Anuonye Wachukwu & Anor V. Amadike Owunw Anne & Anor (1999)
LawGlobal-Hub Lead Judgment Report
AKPIROROH, J.C.A.
The appellants were the defendants while the respondents were the plaintiffs in this action which was instituted at Aba High Court in Abia State as Suit No. N185175. The plaintiffs’ claim as set out in paragraph 17 of the amended statement of claim is as follows:-
- Wherefore the plaintiffs claim against the defendants jointly and severally:-
(1) Declaration of Title to all that piece or parcel of land known as Ikeohia Umuarapara/Okpulor Umuarapara situate at Uratta Okpu-Umuobo in Aba Urban Division valued N20.00 annually.
(2) N500.00 being general damages for trespass committed by the defendants on the said land on or about the 13th day of September, 1975.
(3) Perpetual injunction to restrain the defendants, their servants or agents from committing acts of trespass on the land.
Pleadings were filed and duly delivered. The case thereafter went to trial before S.O. Ekpe J. Both the plaintiffs and the defendants amended their respective pleadings. The case was therefore tried on their amended pleadings.
The plaintiffs’ case put briefly was that in the olden days, the people of Uratta Umuobo led by one Okpokoroipi migrated from Uratta Okpuala Ngwa in northern Ngwa to Mgboko where they were granted a settlement by Mgboko people whose leader was Afaraukwu, the original owner of a vast area of land including the land in dispute. Later the respondents of Umuarapara family led by one Ikpeamaeze traced their kinsmen (the Uratta people) to the said land where Okpokoroipi in his capacity as the leader of Uratta people granted to his kinsmen (Umuarapara people) led by Ikpeamaeze a piece of land out of the land granted to him by Mgboko people. They settled on the land granted to them and exercised various acts of ownership before they left it, as their former homestead and named it “Okpulor Umuarapara” or “Ikeohia Umuarapara” and continued to farm on it.
The case for the defence was that the land in dispute was deforested by their ancestor, Akuru with his brother Agwu who were in possession as owners until it devolved on them.
At the end of the trial, the learned trial Judge delivered his judgment and granted all the reliefs sought in their amended statement of claim.
Dissatisfied with the judgment, the appellants have appealed from the decision to this court on four grounds of appeal.
The parties filed their briefs of argument. The appellants formulated the following four issues for determination in the appeal:-
Issues for Determination:-
(i) From records can the respondents be said to have proved their acquisition of the land in dispute by grant and if they have not, what is the legal consequence?
(ii) Was the identity of the land in dispute an issue and if so was it established?
(iii) In the circumstance can the respondents be said to have established their ownership of the land in dispute by traditional history?
(iv) Are the contradictions which the learned trial Judge found to have existed in the respondents’ case material to offset the judgment?
The respondents formulated the following issues for determination;-
Issues for Determination:-
- Whether the Respondents did establish their title to the land in dispute by traditional evidence or traditional history.
- Was the identity of the land in dispute an issue before the trial court, and if so was the issue established to the satisfaction of the court?
- Are the contradictions which the trial Judge found to have existed in the respondents’ case, material to offset the judgment?”
It was submitted in the appellants’ brief in respect of the first issue that if Okpokoroipi existed at all, whether he made a grant of the land in dispute to Ikpeamaeze of the respondents’ family. It was further submitted that having joined issues as to the grant, the duty of the trial court is to proceed to the trial of the issue so joined and the onus of proof is on the respondents. It was further argued that neither Okpokoroipi nor, his descendants was called to give evidence of the grant on which the respondents relied as such the grant is therefore not proved. It was also argued in the appellants’ brief of argument that the evidence of P.W.1 in examination-in-Chief contradicted his evidence under cross-examination as to the grant, because, he said that it was Okpokoroipi who granted part of the land in dispute to their ancestor.
