Chinedu I. Udegbuna V. Okonkwo Udegbunam & Anor (2016)
LawGlobal-Hub Lead Judgment Report
TOM SHAIBU YAKUBU, J.C.A.
This appeal is against the decision of the Anambra State High Court of Justice, holden at Nnewi, delivered on 30th June, 2008. The appellant, who was the plaintiff at the Court below, had claimed and prayed for:
“a. A declaration that he is entitled to the statutory right of occupancy of the piece and parcel of land called ANA-AGBALA delineated in the Survey Plan to be attached to his claim.
b. General damages from the defendants jointly and severally in the sum of N20,000.000.00 (twenty million naira) for trespass into the said. (sic)(land).
c. An injunction restraining the defendants, their agents or privies from further trespass into the land.”
The claim was denied and resisted by the respondents. The parties filed and exchanged their pleadings. The respective parties led evidence and some documentary exhibits were tendered into evidence. The Learned counsel for the parties, addressed the Court and at the end, the learned trial judge, found for the respondents and dismissed the appellant?s claim. That is why he approached this Court, for a review and
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possible reversal of the decision against him. His appeal is predicated on three grounds.
The 1st Respondent cross-appealed against the decision of the trial Court to the effect that the land in dispute was purchased by Madam Grace Udegbunam.
All the parties to this suit are brothers of full blood. The Appellant is the last born of their mother. Appellant originally sued three of his brothers, but withdrew against the then 2nd Defendant, Chukwudi Udegbunam, who later testified for the appellant as PW3. The land in dispute was said to have been purchased by the mother of the parties, Late Grace Udegbunam, in the name of the Appellant.
Under the Nnewi Native Law and Custom, the appellant, as the last son of their mother, would inherit the land on the death of their mother.
Soon after their father?s death, the respondents, particularly the 1st respondent swooped on the land in dispute. All attempts by the appellant to dissuade the respondents from further interference on the land in dispute proved abortive. When the respondents persisted in their trespass onto the land in dispute, the appellant sued them at the Court below and lost.
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The appellant?s brief of argument, prepared by A. Onyebuchi Ubachukwu, Esq. dated 30th October, 2009 and filed on 4th December, 2009 was deemed as properly filed on 7th March, 2011. Two issues were nominated therein, for the determination of the appeal, thus:-
(i) Whether, considering the state of pleadings as well as the findings of the Learned Trial Judge that the land in dispute was indeed purchased by the mother of the parties, can it be said that the identity of the land in dispute was made an issue at the trial?
(ii) Whether, upon a calm and dispassionate consideration of evidence adduced by the parties, the Learned Trial Judge was right in dismissing the Appellant?s claim.
The 1st Respondent?s/Cross-Appellant?s brief of argument, prepared by Mrs. M. N. Emecheta, was dated and filed on 5th March, 2015. In it, two issues were identified for the determination of the main appeal, and three issues were nominated for the determination of the cross-appeal.
?For the main appeal, the two issues, are:
1. Whether from the pleadings and oral evidence at the trial, the exact identity of the land in dispute was made
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known by the plaintiff to deserve judgment of the Court.
2. Whether from the totality of the evidence adduced taking into consideration Exhibit B and B1 i.e. the judgment in Suit No. HN/166/2004, can the land in dispute be said to belong to Madam Grace Udegbunam? If no, can the alleged Nnewi native custom with respect to last sons of a woman being entitled to her property apply in the present case?
The 2nd Respondent?s brief of argument, prepared by Ike Obeta, Esq., dated 26th November, 2012 and filed on 28th November, 2012 was deemed as properly filed on 18th February, 2015. He formulated a lone issue therein, for the determination of the appeal, to wit:
“Whether the lower Court was right to have dismissed the Plaintiff/Appellant?s claim before the Court.”
The Cross-Respondent?s brief of argument, settled by A.Onyebuchi Ubachukwu, Esq., was dated and filed on 26th March, 2015. He nominated three issues therein, for the resolution of the cross-appeal.
The Appellant?s Reply brief to the 2nd Respondent?s brief of argument was dated and filed on 3rd march, 2015.
