where for instance the plaintiff pleads possession of the land in dispute as his right of title and the defendant admits that possession but adds that the land was given to the plaintiff on pledge, then the onus shifts on to the defendant to prove that the plaintiff is not the owner of the land, his possession of which

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had been admitted. Once the defendant admits the plaintiff?s possession of the land in dispute in his statement of defence, then and there, the plaintiff has on the pleadings discharged the onus of proof cast on him and Section 145 of the Evidence Act, Cap. 62 of 1958 will impose a burden on the defendant to prove the negative ? namely that the plaintiff is not the owner. See Lawrence Onyekaonwu & Ors. v. Ekwubiri (1966) 1 ALL NLR 32 at P. 35. In such a case, it is the defendant who will begin and if at the close of his case he fails to prove that the plaintiff is not the owner, the plaintiff?s claim succeeds without even the plaintiff giving any further evidence…
To hold otherwise will be to ?overlook the established rule that once it is proved (here it was admitted by the defendants and found by the trial Court) that the original ownership of property is in a party the burden of proving that that party has been divested of the ownership rests upon the other party

In the light of the above, I hereby agree with the learned trial judge that the respondents traditional history and acts of long possession

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has been sufficiently proved according to the dictates of the law. Thus, the appellants have the onus to prove with cogent, credible and admissible evidence that the land in dispute has been divested to them.

The case of the appellants was that the 1st appellant acquired or that part of the portion of the land in dispute was transferred to him by David Okonkwo (a member of the respondents family) vide Exhibit D; while the other part was transferred to his Uncle’s father by Onyeobuna (also a member of the respondents family). The question that needs to be asked at this juncture is ?Did the appellants adduce sufficient evidence to prove the alleged transfer

It is well established in law that to transfer an absolute title under the customary law, it ought to be pleaded and proved that the sale was concluded in the presence of witness or witnesses and the names of these witnesses should also be pleaded as well as the fact that they witnessed the actual delivery or handing over of the land to the purchaser. See Ojelade v. Soroye (supra). The fact that the said witnesses who witnessed the said sale are dead did not obviate or remove the need to

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plead their names and testify concerning them. See Adedeji v. Oloso, (supra) @ 168.

I have carefully perused the appellants? statement of defence, and found that the names of those who witnessed the alleged transfer of a portion of the land in dispute (Parcel A) by David Anakwendu to the 1st appellant was not pleaded. Also, the alleged transfer document (Exhibit D) contains no name of the witnesses who witnessed the alleged transfer or sale (as the case may be) except only the wife of the said David Anakwendu. In addition, parcel A which the appellants? uncle?s father allegedly purchased from Onyeobunafrom one of the respondents? kin, the alleged sale was not properly pleaded as required by law. Again, no document was tendered evidencing the purchase or name of any witness or witnesses mentioned. Due to these deficiencies in the pleadings and evidence of the appellants, I hereby also agree with the learned trial judge, that the appellants have failed to prove the alleged sale.

?It is instructively significant to mention here in passing, that there are also evidence on record which showed that the respondents? kinsmen

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owned parcels of land, majority of which shares common boundary with the land in dispute. This could on its own be adjudged to amount to proof of title, if that line of argument has been pursued.

In the light of all that have been stated above, I am satisfied and also agree with the learned trial judge that the respondents have scrupulously, validly and successfully proved their title to the land in dispute and thus are entitled to Statutory Right of Occupancy over and in respect of the said land. Also, I agree with the learned trial judge?s standpoint that the appellants having admitted the respondents root of title, they are relieved of the bouden duty to further prove their title and onus has been shifted to the appellants to show or prove that they validly acquired the land in dispute from the respondents? kinsmen in accordance with the laid down principles of customary law.

?Thus, I hereby affirm and uphold the judgment of the Lower Court delivered on the 10th day of September, 2009 in Suit No. A/38/2003 together with the damages awarded therein. This appeal lacks merit and it is accordingly dismissed. N50,000.00 costs is awarded in

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favour of the respondents.

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Other Citations: (2016)LCN/8633(CA)