Augustine Obineche & Ors V. Humphrey Akusobi & Ors (2010)
LAWGLOBAL HUB Lead Judgment Report
O. ADEKEYE, J.S.C.
This is an appeal against the judgment of the Court of Appeal, Port Harcourt Division delivered on the 8th day of July 2003. The respondents were plaintiffs at the High Court of Imo State, Orlu Judicial Division where they filed a suit for themselves and as representatives of the Umuabor Community of Dikenafai in the Ideato South Local Government Area of Imo State. By an amended Statement of Claim filed on the 16th of July 1996, the respondents as plaintiffs claimed against the defendants now appellants before this court jointly and severally as follows –
(a) A declaration that the defendants are not descendants of Nchoke the founder of the Umuchoke Community of Dikenafai in the Ideato Local Government Area of Imo State and as such that the defendants are not members of the Umuchoke Community aforesaid.
(b) A declaration that all those pieces and parcels of land known as and called “Ala Isiobi Akasobi” “Ala Isiobi Amaechi” and “Ala Mgbola Onyewuchi” form part of larger pieces and parcels of land all lying and situate at Ndiabo Umuchoke Dikenafai in the Ideato Local Government Area of Imo State over which members of the plaintiffs Ndiabo Umuchoke are entitled to customary Right of Occupancy to the exclusion of the defendants.
(c) Injunction perpetually restraining the defendants by themselves, their agents and or by any other person acting for or on their behalf from –
(i) Representing themselves to any person as members of or descendants of the Umuchoke Community of Dikenafai in the Ideato South Local Government Area of Imo State and
(ii) Committing any further act of trespass on or over any part of the said land of the Umuchoke Community of Dikenafai in the Ideato South Local Government Area of Imo State.
(d) A declaration that the defendants have forfeited that customary grant of land for residential purpose made by Ike Alisigwe of the plaintiffs’ Ndiabo Umuchoke to the defendants Anthony Agonsi and Dominic Okwaranyaegbu Ubawuike on the ground that they have challenged the title of their grantor.
The appellants as defendants were sued in a representative capacity for themselves and as representatives of Umuabo Community of Dikenafai in Ideato South Local Government Area of Imo State. They also counterclaimed in a representative capacity.
By their pleadings and evidence, the plaintiffs/respondents gave the description of the lands in dispute as forming part of a larger area of land, lying at Nchabo Umuchoke Dikenafai in the Ideato South Local Government Area of Imo State. The pieces of land are known as “Ala Isiobi Akusobi”, “Ala Isiobi Amaechi” and “Ala Mgbala Onyewuchi”. The plaintiffs/respondents claimed ownership of the land in dispute through a judgment in their favour in the Governor’s Court of Appeal under the Native Courts Ordinance (Cap 142) Section 31 in Enugu on 21st February 1952 in appeal No. 5/1952. This was an appeal against the decision of the Senior District Officer with Residents power (flight Lieutenant O.J.F. Jones Lloyd) an appeal against the decision of the Acting District Officer, Orlu Division, Mr. A.E. Rylands in an appeal in the Northern Isu Native Court in Civil Suit No. 301/47. They pleaded and relied on certified true copies of the said judgment. They tendered plans of the disputed land. The appellants as defendants at the High Court traced their lineage to Abo and hence are known as Umuabo. They claimed to be owners of the land in dispute having settled there from 1890. They however at one stage moved away to Nkahu which is another part of Dikenafai because of the hostility of the people of Umuokuodu. They returned to the land in 1944 and published this fact in the Eastern Nigerian Guardian of 12th of June 1954. As at that time, they discovered that one Felix Akusobi – their blood relation and father of the first respondent had given out part of the land in dispute to other respondents – who are strangers and belong to other kindred in Umuchoke. The defendants/appellants established their ownership of the land in dispute through various acts of possession and occupation until the trespass by the respondents in 1990 and 1991.
In the considered judgment of the trial High Court delivered on the 14th of August 1996, the court found for the defendants/appellants in their counterclaim. The court found amongst other facts that the plaintiffs/respondents did not plead their root of title and even failed to establish it. The traditional history of the plaintiffs/respondents as to their origin was conflicting and contradictory. There is evidence to show that no section of Umuchoke can own land in another section and the claim of the plaintiffs/respondents to communal ownership of land in Umuchoke is not only false but also unfounded. The respondents failed to link themselves to Ibeke Alisigwe. Though the plaintiffs/respondents claimed for declaration and injunction, they failed to prove the extent of the land in dispute, or the extent of the land the defendants/appellants have trespassed upon, or the extent of the land which Ibeke Alisigwe purportedly granted to Dominic Okwaranyaegbu Ubawuike and Anthony and Agonsi. The appellants as defendants had proved undisputed acts of possession over the land in dispute. They proved that they had a relationship with the 1st respondent whose father pledged part of the land which they redeemed. The appellants established acts of trespass on the part of the respondents.
