Enyinnaya Okoronkwo Chukwueke V. Oji Nwankwo & Ors (1985)

LawGlobal-Hub Lead Judgment Report

BELLO, J.S.C.

On the 26th March 1985 we allowed this appeal, set aside the decision of the Court of Appeal and restored the judgment of the trial court. We reserved our reasons for so doing to be given today. I now state my reasons.

The suit was originally instituted in the High Court of Eastern Nigeria, holden at Umuahia, but was eventually heard in the High Court of Imo State at Umuahia wherein the Respondents as plaintiffs claimed against the Appellant and one Okezie Chukwueke as defendants who died thereafter jointly and severally for:

“1. A declaration that the piece or parcel of land known and called “Ubi Oro” valued 10pounds (ten pounds) situate at Uzuakoli in Umuahia Judicial Division is owned jointly by both the plaintiffs and the defendants and that the defendants have no rights by themselves alone without the consent, agreement and participation of the plaintiffs to demarcate, sell, lease or give out all or any portion of the said “Ubi Oro.”

2. 50pounds:-:- damages against the defendants jointly and severally for demarcating and planting cement pillars on the said land without the consent, agreement and participation of the plaintiffs.
3. A perpetual injunction to restrain the defendants and their heirs from any sale, lease, gift or demarcation of all or any portion of the said “Ubi Oro” without the consent, agreement or participation of the plaintiffs.”

The Respondents’ case as averred in their pleadings is that one Uda was the original owner from time immemorial of the land in dispute, the plan of which was admitted in evidence as Exhibit A, and is now the communal land of Amuda which include the defendants and Respondents; that upon the death of Uda, the land devolved to his three issues, namely Okala, Okpugu and Ogwudu who used it in common as a family land and it has remained as such ever since; that the descendants of the said three issues include the Respondents and the defendants who form the Amuda Community consisting of Umuokala, Unuokpugu and Ama Ogwudu families; that the Amuda people have been farming the land, harvesting the economic trees thereon in common and using the proceeds of sale of palm fruits for communal development; that in 1965 the defendants started to demarcate and plant survey pillars on the land with a view to selling portions thereof without the consent of the Respondents and despite the injunction of the Amala (elders) of Eluama that the defendants should stop committing wrongful acts on the communal land, the defendants did not heed the decision of the elders. So the respondents instituted this suit.

In their defence, although the defendants admitted that Uda was a remote ancestor of both themselves and the Respondents, they denied the land in dispute was ever occupied by Uda. Their case is that one Uduma from whom the defendants directly descended and inherited the land, had cleared and cultivated the land and occupied it from time immemorial; that since that time the defendants’ ancestors and themselves have been in exclusive possession of the land and have their old plantations of rubber, cashew, oil palm and other cash crops thereon. They admitted having planted survey pillars on the land but denied having made any attempt to sell any portion thereof.

After having considered the evidence adduced by the parties, the trial Judge found that, contrary to the claim of the plaintiffs that they have been in exclusive possession of the land in dispute since the death of Uda, the defendants had proved acts of possession on their part over a portion of the land in dispute, to wit the area verged violet in the defendants’ plan Exhibit B. The defendants have had cashew and palm plantations thereon since 1958 and had put D.W.5 on a portion of the land as a tenant who farmed there for eight years without any interference.

The trial Judge further found that, contrary to the plaintiffs’ case that the land of Amuda people has never been shared out since the death of Uda, the very plaintiffs’ plan (Exhibit A) shows that the land in dispute is surrounded by personal lands of individual members of Amuda families, namely Okorie Ndulaka, Kanu Anum, Adike Nwankwo, Ude Inegbu, Anugaogu Okor, Okorie Chiori, Ndagbo Eluama and Nworisa Anasonye. He observed that some of the land owned individually are bigger than the land in dispute while some are equal to it in size. The plaintiffs were unable to account to the satisfaction of the trial court for the individual ownership of the vast area of the Amuda land surrounding the land in dispute and how and why the small piece of the Amuda land in the middle, to wit the land in dispute came to be communally owned. Applying the provisions of Section 145 of the Evidence Law, the trial Judge concluded that since the surrounding lands are individually owned, the land in dispute is likely to be individually owned also. This presumption coupled with the defendants’ acts of possession of a portion thereof supported the defendants’ case that they are the exclusive owners of the land in dispute.

