Chief Patrick S. Okoye & Ors V. Edeani Nwavu & Ors. (2003)

LawGlobal-Hub Lead Judgment Report

IGNATIUS CHUKWUDI PATS-ACHOLONU, J.C.A.

The case started on a seemingly happy note in that the Plaintiffs who are now the Respondents are not laying exclusive claim to the land the subject matter of the dispute but are saying that the land is a jointly and communally owned property of the two parties and they, in their statement of claim asked the Court to declare that this is so with the consequential Order of perpetual injunction which would restrain the defendants, their heirs, agents and others claiming from them from any interference of the Plaintiffs right of enjoyment of the use of the land jointly and communally owned.

The Respondents, who brought the action on behalf of themselves and representing their community known as Akpawfu excepting the Appellants, averred that the land in dispute is a joint property of the parties who inherited same from their communal ancestor Oyiwo Ode who as a hunter founded the land. The ancestor while alive warned or advised his children never to share his land on his death but to allocate portions purely on age basis. The parties because of their relationship have two burial grounds – Otutu Aja and Ogoani. They have 2 shrines Agba Ubia and Achi Uga which they all worship.

However in 1987, the defendants and those who support them i.e. their privies went into the land and started destroying the economic trees particularly the Plaintiffs’ crops and with law enforcement agents to intimidate them to an extent that they prevented them i.e. the Plaintiffs from farming and enjoying and reaping their economic trees on the land.

The defendant/Appellants debunked the assertion that the land is communally owned by both parties pointing out that the land is the exclusive property of the defendant from time immemorial and that the Respondents ancestors were migrants who did not originate from one ancestor. For this, the Respondents pay tributes and rents to the overlords – the Appellants. Just as the Respondents narrated the genealogy of their community, so too the Appellants sought to do so in their Statements of Defence. They too traced their origin from Oyiwo Ode whom they claimed was not the ancestor of the Respondents.

They equally averred that the Plaintiffs jointly with the defendants wrote the Chieftaincy Constitution and there is no inter-marriage between the parties. They further state that in all the native tribunals in respect of the disputes between the parties as affecting the land, the Plaintiffs have always lost. The learned trial Judge in her decision found in favour of the Plaintiffs. Wherefore, the defendants peeved by the judgment of that court appealed to this court and distilled 6 issues – however abandoning the last issue:

The rest are as follows:
“(1) Was the court below right in holding that the onus lay on the defendants to prove that the plaintiffs did not own the land communally with them?
(2) At all events, did the plaintiffs, who asserted, prove the primary issue of ownership in common with the defendants to entitle them to judgment?
(3) Did the trial court evaluate the conflicting evidence of the parties as prescribed by law before coming to its findings favourable to the plaintiffs?
(4) Was the trial court right in holding against the defendants that they were estopped by a previous case in the native court (Exhibit A) from asserting that the plaintiffs did not own the land in dispute communally with them?
(5) Was the trial court right in its application of S.39 (1) and (2) of the 1979 Constitution in favour of the Plaintiffs?”

The Respondents on their own filed five issues and they are as set out below to wit:-
“1. Whether the court below was right in finding for estoppel against the defendants and what is the legal effect of such finding (Additional Ground 1).
2. Whether going by the totality of the Judgment, it can rightly be said that the trial Judge misplaced the onus of proof which occasioned a miscarriage of Justice (Ground One).
3. Whether the Plaintiffs proved their case (as required by law) to entitle them to the Courts’ Decree (Ground Two).
4. Whether the learned trial Judge properly or correctly treated the Defence Case vis-‘E0-vis the issue of the Plaintiffs being strangers (Ground Three).
5. Whether the Court below had the Jurisdiction to hear this case. (Additional Ground Five).”

The appellants argued issue 1, 2 and 3 as they are inter-related, being on the Onus of proof. In his judgment the learned trial Judge held as follows in respect of whom the onus of the land vests,
“In the case at hand the defendants could not prove exclusive ownership since such numerous acts are performed jointly by Plaintiffs and defendants. I am further not assured as to the precise nature of title in respect of which a declaration is sought exclusively by the defendants. There is no conclusive evidence adduced by the defendants by whom the court is satisfied that a title of this nature claimed by the defendants has been established…”

Further down she continues as follows:
“The onus of proof is on the party claiming family land to prove that he is in fact entitled to the family land as against all other family members See Ahuanya v. Onyejekwe & Anor. (1974 – 75) Vol. 9 NSCC P.89. And that being so, the Onus of proof in this case rested not on the plaintiffs but on the defendants. In the case of J.M. Kodilinye v. M. Odu (1935) 1 – 3 WACA 336, cited by Learned Counsel for the defendants, it was held that in a declaration of title to land, the plaintiff must rely on the strength of his own case and not on the weakness of the defence. In this instant case, since the onus which is on the defendant is not discharged the weakness of the Plaintiffs case will not help the defendants.”

I must candidly confess that to say that I am flabbergasted by this attempt to rewrite the law by the learned trial Judge is to put it mildly. Her pronouncement seeks to base this obtuse and greatly erroneous interpretation of the law on the premise that either the defendant – now Appellants were the Plaintiffs or that they counter-claimed. This attempt to give a new meaning to the age long accepted principle of law on where the onus of proof lies is like standing the law on its head and metaphorically carved out or caricatured to look like the hedious medussa with a quizically ugly and sickening head.

