Christopher Anodebe & Ors V. Clement Obodo & Ors (2016)

LawGlobal-Hub Lead Judgment Report

EMMANUEL AKOMAYE AGIM, J.C.A. 

On 1-12-1988, the respondents herein as plaintiffs filed a claim and caused the issuance of a writ of summons on the same day in the High Court of Anambra State at Amawbia/Awka Judicial Division commencing Suit AA/173/88 against the appellants as defendants.

The plaintiffs claimed for-
(a) A declaration that they are entitled to customary right of occupancy of the piece or parcel of land known as and called “Ugwu Aro” situate at Umudunu, Abagana.
(b) 50,000.00 damages for trespass committed on the said land on the 7th of April, 1988
(c) Injunction restraining the defendants, their servants, agents and privies from further trespass on the land.

The case was tried on the basis of the following pleadings 3rd further amended statement of claim and 4th further amended statement of defence.

The plaintiffs adduced evidence through 5 witnesses in support of his claim. The defendants adduced evidence through 6 witnesses to rebut the plaintiffs’ case.

Following conclusion of evidence by both sides and after the filing, exchange and adoption of the written addresses, the

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trial Court on 26-10-2009 rendered judgment granting all the reliefs claimed for by the plaintiffs.

Dissatisfied with this judgment the defendants, on 3-8-2011 commenced this appeal No.CA/E/205/2012 by filing a notice of appeal containing 6 grounds for the appeal. In the same notice, it is stated that the appeal is also against the ruling of the trial Court delivered on 24-10-2008.

Both sides have filed, exchanged and adopted their respective briefs of argument as follows- appellants’ brief and respondents’ brief.
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The appellants’ brief raised the following issues for determination-
1. Whether the learned trial judge was right to have dismissed the application of the appellants to amend their 4th further Amended Statement of Defence to incorporate their counter-claim on the basis that it was too late and will be prejudicial to the respondents?
2. Whether the learned trial judge erred in law when he held that the admission of the defendants that the plaintiff took an oath for the Ezumbe family, which DW2 accepted under cross-examination that the 3rd plaintiff was one of the people that took the oath has discharged the burden on the

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plaintiffs.
3. Whether the learned trial judge did not misdirect himself when he held that the second oath taking is a clear admission by the appellants of the respondents’ acts of ownership and possession of the land in dispute?
4 Whether the learned trial judge was right in law when it considered and evaluated only the case of the respondents and failed to properly consider and evaluate or to consider and evaluate at all, the evidence of the appellants and their witnesses on very vital issues before it and this has led to a perverse decision and occasioned a miscarriage of justice?
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The respondents’ brief raised the following issues for determination-.
1. Whether the Lower Court exercised its discretion judiciously and judicially in respect of the appellants’ motion for amendment. Ground 1
2. Whether the respondents established their title to the land in dispute by any of the recognized ways of proving title.
Grounds 2-6

The two issues for determination couched in the respondents’ brief cover all the issues raised in the appellants’ brief. I prefer to determine this appeal on the basis of the said two issues in the

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respondents’ brief.

Let me start with issue No.1 which is also issue No.1 in the appellants’ brief.

The portion of the judgment of the trial Court complained against under this issue reads thusly-
“I have given deep thought to the amendment sought and I find that what the defendants want to do is tantamount to shifting the goal posts, in the middle of a football match. The amendments if allowed, will definitely alter the character of this suit at this stage when the plaintiffs have closed their case and the defendants have taken four witnesses. Definitely, this will occasion a denial of the plaintiffs’ right to fair hearing and lead to manifest injustice.
For the defendants to wait since 1988 and after the case has gone through more than six honourable Judges and is in this last lap with only one defence witness to go, to begin to plead new facts by way of counter-claim is certainly prejudicial and overreaching. I hold that the amendment sought is not in good faith and I accordingly refuse to grant same.”
Both sides reproduced it in their argument of this issue in their respective briefs.
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Learned Counsel for the appellant has

