Bennet Ude Agu V. Ozo Moses Nnadi (1998)
LawGlobal-Hub Lead Judgment Report
SALAMI, J.C.A
This is an appeal against the decision of Okadigbo, J., delivered on 25th June, 1990 in the Anambra State High Court, in Enugu Judicial Division silting in Enugu. The claims of the plaintiff which went to trial are –
“(a) A declaration that the plaintiff is entitled to redeem the pledged land verged pink in the plaintiff’s plan No. FCO/09/82 and thereon described as the land in dispute.
(b) An order of court that the defendant do accept from the plaintiff the sum of twenty five naira (N25.00) being the redemption money in respect of the said land.
(c) A perpetual injunction restraining the Defendant and/or his agents or servants or privies from remaining on the said land or remaining in possession of the said land.”
At the trial, the plaintiff called three witnesses and placed reliance on the evidence or one Oza Jonas Ozougwu who had earlier testified before his death in the same action. The defence also called two witnesses. The learned trial Judge after considering the material, both oral and documentary, placed before him, in a reserved and considered judgment dismissed the plaintiffs claim. The plaintiff was unhappy with the decision of the learned trial Judge and being aggrieved appealed to this court on 8 grounds of appeal.
In compliance with the practice and procedure of this Court, learned counsel, on behalf of their respective clients filed and exchanged briefs of argument. The learned counsel for plaintiff (hereinafter referred to as the appellant) formulated five issues which issues are hereunder set out as follows –
- As the parties agreed that the land was originally pledged to the father of Michael Chime, P.W.1, who was it that pledged the land, the plaintiff or the half brother of the plaintiffs grandfather?
- If the pledge was made by the plaintiff’s grand father is it not the plaintiff who is entitled to redeem the said land pledged by his grand father?
- Whether or not the learned trial Judge was right in holding that he did not see how he could believe the evidence of P.W.1, Michael Chime, all the alleged customary land of trusteeship in Ngwo when there was no valid reason given by the learned trial Judge to make him disbelieve the said witness.
- Whether or not the learned trial Judge was right to have glossed over the evidence of a deceased witness (Oza Jonas Ozougwu) whose evidence was tendered by the plaintiff and reflected in Exhibit B.
- Whether or not from the state of the pleadings and the evidence before the trial Judge the plaintiff was entitled to judgment.
The learned counsel for defendant (hereinafter referred to as the respondent) formulated three issues in the respondent’s brief. The three issues read as follows
“1. Whether Chime Nwagu Ude held the land in dispute as beneficial owner or as trustee for the appellant.
- Whether the transaction between Chime Nwagu Ude and the respondent was a pledge or an outright gift.
- Whether the trial court was right in dismissing the appellant’s case.”
This last formulation in respondent’s brief is a variant of the fifth issue in the appellant’s brief and respectfully they did not arise from any of the grounds of appeal adumbrated in the notice of appeal. Learned counsel in these purported issues are merely giving ventilation to their wishful thinking on the outcome of the appeal. This is not good enough. The respondent, without ascribing any reason framed only two issues from the 8 grounds of appeal filed by the appellant. Having not appealed, the respondent should explain why his own formulation should be different from the appellant’s.
The respondent’s approach has resulted in his not reacting to appellant’s issue 1 because the answer in respondent’s issue I is directed at the appellant’s issue 2. It follows that respondent has no answer to this issue. The respondent’s predicament arose from the paucity of his own formulations.
At the hearing of appeal, Dr. Oguagha adopted and relied on the appellant’s brief. He also made a short elucidation of the brief. Similarly, Mrs. Offiah adopted and relied on the respondent’s brief. She also made oral elaboration on that brief.
In my respectful opinion, be that as it may, the appellant having joined claims for injunction and trespass with the declaration that he was entitled to redeem the pledged property has put his title into issue. His claim for trespass and for an injunction to restrain further act or acts of trespass postulates that the ownership of the disputed area is his either by gifts or inheritance or exclusive possession. The principal question to be tackled in the appeal would accordingly appear to be whether the appellant has discharged the onus placed on him to show that ownership of the land in dispute rested on him. See Abotche Kponugbo & others v. Adja Kodadja 2WACA 24; Okorie & others v. Udom & others (1960) SCNLR 326 (1960) 5 FSC 162 at 165 where Ademola C.J.F. said-
“Counsel for appellant further argued that as the case before the learned trial Judge was merely a claim for trespass, it having been established that the appellants were in possession of the area complained of in the writ … it was unnecessary to consider the question of title to the land, and the appellants were entitled to judgment, without establishing title, if their possession was disturbed.
