Eme Ndukwe V. Uma Acha & Ors (1998)
LAWGLOBAL HUB Lead Judgment Report
MOHAMMED, J.S.C.
The proceedings giving rise to this appeal were commenced by the appellant as plaintiff before Abengowe J of Imo State High Court, sitting at Ohafia. In the High Court the appellant sued the respondents on behalf of himself and as representative of the people of Uwa Iku maternal family of Ebem Ohafia. In the Statement of Claim the appellant claimed against the respondents (Defendants at the trial court) jointly and severally, for the following reliefs:
(1) A declaration of title to a piece of land known as, and called Awa-Otolu, situate at Ohafia in the Ohafia Judicial Division, at the annual rent of N10.00.
(ii) N1,000 general damages for trespass:
(iii) Perpetual injunction restraining the defendants, her servants, workmen and/or agents from entering into any part, or in anyway, interfering with the said land”.
Pleadings were filed and exchanged. In a well considered Judgment, at the end of the trial, the learned trial Judge found that the plaintiff/appellant had failed to prove the traditional history he relied on, the identity of the land and the precise nature of his claim. For those reasons the court dismissed the claim. Dissatisfied with the High Court’s decision, the appellant appealed to the Court of Appeal. The Court of Appeal affirmed the decision of the High Court and dismissed the appeal.
The appellant has finally reached this court on five grounds of appeal. I will reproduce the five grounds of appeal but shorn of their particulars because I find the issues raised on those grounds by the learned counsel for the respondents more apt for the determination of this appeal. The five grounds, without their particulars, read as follows:
“(1). That the learned Court of Appeal Judges erred in law and in fact when they found for the respondents that the root of title to the land in dispute is a triable issue when the parties agreed that they are descended from a common matrilineal ancestor, the founder of the land in dispute.
(2) That the Court of Appeal misdirected itself on the question of the meaning of the land in dispute and the branch of the family of the appellant.
(3) That the Court of Appeal erred in law and in fact when they found that partition of the land in dispute had not been pleaded and established in evidence by the appellant.
(4) That the Court of Appeal erred in law and in fact and misdirected itself in respect of the findings of the arbitration of Ebem elders.
(5) The Court of Appeal erred in law and in fact and misdirected itself on the question of damages for trespass and injunction claimed by the appellant”.
The issues identified by the learned counsel for the respondents for the determination of the appeal are six and are listed below:
“1 Whether the appellant proved his root of title.
- Whether the appellant identified properly the land in dispute.
- Whether the appellant pleaded partition and proved it.
- Whether the appellant proved exclusive possession of the land in dispute to enable him claim for trespass against the respondents. Were the respondents trespassers in their family land
- Whether the Court of Appeal was right in accepting as the High Court of Ohafia did the findings of the Arbitration of Ebem elders as stated by DW 1.
- Whether this Court would in the absence of error on the face of the record of this case occasioning miscarriage of justice disturb the findings of the lower courts”,
The learned counsel for the appellant made what I regard as a novel submission on matters raised in issues 1 and 2. Learned counsel agreed with what is trite; that parties are bound by their pleadings and so any evidence which tend to contradict the material fact of their pleadings or introduce an entirely different matter from what had been pleaded goes to no issue. After this submission, learned counsel argued that the trial court had powers under the proviso to section 74 of the Evidence Act to call additional evidence, suo motu in respect of the origin of the land. This, counsel added, was not done by the trial court and that the Court of Appeal was in error to fail to address it’s mind to this well founded principle of law as set out in section 74 of the Evidence Act. The learned counsel went further with his novel submission thus:
“It may be conceded that the appellant and his witnesses gave conflicting evidence to his pleadings in court. This would at best amount to a deliberate attempt by the appellant to introduce new matters into the case and at worst, an inadvertent failure on his part to lead evidence in line with his pleadings.
If the trial court and the Court of Appeal found the Plaintiff’s/Appellant’s evidence to be at variance with his pleadings the only proper step to take in that situation is to expunge the evidence of the Plaintiff/Appellant that tend to conflict with his pleadings. See the case of the National Investment & Properties Company Limited v. Thompson Organisation Limited & Ors. (1969) NMLR 99.