In his evidence-in-Chief and under cross-examination he said that it was Uratta who granted it. It was also submitted that that piece of evidence is in conflict with paragraph 6 of the amended statement of claim where it was pleaded that the whole land was granted to Ikpeamaeze while the evidence led in support showed that only a part of the land was granted to him.
It was further contended that if the evidence led in support of paragraph 6 of the amended statement of claim is ignored as it goes to no issue, the said paragraph is deemed to have been abandoned by the respondents and their case therefore failed and could not stand.
It was submitted in the respondents’ brief of argument that the grant of the land in dispute to their ancestor, Ikpeamaeze by Okpokoroipi was proved by the evidence of P.W.2 and P.W.3.
It was further argued that the respondents established their title as well as ownership by traditional evidence which was accepted by the lower court. It was further contended that paragraph 6 of the amended statement of claim was proved by the evidence of P.W.2 and P.W.3.
The main question raised under the first issue is whether the trial Judge was right in preferring the traditional evidence of the respondents to that of the appellants.
The learned trial Judge considered the traditional evidence led by the parties and preferred the version of the respondents.
At page 159 of the records he said:
“The 1st plaintiff (P.W.1) has traced his root of title to the land in dispute from Okpokoroipi who was granted the land in dispute by Mgboko to his forebear Ikpeamaeze who got the sub-grant from Okpokoroipi both P.W.2 and P.W.3 supported the case for the plaintiff. P.W.1 testified that he is the present head of the Umuarapara family and title to the land vests in him.”
He rejected the traditional evidence of D.W.1 and D. W.2. He specifically referred to the evidence of D.W.1 who said that he moved to the land in dispute in 1975 and that he was living in his father’s compound which was wiped out of existence by the Express Road from Umuahia. He also referred to his evidence where he said that he did not know whether his first attempt to move to the land gave rise to this action.
D.W.2 said that the defendants have been living on the land before the Enugu/Port Harcourt Road was constructed but P.W.1 said that he moved to the land in 1975. At page 162, of the judgment the learned trial judge said:-
“I find as a fact also that the defendants entered into the land in dispute for the first time on the 13th of September, 1975…..”
It is well settled law that a Court of Appeal which did not hear or observe the demeanour of witnesses in the witness box should be reluctant to interfere with the findings of fact of a trial court which had the advantage of seeing and hearing the witnesses and observing their demeanour in the witness box, unless such findings were perverse, unreasonable or not supported by the evidence.
See Ebba v. Ogodo (1984) 1 SCNLR 372; (1984) 4 SC 84 p.90; Ajewole v. Adetimo (1996) 2 NWLR (Pt.431) 391 and University of Calabar v.Essien (1996) 10 NWLR (Pt. 477) 225; Faleye v. Otapo (1995) 3 NWLR (Pt. 381) 31, Ike v. Ugboaja (1993) 6 NWLR (Pt. 301) 539 at 555; Woluchem v. Gudi (1981) 5 S.C. 291 at 295 & 326.
I have not seen any finding of the trial Judge that can be said to have been perverse or unreasonable. This issue is therefore resolved in favour of the respondents against the appellants.
On the second issue, it was submitted in the appellants’ brief that from the state of the pleadings, they made the identity extent location and the boundaries of the land in dispute triable issues and the onus was on the respondents to prove the identity of the land in dispute.
It was further argued that P.W.2 and P.W.3 gave conflicting evidence as to the identity of the land and as such the learned trial Judge was in error when he resolved the identity of the land in dispute by simply examining the survey plans tendered by the respondents and the appellants and came to the conclusion that the said plans were identical. It was finally argued that the respondents having failed to establish the identity of the land claimed by them, their case should have been dismissed by the learned trial Judge.
