Humphrey Onuoha V. Rosana Ndubueze & Ors. (2001)
LawGlobal-Hub Lead Judgment Report
OGEBE, J.C.A.
The appellant sued the first respondent at the High Court of Mbano/Etiti in Imo State claiming –
“(i) Declaration that plaintiff was entitled to the peaceable possession and right of occupancy to the land known as Uhu-Okpotoro-Ulo Owere-Ogbuohia.
(ii) N5,000.00 special and general damages for trespass.
(iii) Perpetual injunction.
After exchange of pleadings the court joined the second, third and fourth respondents as defendants in the suit on their own request.
The appellant’s case was that the land in dispute which was shown in his plan Exh. A was originally owned by his ancestor Ogbuohia and that it passed on by inheritance to his father Onuoha.
Later his father pledged the land to one Ndubueze Ekechukwu, the father-in-law of the first respondent. Sometime in 1970, when the children of late Ndubueze Ekechukwu were about to share the land of their father they included the pledged land among the lands to be shared. The appellant and his elder brother reported the matter to Chief Ogueri who invited the elders and the Amalas who intervened.
The arbitration confirmed that the land in dispute had infact been pledged by the appellant’s father to the first respondent’s father-in-law and it decided that the land should be redeemed by the appellant and his brother. After the redemption, the appellant exercised maximum acts of ownership over the land including planting agricultural palm seedlings in 1983.
The respondents, on the other hand, deny the pledge and customary arbitration. They claim that they and the appellant had common ancestry and allege that the land in dispute was the patrimony of the first respondent’s husband which devolved on him from the sharing of the land of their common ancestor called Ebicham.
The trial court visited the locus in quo and after addresses by counsel on both sides gave judgment dismissing the appellant’s claim.
Dissatisfied with that judgment the appellant appealed to this court on two original grounds of appeal and six additional grounds of appeal.
The learned counsel for the appellant filed a brief of argument and distilled six issues for determination as follows:
“(1) Was what transpired in the court below fair hearing to sustain a valid judgment?
(2) Did the joinder of the 2nd, 3rd and 4th defendants against whom the plaintiff made no case and so stated in his pleading not result in a miscarriage of justice?
(3) Did the plaintiff prove title by any of the five ways known to law?
(4) Did the trial court’s ignorance of the law on pleadings not affect his evaluation of evidence and occasion a miscarriage of justice?
(5) Did the use the trial Judge made of his visit to the locus in Quo not occasion a miscarriage of justice?
(6)Was the judgment of the trial court not against the weight of evidence?
The learned counsel for the respondents also filed a brief of argument in which he formulated three issues for determination as follows:
(i) Whether the appellant as plaintiff in the lower court established on a preponderance of evidence that he is entitled to a declaration of title to the disputed land either by evidence of traditional history or in any other recognised way of proving title to land having regard to his pleadings?
(ii) Whether the decision of the lower court dismissing the plaintiff/appellant’s case would have been different had the evidence of PW6 and PW7 been considered?
(iii) Whether the findings of fact made by the learned trial Judge pursuant to a visit to the locus in quo were supported by evidence on record.?”
The appellant filed a reply-brief in reaction to the respondent’s brief.
The learned counsel for the respondents raised preliminary objection to original ground 2 and grounds 3 and 8 of the additional grounds of appeal. On the original ground 2, the learned counsel submitted that the ground of appeal offends Order 3 rule 2(2) of the Court of Appeal Rules in so far as it merely alleges misdirection in law without going further to state the nature of is direction and to furnish full and substantial particulars of the alleged misdirection. He referred to the case of Anyaoke & 3 Ors. v. Adi & 6 Ors. (No.2) (1986) 3 NWLR (Pt.31) 731.