The learned Judge indeed considered the issue of title to the land. I am of the opinion that he was correct in doing so, since the claim before him was one not only for trespass but also for an injunction. The case Abotehe Kponugho & others v. Adja Kodadja decided in the privy council and reported in 2 WACA 24 (and a host of other cases following it) clearly establishes that where there is a claim for trespass coupled with injunction, it is incumbent on the judge to consider the question of title to the land or the exclusive possession of it. ”
(italics mine)
See also Aromire v. Awoyemi (1972) 1 All NLR (Pt.1) 101. 112 where Supreme Court said –
“Learned counsel on behalf of the appellants has submitted, and in our view with justification, that on a proper appraisal of the facts that learned trial Judge should have found that the 3rd appellant also claimed to be in possession of the land and then resolved the issue of the competing titles of the plaintiff and the 3rd appellant. It is of course settled law that where two parties claim to be in possession of land the law ascribes possession to the one of them with the better title. (See Jones v. Chapman) (1848) 2 Exch. 803 Canvey Island Commissioners v. Preedy (1922) 1 Ch. 179)”.
In a similar case this court directed as follows-
“We are in no doubt that on the pleadings the case of the plaintiff postulates that she had a better title to the land than the defendant who admittedly was at the time of the institution of the proceedings, rightly or wrongly, in possession of the land … The learned trial Judge rejected the defendant’s case and passed severe strictures on the defendant’s witness and their conduct; but with respect, a consideration of the defendant’s case and the weakness of it did not arise until the plaintiff had led evidence showing, prima facie, that she had a title to the land. She had failed to do this and it is inconceivable that she should be allowed to succeed on her claims when, as indeed it is, the defendant who is in possession and maintains that he is entitled so to remain. If it be alleged that someone in possession of land is a trespasser the person so alleging has the onus of showing that he has a better right to the possession which was disturbed and unless that onus is discharged, the person so alleging cannot defeat the rival party. Such is the case here and we are of the view that the plaintiff’s case had failed and it should have been dismissed.”
(See Godwin Egwuh v. Duro Ogunkehin S.C.529/66 decided on the 28th February, 1969.”In the result, the only issue calling for determination is issue 2, in the appellant’s brief or issue 1 in respondent’s brief of argument.
Learned counsel for appellant contended in issue 2 inter alia alia that the appellant pleaded in paragraph 6 that the said land was the property of the said Ude Agu the appellant’s grandfather. Learned counsel for appellant contended that from the evidence before the trial court it could be seen that the pledge of the land in dispute which was made by the plaintiffs grand father was “in respect of the land which belonged to the plaintiff’s grand father” and not in respect of the portion that belonged to his half brother. Chime Nwagu Ude. Learned counsel went further to contend that no one can pledge what does not belong to him and the plaintiff’s grand father could not have left his own share of the land and pledge the land which belonged to his half brother without the half brother protesting. Learned counsel contended that the appellant and his witnesses and the surrounding circumstances having shown that the pledged land was the property of the appellant’s grand father the appellant does not have to go into traditional history or to show how the land came from ancestor to ancestor until it devolved on the appellant’s grand father because he did not sue for declaration of title or for customary right of occupancy in respect of the land. He sued, learned counsel further expatiated, for redemption of the land pledged by his grand father and for that reason the case of Sunday Piaro quoted by learned counsel for respondent seems inapplicable in the circumstance of the instant appeal.