In reply, it was argued in the respondents’ brief that the identity of the land in dispute was not in issue despite paragraphs 3 and 4 of the amended statement of defence because the learned trial Judge found the plans tendered by the respondents and the appellants as identical even though they called the land different names. It was further contended that both parties know the land in dispute as where the appellants forcibly entered in 1975 and erected their houses which gave rise to the action and this is confirmed by the visit to the locus in quo by the learned trial Judge on 19/7/77. It was further argued that where the land in dispute is so clear that it leaves neither the defendant nor the court in any doubt as to the specific area claimed in the sense that from the plaintiffs’ description, a surveyor can produce a plan showing accurately the land in dispute, the plaintiff will be deemed to have discharged the onus on him to prove the specific area he claims and relied on the case of Ezeudu v. Obiagwu (1986) 2 NWLR (Pt. 21) 208 at 220 and Omoregie v. Idugiemwanye (1985) 2 NWLR (Pt. 5) 41 at 60.
It was further contended that the respondents established before the court clearly and accurately the area of land to which their claim related through their evidence and their plan Exhibit 1 which was admitted by consent without any objection. It was finally submitted that the appellants failed to show by evidence that the land granted to the respondents is different from the land in dispute and reliance was placed on the case of Ugbo v. Aburime (1993) 2 NWLR (Pt.273) 101 CA; (1994) 9 SCNJ 23 at 39.
At page 158 of the records, the learned trial Judge said:-
“The parties in this case tendered their survey plans by consent. The defendants have no difficulty in identifying the land in dispute and there is no dispute about it. I have carefully examined the survey plans, Exhibits 1 and 2 and I am quite satisfied that the survey plans are identical, even though the name and location of the land in dispute as given in Exhibit 1 is different from that given in Exhibit 2. It is settled law that the difference in the name of the land in dispute as called by the parties is immaterial where there is no dispute as to the identity of the land. See Aromire v. Awoyemi (1972) 1 All NLR (Pt. 1) 101 at 103; (1972) 2 SC 1.”
He concluded thus:-
“The plaintiffs in my view, have discharged the duty of establishing the areas of land to which their claim for declaration of title and consequential reliefs relate. From the evidence before me, I find as a fact that the land in dispute which the plaintiff call Okpulor Umuarapara” is the same as the land which the defendant call “Egbelu Umuduru” or “Ohia Apuogwu”.
There is no doubt that the land in dispute is well known to both parties.
The learned trial Judge visited the land in dispute on 19/7/77 as borne out from pages 35-36 of the records and observed seven buildings on the land in dispute roofed with corrugated iron sheets and some of the walls plastered with cement. At page 115 of the records, P.W.1 under cross-examination said:-
“There are about eight structures or buildings now on the land in dispute. Before the court ordered the injunction restraining us from erecting further buildings on the land in dispute “there were seven buildings”.
This piece of evidence from P.W.1 shows clearly that the land in dispute is well known to the parties.
It is well settled law that where the land in dispute is so clear that it leaves neither the defendant nor the court in any doubt as to the specific area claimed in the sense that from the plaintiffs’ description thereof, a surveyor can produce a plan showing accurately the land in dispute, the plaintiff will be deemed to have discharged the onus on him to prove the specific area he claim. See Ezeudu v. Obiagwu, Omoregie v. Idugiemwanye (1985) supra.
As was said by Iguh JSC in the case of Eigbejale v. Oke (1996) 5 SCNJ 49 page 66: (1996) 5 NWLR (Pt.447) 128,
“So, too, where the land in dispute is certain and clear and there is no difficulties whatever in identifying its precise extent and boundaries, a declaration of title may be made even without it being based on or tied to a survey plan,”
Suffice it therefore to say that the contention of learned counsel for appellants that the identity of the land in dispute is in issue is misconceived so also his contention that the identity of the land in dispute was not proved by the respondents.