The learned counsel for the appellant in his reply brief submitted that, ground 2 of the grounds of appeal sufficiently complied with order 3 rule 2(2) of the Court of Appeal Rules because the nature and particulars of misdirection are contained in the ground of appeal itself. He said that, it is trite law that a ground of appeal on error or misdirection in law may itself contain the particulars required without setting them out separately. He relied on the case of Jozebson Industries Co. v. R. Lauwers Import/Export (1988) 3 NWLR (Pt.83) 429: (1988) 7 SCNJ 93. Order 3 rule 2(2) of the Court of Appeal rules reads:
“If the grounds of appeal alleged misdirection or error in law the particulars and the nature of the misdirection or error shall be clearly stated.”
The requirements of this order as interpreted by the Supreme Court and this Court are:-
(i) Allegation of misdirection or error of law.
(ii) Quotation of the passage where the misdirection or error is alleged to have occurred.
(iii) The nature of the misdirection or error must be specified.
(iv) Full and substantial particulars of the alleged error or misdirection.
See the case of Nwako & Ors. v. The Gov. of Rivers State & Ors. (1989) 2 NWLR (Pt.104) 470.
I have looked at the second original ground and I am satisfied that it has substantially complied with the rules of this court as the particulars of misdirection are contained within the ground of appeal.
A more serious objection to ground 2 as raised in respondents’ brief is the fact that no issue was formulated from that ground in the appellant’s brief. We took up the learned counsel for the appellant during the course of arguing this appeal and he could not satisfy us that any issue was formulated from ground 2.
It is trite law that where an issue is not formulated from a ground of appeal the ground of appeal is deemed to have been abandoned.
Accordingly, I strike out the second ground of appeal. See Pacers Multi-Dynamic Ltd. v. M. V. “Dunang Sisters” (2000) 3 NWLR (Pt.648) 241.
On the third ground of appeal, the learned counsel submitted that the issue of fair hearing alleged in that ground is a fresh point being raised for the first time in the Court of Appeal and leave of this court to do so must first be sought and obtained. Since leave was not obtained, that ground of appeal is not properly before this court. He referred to the case of Ajuwon & Ors. v. Madam A. Adeoti (1990) 2 NWLR (Pt.132) 271.
In reply to this, the learned counsel for the appellant submitted that fair hearing is a constitutional issue which may affect the competence or the jurisdiction of the court to entertain the matter. An issue of fair hearing arises at the end of the hearing of the matter and cannot be an issue in contention between the parties during hearing.
It follows therefore that the complaint against the manner in which a case is heard by the trial court cannot be referred to as a fresh issue in an appellate court for which leave must be sought.
I agree with the submission of the learned counsel for the appellant that a challenge of fair hearing by a trial court cannot be regarded as a fresh issue in the Court of Appeal. Such a ground is a ground that can be raised in the Court of Appeal without any leave.
Such a ground of appeal is hardly ever raised in a trial court. It usually arises on a total reflection of the conduct of the trial court during the course of the proceedings before it. It is also a constitutional ground that can be raised at any time.
Accordingly, I over-rule the preliminary objection of the respondents to the 3rd ground of appeal.
On additional ground 8, the learned counsel for the respondents complained that it violates order 3 rule 2(2) of the Court of Appeal Rules, as no portion of the judgment wherein the alleged misdirection occurred was quoted and the nature of misdirection was not specified.
The learned counsel for the appellant submitted that ground 8 accords with order 3 rule 2(2) of the Court of Appeal Rules.
My view is that ground 8 complies substantially with order 3 rule 2(2) of the Court of Appeal Rules. It is more helpful to the court if counsel on either side avoid bugging down the court with unnecessary preliminary objections which can waste a lot of time of the court, which could otherwise be gainfully employed to resolve issues raised in the appeal for determination. Such valuable time is used to resolve preliminary objections which in most cases are unnecessary.
On the first issue, the learned counsel for the appellant submitted that the appellant was not given fair hearing because the trial Judge allowed amendments to the respondents’ statement of defence after the close of the appellant’s case and these have in effect drastically changed the character of their defence. The complaint of the appellant’s counsel was that the trial Court allowed an amendment and admitted two originals of other documents as Exhibits D and C even before the persons to tender the said originals were called to testify. The learned counsel conceded that the amendment was not objected to by the counsel but that it had an over-reaching effect.