Learned counsel for respondent, in the respondent’s brief, contended that in paragraph 6 of his amended statement of claim the land in dispute belonged to Ude Agu, appellant’s grand father. Learned counsel argued that appellant merely asserted this without showing how the said Ude Agu came to be the owner of the land in dispute. He cited sections 135 and 139 of Evidence Act in respect of the burden of proof placed on a party who wants the court to believe in existence of certain facts or otherwise. Learned counsel for respondent then submitted that the appellant failed to establish that the land in dispute belonged to Ude Agu by his failure to trace the traditional history of the land and how the land came to be owned by Ude Agu. The appellant, counsel further contended, failed to bring his ownership within any of the manners of acquiring land laid down in the case Idundun v. Okumagba (1976) 10 SC 227.
There is no substance in the submission of learned counsel for appellant that the appellant, in the circumstance of this case, does not need to go into traditional history or to state how the land was acquired and devolved from one ancestor to another ancestor until it came to be vested in the appellant’s grand father before the same was vested on the present appellant. The misapprehension stems from appellant’s misconception to the respondent’s case which was in effect direct challenge of appellant’s title. It is appellant’s case that his grand father Agu Ude pledged the property to the grand father of the first appellant’s witness; whereas respondent’s claim is to the effect that he assisted his predecessor-in-title with money to redeem the property in dispute from the same grand father of the same appellant’s first witness. He alleged that his predecessor in title made a pledge of the same parcel of land to the grand father of appellant’s first witness, Ozo Ugwuani Nwachime. Contrary to the appellant’s submission, which I propose to set out immediately hereunder, that the burden is on the respondent, in fact the onus of proof is on the appellant: The submission reads –
“There is no evidence from the defence that the land pledged to the father of P.W.1 by the plaintiff’s grand father was the land of Chime Nwagu Ude (his half brother). Rather what the defence was saying was that the land redeemed from P.W.1 was the land of Chime Nwagu Ude. The burden was upon the defence to prove that assertion, and this they could not do.”
The respondent was the defendant in the court below who had neither a claim nor a counter-claim before the trial court and who was contented to watch the appellant who had a claim before the trial Court succeed or fail on the strength of his case.
It was the duty of the appellant to discharge the burden of proof placed upon him by first showing how the land was first acquired and how it came to devolve upon him. The respondent has no evidential burden until the appellant, who would fail as he did, if no evidence were called, has discharged the burden placed on him and the evidential burden shifted on the respondent. The appellant did not discharge the burden of proof placed on him and he clearly admitted his failure by erroneously denying that he had such duty. See Abiodun v. Adehin (1962) 2 SCNLR 305, 1 All NLR 550; Ganiyu v. Arase Akande (1968) NMLR 404 at 408 Eso, J.A. (as he then was) said –
“The position therefore is this, in a civil case, the burden of proof lies on the person who would fail, assuming no evidence had been adduced on either side. Further, in respect of particular facts, the burden rests on the party against whom judgment would be given if no evidence were produced in respect of those facts. Once that party produces the evidence that would satisfy a jury then the burden shifts again on the party who against whom judgment would have been given if no more evidence were adduced.”
See also the case of Are v. Adisa (1967) NMLR 304, 306.In the circumstance, the appellant who was plaintiff in the trial court must show how the party through whom he is claiming divested the person through whom that person acquired how title and title came to be vested in him. See Sir Adesoji Aderemi v. Joshua Adedire (1966) NMLR 398; Alli Adekanbi v. Adebayo Ayorinde (1970) 1 All NLR 331 at 337 where the Supreme Court quoted with approval its earlier decision in the case of 19hoji v. Elemeghe SC 244/66 delivered on the 20th June, 1969 that –
“Indeed, in a case where the plaintiff proves no more than the exercise of some common rights over an unspecified portion of land in respect of which he had claimed a declaration of title this court held that the proper order was one of dismissal of his case. (See Aderemi v. Joshua Adedire (1966) NMLR 396 especially at pp. 402, 403).”
The appellant did not lead evidence of any of the five ways of acquiring land as enunciated in the case of D. O. Idundun & others v. Daniel Okumagba (1976) 9-10 SC 227. I am not unaware of the other way or mode of acquiring land in addition to the five outlined in Idundun v. Okumagba (supra) which is that acquisition by inheritance. See Melifonwu v. others v. Egbuji & others (1982) 9 SC 145, 162.