Instead of limiting himself to that principle of law the trial Judge went on to state at page 70 lines 6 and 7 that the Plaintiffs evidence was incongruous and unsatisfactory. The Court of Appeal committed the same error by reaching the same conclusion as the trial Judge that even though facts about the common ancestry of both the plaintiffs and the defendants have been admitted in their pleadings that did not settle the issue of root of title to the land between the parties”.
First, with greatest respect, let me make it quite clear to the learned counsel for the appellant that there is no proviso to section 74 of the Evidence Act.. But if the learned counsel is referring to section 75 of the Act the proviso to the section does not give power to the trial court to call additional evidence. suo motu ,to help correct a contradiction in the evidence adduced by the plaintiff in support of his claim. The burden of proof of the pleadings rests upon the party who substantially asserts the affirmative of an issue and who would fail if no evidence were adduced. The burden of proving exclusive ownership is on the party who pleads so. The trial court will be in a serious error if it calls evidence suo motu to establish a fact which the plaintiff fails to do in the prosecution of his claim. See: Imana J.O.O v. Robinson Jarin Madam (1979) All NLR page I at 16 and J. W. Amu v. J.B. Atane and Anor (1974) (Pt.2) ANLR 143.
Secondly, the learned counsel ought to know that if the evidence the plaintiff /appellant adduced before the trial court during trial is at variance with his pleadings neither the trial court nor the Court of Appeal has power to expunge the evidence that tend to conflict with the plaintiff’s pleadings in order to save the case of the plaintiff from collapsing. The case of National Investment and Properties Company Limited v. Thompson Organisation Limited & Ors. (1969) N.M.L.R, 99 which learned counsel referred to in support of his submission does not support such assertion. What this court decided in that case is as follows:
“It is convenient here to deal with one other general matter. Chief Akin Olugbade frequently asked us to look at the evidence adduced and not at the pleadings as it was the evidence that mattered. Now just as an appellant is bound by his grounds of appeal so at the earlier stage of the action both parties are bound by their pleadings and it is elementary that admissions in pleadings do not have to be proved. In so far as pleadings do not contain admissions then the matters alleged must be proved in evidence, but that evidence cannot derogate from the pleadings as Chief Akin Olugbade seems to us to think it could. See: Idahosa v. Oronsaye [4 FSC. 166 at 171; (1959) SCNLR 407].
A plaintiff must call evidence to support his pleadings, and evidence which is in fact adduced which is contrary to his pleadings should never be admitted. It makes no difference, as Chief Akin Olugbade suggested, that the other side did not object to the evidence or that the judge did not reject it. It is of course, the duty of counsel to object to inadmissible evidence and that the duty of the trial court any way to refuse to admit inadmissible evidence, but if not withstanding this evidence is still through oversight or otherwise admitted then it is the duty of the court when it comes to give judgment to treat the inadmissible evidence as if it had never been admitted. This has long been the case but it is clearly set out in the judgment of this Court in Bada v. The Chairman L.E.D.B.) [SC, 501/65 of the 23rd of June, 1967]. We cannot therefore look at or accept evidence on the record here when it runs contrary to the pleadings of the plaintiffs”.
It is evidently clear that the appellant had not proved the roots of his title as pleaded. At the hearing of the case the appellant stated that the founder of the land in dispute was no longer Ukpai Ukpai, as pleaded but Ukpai Okpa. The descendants of the said Ukpai Okpo which the appellant stated in the evidence were not the same as those mentioned in his pleadings. It was not the appellant alone who gave evidence that Upai Okpo was the founder of the land in dispute. PW2 also gave similar evidence. The appellant failed to link Ukpai Okpo with Amaghalu who was the mother of Ukpai Ukpai the founder of the land in dispute. Issues 1 and 2 are therefore resolved in favour of the respondents.