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argued that the amendment sought could be made even when the defendants had almost closed their case, provided it would not introduce new facts and require new evidence, that amendment of pleadings can be made at any stage of the proceedings before judgment, that the affidavit in support of the application stated clearly that no new facts would be introduced by the amendment, that the counter claim would have been sustained on the basis of the facts and evidence already on record, that the counter claim was inadvertently omitted by the former counsel to the appellants, that the trial Court merely refused the application for amendment because the appellants failed to bring it within the very long period before the time it was brought, towards the end of trial and refused to be guided by the dictum of Bowen L J in (Aropper v. Smath (1884) 26 Ch.D 700 at 710 – 711 which had been followed by our supreme Court in Ojah & Ors v. Ogboni & Ors (1976) 4 SC 69 at 76 -77, Alsthon SA v. Saraki (2000) FWLR (Pt.28) 2267 and this Court in NNB Plc v. Denclag Ltd & Anor (2004) All FWLR (Pt.228) 606 at 657 – 658 and Orjiekwe v. Orjiekwe (2001) FWLR (Pt 38) 1181 at

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1201, and that a Court should not visit the mistakes of counsel on his client as held by the Supreme Court in Bowaje v. Adediwura (1976)6 SC 95 at 97 and Ogundimu & Ors v. Kasunmu & Ors (2007) 2 JNSC (Pt.32) 400 at 415.
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Learned counsel for the respondent argued in reply that an application for amendment cannot be granted without  minding the embarrassment/overreach it will cause the respondents, that the amendment sought would definitely necessitate the respondents filing a defence to the counter claim and calling of additional witnesses to give evidence in support of the defence or recall their witnesses, some of who are no longer alive, that the trial Court rightly held that a counterclaim is a separate action which the other side must be allowed to defend, that as held by the Supreme Court in Mamman v. Salaudeen (2006) All FWLR (Pt.298) 1171 – 1172 and Ojah v. Ogboni (1976) 4 SC 87, the Court will not readily grant an amendment which will necessitate the calling of additional evidence or change the character of the case, that the ruling of the trial Court is unimpeachable having regard to the facts and circumstances of the case, that this Court

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can only interfere with the trial Court’s exercise of discretion in refusing the application to amend, if the trial Court exercised its discretion under a mistake of law or of facts or took irrelevant facts into account or disregarded relevant facts, that the trial Court exercised its discretion judicially and judiciously.

Let me consider the merit of the above arguments by both sides.
I think I should start by determining the nature of the amendment that was applied for by the appellants and refused by the trial Court and which refusal is the subject of the complain under this issue.
The application for leave to amend the 4th further amended statement of defence to incorporate the counter-claim of the 1st to 5th defendants and to deem the already filed 5th further amended statement of defence as proper is contained in prayers (b) and (c) of the motion on notice filed on 18-6-2008 amongst other prayers that are irrelevant to this issue.
The trial Court was correct when it held that a counter-claim is for all intents and purposes a separate action to which the other side must be allowed to defend. It is settled by a long line of judicial authorities

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that a counter-claim is a separate and independent action for all practical purposes. It is in the same position as an action being itself a cross-action and is subject to the rules of pleadings. See for example Dabup v. Kolo (1993) 7 SCNJ, Alhaji Yusuf Hausa & Co. Ltd v. Panatrade Ltd, (1993)7 SCNJ 100, Otan – Aiyegbaju & Ors v. Adesina & Ors (1999) 2 SC 22 and Ogli Oko Memorial Farms Ltd & Anor v. NACB Ltd & Anor (2008) 34 NSCQR (Pt 11) 157.
?Since a counter claim is a cross-action, the plaintiff is duty bound to file a defence to it because in the absence of such defence by the plaintiff, the trial Court is entitled to assume that the plaintiff has no defence to the counter-claim and may enter judgment for the defendant accordingly. See Dabup v. Kolo (supra) per Ogwuegbu JSC. The trial Court was therefore right when it held that the proposed counter-claim of the defendants, if allowed, will automatically necessitate the granting of an opportunity to the plaintiffs to file a defence and call fresh evidence in support of their defence to the counter-claim. The counterclaim can be filed separately or included in the same document

