Ebinauko Osuogwugwu V. Eugene Emeruwa (2006)
LawGlobal-Hub Lead Judgment Report
VICTOR AIMEPOMO OYELEYE OMAGE, J.C.A.
This is an Appeal from the judgment of the Customary Court of Appeal Imo State of Nigeria. The Court had taken the Appeal from the decision of the Customary Court of Orlu Local Government Area, Imo State; which sat at Ihioma on Suit No. CC/OC.105/90; and delivered its judgment on 25th February 1997.
In the Court at Orlu, the plaintiff who is respondent is this Court had claimed reliefs thus (a) N2000.00 damages for trespass to “Uhu Dimofor”; (b) Injunction. After both parties and their witnesses in that Court, the said Customary Court at Orlu entered judgment in favour of the Plaintiff. The judgment of that Court is material to the subsequent proceedings, it is therefore relevant to state it here at the outset; it is the sum of money as claimed by the plaintiff (damages for trespass)
(ii) An order of injunction restraining the defendant, their agents, servants and privies from entering the land in dispute. (3) An order for a Customary right of occupancy to the Plaintiff.
The defendant was dissatisfied with the judgment, he appealed to the Customary Court of Appeal. The Defendant Appealed on five grounds; and sought from the Customary Court of Appeal Imo state as follows; For the Court to allow the Appeal and set aside the judgment of the Customary Court at Ihioma dated 25/2/97. Four issues were formulated in the Court. One of the grounds for the relief sought is that the said Customary Court was in grave error for awarding to the plaintiff/respondent a declaration of Customary right of occupancy when the plaintiff did not claim in his writ such a relief; (ii) Whether the Court can make an order for perpetual injunction over a Customary land, whose boundaries were not specified.”
The appellate Customary Court considered the four issues raised in the appellant’s brief and affirmed the judgment of Ihioma Customary Court upon which reason the appellant/defendant filed a further Appeal to this Court. The appellant formulated the following issues from the five grounds of Appeal filed in his brief of argument. At the hearing of the Appeal the appellants counsel was absent. At the request of the respondent’s counsel, the appellant’s brief filed on 27/9/2004, under the provisions of our rules Order 6 rule 9(6) was deemed to be argued on 18/9/2006. The respondent adopted his brief. In the appellant’s brief he formulated the issue on page 3 thereto thus; “Whether the lower Court was not in error in confirming the grant of Customary right of occupancy to the respondent, a relief he did not claim nor was plea taken on it by the appellant. (2) Whether the lower Court was right in affirming the order of injunction made by the trial Court over the land in dispute whose boundaries are neither specific nor proved by the respondent. (3) Whether the lower Court was not in error to confirm the decision of the trial Court based on traditional history and acts of ownership of the land in dispute. (4) Whether the lower Court was right to uphold the evaluation of evidence by the trial Court.
In the Respondent’s brief deemed filed on 27/2/2006, and adopted on 19/9/06, the Respondent adopted in the alternative the issues formulated by the appellant subject to the preliminary objection contained in the Respondent’s brief. The preliminary objection formulated by the respondent is as follows: That this case originated from the Customary Court, Orlu Local Government sitting at Ihioma. The case having been decided in favour of the respondent to this Appeal, who was the plaintiff in that Court, the now appellant filed his Notice of Appeal which contained only one ground viz., that the judgment of the Court is against the weight of evidence.”
Respondent submitted that though the appellant then Appealed to the Customary Court of Appeal, and met the conditions of Appeal, the sole ground of Appeal was incompetent in the Customary law. He then filed another ground of Appeal after by a motion in the Customary Court of Appeal made on 28/2/97. The appellant secured extension of time to file fresh grounds of Appeal, and the Customary Court ruled that as properly filed and served. However on 8th January 1998, the record shows that the appellant withdrew the notice of Appeal filed on 28/2/97 and filed fresh grounds of Appeal at the Customary Court of Appeal on 30/6/99. After obtaining an order for leave to Appeal out of time, and for extension of time to Appeal out of time, and to deem the grounds of Appeal as duly and properly filed. The Court granted the prayers on 27/7/99.