?In my consideration and determination of the
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main appeal, I adopt the sole issue nominated by the 2nd Respondent, for its resolution. It is simple and straight forward, that is,
“Whether the lower Court was right to have dismissed the Plaintiff/Appellant?s claim before the Court.”
Appellant?s Arguments:
The contention of the appellant?s learned counsel is that from the pleadings of the parties, they all agreed that the land in dispute was called ?Ana-Agbala? and the identity of the said land was not an issue at the trial. Therefore, according to him, where a fact is not in dispute because it has been admitted by the opposing party, the same fact required no further proof. He referred to Sanusi v. Obafunwa (2006) 28 W. R. N. 136 at 165 ? 166. He also submitted that where the land in dispute has been properly described by a Plaintiff, a survey plan of such land, would be unnecessary. He placed reliance on Ojiba v. Ojiba (1991) 4 LRCN 1215 at 1229; Awoyoola v. Aro (2006) 18 W. R. N. I.; Dada v. Dosunmu (2006)- 50. Learned appellant?s counsel contended that the point of disagreement between the parties was whether or not it was their mother, late Mrs.
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Grace Udegbunam as asserted by the appellant or their father, late Chief E. E. Udegbunam as asserted by the respondents, who purchased the land in dispute. Furthermore, the appellant contended that the learned trial judge failed to properly evaluate the evidence adduced before him which was why he dismissed the appellant?s claim and that this Court has the power to do its own evaluation of the same pieces of evidence and find for the appellant. He placed reliance on Oluwole v. Abukare (2004) 18 W. R. N. 120; Kashadadi v. Noma (2000) 15 NWLR (pt. 692) 807; Lawal v. Dawodu (1972) 8 ? 9 S. C. 83.
1st Respondent?s Arguments:
It is the contention of the 1st Respondent?s learned counsel to the effect that it is the duty of the plaintiff who claims a declaration of title to land, to identify the land to which he seeks the declaration thereto. He referred to Orunengimo v. Egebe (2007) 52 WRN (pt. 1) 4; Udenze v. Nwosu (2007) 50 WRN 71 at 78; Otamma v. Youdubagba (2006) 10 WRN 1 at 22. He submitted that the 1st respondent/cross appellant never admitted in his pleadings that the land in dispute is called Ana Agbala. He insisted that the
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learned trial judge was right when he came to the conclusion that the appellant did not establish the identity of the land in dispute, by credible evidence, to sustain his claim.
With respect to his issue 2, the 1st respondent?s counsel submitted that the learned trial judge was in error when he found that the land in dispute was purchased by Madam Grace Udegbunam. He contended that vide the consent judgment of the High Court of Justice, Nnewi, presided over by Hon. Justice J. C. Nwadi vide Exhibits B and B1, the land in dispute was declared as belonging to Chief E. E. Udegbunam ? the father of the parties herein, stating that the land belongs to all the sons thereof and not that the said land belonged to Madam Grace Udegbunam ? the mother of the parties herein. He submitted that since the judgment in Exhibits B and B1 ? Suit No. HN/166/2004 was not appealed against nor set aside by any competent Court with the jurisdiction to do so, it remains extant. He insisted that the trial Court below, had no jurisdiction to sit on appeal against a judgment rendered by a Court with co-ordinate jurisdiction and that by virtue of Section 241(1)
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of the 2011 (sic) (1999) Constitution of the Federal Republic of Nigeria, it is only the Court of Appeal that can entertain an appeal from the decision in Suit No. HN/166/2004.
Furthermore, it is the contention of the 1st Respondent, that in the circumstances of this case, the alleged Nnewi custom which is to the effect that the last son of a mother inherits her mother?s land is not applicable. He contended that the decision of the Agbalor Local arbitration did not bind the 1st respondent who did not voluntarily submit himself to the said arbitration vide Exhibit A. He referred to Ojibah v. Ojibah (1991) 6 SCNJ 156. He referred to the pieces of evidence by PW1 which he said was not cogent and credible as opposed to the pieces of evidence adduced by DW2 and DW3 to the effect that it was the late Chief E. E. Udegbunam and not Madam Grace Udegbunam, who purchased the land in dispute from one Mr. Aaron Osakwe and that the learned trial judge did not properly evaluate the pieces of evidence proffered by DW2 and DW3 at pages 37 ? 40 of the record of appeal.