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containing the statement of defence but separated from the statement of defence. The prevalent practice is to separately present the two in one document. They remain two separate pleadings even if contained in one document.
The counter-claim may simply rely on the facts in the statement of defence or introduce further facts. Its reliance on the facts in the statement of defence does not make it part of the statement of defence. It remains a different type of pleading separate from the statement of defence.
The counter-claim enables the plaintiff’s action to be tried together with the defendant’s action, since both involve the same subject matter and issues to avoid the duplication of time and monetary costs that their separate trial would entail.
?So the amendment sought is not simply an amendment of the extant 4th further amended statement of defence. It is in essence an application for leave to file a counter-claim. The appellants framed the prayer in the motion paper as if it is an application to amend the extant statement of defence. In the proposed 5th further amended statement of defence attached to the said motion, the counter-claim was

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stated as part of the proposed statement of defence. It is made Paragraph 30 of the proposed further amended statement of defence to create impression that it is the 4th further amended statement of defence that was being amended. Even though the counter-claim was not separated from the amended statement of defence, it remains a separate action and pleading.
So the amendment sought to be made was not simply an amendment of an extant pleadings. It is an amendment that sought to introduce a new action or cross action though involving the same subject matter and issues and may be based on the same body of facts. Strictly speaking this is not an amendment of an existing pleading but an application for leave to introduce a new action or cross-action. So the principles applicable to the amendment of an extant pleading cannot apply here. So the decisions of Akoh v. Abuh (1988) 3 NWLR (Pt.85) 696 at 712, Metal Construction (W.A) Ltd v. Migliore (1978) 6 – 9 SC 163, Amadi v. Thomas Aphyn & Co. Ltd (1972) 4 SC 228, Imonikhe v. A-G (1992) 7 SCNJ 197 at 207 – 208 and Adekeye & Anor v, Akin-Olugbade (1987) 6 SC 268 at 285 espousing those principles and

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which decisions were relied on by Learned Counsel for the appellants would equally not apply to an application for leave to introduce a counter claim near the end of the trial of a case that has unduly protracted for over a decade.
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The trial Court refused to grant the application to amend the 4th further amended statement of defence. The portion of the ruling that clearly captures the reason why the application was refused reads thusly- “Like I said, the main relief in this application is to incorporate a counter claim to the suit. There is also the relief to enable the defendants to defend the suit in a representative capacity. This case was instituted in 1988 which is now about 21 years ago. It is after 21 years of the existence of this suit and with only one witness to go that the defendants have realized the need to make the amendments sought. A counter claim is for all intents and purposes a separate action, to which the other side must be allowed to defend. This means that the proposed counter claim of the defendants, if allowed will automatically necessitate the granting of an opportunity to the plaintiffs to file a defence and call fresh evidence

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in support of their defence to the counter claim.
I must say that the application to allow for a representative capacity for the defendants and to admit a counter claim, completely raised new issues at this late stage of the proceedings. I have given deep thought to the amendments sought and I find that what the defendants want to do is tantamount to shifting the goal posts, in the middle of a football match. The amendments if allowed, will definitely alter the character of this suit at this stage when the plaintiffs have closed their case and the defendants have taken four witnesses. Definitely, this will occasion a denial of the plaintiffs’ right to fair hearing and lead to manifest injustice. Defence witness to go to begin to plead new facts by way of counter-claim is certainly prejudicial and overreaching. I hold that the amendment sought is not in good faith and I accordingly refuse to grant same. Reliefs (a), (b) and (c) are dismissed.”

Learned Counsel for the appellant has not argued that the reasons given by the trial Court are wrong. She rather argued that the amendment should have been granted because it would not require the introduction

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of new evidence and that the counter claim would be sustained on the evidence on record. But the argument failed to address the holding of the trial Court that the introduction of a counterclaim would entitle the plaintiff to file a defence to it and call additional evidence in support of that defence. The said holding of the trial Court cannot be faulted. Even if the appellants had no plan to call new evidence on account of the amendment, the respondents have a legal right to file a defence to the counter-claim and call further evidence in support of their defence. So the appellants’ argument that the introduction of the counter claim would not require the calling of new evidence becomes irrelevant since its introduction would give rise to the legal right of the respondents to defend it by filing a defence to it and calling further evidence in support of the defence.
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It is obvious from the ruling of the trial Court that why it refused to grant the application for leave to introduce a counter-claim towards the close of trial of a case that had protracted for over a decade was because, since the respondent has the legal right to defend the counterclaim,

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allowing the introduction of the counter-claim would start the trial of a new action which would unleash a new climate of delay that would further protract the trial of the case. The respondents as defendants to the counter-claim cannot be prevented from defending the counterclaim as that would amount to a violation of their right to fair hearing.