The substance of the preliminary objection of the Respondent is that the notice of Appeal filed by the appellant in the Customary Court is contrary to the provisions of the Customary Court rules order VIII, which directs that notice of Appeal should be filed in “the Customary Court” whose judgment is being Appealed against; as provided for in form 5 or 9, in the first schedule of the Customary Court Rules. See also Order 11, rule 2 of the Customary Court of Appeal Rules 1989.
It is this reason that the Respondent has submitted and urged the Court to rule that the notice and grounds of Appeal filed by the appellant is incompetent; and should be struck out.
I have considered the preliminary objection raised by the Respondent. I am of the view that the requirement to file the grounds of Appeal in the Court below as provided in the enabling Customary Court rule Order 8, obtains where oral notice of Appeal was given by the appellant in Court at the end of the delivery of the judgment. See order 8, rule; which reads-
“2. Where a notice of Appeal is given orally in open Court, the appellant shall as soon as may be thereafter file in duplicate a notice of Appeal in form 5 or 9 set out in the first schedule within the time prescribed.”
It is my view that the requirement to file the grounds of Appeal in the Court below; the notice having been given in open Court is not applicable where notice and grounds of Appeal is filed without oral notice being given. Additionally the provisions of rule 8, sub-rule 2 will not apply where time has elapsed within which to file the Appeal, and the applicant applies for leave of a superior Court and the leave is granted for extension of time to file the fresh grounds of Appeal. The provisions of rule 8, rule 2, as quoted above, will not render the grounds of Appeal incompetent. The preliminary objection is misconceived.
The prayer to strike out the grounds is refused. Even if the rule does not exist and it does, the Customary Court of Appeal Imo State has an inherent jurisdiction to grant the application made by the appellant and this Appeal was properly filed in that Court.
I now proceed to deal with the issues formulated by the appellant and the response to each issue by the Respondent.
The fact of the case is as follows: In Ihioma Customary Court sitting at Orlu Local Government, the plaintiff now the Respondent claimed against the defendant, the appellant in this Court the following:
(a) N2,000.00 damages for trespass;
(b) Injunction over a piece of land called “Uhu Dimofor.”
The defendant called this land “Oke Ohia.”
The plaintiff deposed in the Customary Court that the land in dispute resides at Eluama; and it is called Uhu Dimofor and that he is the owner in possession. He said he inherited the land from his father Emeeuwa: This father inherited the land from his father called Ohoronlewo Demewere got the land as a share from his father called Dimojiahu. Demewere had a son and daughter named Agwunobi and Aferenwa. Aferenwa married Omuanu Anike. After the death of Demewere, his son Agwunobi enjoyed the land. Agwunobi died without an heir. At his death all the land he possessed reverted to the plaintiff’s grandfather called Okoronkwo, including Uhu Dimofor, the land in dispute. The land has a boundary with Ugorji Ezeagwu. He said his father and grandfather farmed on the land without dispute with any one. His ancestors planted on the land oil bean trees, and other economic trees. There is a boundary made with Ugorji Ezeagwu. The plaintiff said his father leased the land of Aferenwa to farm on. At one stage Onwuamaku’s brother in law trespassed on the farm. When Onwuamaku’s brother in law was confronted by my father, he agreed to swear on oath. Anike and Orlu Amalas decided the matter and the parties submitted to the decision of the Amala, to take oath which his father took and survived on the ownership of the land. After the oath the plaintiff said he left the land for his sister Aferenwa to farm on. She, her children and husband farmed on the land. It was after the death of Aferenwa, her husband died earlier, and her son Afaegbu that he took over the land in dispute and farmed on same, until Odunze came to challenge his own brother on the land. Once again the Amala of Anike and Orlu demanded that the two sides take an oath which was taken, and went against them. Odunze claimed the Oath favoured him.
