Anieka Melifonwu & Ors V. Charles Ezenwa Egbuji & Ors (1982)

LawGlobal-Hub Lead Judgment Report

BELLO, J.S.C 

The parties in these proceedings have a common ancestral origin. They all descended from Ezechima Ogbuefi, who was said to be the founder and the first king of Onitsha. It is common ground that he had three surviving sons, namely, Ebo, Chimaukwa and Ezearoli. Ebo was the eldest son while Ezearoli was the youngest. The first and second appellants descended from Ebo while the 3rd and 4th appellants descended from Chimaukwa. The respondents had Ezearoli as their ancestor.

There was a fourth son, Anwula, who predeceased their father and because of his premature death the descendants of the fourth son are not parties to these proceedings. It is also common ground that during his life time their father, who owned a large parcel of land although there is no evidence of the exact site of his “Iba” (traditional compound) thereon, divided his land into three portions among the three surviving sons and after his death each son took possession and assumed occupancy of the portion allotted to him.

The main question for determination in these proceedings has been: to whom was the land in dispute given by their ancestral father In other words, was it the portion given to Ezearoli as claimed by the plaintiffs, who are the respondents herein, or was it part of the portions given to Ebo and Chimaukwa as asserted by the defendants, herein the appellants

The land in dispute has been called by different names by the parties. The appellants call it “Owelle Ebo-na-Chimaukwa” or “Ani Ebo-na-Chimaukwa” and refer to a portion of it as “Owelle Chimauka” or “Ani Chimaukwa”. The respondents on the other hand call it “Ani Ezearoli” or “Achalla Ogbogidi” or “Owelle Ebo.” The said land is delineated and edged green in the two plans of the respondents No. MEC/403A/67 and MEC/282/57, Exhibits B and C respectively in these proceedings. The same land is verged pink and blue in the two plans of the appellants No. MEC/110/63 and MEC/385.73, Exhibits D and E respectively. Despite the difference in nomenclature and in the shades of colour, the learned trial Judge found the boundaries and features of the land in dispute to be well defined in all the plans of the parties and concluded that the dispute concerned one and the same land which is easily identifiable from the plans.

At this stage it may also be pointed out that at the material time when the suit in these proceedings was instituted, the appellants’ people were in possession of the land in dispute and some of them were living in houses they had built thereon. The suit No. 0/28/1972 was filed in the Onitsha High Court in which the respondents claimed against the appellants jointly and severally for:-“1. A declaration that the piece and parcel of land situate at Onitsha within the judicial division commonly called and known as Aniezearoli, Achalla Igwegidi or Owelle Ebo is the property of the plaintiffs (Annual Value 20 pound:97s:).

2. Perpetual injunction restraining the defendants, their servants, and agents from further interference in the said land.
3. 100 pounds being general damages for trespass.”

The fulcrum of the respondents’ case from their pleadings was that the land in dispute was the portion allotted to Ezearoli, who upon the death of the grantor – Ezechima Ogbuefi – became the king of Onitsha and took possession of the said land, that after he had occupied the land for many years, Ezearoli became ill and went to Igala for treatment, that after he had been cured of his illness, he returned to Onitsha where in obedience to sooth-sayers who advised him to change his place of abode for his health he did not return to his residence on the land in dispute but he settled at a new place where the respondents now reside. The respondents averred that when Ezearoli vacated the land in dispute, he appointed a caretaker and since then successive care-takers including some of the appellants’ people have been employed by the respondents’ people to take care and manage the land in dispute for and on behalf of the respondents’ people. They said the appellants have their own land, i.e. the portions allotted to their ancestors – Ebo and Chimaukwa, which is not the land in dispute. Nevertheless, since the end of the civil war, the appellants have continued to trespass on the land in dispute by farming thereon despite repeated warnings by the respondents.