2nd Respondent?s Argument:
On his own part, the 2nd Respondent?s counsel
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contended that the averment of the appellant at paragraph 3 of the statement of claim to the effect that the land in dispute is situated at Ebelogo and called ?ANA-AGBALA? was denied by the 2nd respondent at paragraph 3 of his statement of defence. And that in the circumstances, the onus was placed on the appellant to prove the identity of the land he was claiming which the appellant failed to do. Furthermore, he submitted that although the appellant had averred that he would file a survey plan to delineate the land in dispute, he never did so. He also submitted that a survey plan is not a sine qua non in a land matter and it can be dispensed with if the party laying claim to a parcel of land can give oral description of the land in Court such that any surveyor acting on such description can produce a plan of the said land. He relied on Iordye v. Ihyambe (2000) 15 NWLR (pt. 692) 675. He however, contended that in a situation where the claimant who alleges trespass to land and seeks an injunctive relief from the Court against an alleged trespasser, the claimant must give the boundaries of the land in dispute with certainty and clarity to which the
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injunction can be tied. He referred to Okosun Epi & Anor v. Johny Aigbedion (1972) A. N. L. R. 805; Oladimeji & Oyeyipo v. Oshode (1968) A. N. L. R. 404; Ichu v. Ibezue (1999) 2 N. W. L. R. (pt. 591) (?); Awoyoola v. Aro (2006) 18 W. R. N. 1 at 23.
Resolution:
The claim of the appellant, reproduced at the onset of this judgment is essentially for declaratory and injunctive reliefs and damages for trespass.
The law has remained well settled that in an action for a declaration of title to land, the plaintiff has the duty of establishing to the satisfaction of the Court, how he came into possession of the land in dispute. In doing this, the plaintiff, in his pleadings must aver and state the circumstances which brought him to the land, that is stating that he possessed the land in dispute, either through grant, sale, inheritance, settlement or conquest. Furthermore, the plaintiff has the obligation to lead evidence on hard facts to establish his title to the land before he can succeed in a claim for a declaration of title to such a land. It is trite that the plaintiff can establish his title to the land in dispute through any of the five
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ways, identified in Idundun V. Okumagba (1976) 9 ? 10 S. C. 227; Piaro V. Tenalo (1976) 12 S. C. 31; Fasoru V. Beyioku (1988) 2 NWLR (pt. 76) 236. Further see Olugbode V. Sangodeyi (1996) 4 SCNJ 1 at 13; Aigbobahi & Ors V. Aifuna & Ors (2006) 2 SCNJ 61 at 70; Nwokidu V. Okanu (2010) 1 SCNJ 167 at 195; (2010) 3 NWLR (pt. 1181) 362. The five ways for avoidance of doubt are:
(i) By traditional evidence or
(ii) By production of document(s) of title duly authenticated and executed or
(iii) By acts of ownership over a sufficient length of time numerous and positive enough as to warrant the inference of a true ownership or
(iv) By acts of possession and enjoyment of the land or
(v) By proof of 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 law is firmly settled that:
?The first duty of a plaintiff who comes to Court to claim a declaration of title is to show the Court clearly the area of land to which his claim relates. (see Akinolu Baruwa V. Ogunshola & Ors. 4 WACA
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159). It is also trite law that before a declaration of title is granted, the land it relates must be identified with certainty (see Udofia V. Affia 6 W.A.C.A. 216 at Kwadzo V. Adjei 10 W.A.C.A. 274) 76 if it is not so ascertained, the claim must fail and it must be dismissed (see Oluwi V. Eniola (1967) N.M.L.R. page 399.? per Fatayi ? Williams, JSC (as he then was) in Okosun Epi & Anor V. Johnny Aigbedion (1972) LPELR ? 1151 (SC) at page 8; (1972) All N.L.R. 805; (1972) 10 SC 45. Further see Olufosoye & Ors V. Olorunfemi (1989) LPELR ? 2615 (SC) (1989) 1 SC (pt. 1) 29.