The plaintiff claimed he asked for a refund of his money on the Oath and he was paid part of it. Plaintiff said in 1977, the NEPA cut trees on the farm, he did not object because that was for development; however he got a report that the defendant cut the tree and took them home. It was then he sued, and demanded payment for damages on his farmland.
He asks for judgment. The defendant’s name is Bazil Emenike from Umuanu Anike. He said the land in dispute is the land shared of Ewuru and Nwanu which they got when Ikechukwu had known as Anike’s landed property. Nwanu shared his land among three sons. The three sons were (1) Duruenyinagu (2) Okwaraegu and (3) Uhabia. The defendant said his own lineage is Okwaraogum. Since the land was shared between three families it became a communal land and they collectively made use of the land. He said his own father called Ukechu used his father’s propety, Durucha property. Ukachu had three sons and three daughters called Nwaayiha who was married to Exiachi; Oparuochi and Nwaochia were married at Umudim Amaike. The sons married Aferenwa. Dimoria, Umudim Ojiaku Eluama Orlu. Aferenwa begot two children for Nkeemka, one boy and a girl. The boy was Apegbu and the girl Akamnealu. Emenike Nwandu remarried when Kenilla died and Aferenwa had two more female children. They were Iyiashi and Nkpirike. The witness then told a long story about how Aferenwa and Emenike descendants inherited the land which Edunze and Nicholas witnessed. He said on approach to Orlu the land is the area shown by Emenike showed to Dike. On the left is the land of Okechia. Dike and his wife worked on the land. Plaintiff deposed that in 1952, the plaintiff went to Odunze to ask for a piece of land which was granted him because the plaintiff was accepted as a member of the family being descended from Aferenwa. However when the Plaintiff sent Samuel Ndubi to go and cut down the bean seed in Oke Ohia, Odunze challenged him. Eugene, the plaintiff claimed the land as his own whereupon Odunze sued him in the Customary Court. At the intervention of another relation Anike; Odunze withdrew the action from Court. However Eze Agbanjim of Anike, Chief Jamels Ijozie took decision with the parties that Odunze should take an oath on his head to show that the land belonged to his father. The plaintiff went with Odunze to Ohubi Azoka before a shrine called Ogbunike Ohubi. Odunze took the oath on 29th June 1959. The next day, Calu and Amaike assembled at Eze Acholonus place where they declared that Odunze survived the oath taking. From 1959 to 1977 Odunze survived, and enjoyed the land until he died in a motor accident. In 1977 when NEPA fell down two trees on the farm which led eventually to the plaintiff suing Odunze at the Magistrate Court. However when Odunze died of a motor accident, the case was struck out. It was in 1999 that the plaintiff commenced this suit in which he claimed in the Customary Court for N2000 damages and an order for injunction. He said his boundary neighbours are Paul Agaocha; Sylvester Nmadunachom Ugoechi, Oduneyi; on the right hand, Cornelius Ekwem. He said nobody had farmed on the land for many years and his father did not tell him of farming activity on the land though they cut trees, saw the trees and produced from them mortar pestle; and they made adequate use of the economic trees on the land. He said, he never saw plaintiff on the land; the plaintiff is not the owner of the land he is claiming: the defendant/appellant have no boundary with him. The defendant’s witness in the Customary Court, Innocent Agbayim also testified in the same vein.
The first issue formulated by the appellant “whether the lower Court was not in error confirming the grant of Customary right of occupancy to the respondent; which relief the respondent did not claim in his claim.”
In his brief the respondent has adopted the brief formulated by the appellant in precise words: the Respondent however submitted in his argument the justification of the order of the said Customary Court at Ihioma which was affirmed by the Court below. The appellant had submitted that the claim for a declaration of title to the land in dispute is not inclusive in the claim of the plaintiff in the Court below. That the plaintiffs claim in the Court below is for the following (i) N2000 for damages for trespass to land in dispute. (ii) For an injunction. Appellant submitted that as he did not plead to a claim for a declaration of Customary right of occupancy and the Court below is not seissed of jurisdiction to order for the relief not claimed by the plaintiff. The appellant cited the decision in EKPEYONG v. NYONG (1975) 2 SC 71 at 81/82 and ALMOTIARI v. IGE (1993) 3 NWLR (pt.311) 251 and submitted that in the above decisions the Supreme Court has ruled it to be settled law that the Court will not grant a relief not claimed by the plaintiff; on which no evidence is offered in Court.