I am unable to agree with the submission. The complaint of fair hearing normally arises where a party is not given an opportunity to be heard in respect of crucial matters before the trial Court. What the learned counsel had sought to show is that, some documents were improperly admitted. The question of wrongful admission of documents has nothing to do with a complaint of fair hearing. I therefore resolve the first issue against the appellant.
On the second issue, the learned counsel complained that the trial court was wrong in joining the 2nd, 3rd and 4th respondents as defendants when appellant had no land case with them.
The trial Court came to the conclusion that the defendants had made out a better case than the plaintiff in establishing title to the land. In the learned counsel’s submission, this was prejudicial to the appellant.
It is clear from the record of appeal that the 2nd, 3rd and 4th respondents were allowed in to defend the action because the appellant in his survey plan on the disputed land was claiming adjacent lands which according to the 2nd, 3rd and 4th respondents, affected their interest as those adjacent lands did not belong to the appellant but to their families. Since the adjacent lands were not in dispute in this suit, I am unable to see what miscarriage of justice has been done to the appellant in joining the 2nd, 3rd and 4th respondents.
The appellant’s action in bringing in a plan which threatened the 2nd – 4th respondent’s interest was the reason for their being joined and he has not been able to show me what harm the joinder had done to his case. If he had no case against them, surely no harm could have been done to his claim by joining them in the suit especially as they did not counter-claim against him.
On the third issue, the learned counsel for the appellant submitted that the appellant by his pleading and evidence established title to the disputed land and that the trial Court wrongly rejected the evidence of PW6 Fredrick Okoro and PW7, Wilfred Okparaeke.
In reply to this the learned counsel the respondents submitted that, even if the evidence of PW6 and PW7 was not rejected by the court it would not have made any difference to the final judgment dismissing the appellant’s claim as there was no evidence to establish title to the land.
In paragraph 4 of the amended statement of claim at page 21 of the record of appeal the appellant averred as follows:-
“The entire land of which the land in dispute forms a part, was originally owned by the plaintiff’s ancestor Ogbuohia, who exercised maximum acts of ownership by farming thereon and harvesting of economic trees such as palm fruits therein without let or hindrance. The said entire land was subsequently inherited by the plaintiff’s late father Onuoha, who also exercised maximum acts of ownership in respect thereof.”
It should be noted that although the appellant stated that Ogbuohia was the original owner of the land he did not plead how Ogbuohia acquired title to the land. He did not also trace how the land devolved on his own father Onuoha. It is trite law that in an action for the declaration of title the averments relating to traditional history must plead the following facts:
(a) Who founded the land;
(b) How the founder founded the land;
(c) The particulars of intervening owners through whom the plaintiff claims.
See the cases of Anyanwu v. Mbara & Anor (1992) 5 NWLR (Pt.242) 386 and Ole & Ors. v. Ekede (1991) 4 NWLR (Pt 187) 569.
In the case of Chime & Anor. v. Ude & Ors. (1993) 3 NWLR (Pt.279) 78, the plaintiffs relied on traditional history which they pleaded in pargaraph 9 of their statement of claim as follows:
“9. The plaintiffs are the descendants of the founder of the land in dipsute called Ari Oshie. Ari Oshie was the father of Ota, who had two sons namely Azu Atu had many sons including Ozo Ali Agudiba Onuigbo and Ogbakwa. The late Ozo Ali, the grand father of the first plaintiff Azu Enyi had the following sons, Udobo, Ogbene, Achu, Enyi and Egungwu. Egungwu begot who was the father of the second plaintiff.”