The same principle was restated by the apex Court in Odiche V. Chibogwu (1994) 7 ? 8 SCNJ 317 at 323; to wit:
?In a claim for a declaration of ownership or exclusive possession of a piece of land, the first and foremost duty of the claimant is to describe the land in dispute with such reasonable degree of certainty and accuracy that its identity will no longer be in doubt:-
(i) The boundaries of the area and location of the land he is claiming;
(ii) His neighbours and their names on all sides of the boundaries.
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Where some of the boundaries are marked by rivers, stream or road should be named;
(iii) Any other physical features on the land like rock, buildings, trees, etc, that may assist in its identification.?
Unarguably, this is so because:
?It cannot be over-emphasized that before a declaration can be granted, the area of land to which it relates must be ascertained with certainty and precision, the test being whether a surveyor can from the record produce an accurate plan of such land. See Kwadzo V. Adjei (1944) 10 WACA 274; Udekwu Amata V. Modekwe 14 WACA 580 and Ezeokeke V. Umunocha Uga and Ors (1962) 1 All NLR (pt. 3) 482 ? per Iguh, JSC, in Ugbo V. Aburime (1994) LPELR ? 3314 (SC) at P. 15; (1994) 9 SCNJ 23.?
Therefore, a declaration of title to land cannot be made in respect of an unidentified land. Further see: Eigbejale v. Oke & Ors (1996) 5 NWLR (pt. 447) 128; (1996) LPELR ? 1057 (sc); Olusanmi V. Oshasona (1992) 6 SCNJ 282; (1992) LPELR ? 2629 (SC); (1992) 2 NWLR (pt. 245) 22.
?So also, being an equitable relief, a declaration can be granted or denied subject to credible
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evidence led and proffered by the claimant to the satisfaction and discretion of the Court. Tukur & Ors v. Sabi & Ors (2013) 3 SCNJ 212; Edozien v. Edozien (1998) 13 NWLR (pt. 580) 133 at 147 ? 148.
In his statement of claim, the appellant at paragraph 3 thereof, averred that:
?(3) The late father of the parties gave residential plots (Ana-Obi) to each and every one of them. He did not involve a piece bought by his wife (Late Mrs. Grace Udegbunam) who is the mother of the parties. This was because the piece of land should be left for the youngest son, who in this case is the plaintiff. The land in question is situated at Ebelogo, and called ?ANA-AGBALA?. It was bought by Mrs. Grace Udegbunam from Aaron Osakwe. A survey plan of the land will be filed in Court.?
?In his response to the above pleading, the 1st respondent at paragraphs 3 and 4 of his statement of defence, averred, inter alia:
?3. The 1st defendant in response to the paragraph 3 of the statement of claim admits that their late father Chief E. E. Udegbunam gave Ani-Obi to all his male children in his life time and further avers that not
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all the property of late Chief E. E. Udegbunam was shared in his life time.
4. In further response to the plaintiff?s statement of claim paragraphs 3, the 1st defendant denies that the late Grace Udegbunam ever bought a piece or parcel of land from Aaron Osakwe and avers that the land was bought by their late father Chief E. E. Udegbunam who is (sic)(in) his life time was the Obi of Ebeleogu Umudim and a successful businessman with properties both in Nnewi and Kano.?
In his own statement of defence, the 2nd respondent, who was initially at the time that pleadings were settled and exchanged, was the 3rd defendant at page 13 of the record of appeal, averred at paragraph 3 thereof, averred, to wit:
?3. Paragraph 3 of the statement of claim is admitted only to the extent that Late Chief Emmanuel Eriojirikwe Udegbunam gave residential plots (Ana- Obi) to all his sons before he died, the rest averments are hereby denied.?