In their defence, the appellants averred that the land in dispute has been wholly their own land. They said a portion of it on which Ezechima had built his “Iba” (original home) had been allotted to Ebo who, being the “Okpala” (the first son alive) was entitled to inherit the “Iba” under the Onitsha customary law, was buried thereon and had his shrine and “Iba” still on the portion thereof; that another portion of the land in dispute had been granted to Chimaukwa who was the “Onowu Iyasele” (the Prime Minister) of Onitsha during his father’s life time; and that later the descendants of Ebo and Chimaukwa have been using in common the said two portions, which comprise the land in dispute, granted to their ancestors. The appellants further stated that members of their families had built houses on the land in dispute without let or hindrance by the respondents; that over a century ago the appellants had given a portion of the land in dispute to Umuokoviowo whose descendants have been farming and exercising other rights of possession over the portion ever since. They denied that any member of their families has ever been a caretaker of the land in dispute for the respondents and traversed that the members of their families who have been on the land in dispute have been thereon as of right as owners by inheritance. They further averred that the land where the respondents’ people now live, which the respondents allege to be the new settlement founded by Ezearoli on his return from Igala, was the very portion granted to Ezearoli by his father, Ezechima Ogbuefi.

In a well considered reserved judgment the learned trial Judge, after having meticulously reviewed the evidence of the witnesses called by the parties and the submissions of learned counsel, believed and accepted the traditional history and recent history of the land in dispute as told by the respondents and entered judgment for them. Because the appeal in this court turns out to be principally on question of facts only, I consider it appropriate to set out in detail the findings of facts by the trial Judge on the contested issues. He found as follows:-

1. that the land in dispute was allotted by Ezechima to Ezearoli who, after four or five Obis of the Dei Dynasty had succeeded to the throne of his father, became the king of Onitsha;
2. that on the death of Ezechima Ezearoli took possession and occupied the land in dispute for many years until he vacated it and put a caretaker thereon when during his reign he went to Igala for medical treatment;
3. that on his return to Onitsha, acting on the advice of his sooth-sayers on account of his health, Ezearoli did not settle at his former abode but founded a new settlement wherein his descendants including the respondents have been residing ever since,
4. that since Ezearoli’s sojourn in Igala land to the present day, Ezearoli and his descendants have been employing caretakers to look after and manage the land in dispute, to put tenants thereon and collect the rents and hand over the same to Ezearoli people and that among such caretakers was Ogudebe Agba, a principal member and “Okpala” of the appellants’ families, whom Chukwudebe of Ezearoli people had employed as such;
5. that in Suit No. 143/1908 between the privies of the parties in this appeal, decided by the Onitsha Native Court in 1908, Exhibit A in these proceedings, that court found the said Ogudebe Agba to be a caretaker of the land in dispute for the Ezearoli people and enjoined him to lease the land to farmers, collect the rents and hand over the same to Chukwudebe for sharing among the Chief of Ezearoli people, the respondents, and in consequence thereof the learned trial Judge further held that the said suit constituted estoppel per rem judicatam against the appellants;
6. that the appellants have been on the land in dispute through the said Ogudebe Agba who was merely a caretaker in occupation of the land in dispute with the consent and permission of the Ezearoli people and Ogudebe Agbe, the caretaker, changed the name of the land in dispute to “Owelle Ebo” because it borders on Ebo’s land;
7. that the respondents did not sleep over their right in respect of the 1949 case in the Onitsha Native Court between the Isiokwe people and Iyiawu people over a portion of the land in dispute but had taken all the necessary steps to the joined as defendants though the court did not give them the indulgence to be so joined;
8. that in respect of the plan No. CC/60A/49 and its office copy, Exhibits F and G respectively in these proceedings, made by the late C.C. Emordi for the appellants for the 1949 case aforesaid, the learned trial Judge made the following pungent observations:

“Looking at Exhibits F and G, which I have held were made for the defendants, there are clearly some erasures which are revealing. Comparing plaintiffs’ plans Exhibits B and C (made for these proceedings) with late C.C. Emordi’s plan No. CC/60A/49 Exhibits F and G, it is easy to see that the north western limit claimed by the plaintiffs coincides with the north western limit of the line drawn in Exhibit F where it is clearly written boundary between Chima Ukwa and Eze Aroli.