In response the Respondent in the Customary Court of Appeal as he has done also in the Appeal in this Court in his brief, cited Order, rule 1 of the Customary Court of Appeal rules 1989 applicable in Imo State. The rule gives jurisdiction to a Customary Court to grant relief to a party before it which relief that party has not claimed, if the relief granted is a consequential order arising from the evidence tendered in Court. The Respondent concedes that a Court should generally not award a relief not claimed by the plaintiff; but that the Customary Court below, as is the Customary Court of Appeal may make a consequential order as it deems the consequence of the evidence tendered.
Respondent submits that the order made by the Customary Court for a declaration of a Customary right of occupancy is well made. He urged this Court not to disturb same.
The specific claim of the plaintiff in the Customary Court at Orlu for N2000 damages for trespass and for an order for injunction. In the course of evidence of both parties, claim of ownership of the land featured clearly when both parties raised each in his case, not only right to possession of the land but claim in each case through a long list of ancestor. While the law is settled that the Court will generally not grant to parties in litigation what they have not claimed and will grant only the relief claimed, where the facts in evidence show a result not specified as in this case the Court is entitled to make a resultant order.
In Courts of higher jurisdiction, the judge will usually ask the parties to address him. See ADEMOLA v. SODIPO (1989) NWLR (Pt.121) P.346 per B-C and GBADAMOSI V. ALATE (1993) 2 NWLR (PT.273) 131.
In the instant Appeal in the Court below the plaintiff’s claim in the Court below is for damages, for trespass and for an injunction. The claim for trespass to land is rooted in exclusive possession and all that the claimant needs to prove is that he has exclusive possession of the land in dispute or that he has a right to it. Defendant may also claim to be the owner of the disputed land. Once this occurs, title to the land is put in issue. In order to succeed, the plaintiff must show a better title than the defendant. See OKORIE v. UDOM SC NLR 326 (2), AMAKOR v. OBIEFUA (1974) 7 ALL NLR (Pt.1) (3) JIAZU v. BANGBOSI (1999) 7 NWLR (pt.610) p.182.
In the instant Appeal, the plaintiff in the Customary Court claimed for damages, for trespass and for an injunction to a disputed parcel of land. He testified that the land belonged to him and traced his ownership and possession of the land through his direct line of ancestors. See IDUNDUN v. OKUMAGBA (1976)1 NWLR (Pt.210) 211. The defendant now appellant also traced his root of title through various relations. I have no reason to impugn the findings of fact of the claim to direct claim of ownership of the land and as a resultant order of Court, it has made an order for a right to the plaintiff to be entitled to a certificate of occupancy. I therefore resolve the issue in favour of the respondent.
In number 2 in the appellant’s brief “Whether the lower Court was right in confirming the order of injunction over a piece of land whose boundaries are not specified or proved.” On this issue the appellant submitted that the plaintiff in the Court below made in addition to a claim for damages, a claim for an injunction to the piece of land in dispute. He submitted that the boundaries to the piece of land are undefined and uncertain. He submits that the Court below is in error to grant the relief made by the respondent in the Court below for an order for injunction to the said land. The respondent in the Court below in the Customary Court of Appeal submits that “the land in dispute shows a common boundary with Ugorji Ezeagu, that there is a boundary mark like Ucha tree and other dead or live trees including oil bean tree.” Plaintiff/Respondent on page 34, lines 3-5 of the record deposed thus: “I am the only Umudin Ojiaku person owning the land and no Umudin Ojiaku could share common boundary with the land.”