?From the state of the pleadings settled and exchanged amongst the parties and with particular reference to paragraph 3 of the statement of claim, it is as clear as crystal, that the appellant pleaded the
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name and location of the land in dispute, being Ana-Agbala, situated at Ebelego and no more. The size and dimensions of the said Ana-Agbala are not stated in the said pleading. Perhaps, if the appellant had filed the survey plan of the said land, as he had indicated at paragraph 3 of the statement of claim, the picture as to the size and dimensions of the said land could have been clearer. However, this was not done by the appellant. The evidence led by the appellant on the identity of the land in question did not fare better than the averment at paragraph 3 of his statement of claim.
The law needs to be restated again, that it is the appellant who approached the Court below, seeking a declaration to the title of the parcel of land called Ana-Agbala, in question, who had the burden to establish with certainty and clarity, the size, dimensions and location of the said land, to the satisfaction of the Court before a declaration to it, could be made in his favour. That is why it was held that
?… the burden of establishing a case based on a declaration rest more on the plaintiff whose evidence must be convincing, positive, affirmative and
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unequivocal in support of his case. Such evidence must be in accordance with his pleadings.? ? per Adekeye J. S. C., in Arowolo v. Olowokere (2011) 18 NWLR (pt. 1278) 280 at 304. Further see: Uchendu v. Ogboni (1999) 5 NWLR (pt. 603) 337; Owoade v. Omifola (1988) 2 NWLR (pt. 71) 413.
Furthermore, in Benedict Otamma v. Kingdom Youdubagba (2006) 1 SCNJ 94; (2006) 10 WRN 1 at 22, the Supreme Court again restated the principle with respect to establishment of the identity of a land in dispute in a claim for a Declaration to title to land, thus:
?The law is well settled that: in an action for declaration of title to land, the onus is on the plaintiff to establish with certainty, the identity of the land in dispute to which his claim relates. The name or etymology of a piece of land is not necessary indicative of its identity. In a claim for declaration of title to land, the first and foremost duty on the claimant is to describe the land in dispute with such reasonable degree of certainty and precision that its identity will no longer be in doubt, in other words, the land must be identified positively and without any ambiguity.?
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It is therefore glaringly clear that in the instant case, the appellant?s averment at paragraph 3 of the statement of claim, was no more than pleading the name or etymology and location of the land in dispute. It is to my mind, a half measure averment. The appellant could have done better by describing the land and showing the area/size and dimensions/boundaries of it and follow it up with filing a survey plan, showing the same area/size and dimension/boundaries thereof. Odunze & Ors v. Nwosu & Anor (2007) 5 SCNJ 204; (2007) 50 WRN 71.
It is instructive to say that the essentiality of a survey plan in a situation such as it was in the instant case, is to ensure that if the claim for a declaration of title to land was to succeed and an injunctive relief was to be granted and issued against a defendant, such an injunction must be targeted at an identified land, with precision. The reason is not farfetched. His Lordship, Oputa, JSC in Olufosoye v. Olorunfemi (1989) 1 S. C. (pt. 1) 29; (1989) LPELR 2615 (SC) at pg. 19, succinctly stated that:
?The reason for insisting on accurate plans is simply to enable the parties and other
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persons claiming through them to know precisely the area of land to which the judgement and orders relate:- Maberi v. Alade (1987) 2 NWLR (pt.55) 101 at 106. Enforcement of a judgment and an order of injunction based on inaccurate plans will create difficulties, untold difficulties.”
Also see: Marcus Ukaegbu & Ors v. Mark Nwololo (2009) 1 SCNJ 49; (2009) LPELR ? 3337 (SC); Salami v. Oke (1987) 9 ? 10 SCNJ 27; (1989) 4 NWLR (pt. 63) 1 at 17; Carpeater v. Adutor 8 WACA 76; Amadu Rufai v. Ricketts & Ors 2 WACA 95.
In sum, where a land in dispute enjoys no “definitive identity” as required by law, the plaintiff?s claim for title to declaration to such a land, must fail and be dismissed. Ahwedjo Efetiororoje & Ors v. His Highness Onome Okpalefe II & Ors (1991) 1 SCNJ (pt. 1) 65 at 91 & 95; Alhaji Elias v. Chief Omobare (1982) 5 SC 25; Owuda v. Lawal (1984) 4 SC 145 at 149.