The respondents were dissatisfied by the said judgment and consequently appealed to the Court of Appeal, Port Harcourt Division.
The Court of Appeal allowed the appeal, set aside the judgment of the trial court, dismissed the counter-claim of the appellants at the trial court and entered judgment in favour of the plaintiffs/respondents in terms of their amended statement of Claim before the trial court. The defendants/appellants being aggrieved by the judgment of the Court of Appeal have appealed against the judgment to this Court. The Notice of Appeal filed on the 28th of September 2003 contained seven grounds of appeal. The appellants distilled four issues for determination in their brief filed on 12/2/04 and reply brief deemed filed on 8/3/10 before this court as follows –
‘(1) Was the Court of Appeal correct in holding that the case of the plaintiffs/respondents was predicated on the production of documents Exhibit B- B2 relying on the case of Idundun v. Okumagba (1976) 9-10 SC pg. 227.
(2) Did the respondents discharge the burden of proof of declaration of title in their favour.
(3) Was the Court of Appeal correct in holding that the defendants/appellants ought to have known about the 1952 case.
(4) Was the court below right when it dismissed the defendants/appellants counter-claim.”
The respondents in their brief filed on 29/3/04 settled two issues for determination as follows –
“(1) Whether the Court of Appeal was right in holding that the plaintiffs/respondents title to the land in dispute had been established by the 1952 judgment in their favour by the Governor’s Court of Appeal Eastern Nigeria.
(2) Whether having found that the respondents have proved and established their title to the land in dispute, the Court of Appeal was right to have reversed and set aside the decision of the trial High Court, entered judgment for the respondents and dismissed the appellants’ counterclaim.”
I agree with the submission of the learned, counsel for the plaintiffs/respondents that the germane claim before the trial court by the respondents was for declaration of their title to the land in dispute and forfeiture by the appellants of the customary grant to them by the respondents of parts of the land in dispute. Issues (a) – (c) are covered by the same argument, submission and facts, they shall therefore be considered together by me for ease of reference. The appellants’ four issues for determination shall now be compressed into two. The appellants equally counter-claimed for declaration of title and forfeiture against the respondents.
The case of the plaintiffs/respondents was predicated on –
(a) Declaration that the appellants are not descendants of Nchoke the founder of the Umuchoke Community of Dikenafai and therefore members of Umuchoke Community.
(b) That the members of the respondents’ Ndiabo Umuchoke are the ones entitled to the Customary Right of Occupancy to the exclusion of the appellants over the three parcels of the land in dispute which form part of the larger parcels of land at Ndiabo Umuchoke Dikenafai in the Ideato Local Government Area of Imo State.
(c) Injunction to restrain the appellants from parading themselves as members of Umuchoke Community and from committing any further act of trespass on any part of the land of Umuchoke Community of Dikenafai.
(d) Declaration that the appellants have forfeited the customary grant of land for residential purpose made by Ibeke Alisigwe of the respondents’ Ndiabo Umuchoke to members of the appellants’ family.
In proof of their claim to title, the plaintiffs/respondents at paragraph 19 (b) of their amended statement of claim pleaded as follows –
“The entire portions, which the defendants now claim falsely, form part of a larger area of land over which the plaintiffs as Umuchoke secured judgment in the Governor’s Court of Appeal under the Native Court Ordinance (Cap 142) Section 31 in Enugu on 21st February 1952 in Appeal No. 5/1952 which was an appeal against the decision of Senior District Officer with Residents powers (flight lieutenant OJF Jones Lloyd) on appeal against the decision of the Acting District Officer, Orlu Division (Mr. A.E. Rylands) in an appeal in the Northern Isu Native Court in civil suit No. 301/47. The plaintiffs hereby plead and shall at the trial rely on certified true Copy of the judgment of J.G. Pkye v. Wott (Lieutenant Governor, Eastern Nigeria) in that appeal No. 5/1952 between Obiese Dike and three others of Umuchoke family of Dikenafai as plaintiffs/respondents and Maduagugbo Okwaranobi and three others of Nkahu family of Dikenafai as defendants/appellants and also pleads the certified true copy of that dispute survey plan No. OR/1/48 made for case No. 301/47 as well as pleads that treasury receipt No.99427 dated 17th March 1952 by which the plaintiffs forbear Obiesie Dike paid for certified copies above.”