On pages 36-37 of the record, the respondent gave contradictory evidence in the Court of first instance which was affirmed by the Court below as evidence of boundary. Appellant submitted that the evidence of PW2 on boundary sharply contradicts with the respondent’s. Under cross-examination at page 40, this land in dispute shares a common boundary with the lands of the members of the defendant family Anike. Even the trial Court at the locus in quo observed; “No definite boundary feature was shown to the Court at this spot.” Yet, the appellant submits in the face of such uncertain evidence of boundary; to grant an order of injunction prayed for by the Respondent in the trial Court: which was affirmed by the Court below. Appellant submits that it is contrary to legal authorities. See B OWUDA v. B. LAWAL (1984) 4 SC 145 at 146 which says that “an injunction cannot operate over a land where boundaries are not certain.”
In response to the submission made in the appellant’s brief the respondent submits in his own brief as Plaintiff as follows evidence in chief as follows: “I know the land which is in question. See page 24, lines 31 – 32 of the record. The appellant himself as DW1 testified thus:
“I know the land in dispute very well. Sec evidence pf DW1 on 19/9/1995 at the trial Court, page 51, lines 16-17 of the record. It is therefore clean and clear respondent submitted, that the parties know the land in dispute.
It is the law that if the area of land in dispute is both known to both parties in dispute the issue of proof goes to no issue OSHO ARE 1998 60 LRCN 4077 at page 4101 (ii) ODOFIN v. ONI (2001) 3 LRCN 384 P.398.
In this Appeal which originated in the Customary Court Orlu, each of the contesting parties described in some detail the boundaries of the land in dispute. They have made a visit to the locus in quo where the land in dispute and the boundaries of the land were identified. In law, this is sufficient to define the boundaries of the land in dispute. It is time that the easiest way to prove the identity of the land in dispute is to file a survey plan of the land properly orientated down to the scale and reflecting the features thereon, but a survey plan is not the only method of establishing the identity of boundaries of a disputed land. A plan shown by a licensed surveyor is not an absolute necessity. It is sufficient if the land is known to the both parties to the dispute, and if witnesses describe intelligently the boundaries and identity of the land.
A Court of law may therefore make a declaration of injunction and or ownership on the land. See ARABE v. ASANLU (1980) 5-7 SC 78 at 92 (ii) BANGBADE v. BALOGUN (1994) 1 NWLR 718 at 323, (iii) MINA V. JINADU (1992) 4 NWLR (pt.233)91 at 107 (iv) OSHIYOMI v. AHINTE 2 NWLR (pt.379) p.449. In the instant Appeal, the evidence of boundaries of the land in dispute is sufficient to establish the knowledge and identity of the land in dispute to warrant the order of the Court for an injunction on the land in dispute because evidence of identity of the land had been adequately given by the witnesses and the land is by the evidence of both parties known to both parties. I rule that the Courts below are not therefore in error for so awarding the order. I resolve the second issue in favour of the Respondents.
In issue 3, the appellant asked “whether the lower Court was not in error to confirm the decision of the trial Court based on the traditional history and acts of ownership of the land in dispute.” It is convenient to treat issue 3 with issue 4 in the appellant’s brief which asked: “whether the trial Court (which decision was affirmed by the Court below) was right to uphold the evaluation of evidence of the trial Court. The two issues can be tried together because they are depended on the same set of evidence. In arguing issue 3 in the appellant’s brief he submitted that the respondent in the Court of first instance failed to show the ancestors of his from whom he inherited the land: when the respondent testified on page 24 of the record as follows: “I know the land which is in question, it is called Uhudimofor. I am also if possession of it now. I inherited it and own it from my father Emeruwa. My father inherited it from his own father called Dumejiahu.” The above evidence does not accord with the root of title which is prescribed by the Supreme Court in OSAFILE v. ODI (1994) 2 SCNJ P.1. at 14. Since therefore the respondent now who was the plaintiff in the Court below cannot trace his present claim to ownership of the land to the person who founded the land, the respondent is not entitled to declaration of title to the land in dispute, and on the evidence tendered the plaintiff/respondent had failed to prove his root of title by traditional evidence.