In the end, I resolve the sole issue discussed above in favour of the respondents. In effect, I hold that the main appeal is lacking in merits. It is accordingly liable to dismissal.
THE CROSS-APPEAL
Three issues
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were nominated in the Cross-Appellant?s brief of argument, thus:
“1. Whether the Court had jurisdiction to hear and determine this suit considering exhibit B and B1 which is the consent judgment in Suit No. HN/166/04 NNANA UDEGBUNAM AND 3 ORS vs. OKONKWO UDEGBUNAM AND ANOR.
2. Whether the learned trial judge was right when he held that he believed the plaintiff in this case that the land in dispute was purchased by Madam Grace Udegbunam.
3. Whether the trial Court evaluated the evidence of the 1st respondent/cross-appellant and his witnesses, taken into consideration the totality of the evidence adduced by them, the contradiction in the evidence of the plaintiff/appellant, his witness and the findings of the Court.”
In the Cross-Respondent?s brief of argument, the three issues formulated for the determination of the cross-appeal are namely:
(a) Whether exhibits B ? B1 operated as estoppel per rem judicata as to oust the jurisdiction of the trial Court.
(b) Whether there exist sufficient evidence on record to support the findings of the learned trial judge that the land in dispute was purchased by Madam Grace
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Udegbunam.
(c) Whether or not there has been a failure to evaluate the evidence tendered by the 1st Respondent/Cross-Appellant and his witnesses by the learned trial judge.
?The issues formulated by the respective parties in the cross-appeal, are essentially the same. Therefore, I adopt the three issues nominated by the cross-appellant, in resolving the cross-appeal. I shall take issue 1 first and thereafter consider issues 2 and 3 together.
I should say that I am not rehasing the submissions of learned counsel to the cross-appeal in this judgment, but suffice it to be noted that, their trenchant submissions in their respective briefs of argument are kept in mind and shall be addressed appropriately as the occasion demands in my consideration and determination of the cross-appeal.
Issue 1 pointedly borders on the jurisdiction of the Court below for entertaining the appellant?s action in view of the decision of the Hon. Justice J. C. Nwadi of the same Anambra State High Court of Justice, holden at Nnewi in Suit NO. HN/166/2004 which was a consent judgment that involved the same parties or their privies, with respect to the land in
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dispute in the present action. The contention of the cross-respondent is that since he did not sign the terms of settlement ? Exhibit B which gave rise to the consent judgment in Exhibit B1, he was not bound by both Exhibits B and B1.
The appellant testified as PW2 at pages 78 ? 81 and 85 ? 86 of the record of appeal. In answers to questions put to him under cross examination, he said:
?I saw the terms of settlement before it was sent to the Court and filed. I did not protest against the terms of settlement but Dr. Ikenga Metu wrote to Chief Osigwe on the document.?
Undoubtedly, it is the terms of settlement ? Exhibit B which was the harbinger of Exhibit B1, the consent judgment. The appellant, later in answer to another question, said at page 80 of the record of appeal:-
?I did not appeal against the said consent judgment, but instead I have instituted the present case.?
?The appellant had two options available to him, if he was not satisfied with the consent judgment in Suit No. HN/166/2004, to which he was a party. He had the choice of either applying that the said consent judgment be
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set aside, for misrepresentation or for having been obtained fraudulently OR file an appeal against it to the Court with competent jurisdiction to hear appeals from the decisions of the High Court and by virtue of Section 241(1) (a) of the Constitution of the Federal Republic of Nigeria, 1999 as amended, it is the Court of Appeal, yeah this Court, that hears appeals from decisions of all High Courts in Nigeria. Since the appellant did not appeal against the consent judgment in HN/166/2004, the same remains extant and binding on him.Obineche v. Akusobi (2010) 6 SCNJ 88; Udeh v. Okoli (2009) 3 SCNJ 1; Otu v. A. C.B. International Bank Ltd (2008) 1 SCNJ 189; Balown v. Obi (2007) 5 NWLR (pt. 1028) 88 at 562; Rossek v. ACB Ltd (1993) 8 NWLR (pt. 312) 382 at 434.