Pg. 163 paragraphs 6-33, and page 164 paragraphs 1-6 of the Record.
By way of reaction to the foregoing, the appellants only pleaded as follows –
”The defendants deny paragraph 19 (a) and (b) of the Statement of Claim with particular reference to paragraph 19 (b) of the Statement of Claim, the defendants shall contend that judgment is irrelevant to this suit and should be disregarded.”
In view of the fact that the appellants only pleaded that the judgment of 1952 is irrelevant and nothing more, they are not in a position to lead any evidence in rebuttal of their contention. It is trite that facts not pleaded go to no issue.
Adimora v. Ajufo (1988) 3 NWLR pt. 80 pg.1
Atanda v. Ajani (1989) 3 NWLR pt. 111 pg. 511.
Uredi v. Dada (1988) 1 NWLR pt. 69 pg. 257.
Ajao v. Alao (1986) 5 NWLR pt. 45 pg. 802.
Eze v. Atasie (2000) 10 NWLR pt. 676 pg. 470.
Cases are fought and decided only on the issues joined and established on the pleadings of parties. Going by the pleading of the parties, the appellants failed to join issues on the facts of substance raised by the respondents regarding the 1952 judgment in their favour. The respondents pleaded further and led evidence to the fact that the lands in dispute form part of a larger area of land over which the plaintiffs as Umuchoke secured judgment in the Governor’s Court of Appeal. This piece of evidence was equally not challenged by the appellants. The foregoing are facts of importance in the case of the respondents – on which issues were never joined. With that the respondents averred in their pleadings that a competent court of record had declared their title to a larger portion of the land of which that in dispute formed a part and so their title was established.
The Court of Appeal affirmed that the respondents had successfully proved their title to the land in dispute by virtue of the said 1952 judgment and consequently gave judgment in favour of the respondents. Certified true copies of the judgment of the Governor’s Court of Appeal were tendered as Exhibits B – B2. The respondents invited expert evidence from the Office of the Surveyor-General in respect of the composite plan of the entire land tendered as Exhibit F. The composite survey plan tendered by the Surveyor from the office of the Surveyor-General who was summoned by subpoena showed that the lands in dispute formed part of the larger area of the land in dispute in the 1952 case in which title of the land was granted to the respondents. The evidence of this witness – as P.W.II was not controverted. The evidence of the respondents in support of the 1952 judgment in Exhibits B – B1 was uncontroverted. There is no sufficient basis for the rejection of Exh. F as canvassed by the appellants on the basis that it was not pleaded. Exhibit F arose from superimposing of Exhibit A and C on Exhibit B2. Exhibits A, C and B2 were pleaded and Exhibit F arose from other pleaded documents. The respondents filed a motion on Notice at the trial court for leave to file and rely on a composite dispute survey plan which leave was granted. The composite plan was subsequently tendered in the course of trial by the surveyor P.W.II. The appellants did not challenge the application. Vide pages 406 – 410 of the record. The appellants cannot raise the issue of the composite plan for the first time without leave of this court, when they did not oppose the admissibility at the trial court.
FRN v. Zebra Energy Ltd. (2002) 3 NWLR pt. 754 pg. 471.
Obioha v. Duru (1994) 8 NWLR pt. 365 pg. 631.
Yusuf v. U.B.N. Ltd. (1996) 6 NWLR pt. 457 pg. 632.
Eze v. A-G Rivers State (2001) pt. 18 NWLR pt. 746 pg. 524.
A-G Oyo State v. Fairlakes Hotels Ltd. (1988) 5 NWLR pt. 92 pg. 1.
The appellants raised the issue for determination as to whether the Court of Appeal was correct in holding that the defendants/appellants ought to have known about the 1952 judgment. The appellants were not parties to the 1947 – 1952 dispute in which the Governor’s Court granted title to the larger area of land of which the land in dispute is a part – but they are bound by the decision and they ought to have known about it having pleaded that they returned to the land in 1944 while the Litigation was in 1947-1952. Since the respondents had proved that title to the land in dispute had been granted to them by a competent court, the onus to challenge the title fell on the appellants. They must adduce cogent evidence to nullify the title to the land in dispute vested in the respondents by the 1952 Governor’s Court judgment. The appellants failed to plead such facts in their counter-claim. Such judgment vested a title on the respondents against the world at large until reversed by a competent court.