In issues 4 and 5, the appellant submitted that the lower Court was not right to uphold the evaluation of evidence by the trial Court. He submitted that the plaintiff in the trial Court gave inconclusive and incoherent evidence of traditional history of the land in dispute, when he called the land Umudiapi, and there is no ancestor of his who goes, or went by that name. From the name, it goes without saying that the name of the original founder of the land is Dimofor in whose name the land is named, but who not the father of the respondent. Therefore the appellant submitted the respondent did not establish his root of title under the customary law to warrant a declaration of title in his favour. Appellant submitted that the trial Court did not see at the locus in quo any ruins of building of Dimofor on the land in dispute. No such features such as coconut trees, pear trees were seen on the land to indicate that some one lived on the land. Appellant submitted therefore that the traditional history of the land is short of the requirements in proof of traditional history of root of title. Consequently appellant submitted that the evaluation of the traditional history is less than required. He urged the Court to set aside the decision of the Customary Court at Orlu which was affirmed by the Imo State Customary Court of Appeal.
In his response, the respondent in his brief submitted that the name given by parties to the land is immaterial and does not in all cases indicate the name of the founder of the land. He refers to AROMIRI v. AWOYEMI (1972) 1 ALL NLR (pt1) 101 P.103. Respondent submits that in the instant Appeal, the appellant for instance left the name of his root of title hanging in the air. Submits that in a claim for declaration of title the plaintiff could succeed on the strength of traditional history; or evidence tendered which satisfies the Court. See F.M. ALADE v. LAWRENCE AWO (1975) 4 SC 215, 228.
In this Appeal the appellant has submitted that the evaluation of the history of traditional evidence submitted at the trial Court is inadequate to entitle the respondent to the award of customary certificate of occupancy awarded to him. In IDUNDUN v. OKUMAGBA (1976) 1 NWLR (pt.200) at 210; (ii) FASHOLA v. BEYIOKU (1988) 2 NWLR (pt.76) P.263, it was decided that proof of long and uninterrupted possession of the land in dispute by one of the contesting parties is evidence per se of traditional history and ownership of the land in dispute. Where there is evidence of ownership of adjacent land, the ownership of the adjacent land is by the provisions of enabling Act Cap 112, section 46 adjudged to be in possession of the owner of the land. See THOMAS v. HOLDER 12 WACA P.78. In the instant Appeal, the trial Customary Court at Ihioma Orlu has held that the plaintiff who testified before the Court has established sufficient evidence to prove that the plaintiff now respondent has proved and established by clear evidence that he inherited the land dispute from his ancestor, his grand father to his father before the land devolved on him. See OSAFILE v. ODI (1994) 2 SCNJ at 14.
The Customary Court of Appeal Imo State upheld the findings of the Court below it. Infact there is no provision in the law that the name of the founder of the land should necessarily reflect the name of the claimant as submitted by the Appellant. See AROMIRE v. AWOYEMI (1972) 1 ALL NLR (Pt.1) 101 at 103; (i) MAHANJUALA v. BALOGUN (1989) 3 NWLR (pt.108) 192, 204; ASEIME v. ABRAHAM (1994) 8 NWLR (pt.361) 191 p.217 CA.
It is trite law that a party must rely on the strength of his own case, not on the weakness of the other party. See KODLINYE v. ODU (1936) 2 WACA 337; (ii) WOLUCHEM v. GUDI (1981) 5 SC 291.
Facts, and evaluation of evidence is the domain of trial Court, not the appellate Court. The evaluation of evidence and of facts tendered by the parties before the trial Court is the primary function of the Court below to determine. See AKINLOYE & ORS. v. EYUSIFOLA & ANOR. (1968) NMLR 92 at 95; WOLUCHEM v. GUDI (1981) 5 SC 291.
Where therefore there has been a proper evaluation of the evidence of traditional history the appellate Court will not intervene. See POPOOLA v. ADEYEMI (1992) 4 SCNLR (pt.251). I resolve issues 3, 4, and 5 which are variations of the same theme in favour of the Respondent and dismiss the Appeal.
I make no order as to costs.
Other Citations: (2006)LCN/2078(CA)