?I am in agreement with the submission of the cross-appellant?s counsel to the effect that the Hon. Justice G. E. Ifeakandu of the High Court of Justice, Anambra State, holden at Nnewi in re Suit No. HN/82/05 had no jurisdiction to have entertained and determined that suit in view of the subsisting and binding consent judgment delivered by Hon. Justice J. C. Nwadi, of the same Anambra State High
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Court of Justice, holden at Nnewi in re-Suit No. HN/166/2004.
I have no difficulty in resolving issue 1 in favour of the cross-appellant.
Issues 2 and 3:
The law is well settled to the effect that the plaintiff who seeks a declaration of title to a piece of land, such as the cross-respondent herein, who traces his root of title to a particular person, must of necessity plead and also lead evidence to establish the latter?s root of title as well, unless the latter?s title is admitted by the opposing party. Godfrey Anukam v. Felix Anukam (2008) 2 SCNJ 62; (2008) 5 NWLR (pt. 1081) 455; (2008) 1 ? 2 S. C. 34; Okocha v. Irubor (2013) 36 WRN 148 at 158 (CA).
?The cross-respondent herein, having traced his title to the piece of land in dispute as having been purchased by his mother ? Grace Udegbunam, and that the said piece of land did not fall into the estate of his father Chief E. E. Udegbunam, which facts were denied by the cross-appellant, had the onus cast upon him to lead evidence satisfactorily to the effect that indeed his mother ? Grace Udegbunam purchased the piece of land in question from Aaron Osakwe. The
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cross-respondent?s mother ? Grace Udegbunam had died prior to the institution of the cross-respondent?s action. However, as at the time of the trial of the action at the Court below, the person from whom, the cross-respondent?s mother purchased the piece of land in question, that is, Aaron Osakwe was alive. He was a very vital witness to give teeth and effective bite to the cross-respondent?s case. The latter chose not to call him as a witness. On the other hand, the cross-appellant, who did not file a counter claim, called witnesses who testified for him, to the effect that, the piece of land in dispute was purchased by Chief E. E. Udegbunam and not by Madam Grace Udegbunam.
In his judgment, particularly at page (111) of the record of appeal, the learned trial judge had this to say:
?What comes to my mind is that there is no evidence of purchase of (sic) price over the land in dispute tendered by the plaintiff or the 1st defendant to show evidence of purchase of the land in dispute. Even Aaron Osakwe who purportedly told the Court that he sold the land in dispute to Chief E. E. Udegbunam I consider is not a
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truthful witness.?
I had perused the record of appeal again and again, to find the evidence allegedly proffered by Aaron Osakwe, whom the learned trial judge considered to be an untruthful witness, to no avail. However, there are the pieces of evidence by DW2, DW3, DW4, DW5 and DW6 in support of the DW1 ? the cross-appellant, to the effect that it was not Grace Udegbunam but Chief E. E. Udegbunam, who was the owner of the land in dispute.
I am of the considered and firm opinion that it was the cross-respondent who had the duty laid squarely and heavily upon him, to prove the title of his mother ? Grace Udegbunam who allegedly purchased the piece of land in dispute from one Aaron Osakwe. The said Aaron Osakwe was alive at the time of the prosecution of the cross-respondent?s claim. He did not deem it fit to call him to confirm that he (Aaron Osakwe) infact sold the said land to Madam Grace Udegbunam. To my mind, the omission or is it neglect to call Aaron Osakwe as a witness, by the cross-respondent, knocked off the bottom, from his claim, which ought to have failed totally.
?In the light of the foregoings, I resolve issues
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2 and 3 in favour of the cross-appellant. In effect, the cross-appeal succeeds, in its entirety.
On the whole, the appellant?s claim at the Court below failed entirely. The main appeal is dismissed whilst the cross appeal is allowed and consequently, the judgment of G. E. Ifeakandu, J., in re-Suit No. HN/82/05 of 20th August, 2008, being an exercise in futility is declared a nullity and accordingly set aside.
Each side to bear own costs.
Other Citations: (2016)LCN/8817(CA)
