Augustine Akpalaukwu Njemanze V. John Shimobi Njemanze (2005)

LawGlobal-Hub Lead Judgment Report

PIUS OLAYIWOLA ADEREMI, J.C.A.

This is an appeal against the judgment of the High Court of Imo State, in Owerri Judicial Division holden at Owerri in Suit No. HOW/80/96 delivered on the 30th of April 2001. The plaintiff before that Court (hereinafter referred to as the respondent) had by the averment in paragraph 19 of his statement of claim sought against the defendant before that Court (hereinafter referred to as the appellant) the following reliefs:

“(1) a declaration that the plaintiff is entitled to the grant of statutory certificate of occupancy in respect of that piece or parcel of land known as and called ‘AKWA OSA’ situate at No. 41 Erekwerenwa Street, Owerri within the jurisdiction of the Honourable Court and verged ‘RED’ in the plaintiff’s survey plan No. GIKS/IMD 21/96 filed with the statement of claim.

(2) N1,000,000.00 (One Million Naira) being general damages for trespass.

(3) Injunction restraining the defendant, his servant, agents, workers or privies however from further trespass to the said land.”

Pleadings filed and exchanged between the parties are the statement of claim dated 24th July 1996 and filed on 26th July 1996, the statement of defence dated 29th July 1996 and filed on 30th June 1997. Both sides called evidence in proof of the averments in their respective pleading. Sequel to the final addresses of the respective counsel; the learned trial Judge and a reserved judgment delivered on the 30th of April 2001 accordingly entered judgment in his favour. In so doing, the learned trial Judge reasoned inter alia:

“From Njemanze Ihenacho Ihejibu/Onwuegbuchulam Shimobi and now to the plaintiff there is no evidence of a broken chain or abandonment of this land by them. The weight of evidence in this case points to the fact Ihejinu farmed on this land in dispute exclusively and that she acquired the exclusive right under Owerre Native Law and Custom. Being a gift therefore, her only stepson and son infact inherited the land. Plaintiff is the son of Ihejinu’s stepson No. 41 Erekwerenwa Street, Owerri, therefore is not family property. Exhibits C, C1, D and D1 show that there was trespass into this land. DW1 did not deny this. It has been proved and I hold that the plaintiff has a better title to this land in dispute then the defendant. Being in possession the plaintiff is entitled to succeed in his claims for trespass. The defendant is liable for trespass for which damages would be awarded…

It is the law, trite, that where damages are awarded for trespass to land and there is an ancillary claim for injunction, an injunction will be granted. This is to prevent multiplicity of actions and also to prevent irreparable damage or injury or irremediable mischief.”

Being dissatisfied with the said judgment, the defendant/appellant lodged an appeal against same upon a Notice of Appeal dated 1st May 2001 and filed on, the 3rd of May 2001. Suffice it to say that, with the leave of the Court, three additional grounds of appeal were added – totaling 6 in number. Distilled from the afore-said six grounds and for determination by this Court are five issues which as set out in the brief of argument of the appellant dated 22nd January 2002 and filed on 5th February 2002 are in the following terms:

“(1) Is the judgment of the Court below not against the weight of evidence?

(2) Whether the respondent discharged the burden of proving his case by “preponderance of evidence so as to be entitled to the judgment of the Court below.

(3) Was the Court below not grievously in error by giving judgment in respondent’s favour which it failed to make a finding as to whether or not the land in dispute is a family land of the descendants of Njemanze Iheanacho the undisputed original owner of the land in dispute?

(4) Did the lower Court not misdirect itself, in law by saying that it would not go into the issue of partition of family land because that was not the respondent’s case?

(5) In giving judgment in favour of the respondent, did the lower Court properly and correctly evaluate the crucial evidence laid before it by the parties and make finding of fact?

