Chukwuemeka Anyafulu And 4 Ors Vs Maduegbuna Meka And 5 Ors (2014)

LAWGLOBAL HUB Lead Judgment Report

KUMAI BAYANG AKA’AHS, J.S.C.

The Plaintiffs and Defendants are natives of Obosi. Both parties are members of Umuabua family but the Defendants belong to Umu-Ademe sub-family of Abua. The plaintiffs brought the action in a representative capacity against the Defendants also in a representative capacity claiming that the land in dispute which they call “Umuru” is owned communally by both parties through inheritance. The defendants denied this claim and asserted that they owned the land absolutely. The plaintiffs trace the occupation of the land to Ezuga, their common ancestor, who hailed from Ire Village. According to the traditional history of Obosi, an Umuru man was found guilty of having committed adultery and was asked to pay a penalty for the crime (which was yams). When he presented the yams, the quantity and quality were found to be unsatisfactory. The man became enraged and he killed the Eze and his pregnant daughter. Fearing the repercussions that would follow the killings, the man and his kinsmen decided to relocate from Umuru to another place. Ezuga (also known as Dezuga) moved in to occupy the land left by the fleeing Umuru people and after his death the land was then partitioned among his four children namely Chiakwelu, Abua, Odogwu (also known as Nyi) and Oliobi. The plaintiffs claim that both themselves and the Defendants are descendants of Abua and the portion of land which Abua inherited was never partitioned between his children; hence it is now communal land belonging to the parties.

The Defendants, version is that even though they and the Plaintiffs are descendants from Abua, the ancestor did not inherit any land. They claimed that Abua had two sons namely: Nwokebuahi and Oradusi. Oradusi in turn had four children namely: Emokamobi, Okolonkwo, Umunna and Ademe. It was Ademe their forefather who deforested the land. They the Defendants are the members of Umu Ademe kindred in Umuabua family and so are exclusively entitled to the said land.

The suit was heard on the Amended pleadings of the plaintiffs dated 15th January, 1998 but filed on 12th February, 1998 (see pages 95 – 102 of the records) and the Further Amended Statement of Defence dated 29th January, 1998 and filed on 30th January, 1998 (see pages 49 – 57 of the records). The plaintiffs called four witnesses while six witnesses testified for the Defendants. Several exhibits were tendered. In the judgment delivered on 17th December, 1998, the learned trial Judge before non-suiting the plaintiffs said:-

“I found it difficult to understand and appreciate the two main grounds relied upon by the plaintiff and also by the defendants in this suit for their claim to the land in dispute as shown on exhibit A’, thereon verged pink or as shown on exhibit ,B’, therein verged red. I have deliberately refrained myself from making any specific findings of fact on the evidence proffered and adduced by each party” (See page 2 of the records)

Both parties were dissatisfied and appealed against the order of non suit. The Defendants appeal was treated as the main appeal. They complained that there was failure by the plaintiffs to plead and testify on the line of succession from the original founder to the plaintiffs and the evidence of the plaintiffs’ witnesses which were contradictory resulting in serious internal conflicts regarding the traditional ownership of the disputed land.

The Court of Appeal Enugu delivered its judgment on 31st of May, 2005 allowing the appeal on the issue of non suit since the parties were not invited to address the trial Judge before the order was made. It went further to invoke section 16 of the Court of Appeal Act to evaluate the evidence and the pleadings before the trial court and arrived at the conclusion that the Plaintiffs failed to plead how the land passed through successive owners to them and held that with this failure, there was no way that the burden of proving exclusive ownership of the disputed land could have shifted to the appellants. The Court held that the respondents’ claim was bound to fail because of the inadequacy in their pleadings. The Court below dismissed the cross – appeal with N10,000.00 costs to the appellants.