The appellants failed to show that the trial Court did not properly exercise its discretion in refusing their application to introduce a counter-claim in the case during trial. Therefore there is no basis for this Court to interfere with the decision of the trial Court refusing that application.

For the above reasons, I resolve issue No 1 in favour of the respondents.

Let me now consider issue No. 2 which asks “whether the respondents established their title to the land in dispute by any of the recognized ways of proving title.”
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Learned Counsel for the respondents has correctly restated the law that in an action for declaration of title, the plaintiff must succeed on the strength of his case and not on the weakness of the defence and that therefore he must lead cogent and credible evidence to

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prove his claim. In line with this principle, where the defendant has not counterclaimed for declaration of title to the same interest or any relief in respect thereof, the proper approach to the evidence adduced by both sides when determining the claim by the plaintiff is for the trial Court to first find out if the plaintiff’s evidence has established the existence of facts that entitles him to the grant of the reliefs claimed by him. If the trial Court, upon such a consideration of the evidence adduced by the plaintiff, is reasonably satisfied that the fact sought to be proved is established, it would then consider the evidence adduced by the defendant to find out if it has successfully rebutted the case made out by the plaintiff’s evidence. This approach is in keeping with the provisions of S. 133(1) and (2) on the shifting of burden of proof between the parties. It provides that-
(1) “In civil cases the burden of first proving existence or non existence of a fact lies on the party against whom the judgment of the Court would be given if no evidence were produced on either side, regard being had to any presumption that may arise on the pleadings.<br< p=””

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(2) If the party referred to in Subsection (1) of this section adduces evidence which ought reasonably to satisfy the Court that the fact sought to be proved is established, the burden lies on the party against whom judgment would be given if no more evidence were adduced, and so on successively, until all the issues in the pleadings have been dealt with.”
?The trial Court demonstrated a clear understanding of this principle when it directed itself thusly- “The issue is whether the plaintiffs have proved their claim. May I repeat that this is an action for declaration of title to land. There is no counter claim from the defendants. It is trite law, that in a suit such as this, the onus of proof lies on the plaintiffs to satisfy the Court that they are entitled on the evidence brought by them to the declaration claimed. The plaintiffs must rely on the strength of their case and not on the weakness of the defence unless of course, where the defendants case supports the case of the plaintiffs and contains evidence on which the plaintiffs are entitled to rely. Where the plaintiffs fail to discharge this burden, the proper judgment will be for the

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defendants.” See Kodilinye v. Odu (1935) 2 WACA 336; Okelola v. Adeleke (2004) 13 NWLR (Pt.890) 307 and Idesoh v. Ordia (supra).

The appellants complained under issue No 4 in their brief and argued that the trial Court did not properly evaluate the evidence before it and that its judgment is perverse. The respondents have argued that the trial Court correctly evaluated the evidence of both sides and came to the right conclusions on the evidence.

The trial Court held that the respondents were able to prove their title to the land by evidence of their traditional history of their ownership of the land, acts ownership, and long possession of the land and customary law arbitration by oath taking. Learned counsel for the respondent has argued that this holding is supported by ample evidence. I hold a different view. If the trial Court had properly evaluated the pleadings and evidence adduced by the respondents on the traditional history of their ownership of the land, it would have been clear to it that the respondents’ pleading and evidence do not explain Dunumechi’s root of title to the land.
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The respondents in Paragraphs 6, 7 and 8 of the 3rd

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further amended statement of claim stated thusly:-
6. “The plaintiffs’ ancestral father called DUNU OKOFIA, a great warrior and hunter, was the first to deforest and settle on the vast area of land part of which is now in dispute called Ugwuaro land.
He had three sons to wit:- UKABI, KPALACHIM AND DINIKWO. Each of these sons had his separate land allocated to him by Dunu Okafia except the Okwuani’ Dunu which was not allocated to anybody. The descendants of DUNI are today known as and called UMUDUNU. The second son of Dunu called Kpalachiem, also had three sons as follows:- DILIAGIM, EJIMOFOR and KALO. These sons had no common land except the “OBI KPALACHIEM” which is commonly managed by the oldest surviving member of the family and for the benefit of all members. Diliagim, the first son of Kpalachiem, in turn had three sons called DUNUMECHI, UTOBO and AKWARA. The plaintiff’s are called Umu-Dunumechi family, whilst the defendants are called Umu-Utobo family. All the sons of Diliagim had no land in common except the “OBI DILIAGIM”. Dunumechi left five sons called NWANKWO, AFIUKWA, NDANYA, NWANECHI AND AKPALIGWE. These five sons or branches