The matter raised in the third issue is the question whether partition of the land has been pleaded and established in the evidence by the appellant. Learned counsel for the appellant argued that despite the fact that the word “partition” was not used in paragraph 4 of the Statement of Claim it could be inferred that it had been pleaded and proved by the appellant. Counsel referred to paragraphs 2,3,4,5,7,8,9 and 11 of Statement of Claim, Exhibit “A” and the evidence of PW 1, PW2 and PW3 to buttress his submission.
In dealing with the issue of partition it is relevant to refer to the observation of both the Court of Appeal and the trial court that the appellant had failed to pin-point his branch of the family to whom the land in dispute was allotted to. There is nothing in the evidence adduced to show that the appellant is a member of Amaghalu’s family through Ukpai Ukpai, the founder of the land in dispute. The learned counsel for the appellant cannot be correct to say that the wordings of paragraph 4 of the Statement of Claim, if read with other paragraphs, would establish that partition had been pleaded. Paragraph 4 of the Statement of Claim reads:
“The land in dispute is surrounded by other lands of Ukpai Ukpa who showed the different portions to his relations at different times for them to farm upon. These relations used the different portions allotted to them for farming purposes and all the boundary people who are relations of Ukpai Ukpai belong to the Amaghalu family”.
The boundary men to the land in dispute as shown in the evidence are all relations or Ukpai Ukpai or Amaghalu’s family. Ukpai Ukpai was also the founder of all the parcels of land sharing common boundaries with the land in dispute. If the appellant is not a member or Ukpai Ukpai branch or the family how could the land in dispute be allotted to him through partition The issue of partition, even if pleaded cannot therefore be established since the appellant’s root or title has collapsed through his insistence that his ancestor was Ukpai Ukpo and not Ukpai Ukpai, the original founder of the land in dispute.
The issue of trespass goes with the proof that the appellant owned the land exclusively or was in possession of the same before the commencement of this action or had proved the right to it’s possession. See:Nureni Carpenter & Anor v. Bello Lanuwun (1970) All NLR 455. It is clear from the pleadings and evidence that the appellant had failed to establish title to the land in dispute and there is no cogent evidence either that he was in effective possession of the disputed land. The evidence before the Court is that the disputed land is owned and farmed communally by all members or Amaghalu’s family. If the appellant says, as he has done, that he is not from Amaghalu’s family he cannot possess the said land. DW2. who is one of the respondents, told the trial court that the dispute in respect of this land started when the appellant pledged the land to one Nka Ira. The matter was reported to the elders and they directed the appellant to return the land back to the family. Since then the appellant had not gone back to the land in dispute. The appellant told the trial court that in 1971 he rejoined members of Amaghalu in declaring that no portion of Amaghalu’s land would be sold. He is wrong now to ask the trial court to declare a portion of the land to be his own. His claim for trespass cannot therefore succeed and it is rightly dismissed.
On the issue of arbitration by the elders over the land in dispute the trial High Court did not believe the evidence given by the appellant that the elders after listening to both sides adjudged that the disputed land was his. The learned trial Judge considered all the evidence adduced on the issue and disbelieved the appellant. The Court of Appeal, quite rightly, looked into the issue and found that it was a matter of credibility of the witnesses’ testimonies which they must not reopen or re-appraise since the court did not see or heard the witnesses. I quite agree. Any trial court has the liberty and privilege to believe one litigant and disbelieve the other. Where the issue is that of credibility of witnesses the appellate court has a very limited, if any, scope to interfere. It can only do so when the trial court decides to believe a witness quite contrary to the trend of accepted evidence or where oral testimony is contrary to the contents of a written document. See: Samuel Agbonifo v. Madam Arorore Aiwereoba and Anor. (1988) 1 N.S.C.C. 237 at 245;(1988) 1 NWLR (Pt.70) 325.
Finally, it follows from what I have been saying above that the appellant has failed to convince me to disturb the decision of the lower court. This appeal has no merit at all and it is dismissed, The judgment of the Court of Appeal affirming the decision of Abengowe J. of Imo High Court, is hereby affirmed. The appellant shall pay the costs of N10,000.00 to the respondents.
SC.222/91