The Plaintiffs have now appealed to this Court on seven grounds of appeal from which they formulated five issues for determination. The issues are:-

1. Whether the learned Justices of the Court of Appeal were right in dismissing the appellants’ case for insufficiency or inadequacy of pleadings in support of their traditional history when the pleadings were sufficient to support the appellants, traditional history and warrant a declaration of title in their favour.
2. Whether the failure of the court below to consider the acts of ownership and possession pleaded by the plaintiffs/appellants before it dismissed the appellants case for insufficiency of pleadings of their traditional history did not constitute a breach of the appellants right to fair hearing and a miscarriage of justice.
3. Whether the court below was right in shifting the burden of proof to the plaintiffs/appellants when from the pleadings and/or the evidence the burden of proof lies with the defendants/respondents who are claiming exclusive title as against the plaintiffs/appellants who are claiming communal title.
4. Whether the court below was right in dismissing the suit when the plaintiffs/appellants are entitled to the declaration of title having regard to their pleadings and evidence before the Court.
5. Having held that it has the power under section 16 of the Court of Appeal Act to evaluate the evidence whether the court below was right in not evaluating the evidence before dismissing the suit which if done, it could have found that the plaintiffs/appellants are entitled to judgment.

The respondents in their brief formulated seven issues for determination as follows:-

1. Whether the Appellate Court has the right to make finding of facts where credibility of witnesses is not involved.
2. Whether the Plaintiffs/Appellants who claim ownership of the land through inheritance/traditional history must plead and give evidence of:

(a) The persons who have held title or on whom title devolved in respect of the land before the plaintiffs took control of the land and what is the effect of failure to do so.

3. Whether Plaintiffs/Appellants who rely on inheritance/traditional history as root of title can simultaneously rely on acts of ownership as root of title.
4. Whether the decision in Ekpo vs Eyo is applicable in this case.
5. Whether on the state of the pleadings and evidence led, it is the Plaintiffs/Appellants or the Defendants/Respondents who have the burden of proof.
6. Whether the Appellants were given a fair hearing.
7. Whether plaintiffs/Appellants proffered two competing traditional histories for the ownership of the land and what is the effect.

The Respondents’, issue I will be disposed of peremptorily. The Court of Appeal in its Judgment had stated clearly that the appellate court can make evaluation which are of law and on the basis of pleadings of the parties and the evidence. It entered the caveat that what the appellate court cannot do is to assess the credibility of witnesses and relied on the statement of Eso JSC in Ebba vs Chief Warri Ogodo (1984) 4 SC 84 at 99 which was applied in Narumal & Sons vs N.B.T.C. LTD (1939) 2 NWLR (Part 106) 730. So if the evaluation of the evidence in this case does not touch on the credibility of the witnesses, notwithstanding the fact that the learned trial Judge failed to evaluate the evidence, the evidence adduced can be evaluated even in the Supreme Court.

The central issue in this appeal revolves around the pleadings. Learned counsel for the appellants submitted that since the plaintiffs claimed the land in dispute as a communal land of Umuabua which belongs to all descendants of Abua and not as personal or individual property inherited by them, their pleadings in paragraphs 11 and 14 of the Amended Statement of Claim and the admission made by DW1 on the common ancestry of the parties in Abua were sufficient to warrant the learned trial Judge entering judgment in favour of the plaintiffs. He argued that it will be absurd for the plaintiffs to plead individual or subfamily ownership of the land as that will be in conflict with the communal ownership amounting to the plaintiffs, setting up conflicting titles, one as family communal land and the other as family property. Learned counsel sought to distinguish this case from that of Piaro vs Tenalo (1976) 12 SC 31 by arguing that there is no sweeping statement that the land is communal land since the pleadings revealed the following:-

1. The founder of the land
2. The person on whom the land devolved i.e. Abua
3. Both plaintiffs and defendants are descendants of Abua
4. Abua’s land is vested in all his descendants including the plaintiffs and defendants communally and not individually or on a subfamily
5. Abua has various lands in Obosi which are communally owned by all his descendants including the land in dispute which have been registered since 1978
6. The only person who is in charge of all Abua’s communal lands is Diokpa
7. The land has not been partitioned.

He therefore submitted that there is undisputed linkage between the land in dispute and the plaintiffs who are claiming communally and not by descent from a subfamily or individual.

Learned counsel for the respondents argued that the defendants put the inheritance of the disputed land by Abua in issue by denying the fact that Abua inherited the land from Ezuga and traced the origin of the land to Ademe who was an offspring of Abua.