This same line was described in Exhibit F as “Owelle Ebo”. A close look at Exhibit F shows that an attempt has been made to erase the line thereon running from the body of the plan. Looking at defendants’ plans made for this case, Exhibits D and E, it is astonishing to observe that what defendants wrote in Exhibits F and G are conspicuously missing from Exhibits D and E. In Exhibits F and G there is inserted thereon ‘Land of Eze Aroli transferred to Ebo’ but this again is absent in defendants’ plans made for this case, Exhibits D and E. The question that now arises is, what is the significance and effect of both the erasures in Exhibits F and G and defendants’ plans for this case, Exhibits D and E I may again mention here that the defendants during the hearing of this case apparently paid scant attention to the erasures and discrepancies in their plans Exhibits D and E and F and G. I am however satisfied that the erasures spotted out on plan No. CC/60A/49 Exhibits F and G made for the defendants by late C.C. Emordi are in fact admissions against the defendants and in favour of the plaintiffs that they and not the defendants are the owners of the land in dispute. Similarly, I am satisfied that the omissions in defendants’ plans made for this case Exhibits D and E when compared with the insertions in Exhibits F and G also made for the defendants by late C.C. Emordi for another case but in respect of part of the land in dispute, were purely deliberate on the part of the defendants and in my view designed to confuse the court.” (The words in brackets are mine).

Finally, on the issue of trespass the learned trial Judge, having found the appellants have been in occupation of the land initially as caretakers through Ogudebe Agba, concluded that the conduct of the appellants by their turning round recently to claim the land as their own amounted to trespass since such claim was in excess of their original right of entry as caretakers. He relied on Hillen & Pettigrew v. I. C. I. (Alkali) Ltd. (1936) AC 65 and Francis Banigo v. Johnson Banigo & Ors. 8 WACA 148.

Accordingly, he granted declaration of title to the respondents. He restrained the appellants from further interference with the land in dispute and awarded N100 to the respondents against the appellants as damages for trespass.

Dissatisfied with the judgment of the High Court, the appellants appealed to the Federal Court of Appeal which dismissed the appeal and affirmed the judgment of the Onitsha High Court. The appellants have now further appealed to this court on seven grounds of appeal.

One may observe that the grounds of appeal are far from being a model of precision and brevity. They have been couched in such verbose and unusual terms as it has not been the practice in this court. They run to eight folios. I propose to paraphrase them:

1. Ground 1 complains of the manner the Court of Appeal approached the appeal in dismissing it;
2. Ground 2 contends that since immediate succession of Ezearoli to his father as king was the pivot of the respondents’ case, the Court of Appeal erred in law in dismissing the appeal when the trial court had found that before Ezearoli became king four or five other kings had ruled;
3. Ground 3 complains against the leave granted by the trial court to the respondents to sue in a representative capacity;
4. Ground 4 states that the Court of Appeal misconstrued the opening speech of learned counsel for the defendants at the trial;
5. Grounds 5 and 6 challenge the judgment of the Court of Appeal on grounds of misdirection; and
6. Ground 7 states that the identity of the land in dispute is uncertain and its extent unknown.

It appears the last ground of appeal, i.e. ground 7, is obviously misconceived and may easily be disposed of . I have already set out the identity of the land in dispute at the beginning of this judgment. With apology for repetition, I may reiterate its identity. The land in dispute and for which declaration of title was granted to the respondents is identifiable with absolute certainty from the very plans of the appellants, Exhibits D and E, in which it was verged pink and blue respectively while in both plans of the respondents, Exhibits B and C, it was edged green.

Ground 3, which relates to an interlocutory matter and has no bearing with the case on the merits, will be dealt with before the other grounds. At the initial stage of the suit in the High Court, Agbakoba, J., had granted the respondents on record leave to prosecute the suit in a representative capacity for themselves and on behalf of the Umuezearoli family of Onitsha under Order IV rule 3 of the relevant High Court Rules. In the course of the proceedings a notice of withdrawal from the suit, which was summarily dismissed by the trial court, was filed by the 4th and 5th plaintiffs on record. It also emerged that the authorisation for the five plaintiffs on record to sue on behalf of the members of their family was not unanimous and that a faction of the family did not give its consent. Taking advantage of the apparent rift within the Umuezearoli family, the defendants sought by a motion to have the order enabling the plaintiffs to sue in a representative capacity discharged on the ground that the plaintiffs had not the mandate of the Umuezearoli family to bring the action. In dismissing the application, Nwokedi, J., observed:

“I do not see the relevance of the application. It is by no means certain from the affidavit in support of the application that the remaining plaintiffs have not the mandate of the Umuezearoli people to represent them in the suit. The remaining plaintiffs are themselves from Umuezearoli quarters of Onitsha and they are not expected to have the mandate of every member of Umuezearoli community for them to claim to represent the community. It is sufficient if they represent a fairly substantial cross section of the Umuezearoli community. I have no evidence that the contrary is the position here.”