The appellant led evidence of his inheriting the property from his grand father his father having predeceased his own father. But the piece of evidence was not pleaded and for that short coming it goes into no issue: See N.I.P.C. Limited v. B.W.A Limited (1962) 2 SCNLR 324; 1 All NLR 556 where it was held that a defendant is not entitled to rely on a defence which is based upon a fact not illustrated in the statement of defence. The reason being that parties are bound by their pleadings and to allow a party to lead evidence contrary to his pleadings is to allow that party to make a different case at the trial from what he set out to prove and thereby overreach his opponent. Such evidence the court is bound to disregard or regard as not belonging to the issue raised in the suit. See George v. Dominion Flour Mills Ltd (1963) 1 SCNLR 117 (1963) 1 All NLR 71,78 & 79, George v. United Bank for Africa Ltd (1972) 8/9 SC 264 and Emegokwue v. Okadigbo (1975) 4 SC 113, and Edem Ekpeyong v. Akoba Etok Ayi (1973) ECSLR 411.The evidence of the appellant that “under our native law and custom i.e. Ngwo native law and custom I inherited the land in dispute from my grand father” was properly disregarded by the learned trial Judge because it was not in issue before the court. By that same token, the learned trial Judge rightly, in my view, disregard the appellant’s evidence, under cross-examination, where he said his father inherited both the okoro and the land in dispute. The appellant totally failed to provide, on the amended statement of claim and evidence accepted by the court facts about –
(i) the founding of the land in dispute;
(ii) the person or persons who founded the land in dispute and exercised original acts of ownership;
(iii) the persons who have held or on whom title has devolved in respect of the land since the founding before the plaintiff on record.
The absence of these facts which are necessary for the determination of the suit is fatal to the appellant’s case. See Sunday pairo v. Wopunu Tenalo (1976) 12 SC 31, 41-42; F.M. Alade v. Lawrence Awo (1975) 4 SC 215 and Mogaji v. Cadbury (Nig.) Ltd (1985) 2 NWLR (Pt. 393).
The appellant having failed to establish his ownership of the land in dispute the issue of who was it that pledged the land fades into obscurity since the learned counsel. For appellant rights in my view, conceded in the appellant’s brief that no one can pledge what does not belong to him. This appears to dispose of the appeal.
However, I propose to deal with the issue of trusteeship in Ngwo native law and custom contained in appellant’s issue 3. In this connection, learned counsel for appellant referred to the reasoning of the learned trial Judge for rejecting the evidence adduced in support of the pledge and urge the court to go into merit or demerit of the learned trial Judge’s reasoning on the authority of Akibu v. Opaleye (1974) 11 SC 189, 203. I agree that this court is competent to examine the merits or demerits of the reasons ascribed by the learned trial Judge in accepting or rejecting the relevant piece of evidence. In the case Akibu v. Opoleye (supra) at page 203 of the report Supreme Court said:.
“We feel that the use of the expression “I believe” and “I do not believe” without really evaluating the evidence of vital witnesses does not estop an appeal court from itself evaluating the evidence and seeing whether there is any justification for the use of such expressions.”Let me quickly say that learned trial Judge in the case presently on appeal before us has in no manner run foul of Opaleye case (supra). He did not find solace or refuge in the words “I believe” and “I do not believe. ” He followed Akibu v. Opaleye by ascribing reason for holding the first plaintiff witness unreliable. It is for the reason or reasons he adduced for rejecting that witness’ testimony that we are being called upon to crucify him. The learned trial Judge in coming to his opinion about first plaintiff witness reasoned thus –
“I do not see how I can believe the evidence of P.W.1 on the alleged customary law of trusteeship in Ngwo in view of the fact that he did not impress me as a witness of truth with particular reference to his evidence all the description of location of the land in dispute. The totality of his evidence on the identity of the land in dispute is that it was his father’s half brother i.e. Nnadi Ukwuani took him to the land and showed him the boundaries. I would like to observe that according to P.W.1 the land in dispute was pledged by the plaintiff’s grand father to his own father i.e. Ozo Nnadi Ukwuani Nwachime and not to his father’s half brother i.e. Nnadi Ukwuani. There is no evidence from P.W.1 that his father before his death took Nnadi Ukwuani to the land in dispute and showed him the land in dispute. It is surprising that the said Nnadi Ukwuani did not give evidence in this case and no explanation or excuse was given of his not having been called to give evidence in this case. I am satisfied that the plaintiff has failed to prove the alleged customary law of his people on trusteeship. In other words, that the plaintiff has failed to prove that after the death of his grandfather Chime Nwagu Ude became the trustee of the landed property of his late grand father in accordance with their customary law.