Finally on this issue, I would like to refer to the wise observation of Oputa J.S.C in the case of Ezeudu v. Obiagwu, supra 208 at 210 which read as follows:”
We have in our lower courts almost tacitly accepted that it is a ritual in land cases for the plaintiff to prove the features on the boundary and call all boundary men before it can be held that he has established the identity of the land in dispute. This erroneous belief accounts for a good deal of delays in land cases. The onus on the plaintiff is, an onus to prove an issue. Where therefore the identity of the land is not an issue, there, I will make bold to say that the mere production and tendering of the plaintiffs plan in evidence is enough to establish the identity of the land. In fact in such cases the plan can and should be tendered by consent:’
See Omoregie v. Idumgienwanye supra and Aboyeji v. Momoh (1994) 4 NWLR (Pt. 341) at 646.
The learned trial Judge was therefore right in holding that the plaintiffs in his view have discharged the duty of establishing the area of land to which their claim for declaration of title and consequential reliefs relate and that the land in dispute which the plaintiffs call “Okpulor Umuarapara” is the same as the land which the defendants call “Egbelu Umuoduru” or “Ohia Apuogwu”. This issue is also resolved in favour of the respondents against the appellants.
On the issue of contradictions in the evidence in the case of the respondents, learned counsel for the appellants submitted forcefully that the whole length and breadth of the respondents’ evidence is tainted with material contradictions which rendered their case most unreliable. It was further submitted that the learned trial Judge acknowledged these material contradictions but failed to consider them.
In reply, it was submitted in the respondents’ brief that the contradictions which the learned trial Judge acknowledged to exist in the respondent’s case were not material contradictions sufficient to vitiate their case. It was further argued that it is not the law that once there is a slip in one of the witness’s testimony, his evidence of the entire evidence should be rejected, stressing that what the court has to determine is the materiality of the evidence and whether or not the rest of the evidence left after expunging the offensive evidence can sustain proof involved in that particular case. Reference was made to the evidence of P.W.1 and P.W.3 who gave evidence in support of the boundaries of the land and P.W.2 who could not name all the boundaries of the land, On the grant of the land to the respondents’ ancestors, it was contended that there was no conflict in the evidence of the respondents’ case.
It was finally submitted that the contradictions referred to are minor contradictions which did not substantially affect the findings of the learned trial Judge.
At page 161, lines 3-10, the learned trial Judge said:-
“I have considered the two competing traditional histories or evidence of title or ownership of the land in this case, and so I am much impressed with the traditional evidence of the plaintiffs’ and their witnesses…. The contradictions in their evidence do not materially disturb my findings.”
I find no substance in the contradictions referred to in the identity of the land in dispute because the learned trial Judge rightly in my view, found that the land in dispute is well known to both parties even though they call it different names. I fail to see any material contradiction in the respondents’ evidence which is final to their case.
Where on the evidence of the parties before the court, it is established that the plaintiff has proved its case on the balance of probabilities, minor inconsistencies in the plaintiff’s case would not be material. See Amokomowo v. Andu (1985) 1 NWLR (Pt. 3) 530.
Before I conclude this judgment, I would like to refer to the case of Akintola v. Solano (1986) 2 NWLR (Pt. 24) 598 in which Coker J.S.C, delivering the judgment of the court made the following observations:-
…The duty of the trial Judge was to compare the relative strength of the case of both parties and to decide the case on the preponderance of evidence or balance of probabilities. What the court has to decide at the end of the trial which of the parties on the preponderance of credible evidence is entitled to judgment. See also E. Abdul Kareem v. Daniel Fajebe (1968) NMLR 151; 2 NWLR, Anukanti v. Ekwonyease (1978) S.C 37, Alhaji L.A. Onibudo & ors (1982) 7 SC 60, 69.”
This issue is also resolved in favour of the respondents against the appellants. My conclusion is that the appeal lacks merit. Each of the arguable issues argued by the appellants is resolved against the appellants and in favour of the respondents. The appeal therefore fails. It is dismissed with costs assessed at N3,000.00 in favour of the respondents and against the appellants.
Other Citations: (1999)LCN/0560(CA)