The Court of Appeal stated its reasons for upholding the trial court’s decision in terms:-

“In Sogunle & Ors v. Akerele & Ors. (1967) NMLR p. 58, it was held that a member of a family may take steps to protect the family property or his interest in it. If he has no authority of the family to bring the action the family would of course not be bound by the result unless for some reason the family was estopped from denying that the action was binding……… The fact that some persons from the family of the plaintiffs wrote to court and swore to affidavit in court or filed notice of discontinuance in court would not stop a plaintiff from continuing action to protect his family property or a property in which he has right and believes that he has that right in common with others.”

Learned counsel for the appellants submitted that the rule in Sogunle v. Akerele (supra) does not apply to the case in hand. The distinguishing factor being that there was a massive opposition by a faction of the Umuezearoli to representation when there had been no such opposition in the former case. While conceding that in accordance with the decision in Mba Nta v. Anigbo (1972) 5 S.C. 156 at 174 if a community intends to institute legal proceedings it is essential for some members of the community to sue in a representative capacity, he contended that this is only permissible if a substantial cross section of the community gives its mandate to institute the suit. In the absence of proof of such mandate, he argued, it is wrong to sue in a representative capacity. He relied on Adegbite & Ors. v. Chief Imam Lawal & Ors 12 WACA 398 at 399 and Duke v. Henshaw 6 WACA 200 at 201. He maintained that the onus was on the plaintiffs on record to prove positively that they represented a substantial section of the Umuezearoli family and they failed to do so. He urged us to say that the Court of Appeal was wrong to sustain the view held by the trial Judge that in the absence of evidence to the contrary, it must be inferred that the plaintiffs had the authorisation of the substantial cross-section of the family.

In the reply in his brief, learned counsel for the respondents indicated that some members of Umuezearoli family had conspired with the appellants to frustrate the suit with a view to effecting a settlement. On the issue of the proof of authorisation, he referred to the evidence of P.W.1 and PW. 4 who testified that the plaintiffs on record had been authorised by the Umuezearoli community and by the trial court to sue in a representative capacity and said there was ample evidence of authorisation. Learned counsel concluded that only members of Umuezearoli opposing representation were competent to challenge the representative capacity of the plaintiffs and it was not open to the defendants to question the plaintiffs’ authorisation by way of defence: He cited Ogamioba v. Oghene (1961) All NLR 59; Laribigbe v. Motola (1935) 12 NLR 17; Fregene & Ors. v. Awoshika & Ors. (1957) WRNLR 157; Benson v. Ashiru (1967) 1 All NLR 184; Kehinde v. Ogunbunmi (1967) 1 All NLR 306 and Nsima v. Nnaji & Ors (1961) 1 All NLR 441.

I am unable to accept the submission of learned counsel for the respondents that the appellants were not competent to challenge the representative capacity of the respondents. The law has long been settled that a defendant is entitled to question the plaintiff’s authority to bring an action provided that the defendant raises the question by way of preliminary objection on a motion and not by way of defence: Russian Commercial and Industrial Bank v. Comptoir D’Escompte de Mulhouse, (1925) A.C. 112. The point was rightly in my view, taken by the appellants.

Order IV rule 3 of the relevant High Court Rules provides:

“3. Where more persons than one have the same interest in one suit, one or more of such persons may, with the approval of the court, be authorised by the other persons interested to sue or to defend in such suit, for the benefit of or on behalf of all parties so interested.”