(italics mine)
The quarrel of the learned trial Judge with the evidence of the first plaintiff witness is justified. The learned trial Judge questioned the reliability of this piece of evidence emanating from first plaintiff witness who had no opportunity or his predecessor-in-title showing him the land. The land was shown to him by his grand uncle Nnadi Ukwuani who did not come to court to testify and fur whose absence no explanation for excuse tendered. The piece of evidence emanating from the first plaintiff witness appears to offend against the hearsay rule. The oral evidence is not direct contrary to the express provision of section 76 of the Evidence Act Cap. 112. There is no evidence that the land pledged was ever shown to first plaintiff witness’ grand father’s brother, Nnadi Ukwuani. So Nnadi Ukwuani on record does not know the land, But if he heard of it he should have come to court to testify to it, failing which the evidence does not avail the appellant. The assessment is beyond reproach.
Inspite of rejecting the evidence of the first plaintiff’s witness, on the ground that he was not reliable nevertheless he considered the piece of evidence on trusteeship for whatever it was worth, He, however, eventually rejected the piece for want of proof. He found that the native law and custom was not proved because it was supported solely by the evidence of the witness asserting it, contrary to the decision in the case Ozogula II v. The Queen: Ex parte Ekpenga (1962) 1 SCNLR 423 (1962) 1 All NLR 265 at 268. It was held in that case that customary law must be strictly proved even though its proof does not depend on number of witnesses called but the unsupported evidence of the person asserting it is not sufficient. See Liadi Giwa v. Erimilokun (1961) 1 SCNLR 377 (1961) All NLR 294, 296, where the Supreme Court said –
“Native law and custom is a matter of evidence to be decided on the facts presented before the court unless it is of such notoriety and has been so frequently followed by the court that judicial notice would be taken of it without evidence required in proof.’
The Supreme Court in Pastor S.G. Adegboyega & Others v. Peter Olasowie Igbinosun & others (1969) NWLR 9, 15; (1969) 1 All NLR 1, 9 followed its earlier dictum in Giwa v. Erinmilokun (supra) See also Ojemen & others v. Momodu II & other (1983) 1 SCNLR 188(1983) 3 SC 173,223 where Supreme Court per Obaseki, J.S.C. observed on the quality of proof required of a party relying on a native law and custom thus “It is in the interest of the party who asserts the existence of a custom to ensure that there is cogent evidence adduced before the court in proof of the custom.”
The Ngwo native law and custom of trusteeship was rejected because the witness called to prove it was found unreliable and even if the witness were found credible and his evidence thereon were accepted the proof did not pass the acid test. It did not meet the standard of proof set for proving a native law and custom which has not acquired sufficient notoriety for our courts to take judicial notice of it by calling not less than two witnesses. The test of acceptability is that the native law and custom should not only be proved strictly the evidence of the witness asserting it must be corroborated by evidence of at least one other witness. This was not to be. Therefore the reasoning of the learned trial judge rejecting the custom is sound and unreproachable.
It is settled law that where titles are being relied upon by rival claimants the claimant with a better title is entitled to succeed: Ocean Estates Limited v. Pinder (1969) 2 All ER 19, 24-25 per Lord Diplock; Anunkati v. Ekwonyeaso (1978) 1 LRN 346, 351 referred to in Arase v. Arase (1981) 5 SC 33, 3 5per Bello, JSC (as he then was). The appellant having failed to show that he has a better title than the respondent his claim of right to redeem the pledged property predicated or pegged upon title to the land fails. The appeal lacks merit and fails. It is dismissed by me. The decision of the learned trial Judge Okadigbo, J., dismissing appellant’s claim is hereby affirmed. There is order as to costs in favour of the respondent assessed at N2,500.
Other Citations: (1998)LCN/0445(CA)