For his part, the respondent identified three issues as arising for determination in this appeal, and as set out in his brief deemed to have been properly filed on the 9th of June 2003, they are as follows:

“(1) Whether from the pleadings and evidence led at the trial, the plaintiff established his claim on the preponderance of evidence to be entitled to the reliefs sought and in the circumstances was the Court below right in giving judgment to the plaintiff?

(2) Did the Court below evaluate assess and make findings on the issue of whether or not the land in dispute was family property?

(3) Did the learned trial judge consider the issue of partitioning of family property raised by the appellant?

When this appeal came before us for argument on 15th February, 2005, Mr. Nwokeogu, learned counsel for the appellant referred to adopted and relied on the appellant’s brief filed on the 5th of February, 2002 and urged the Court to allow the appeal. Mr. Dike, learned counsel for the respondent also referred to, adopted and relied on the respondent’s brief of argument deemed to have been properly filed on 9th June, 2003 and urged that the appeal be dismissed.

I have had a close study of the issues for determination in this appeal. It is my views that not only are the three issues identified by the respondent elegantly crafted, they address the fundamental issues arising from this appeal. I shall therefore allow myself to be guided by them. However, issues Nos. 1, 2, 3 and 5 on the appellant’s brief will in this judgment, be considered along with issues Nos. 1 and 2 on the respondent’s brief. I shall, finally, take issue 3 on each of the two briefs together.

On issues Nos. 1, 2, 3 and 5 on the appellant’s brief, the appellant submitted after reviewing the evidence of PW2, PW3, PW4, PW5, PW6, PW7 and PW8 that the learned trial Judge did not properly evaluate the total evidence of the land before it and that the judgment, consequently is against the weight of evidence. The Court below, it was further submitted failed to make a finding as to whether the land was a family properly or not. The trial Court was in grievous error in not making that specific finding. It was urged on this Court (appellate Court) ,to make that crucial finding reliance was placed on the decisions in OGUNNZELE v STATE (1998) 58 L.R.C.N. 3512 and OKPIRI v JONAH (1961) ALL NLR 102. The Court below, it was further submitted did not make a finding whether he believed the evidence of the appellant and his three witnesses that the land in dispute was family land as against the evidence of the respondent which is to the effect that he was the absolute owner. Rather, it was further argued, the learned trial Judge made heavy weather of the gift of the land in dispute to Ihejihu which assertion, it was further, argued, was stoutly denied by the appellant. In his response, the respondent submitted that from the pleadings and the evidence placed before the Court, he established that Njemanze Iheanacho was the original owner of the land and that he granted the land in dispute to his wife to farm on permanently. That land thus became her own exclusively and upon her death her stepson, the plaintiff/respondent inherited the land in dispute according to Owerri Native Law and Custom. Balancing the evidence led by the respondent against that of the appellant on the other scale of justice as put in the case of ODOFIN v MOGAJI (1978) 1 LRN 212, the scale it was again argued, will tilt in favour of the respondent. The Customary Arbitration Exhibit B to which both parties voluntarily submitted was accepted by the trial Judge as establishing the case of the plaintiff/respondent. From the arguments of counsel for the appellant’s Exhibit B has a finding effect on the parties. Copious evidence of acts of possession and ownership adduced by the respondent which evidence was not challenged was believed, rightly, by the learned trial Judge, the decision in ONWUBE v NDUBA (1972) 3 SC. 106 was among the cases relieved on. The learned trial Judge, it was again argued, made a lot of findings as to whether the land in dispute was family land or not – a proper appraisal of the total evidence was made. I shall now proceed to examine the evidence led by the plaintiff/respondent on whom under our civil procedure rules, lies the onus of proof. And it is upon the satisfactory establishment of his case through credible evidence that onus of proof can thereafter shift to the defendant/appellant. The plaintiff/respondent in his testimony had said:

“Apart from this portion the remaining portion of the land is now known as 41, Erekwerenwa Street, Owerri … The land was originally owned by Njemanze Iheanacho my great grandfather. He exercised acts of ownership and possession over same. He harvested the economic crops therein without any let or hindrance. In his acts of possession he granted this land to his wife, Ihejihu, under Owerri Native Law and Custom, which permits a man to give land to his wife to farm on permanently… Ihejihu took effective control over the land, harvest the economic trees and crops without any let or hindrance from anybody. Ihejihu was my grand step mother… Under Owerri Native tie Law and custom if a husband gives his wife a farmland to farm and if that wife dies the children of the wife of the husband who the farm land was given to dies, the children of the wife inherit the land.