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constitute the family called UMU-DUNUMECHI family for which the plaintiffs are known in Abagana.
7. Both the plaintiffs and the defendants are known as and called sons of Diliagim of Umudunu Abagana.
8. The plaintiffs are the owners and in possession of the land called UGWU ARO” and the idol and the shrine therein contained, from time immemorial. Their ancestors worshipped the Ugwu Aro idol, owned and used the land on which the idol lives up to the present day without let or hindrance from anybody or neighbours.”

PW1 (1st respondent) testified in chief that- “I know the land in dispute. The land in dispute is called “Ana Ugwu Aro ” It is situate at Umudunu village, Abagana. The land is owned by us including the shrine inside the land since time immemorial. The land is called “Ugwu Aro” because our forefathers called Dunumechi lived on that land and worshipped the shrine there. He owned the shrine and is why the land is called “Ugwu Aro.”

He further testified in chief that- “Dunu-Okofia shared his lands to his sons. The only land he did not give out is the “Okwu ani” and it is the oldest among his children that looks after the “Kwuani”. The

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descendants of Dunu-Okofia are called Umudunu and it is from that name that we have Umudunu village, Abagana. I am from the Kpalachiem branch. The defendants are also from Kpalachiem branch, Kpalachiem begat three male issues. The first is Diliagim, the second is Ejimafor and the third is Kalo. Kpalachiem shared his lands to his sons with the exception of the ?Obi?. It is the oldest person that is in charge of the ?Obi” Diliagim begat three male issues. The first is Dunumechi, the second is Utobo and the third is Akwara. We are from Dunumechi branch and that is why we called ourselves Umudunumechi. The defendants are from Utobo, the second son. Diliagim gave all his sons lands but the only land they have in common is ?Obi Diliagim.” The land in dispute belongs to us, Umudunumechi. We own the shrine on it.
Dunumechi begat five sons, Nwankwo, Afukwa, Nganya, Nwaneche and Akpaligwe. It is these five families that are called Umudunmechi. Diliagim had no shrine during his life time. It is the Umudunumechi family that own the land and have been in possession of the land, idol and shrine. Uptil now we are still in possession of the

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land.”

PW2 (3rd respondent) testified in chief that their progenitor, Dunu founded and deforested the suit land and lived on it and that the land passed from Dunu to them by inheritance.

Both sides agree in their pleadings and evidence that both the appellants and respondents are of common ancestry and that their progenitor, Dunu was the original founder, owner and occupier of the suit land. The pleading and evidence state that Dunu allocated his lands except “Okwuani Dunu”, separately to each of his three sons, namely, Ukabi, Kpalachiem and Denekwo. The pleadings and evidence of the plaintiff do not state to which of the three sons, Dunu allocated the suit land.
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The second son of Dunu, Kpalachiem had three sons’ namely, Diliagim, Ejimofor and Kalo. The respondent’s pleadings and evidence merely state that they had no common land except ?Obi Kpalachiem” and did not state that Kpalachiem or any of his three sons had any connection with the suitland. Diliagim, the first son of Kpalachiem had three sons, namely, Dunumechi, Utobo and Akwara, who did not own land in common except ?Obi Diliagim”. The respondents are members of Dunumechi

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family. The appellants are members of Utobo family. The plaintiffs pleadings and evidence did not state that Diliagim owned the suit land or that one of his children inherited it from him. Apart from stating that Dunu was the original founder, owner and occupier of the suit land, the respondent’s pleading and evidence did not state which of Dunu’s children was allocated the suit land by Dunu, how the suit land was inherited by succession by the descendants of Dunu and how the respondents came to acquire and own the Suitland.