Gomwalk v. Military Administrator Plateau State (1988) 7 NWLR pt. 558 pg. 413.
Ezeokaforv. Ezeilo (1999) 9 NWLR pt. 619 pg. 513.
There is a presumption of the validity and bindingness of a previous judgment until it is upturned on appeal.
Kamalu v. Umunna (1999) 5 NWLR pt. 505 pg. 321.
Nwanwata v. Esumei (1998) 8 NWLR pt. 563 pg. 650.
Babatunde v. Olatunji (2000) 2 SC 9.
Oguigo v. Oguigo (2001) 1 WRN pg. 131.
Furthermore, the appellants claimed possession of the land in dispute by their publication of Exhibit D that they returned to the land in 1944. The dispute over the land was between 1947 – 1952. When the Lt. Governor gave judgment in favour of Umuchoke family – the respondents, the appellants admitted that they were back on the land since 1944 and before the litigation started in 1947. The appellants did not attempt to lead evidence that they had no knowledge of the 1947 – 1952 litigation. In the case of Mana Abuakwa v. Mana Adanse (1957) 3 ALL ER pg. 559 – the privy council re-stated the rule as to estoppel by conduct and held that a party who knew of but took no part in previous proceedings is bound by the decision in those proceedings. Nnamani JSC (of blessed memory) in the case of Oke & Anor v. Atoloye & Ors (1986) NSCC Vol. 17 pt. 1 pg. 165 said that:
“It is trite law that estoppel stretches beyond estoppel per rems judication to estoppel in pais, estoppel by deed, estoppel by negligence etc more relevant to the present proceedings is estoppel by conduct. Again, and perhaps even more relevant to the present proceedings, if a party stands by and allows another to fight his battle in a litigation which touches on his interests he cannot be heard later on to complain.”
In the case of Chukwuma v. Ifeloye (2008) 8 NWLR pt. 1118 pg. 204 at pages 231 – 232, Oguntade JSC (Rtd.) aptly gave a simple illustration of standing by – by saying that: –
“Where a land owner stood by and knowingly by his inaction allowed a stranger to develop the land in good faith without the owner appraising the stranger the defect of his title, then the doctrine of acquiescence and standing may be properly invoked to estop the owner from reaping the benefit of the stranger’s labour.”
Solomon v. Mogaji (1982) 11 SC 1.
The appellants cannot fold their arms and allow members of Umuchoke family to fight their battle against members of Nkahu family and now turn round to take the benefit of the situation. From the available facts, the Court of Appeal was right to hold that the appellants ought to have known about the 1947 – 1952 case.
Such admitted facts are –
(i) That the Umuchoke family litigated over the land in dispute between 1947 – 1952.
(ii) That the lands in dispute in the present case is (sic) the same that formed part of the land disputed between 1947 – 1952.
(iii) That the Umuchoke family won and title to the land in dispute was granted to them by the court.
(iv) That throughout the pendency of the litigation, the appellants were resident on the land in dispute by their own admission since 1890 (a period of over 57 years) with the Nkahu people with whom the respondents litigated (as claimed by the respondents in either case, the appellants ought to have known and are deemed to have had knowledge of the said previous litigation. These were not speculations as erroneously canvassed by the appellants at pages 26 – 28 of the appellants’ brief but inferences of fact.
Where ordinarily a judgment of court, which is final between the same parties, with the same questions for determination and before a competent court, cannot operate as estoppel per rem judicatam, it may constitute a prima facie act of possession where it pertains to a land in dispute.
Igwego v. Ezeugo (1992) 6 NWLR pt. 249 pg. 561.
Achiakpa v. Nduka (2001) 19 NWLR pt. 734 pg. 623.
The Court of Appeal was correct to have concluded in the prevailing circumstance that the respondents had already proved their title to the land in dispute in the 1947-1952 litigation and through traditional evidence. Having concluded that the title to the land in dispute belonged to the respondents in the said litigation of 1947-1952 through traditional evidence, their title is already established. It was therefore unnecessary to consider traditional history in proof of same title and any defect, omission or errors in proof of such traditional history is irrelevant. A conclusive Native Court judgment may operate as estoppel per rem judicatam or issue estoppel.
Kamalu v. Umunna (1997) 5 NWLR pt. 505 pg. 321.