In this case, it is a fact that the Appellants did not counter-claim for reasons best known to them but the onus of proof that the land is jointly owned property is that of the Plaintiff/Respondents and not the Appellants. In the matter of civil cases generally and particularly in a land matter the onus is heavy on the proponent of the action to prove his case on the balance of probability and the weakness of the defendants’ case will not avail him. In other words, the defendant can fold his hands and dares the Plaintiff to prove his case if he can.

The dismissal of Plaintiffs’ case in a land matter does not mean a decree of the ownership of the land in favour of the defendant who does not counterclaim.

In this sort of case where the Respondents lay claim that the land the subject of the dispute is a communal property jointly owned by both parties and the Appellants repudiate this claim stressing all along that there is no joint ownership and drawing attention of the Court that the Respondents do not have their origin from Oyiwo Ode, the Court generally goofed to push the onus to the appellants. Another gaffe committed by the learned trial Judge is when she said in her judgment-
“I am further not assured as to the precise nature of title in respect of which a declaration is sought exclusively by the defendants. There is conclusive evidence adduced by the defendants by which the court is satisfied that a title of this nature claimed by the defendants has not been established.”

The Appellants as defendants never laid any claim to any land. It is therefore with greatest respect to the learned trial Judge that it is apostasy to continue to harp erroneously and insistently that it is the Appellants who are claiming the title to the land.

In their Statement of Defence paragraph 31, they averred as follows:
“In answer to paragraph 33 of the amended Statement of Claim the defendants state that the Plaintiffs are not entitled to the Claim and do not and cannot represent Akpawfu town and that the Claim ought to be dismissed as frivolous, speculative, vexatious an abuse of Court process of court and an exercise in gold digging.”

It is difficult to understand how the simple denials and urging that the matter be dismissed can be coverted to mean that the Defendants suddenly metamorphosed into the Plaintiffs. In considering the issues canvassed and agitated before the learned trial Judge mounted confusion upon confusion, I am reminded of the word of Shakespeare in Macbeth wherein he said; “Confusion has made its master piece.”

I consider this part of the Judgment a diatribe which seeks to emasculate the law and render Justice – a Goddess according to the Romans, a bent goddess that might cry out “foul; foul: I am straight. I am not bent or truncated”

On another point the court below sought to make bones about the two parties formerly fighting a case to which they were made defendants together and by so doing the appellants are estopped from denying the joint ownership claimed.

Following the confusion introduced by the court below, on who are the claimants, it is difficult to know who it was referring to.

When people contribute money or subscription to defend a cause i.e. a Suit of which they are jointly and severally sued, does that mean that they have no individual interest to protect even amongst themselves. The learned counsel for the Respondent submits that the two parties having fought a suit being on one side together and at no time raised up the issue of Amadis and Awbias i.e. (original owner and stanger elements) they cannot now turn round to say that they are not related to the Plaintiffs. It is most unfortunate that throughout the judgment of the lower court unnecessary burdens had been placed on the Appellants. “Head, they lose; Tail the other side wins.” So, they are in no win situation.

Is this what Justice is all about, one may be tempted to ask? The learned counsel for the Respondent stated that the Respondents rely on these facts to demonstrate or allow joint ownership of the land in dispute viz;-
(i) Joint farming and building
(ii) Joint presentation of land for primary school and maternity project.
(iii) Burial ground
(iv) 1943 Inter-tribal boundary dispute and related antecedents leading up to the case of the West African Court of Appeal.

The Appellants’ counsel in his brief submitted that the plaintiffs in Exhibit “A” sued for a declaration of title in an earlier case but it turned out in the course of trial that they were seeking to upset a boundary earlier fixed under the Inter-tribal boundaries Ordinance between Obuno Akpugo and Akpawfu.

He further urged this court to hold that the Respondents could not in law have pleaded estoppel by representation against the appellants and it was not competent for the trial court to raise the said issue and to purport to rely on facts of which there was no evidence. The premise for the holding by the Court below that people who fought a case together, donated a land for building hospital and schools cannot at any time dispute respective lands within that community amongst them is wrong. I say this because there is nothing to show that families in the group do not own individual lands within the community.

Furthermore, in that same judgment, the learned trial Court did everything conceivably possible to heap the responsibility of onus of proof on the Appellants. In so doing the court below traduced all known indices in the administration of justice thereby giving a lie to the principle of placing the case of parties’ in equable balance of an imagining scale.

The court below so fixated its mind on the belief that the two parties are like twins and therefore inseparable made reference to Section 39(1) and (2) of the 1979 Constitution – (the primary law then in Vogue when the judgment was given). This section spoke then of discrimination on the grounds of place of origin, sex, religion or political opinions held.

It sought to use this law to back up its attitude to the issue of the parties living together and came to the conclusion by insinuating that the Appellants were trying to weave discriminatory practices forbidden by section 39 of the 1979 Constitution into the case.

Once again it has to be stated that the Appellants were not the complainants and therefore not the Plaintiffs. To concentrate the adjudication of this matter by trying to pick holes in the case of the Appellants is to inflict unnecessary burden on them. The approach of the court below in the rendition of the judgment is fundamentally flawed right from the word go.

In my view the case, was badly handled by the learned trial Judge in the Court below. That being so, I see merit in the Appeal and it is allowed. The judgment of the High Court is hereby set aside. The Suit itself is hereby dismissed. There shall be cost to the Appellant assessed at N5, 000.00.

Other Citations: (2003)LCN/1382(CA)