The evidence does not support the assertion of the respondents in Paragraph 8 of their 3rd further amended statement of claim that-
8. “The plaintiffs are the owners and in possession of the land called UGWU ARO” and the idol and the shrine therein contained, from time immemorial. Their ancestors worshipped the Ugwu Aro idol, owned and used the land on which the idol lives up to the present day without let or hindrance from anybody or neighbours.”
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PW1 (1st respondent) who had stated in his evidence in chief that Diliagim allocated all his lands to all his sons except “Obi Diliagim” which they held in common, that they own

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the shrine on the suitland stated that “Diliagim had no shrine during his life time”.

The pleadings and evidence of the respondents clearly failed to establish how the respondents acquired the suitland or how the suitland passed by inheritance from Dunu down to the respondents.

In Iheanacho v Chigere (2004) LPELR- 1459 (SC) the Supreme Court held that “a plaintiff who relies on traditional history in proof of a claim for declaration of title to land must lead evidence to show the root of his title and this includes how the land descended over the years on the claimant’s family until it got to the claimant. In Akanbi v. Salawu & Anor (2003) 6 SC (pt11)144 the Supreme Court held that “But to rely on traditional history, a Party must be familiar with the substance of that history, and he must in practical terms do this by pleading the name of the ancestor who founded the land and the names of those after him to whom the land devolved up to the last successor or successors. It is also necessary to plead what the ancestor did specifically to actualize the founding; that is to say, the fact of what he did that constituted the founding. Evidence will have to

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be led systematically in support of the history without leaving gaps, or creating mysterious or embarrassing linkages which are difficult to explain.” “In Eze & Ors v. Atasie & Ors (2000) 6 SC (Pt.1) 214 held that “a party relying on evidence of traditional history must plead) his root of title. He must show in his pleading and evidence who those ancestors of his are and how they came to own and possess the land and eventually passed it to him. See also Nkado v Obiano (1997) LPELR – 2043 (SC), Ngene v. Igbo & Anor (2000) LPELR-1987 (SC) Okereke & Anor v. Nwankwo & Anor (2003) 4 SC (Pt.1) 16, Temile & Ors v. Awani (2001) 6 SC 164.
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Since the respondents pleadings and evidence could not show how title to the Suitland descended from Dunu, the original founder and owner, through his successive descendants by inheritance down to the respondents, the respondent failed to prove their root of title to the suitland at the conclusion of their evidence at the trial Court. Their pleading and evidence having failed to establish the existence of facts that show their root of title, the trial Court should have dismissed their claim on the basis of

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their pleading and evidence.

It is clear from the pleading and evidence that the acts of ownership and long possession in the Suitland relied on by the respondents in support of their claim of title are based on their assertion of their traditional title to the said land. The pleading and evidence of the holding of customary arbitrations by oath taking support their claim of traditional title to the suit land. Therefore having failed to prove their root of title to the Suitland, they could not rely on the evidence of their acts of ownership and possession in the Suitland and evidence of oath taking to prove their title to the Suitland. In Owhonda v. Ekpechi (2003) 9-10 SC1, the Supreme Court held that- “there is no doubt that it is the law, that in an action for declaration of title to land, where a plaintiff fails to discharge the burden of proving his root of title to the land as pleaded by him, he cannot be entitled to the declaration sought. He cannot also fall back on long possession and acts of ownership to prove title. He must first prove a valid root of title to be able to claim title on acts of ownership and long possession”.
?In Balogun

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& Ors v Akanji & ors (1988) 2 SC 199, the Supreme Court held that ” the opinion held by many of our trial Courts that in every land case where title is in issue the dictum of the full Court per Webber J in Ekpo v. Ita (Supra) that the onus is on the plaintiffs claiming a decree of declaration of title to land to prove acts of possession and or ownership, numerous and positive enough to warrant the inference that the plaintiffs were exclusive owners applies is erroneous. That dictum will only apply where the plaintiff’s root of title is acts of Possession. It will not only apply where the root of title pleaded is sale and conveyance nor will it apply where the root of title pleaded and relied upon is Traditional Evidence (as in this case). In either case acts of possession may be exercised subsequently and consequently to the primary root of title relied upon. In such cases, once, and where, the primary root of title had been successfully established, the plaintiff wins and there will be no further need to probe his acts of possession.” See also Ude & Ors v Chimbo & Ors (1998) 9-10 SC 97, Fasoro & Anor v Beyioku & Ors (1988) LPELR) –

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1249 (SC), Ibenye & Ors v Agwu & Anor (1998) 9 ? 10 SC 18, Okhuarobo & Ors v. Aigbe (2002) 3 SC (Pt.1) 141 and Ukaegbu v Nwololo (2009) (Pt 1) 214.