The Court of Appeal was also right to have reversed and set aside the judgment of the trial court which granted title to the appellants, an order of forfeiture of the right of the respondents over all the portions of the land in dispute and an order of perpetual injunction against the plaintiffs/respondents.
Issue 4
Another issue for determination is whether the court below was right when it dismissed the defendants’/appellants’ counter-claim. The defendants/appellants at the trial court counter-claimed against the plaintiffs/respondents as follows-
(i) An order of court that the defendants are the owners of the land in dispute.
(ii) N1,000,000 (one million naira) general damages for trespass.
(iii) An order of forfeiture of the right of the plaintiffs over all the portions of land occupied by them on the disputed land.
(iv) An order of perpetual injunction restraining the plaintiffs by themselves, their servants, agents, privies, heirs, assigns and workers from further trespass to the said land.
The appellants pleaded their root of title based on traditional history and acts of possession through the evidence of DW1 and DW2. They gave evidence that they have been on the land since 1890 until they fled to Nkahu and returned in 1944. They gave evidence of the various boundaries and features in the land. That they had redeemed some of the land pledged by Felix Akusobi the father of the 1st respondent. They canvassed that the Court of Appeal was therefore wrong in holding that Exhibits B-B2 were documents of title. The Court of Appeal found that the respondents established their title to the land not through traditional historical evidence, but proved it by virtue of the 1952 judgments. The title to the land therefore resides in the respondents.
In order to succeed in a claim for a declaration of title to land, the court must be satisfied as to –
(a) The precise nature of the title claimed that is to say, whether it is title by virtue of original ownership, or customary grant or conveyance or sale by customary law or long possession or otherwise.
(b) Evidence establishing title of the nature claimed must be credible, convincing and equivocal.
The five different ways or methods of establishing ownership or proving ownership of a land in dispute – are: –
(a) Proof by traditional evidence.
(b) Proof by production of documents of title duly authenticated, unless they are documents twenty or more years old produced from proper custody.
(c) Proof by act of ownership in and over the land in dispute such as selling, leasing, making grant or farming on it or a portion thereof extending over a sufficient length of time numerous and positive enough to warrant the inference that the persons exercising such proprietary acts are the true owners of the land.
(d) Proof by acts of long possession and enjoyment of the land which prima facie may be evidence of ownership not only of the particular piece of land with reference to which such acts are done, but also of other land so situate and connected therewith by locality or similarity that the presumption under Sections 46 and 146 of the Evidence Act applies and the inference can be drawn that what is true of the one piece of land is likely to be true of the other piece of land.
(e) Proof by possession of connected or adjacent land in circumstances rendering it probable that the owner of such connected or adjacent land would in addition be the owner of the land in dispute.The respondents led concrete and convincing evidence by tendering the judgment of the Governor’s Court, Exhibits B – B2 delivered in 1952, a composite plan which showed that the pieces of the land in dispute are part of a larger piece of land which formed the subject-matter of the 1952 judgment.
The judgment apportioned the large area of land including the three pieces now in dispute to the respondents. This evidence comes under the (e) method of establishing ownership of a land in dispute – proof by possession of connected or adjacent lands.
Alli v. Alesinloye (2000) 6 NWLR pt. 660 pg. 177.
Adeosun v. Jibesin (2001) 11 NWLR pt. 724 pg. 290.
Diaro v. Tenalo (1976) 12 SC pg. 31.
Idundun v. Okumagba (1976) 9-10 SC 227.
Magagi v. Cadbury Nigeria Ltd. (1985) 2 NWLR pt. 7 pg. 393.
Ogunleye v. Oni (1990) 2 NWLR pt. 135 pg. 745.
Kodilinye v. Odu (1935) 2 WACA 336.
Where the evidence of tradition is inconclusive, the case must rest on a question of fact. In the instant case, any loopholes in the evidence of the respondents based on traditional history – was given necessary cogency and support by the facts of act of possession and ownership of connected and adjacent land as established by the Governor’s Court judgment of 1952.
Fasoro v. Beyioku (1988) 2 NWLR pt. 76 pg. 263.
Kaiyuoja v. Egunla (1974) 12 SC pg. 55.
I resolve the two issues in favour of the respondents.
On this premises, I agree that the Court of Appeal was right to allow the appeal, set aside and reverse the judgment of the High Court which granted the appellants’ counter-claim. In the circumstance of this case, the counter-claim of the appellants was rightly dismissed.
In the final analysis, I dismiss the appeal for lacking in merit. I affirm the judgment of the lower court with N50,000 costs in favour of the respondents.
SC.287/2003