Uwaifo, J.C.A. (as he then was) commenting on the pleading at page 87 of the Report stated thus:
“It must be observed that the above averment does not show in what manner the said Ari Oshie founded the land. Whether it was virgin land and was first cleared and settled on by him is not indicated. The custom which recognizes the founding of the land in this area and the incident of that custom are not identified and specified. It is an aspect of native law and custom to plead title based on traditional history. The incidents of the custom of the particular place and the facts supporting those incidents must be pleaded and proved by evidence unless the native law and custom qualified to be taken judicial notice of … It follows, in my view, that the pleading of the plaintiffs in respect of the traditional history they relied on is defective.”
In this case, the appellant was relying on a pledge of the land by his father, the first respondent’s father in-law. He made no attempt whatsoever to trace the historical succession of the land from the founder to his own father before it was pledged. The evidence led by the appellant himself in the court below did not assist his case. For example, at page 48 of the record of appeal he merely stated:
“The land in dispute is situate in the land of Umuogbohia of my father which we now farm. I inherited the land from my father who inherited same from his forefathers.
My father is Onuoha Ebicham Ogbohia.”
Then at page 48 lines 30-35, PW1 also testified as follows:
“My ancestors are known as Umuogbohia. My ancestors were farming on the land and harvesting palm fruit, and other economic trees on the land. Since I inherited the land, I too since 1966, I planted palm fruits which I got from Agric on our boundary with Umuakpa on one side.”
This evidence fell far below the standard and quality of evidence required to establish title to land by traditional evidence. He did not indicate how the alleged ancestors acquired title to the land or even the order of succession. The very root of title was not established. See the case of Mogaji v. Cadbury Nigeria Ltd. (1985) 2 NWLR (Pt.7) 393.
I am satisfied that from the defective pleading of the appellant and the unsatisfactory evidence led by him and his witnesses he did not establish title to the land and his claim was rightly dismissed by the trial court.
The complaint in the fourth issue was that the learned trial Judge was wrong in rejecting the evidence of PW6 and PW7. From what I have already said in the last issue, the evidence of PW6 and PW7 did not improve the appellant’s claim and could not have made any difference to the success of his case as he himself by his pleading and evidence did not establish his root of title of the land in question.
The fifth issue complained of the use of trial Judge made of his visit to the locus in quo which in learned counsel’s submission occasioned miscarriage of justice. The learned counsel for the appellant said that the trial Judge was looking for evidence to support his judgment at the locus in quo and not to understand the questions that were being raised to follow the evidence and to apply it.
In reply to the learned counsel, the respondent submitted that a visit to locus in quo could also be used where there is conflict of evidence by both parties to resolve the conflict and that the trial Judge made findings from the locus in quo which were supported by evidence led by the parties in court. For example, the appellant had given evidence that he planted agricultural palms on the disputed land but the visit to the locus in quo proved this to be false.
I have examined the record of appeal and I cannot fault the use made of the trial Judge in his visit to the locus in quo. That visit helped him to see the hopelessness of the appellant’s claim. The visit was not really necessary in the circumstances of this case as the appellant by his pleadings and evidence was unable to establish any credible claim for title.
On the sixth issue, the learned counsel for the appellant complained that the judgment of the trial Court was against the weight of the evidence.
It has always been the law that the onus lies on the plaintiff to satisfy the court that, he is entitled on the evidence brought by him to a declaration of title to land. The plaintiff must rely on the strength of his own case and not on the weakness of the defendant’s case. If the onus is not discharged, the weakness of the defendant’s case will not assist the plaintiff the proper judgment is for the defendant. See the case of Kodilinye v. Mbanefo Odu (1935) 2 WACA 336.
It follows therefore that the trial Court’s preference for Exhibit B, the respondent’s survey plan which the respondents said contained errors could only be a weakness in their case which did not in any way tilt the scale in favour of the appellant.
As I said earlier in this judgment, the appellant by his pleadings and evidence could not possibly have succeeded in his claim for title and the trial Court was perfectly justified in dismissing his claim. I am satisfied that the trial Court properly evaluated the evidence and came to a right conclusion. In the result, I see no merit in this appeal and I hereby dismiss it with a costs of N5,000.00 in favour of the respondents.
Other Citations: 2001)LCN/0989(CA)