… At the death of Njemanze Iheanacho Ihejihu was remarried to Eze Onwuegbuchulam Njemanze, my grandfather. Njemanze Iheanacho was the father of Onwuegbuchulam. Njemanze Iheanacho had so many sons. Ihejihu went into Onwuegbuchulam Njemanze’s family as his wife with all her farmlands and belonging including the farmland in dispute… Ihejihu died not to begat any child in her lifetime. Shinobi my father was her only stepson in her lifetime. No other wife of Onwuegbuchulam farmed on this land in dispute except Ihejihu… The father of the defendant never made any claims to this land in his lifetime. Except Shimobi Njemanze, no other son of Onwuegbuchulam Njemanze has ever farmed or laid claim to this land in dispute. I inherited this land from my father Shimobi Njemanze. I have economic crops on the land in dispute. I have houses on the land in dispute. Before I took our this suit the Oha Owerre Nchi Ise Traditional Council arbitrated over this land. I took the matter to them at my instance. Myself and defendant answered to the summons voluntarily. Both of us agreed to be bound by the decision of the Panel. The decision of the Oha Owerre Nchi Ise was in my favour. It was a written decision. We were given a copy of the decision. After this the defendant trespassed into the land. That is why I filed this action against him in the High Court. …This land in dispute is not the property of Eze Onwuegbuchulam the grandfather of both parties. The land is my father’s. The property of Onwuegbuchulam Njemanze has been shared long before we were born. I don’t have any common property with the defendant….”

When cross-examined he said that as he inherited the land in dispute from his father, Eze Iheanacho, Njamanze could equally have inherited the land from his own father. To the question that Ihejihu farmed on the piece of land as did other wives of Njemanze Iheanacho; he denied that other wives farmed thereon.

PW2 one Oha Boniface Onyemuche Anukem, the head of Oha Owerre Traditional Council of Elders in his testimony said:

“The parties in this case are my brothers. The plaintiff brought their matter to my Council and reported the matter to us. We invited the two parties and they appeared before us. We asked them if they wanted us to hear the matter and they both said yes. Both parties then giving their evidence we inspected the site of the land. We also went to the mother of the defendant because we wanted to know her view over the land. She told us he ought to inherit the land. We gave out judgment, which we reduced into writing. The parties were given copies of the judgment.”

Suffice it to say that the judgment of Oha Owerre Traditional Council of Elders was tendered and admitted as exhibit ‘B’. I should further say that PW2 was not shaken nor was his testimony of the vital matters as to the decision of the body of Arbitrators to which the parties voluntarily submitted demolished. If anything at all, the witness confirmed that going by the evidence before that Panel, they found that the original owner of the land was Onwuegbuchulam Njemanze. The evidence of PW3 – one Father Prince Njemanze is also vital and for a full understanding the case I wish to reproduce same, which not much, he said:

“The land in dispute is in the possession of the plaintiff. The land is inhabited by tenants and there is a fish seller tenants there. There are economic trees like orange, guava, orji trees, etc. The original owner of the land was Njemanze Iheanacho, the great grandfather of the plaintiff. Njemanze Iheanacho farmed on the land. He had a wife called Ihejihu who became the owner of the land. Njemanze Iheanacho gave Ihejihu this land before he died. Ihejihu farmed on the land. I know the custom of our land Owerre very well. Under our custom a husband can give his land to the wife for farming and in that regard she owns it perpetually. The mother of Shimobi died. Shimobi and the mother were given to Ihejihu. Ihejihu now became the stepmother of Shimobi. At the death of Njemanze Iheanacho Onwuegbuchulam became the husband of Ihejihu. Onwuegbuchulam is the grandfather of plaintiff. Njemanze Iheanacho is the father of Onwuegbuchulam. When Ihejihu was going to the house of Onwuegbuchulam she took with her land given to her by Iheanacho and other things. This land in dispute was taken by Ihejihu to Onwuegbuchulam house. Onwuegbuchulam had other wives e.g. Mezinwa Isiodu, Uba my own mother. …During the lifetime of Onwugbuchulam no other wife except Ihejihu farmed on the and in dispute. Our various mothers had their own farms different from this land in dispute. None of the children of Onwuegbuchulam farmed on the land in dispute… None of the children of Njemanze Iheanacho land (sic) claim to this land. Ihejihu is dead now. Shimobi inherited the land from Ihejihu. At the death of Shimobi plaintiff inherited the land. That is our custom.”

The above pieces of evidence given by the PW3 under examination-in-chief were never demolished during cross-examination. When looked at critically, PW3 made admissions against his own interest when he said that his mother, Uba, among other wives of Onwuegbuchula, never laid any claim to the land in dispute. Suffice again is to that PW3 – a pensioner of 78 years when recalled by the plaintiff/respondent said at a family meeting summoned to look into the dispute between the plaintiff/respondent and the defendant/appellant, the mother of the defendant, by name Ukachi Lucy told the elders at that meeting which included himself, that her son should hands off the land as the land did not belong his (defendant) father and therefore did not belong to him. He further said that it was on the statement of the mother of the defendant that they advised them to desist from that futile claim and that if he persisted and the mother later went to the regular Court the family of Njemanze would testify on the side of the plaintiff/respondent.

As against the above testimony the defendant/appellant who was DW1 said in his evidence.

“I know the land in dispute. The plaintiff prepared the plan in dispute and served you. I did not prepare a plan for this case. The land in dispute is a family land. The original owner of this land was Eze Njemanze Iheanacho when he died the land descended on Eze Onwuegbuchulam Njemanze who is also late. The land from there descended to my father Akpalakwu Onwuegbuchulam Njemanze. My father died and the land descended to Shimobi…. I do not know the woman called Ihejihu because I was not born by them… It is not true that the plaintiff got this land through this woman… I went to Oha Owerre and I was invited by the Secretary of Oha Owerre following the report plaintiff made to them to the effect that I wanted to take his land. I testified before Oha Owerre. I did not see the judgment of Oha Owerre…I never appeard with plaintiff before Onu Njemanze.”

Under cross-examination, he still maintained that the land in dispute was family land. DW2 – J.U. Njemanze in his testimony while admitting that both the plaintiff and the defendant laid claim to ownership of the land in dispute, he said the land originally belonged to Iheanacho upon whose death it descended on Onwuegbuchulam. When Onwuegbuchulam died in 1941 the land descended on Akpalankwu at whose death it developed on Shimobi. Continuing his evidence, he said when Shimobi died, according to their custom, the land should descend to the defendant/appellant upon whose death it would devolve on the plaintiff/respondent. Under cross-examination, while agreeing that at the death of Njemanze Iheanacho it was Onwuegbuchulam Njemanze that too Ihejihu as wife, he denied the suggestion that Ihejihu came into the house of Onwuegbuchulam with the land in dispute. He maintained that the land in dispute was communal land. The evidence of DW3 was terse and it did not advance the case of the defendant/appellant. DW4 one Hanna Onwuegbuchulam Njemanze said the land in dispute belonged to the defendant and she denied that Ihejihu ever farmed on the land in dispute.