It is clear under the rule that representative action is only permissible if more persons than one have a common interest in a suit and the persons interested in suing have given authority to the name plaintiff to sue on their behalf: Adegbite v. Lawal (supra). However, because of incompatibility of human nature, it has been appreciated that the plaintiff needs not to have the authority of the entire interested groups Sogunle v. Akerele (supra). I would respectfully adopt the view expressed by Idigbe, J., as he then was, in Nsima v. Nnaji (1961) All NLR 441 and 443 that disgruntled elements dissenting from a general authorisation of a group ought not to be permitted to frustrate the common interest of the group. It is only when it is shown that there has been a substantial opposition to representation by members of the group that the plaintiff may be denied representation.

In the case in hand, there appeared to have been some opposition but not a substantial one by a faction of the family in order to effect a settlement when Nwokedi J., made his ruling. That opposition seemed to have melted away after the parties had failed to reach a settlement and the suit proceeded to trial. This must invariably be so because the evidence of plaintiffs’ witness (1) and plaintiffs’ witness (4) establishing that the Umuezearoli family had authorised the respondents to sue on behalf of the family was not challenged under cross-examination and stood unrebutted. This ground therefore fails.

In his submission on ground 1, learned counsel for the appellants contended that the Court of Appeal erred in law in making a searching examination of the case for the defendants/appellants in the trial court and noting its weakness but only giving a cursory glance at the case for the plaintiffs/respondents and thereby shifting the burden of proof which rested on the plaintiffs/respondents to the defendants/appellants. Learned counsel for the appellants drew our attention to the judgment of the Court of Appeal showing that more pages dealt with the weakness of the defendants/appellants’ case than with the strength of the plaintiffs/respondents’ case. Citing Kodilinye v. Odu (1935) 2 WACA 336, he reiterated that in a claim for declaration of title the plaintiff must succeed on the strength of his case and not on the weakness of the defendant’s case and asserted that the Court of Appeal appeared to have offended this rule.

I think the rule that in a claim for declaration of title the plaintiff must succeed on the strength of his case and not on the weakness of the defendant’s case is only an extension of the principal rule of evidence law that the burden of proof generally lies on the plaintiff. The rule has been stated thus: whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove those facts: Section 134 of the Evidence Act. The rule is intended to regulate trials and to apply to trial court and not to the Court of Appeal.

In the trial court, the plaintiff desires the court to give judgment in his favour and the rule requires him to prove his case. However, in the Court of Appeal, the successful party has already obtained a judgment which presumed to be correct and effective unless presumption is rebutted by the losing party on appeal: See Morris v. Ogden L.R. 4 C.P. 687 at 699 which was founded on the maxim Omnia praesumuntur rite et solemniter esse acta. It follows therefore that while in the trial court the plaintiff will only succeed on the strength of his case, an unsuccessful defendant will only succeed in the Court of Appeal on the strength of his case in rebuttal thereat and will certainly fail if his case in the court of trial was weak and the plaintiff proved his case.

In none of the passages of the judgment of the Court of Appeal referred to us by learned counsel did the Court of Appeal shift the burden of proof that lay in the trial court on the plaintiffs/ respondents. The relevant part of the judgment not only shows that the case for the defendants/appellants in the trial court was so weak that it was incapable of rebutting the presumption of the correctness of the judgment of the trial court but also indicates that the plaintiffs/respondents prove that they were entitled to the land in dispute.

In arguing grounds 2 and 4, learned counsel for the appellants stated that he did not intend to challenge the primary facts found by the trial Judge. He said he was only complaining against the inferences drawn by the trial Judge and confirmed by the Court of Appeal.

Under ground 2 learned counsel argued that from their pleadings and evidence, the basis of the respondents’ case was that Ezechima had preferred Ezearoli to succeed him as king and for that reason allotted to the youngest son that portion where his father’s palace was situated.

Learned counsel contended that since the trial Judge found that four or five other persons had become kings before Ezearoli, the basis of the respondents’ case ought to collapse. Furthermore, the failure to prove immediate succession coupled with the rule of inheritance under Onitsha native law and custom that the first son alive inherits his father’s palace render the respondents not entitled to judgment for the land in dispute.