If the trial Court had properly evaluated the respondents pleadings and evidence, it would have seen that the said pleadings and evidence do not establish the respondent’s root of title, it would not have relied on the respondents acts of ownership and long possession and evidence of oath taking as additional proof of traditional title to the land, and would not have held that the respondent’s proved their entitlement to the reliefs they claimed. It would have dismissed the claim of the respondents without considering the evidence of the appellants.
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The need to consider the evidence of the defendant only arises after the trial Court is reasonably satisfied that the plaintiffs evidence has established the existence of facts entitling him to the reliefs claimed. The trial Court then considers the evidence of the defendant, weighing same against the plaintiffs to find out if on a preponderance of evidence it rebutted the case made out by the plaintiffs evidence. If the trial Court comes to

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the conclusion that the defendant’s evidence did not rebutt the case made out by the plaintiffs evidence, then Judgment is entered in favor of the plaintiff. If the trial Court finds rather that the defendant’s evidence did rebutt the case made by the plaintiff’s evidence, then the plaintiff case fails on a preponderance of evidence.

The trial Court contrary to S.133 (1) and (2) of the Evidence Act 2011, considered the evidence of both sides together as if both had the primary legal burden to prove their assertion of traditional title to the suitland, even when the appellants did not counter claim for any relief in respect of the Suitland.
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The argument of learned counsel for the appellant complaining against the Judgment of the trial Court concerning the identity, boundaries and location of suit land are incompetent as it is not derived from any of the issues for determination and any of the grounds of this appeal. All arguments in an appeal must be based on the issues raised for determination in the appeal, which issues must be derived from any of the grounds for the appeal. Arguments not based on any of the issues raised for determination in an

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appeal or any of the grounds of an appeal would be struck out. So the arguments of Learned Counsel for the appellant concerning the identify, boundaries and location of the suit land are hereby struck out.

The argument of learned counsel for the appellant that the trial Court did not properly evaluate the evidence adduced by the appellant is true with respect to how it treated the evidence of the traditional history of the ownership, use and occupation of the suit land. As I had held herein, if it had properly evaluated the said evidence, it would have seen that the evidence of the respondent did not show how and from whom the respondents acquired the ownership and occupation of the suit land.
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The decision of the trial Court that Ugwu Aro shirine was planted on the suit land by Dunumechi, the father of the respondents as owner of the suit land, disregards Pw1’s evidence that Diliagim, Dunumechi’s father had no shrine during his life time and the absence of any evidence of how and from whom Dunumechi acquired ownership of the suit land. It also disregards the fact that only the appellant’s evidence of the traditional history of ownership of the suit

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land explained how the suit land was acquired as a public square of the different kindred?s in Ezuibe Ward and has remained so till date. It also disregards the evidence that the respondents belong to Etiti Ward, which the appellants belong to Eziube Ward, the testimony of Pw3 that the suit land is in Eziube Ward and testimony of PW4 that the Suitland lies between Eziube and Akanogu Wards and partly in each of them and that no other ward is around the suit land.

In the light of the forgoing I resolve issue No 2 in favor of the appellants.

On the whole this appeal succeeds partly. It is accordingly allowed partly, The Judgment of the High Court of Anambra State at Awka in suit No AA/173/88 delivered on 26-10-2009 per P. C. Obiorah, J that the respondent proved their title to the suitland and granting the respondents the reliefs they claimed for is hereby set aside.

I hold that the respondents as plaintiffs failed to prove their title to the land and did not prove their entitlement to any of the reliefs they claim. Accordingly their claim in suit No.AA/173/88 is hereby dismissed.
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The respondents shall pay costs of N100,000.00 to the

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appellants.

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Other Citations: (2016)LCN/8672(CA)