The above is the resume of each of the pieces of evidence led by the plaintiff/respondent and the defendant/appellant in proof of the averments in their respective pleadings. The learned trial Judge as I have reproduced his findings held that from Njemanze Iheanacho, Ihejihu/Onwuegbuchulam to Shimobi and now to the plaintiff/respondent there is no evidence of a broken chain or abandonment of this land by them. The bindingness of Exhibit B – the award of the Customary Arbitration cannot be faulted, as there is copious evidence that both parties voluntarily submitted to it. As to viva voce evidence adduced by both parties as to how each party was contending his ownership of the land which evidence touches on traditional evidence, I first bear in mind that this being an appellate Court I must be very reluctant to differ from the findings of the trial Judge on findings of facts he being the only judicial officer who had the singular opportunity of seeing the witnesses and could therefore properly make findings as to the credibility of each of them.

I am not unmindful of the principle that where the findings are based on the evaluation of evidence which has been accepted, this Court (as an appellate Court) is in good position to evaluate that accepted evidence as the Court of trial, see ONWAEZEMA V. NWINEKE (1996) 2 NWLR (Pt. 137) 230 and (2) AKINOLA V. OLUWO (1962) WNLR 133. I have had another close study of the evidence led by both sides; without going into the area of credibility of the witnesses, balancing that of the plaintiff/respondent against that adduced by the defendant/appellant. I have no hesitation in coming into the conclusion that that of the plaintiff/respondent is very much rich in evidential value, see MOGAJI & ORS. V. ODOFIN & ORS. (1978) 4 SC 91. The findings of the learned trial Judge cannot therefore be faulted. Consequently I answer issue No. 1 in the appellant’s brief of argument in the negative, issue No. 2 therein is answered in the affirmative, Issue No. 3 is also answered in negative while I answer issue No. 5 in the affirmative. Issues Nos 1 and 2 on respondent’s brief are also answered in the affirmative.

Issue No. 4 in the appellant’s brief and Issue No. 3 in the respondent’s brief both raise the question as to whether the learned trial Judge considered the issue of partitioning of the family property raised by the appellant. With due respect, this issue is totally misconceived. Although the learned trial judge had in his judgment said:

“I would not go into the issue of partitioning. This was not plaintiff’s case at all. It was raised by defendant. There is no counter-claim. I do not think it is on issue in this case.”

But, in the same judgment the learned trial judge had reasoned thus:

“PW3 adequately dealt with this issue. This was not challenged by the defence that raised it.

From Njemanze Iheanacho Ihejihu/Onwuegbuchulam to Shimobi and now to the plaintiff there is no evidence of a broken chain or abandonment of this land by them. The weight of evidence in this case points to the fact that Ihejihu farmed on this land in dispute exclusively and that she acquired this exclusive right under Owerre Native Law and Custom. Being a gift therefore, her only stepson and son infact inherited the land. Plaintiff inherited this land from Ihejihu’s stepson… No. 41 Erekwerenwa Street, Owerre therefore is not family property. Exhibits C, C1 D and D1 show that there was trespass into the land. DW1 did not deny this. It has been proved and I hold that plaintiff has a better title to this land in dispute then (sic) the defendant. Being in possession the plaintiff is entitled to succeed in his claim for trespass…”

If it is still being contended that the learned trial Judge did not consider the issue of partition in this case I wonder how best he could have done so. Suffice it to say that the terse evidence before the trial Judge was not sufficient to hold that there was a partition of any land, see MAYA V. OSHUNTOKUN (2001) 11 NWLR (Pt.723) 62. Issue No. 4 in the appellant’s brief of argument is therefore resolved against the appellant. While issue No. 3 in the respondent’s brief which issue is similar to issue, No. 4 afore-mentioned is answered in the affirmative.

Having considered all the issues and resolved same against the appellant, the only conclusion I can reach is that this appeal is unmeritorious. It must be dismissed and it is hereby dismissed. There shall be cost in favour of the respondent which cost I assess at N7,500.00 against the appellant.

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Other Citations: (2005)LCN/1728(CA)