I am inclined to agree with the contention of learned counsel for the respondents in his brief that immediate succession as king and allotment of the portion whereon Ezechima’s palace was situated had not been the basis of the respondents’ case. The question of immediate succession was introduced by the defendants’ counsel under his cross-examination of the respondents’ witness, P.W.1 and in the examination of his witness, DW.1. The issue of Onitsha custom was also raised by the defendants in paragraph 9 of their defence, which inter alia, averred:

“Moreover, under the Onitsha native law and custom the Okpala (the first son alive) is the person entitled to Iba, and if a father divides his land in his life time the Okpala would be entitled to that part of his father’s land in which the Iba is situated. Ebo, being the eldest son of Ezechima, was given that part of Ezechima land in which his Iba was built.

Having pleaded the Onitsha native law and custom, the onus was on the appellants to prove it, which they failed to do, either by production of evidence or through decided cases: See Taiwo v. Dosumu (1965) 1 All NLR 399 and Adegboyega v. Igbinosun (1969) 1 All NLR 1. Moreover, the appellants failed to prove the exact location of the “Iba”. The trial Judge stated in his judgment: “It is not very easy to locate where Chima Ogbuefi lived in his life time. Neither the plaintiffs nor the defendants gave any precise evidence on this point”. It appears to me that the respondents did not fail to prove the basis of their case as contended in ground 2, on the contrary, the appellants were the ones that failed to prove the basis of their defence.

Ground 4 is short in substance. In his opening speech at the trial, learned counsel for the defendants informed the court that the traditional history of the parties was not in dispute. Under ground 4 it is said that the Court of Appeal misconstrued this admission but no particulars of misconstruction whatever is given. The traditional history of the families of the parties was never at issue. The issue at the trial was a very narrow one: to which family was the land in dispute allotted It has not been suggested that the Court of Appeal miscontrued this issue. I find no substance whatever in grounds 2 and 4.

The submission of learned counsel for the appellants on grounds 5 and 6 appear to have been well founded. Ground 6 complains of misdirection by the Court of Appeal when that court stated in its judgment:

“In fact, the defendants never by their evidence proved any act of possession and during cross-examination DW.1, Mr. Erokwu, denied knowing any of the persons named in the plan.”

It is obvious that the Court of Appeal had inadvertently overlooked the evidence of D.W.1 establishing acts of possession including living on part of the land and farming thereon by some of the appellants’ people. In the same vein ground 6 relates to the assessment of the evidence of George Odita (P.W.4) who under cross-examination seemed to have admitted that some of the appellants’ people had lived on the land in dispute. The Court of Appeal regarded this evidence as not amounting to unequivocal admission.

With all due respect, the Court of Appeal failed to appreciate the correct assessment of the respondents’ case by the learned trial Judge in his judgment wherein he stated:

“The plaintiffs’ (respondents’) case postulates that the Isiokwe who are the defendants (appellants) in this case have been in occupation of the land in dispute, but with the consent of the plaintiffs. The plaintiffs’ ancestor, Chukwudebe, put Ogudebe Agba, a principal member of the defendants’ family, on the land in dispute as a caretaker… and later Ogudebe was succeeded by Onuora Ogbuagu, the father of the 2nd defendant on record, as the caretaker of the same land now in dispute …… I have no doubt that the Isi Okwe people came initially on the land in dispute through their kinsman, Ogudebe Agba, who was on the land in dispute merely as a Caretaker.” (Underlining and brackets are mine).

It is apparent that possession of the land in dispute by the Isiokwe people, the appellants, was not an issue at the trial. The issue was: were they in possession as caretakers as claimed by the respondents or were they in occupation as owners through grant to their ancestors as they averred I have earlier in this judgment indicated that the learned trial Judge considered the issue correctly and found in favour of the respondents. Consequently, the question of possession being a non-issue, its misconception by the Court of Appeal cannot affect the correct assessment of the situation by the trial Judge. That being the case, although the points raised in grounds 5 and 6 succeed, the appeal cannot succeed on either.

Accordingly, I dismiss the appeal and confirm the judgment of the Court of Appeal affirming the judgment of the High Court. The respondents are entitled to the costs in this court, which I assess at N300.

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SC.11/1982