Finally, the trial Judge held that on the totality of the evidence the plaintiffs had not proved their case. He dismissed their claim. The plaintiffs were not satisfied with the decision of the trial judge and so appealed to the Court of Appeal which allowed the appeal and granted to the plaintiffs the reliefs sought. In his judgment, with which Belgore and Karibi-Whyte JJ.C.A. agreed, Coker J.C.A. gave three reasons for allowing the appeal: He first relied on the testimony of D.W.2 (the 1st defendant) who said” Amuda has communal land which are forests and people can clear portions of them and those portions become personal property,” to rebut the finding of the trial judge that the plaintiffs failed to account for the individual ownership of the surrounding lands. The learned Justice observed as follows:

“Yet the trial Judge, in invoking the provisions of Section 45 Evidence Law, to discredit the case of the Plaintiffs stated that Plaintiffs failed to account to his satisfaction for the individual ownership of the land surrounding the land in dispute and why a small piece in the middle. One wonders what further explanation was required from the Plaintiffs as suggested by the trial Judge.”

It may be observed that immediately after he had relied and used the testimony of the 1st defendant to prove the trial judge was wrong, in his second reason the learned Justice proceeded to reject the very testimony when he said:

“It was contended, in my view rightly, that mere user of communal land by any of its members, could not convert such land into his personal ownership, no matter the length of time. See Adenle, Otaoja of Oshogbo v. Michael Oyegbede (1967) N.M.L.R. 136, 137 Kuma v. Kuma 5 W.A.C.A. 61 Eze v. Giliegbe & Ors. 14 W.A.C.A. 61 Shelie v. Asonjon (1957) 2 FSC. 65.”

Finally, the learned Justice wrote as follows:

“The judgement of the trial Court in one breadth stated the principle correctly and in another failed to apply same. He threw the onus on the Plaintiffs. The Defendants rested their case on Uduma, denied the radical title of Uda through whom the Plaintiffs rested the title of both parties. I agree that the onus to adduce evidence in support of their case was on the Respondents and that they failed to discharge same. See Arase v. Arase (1981) 5 SC: 33 p. 52. It is obvious that the trial Judge overlooked the evidence of DW.4 who admitted that Uda was the original owner of the land. This admission goes to strengthen the Plaintiffs’ case and to discredit the defence. The evidence is that even DW.4 was a member of Amuda community and a descendant of Uda. The judgment read as a whole without justification threw the onus on the Plaintiffs whereas it was for the Defendants to establish how Uduma, a descendant of Uda became the exclusive owner of the disputed land. See Ozumba Aladun Families v. Molake (1975) 12 S.C. 61. The Defendants themselves made no attempt whatsoever to discharge that onus. It seems that the learned trial Judge was prepared to turn every available evidence against the Plaintiffs in favour of the Defendants. He was not justified in doing so. In my view, there were obvious errors in his appraisal of oral the evidence and ascription of probative values. In addition he made improper use of the opportunity of seeing and hearing the witnesses. His judgment cannot stand in such circumstances. See Fed. Com. of Works v. Lababedi (1977) 11 S.C. 15.”

I agree with the submission of Chief Williams that the Court of Appeal misdirected itself in law by placing the burden of proof on the defendants and it also erred in law when on the face of overwhelming evidence that individual ownership of land is permissible under the native law and custom of Eluama clan that court applied the general principle of communal ownership to the case. The submission of learned counsel for the Respondents which reiterated the errors of the Court of Appeal cannot stand. It appears that by placing reliance on Oke-Bola & Ors. v. Molake (1975) 12 S.C. 61 and Arase v. Arase (1981) 5 S.C. 33 at 52 to shift the burden ship of the land surrounding the land in dispute and why a small piece in the middle. One wonders what further explanation was required from the Plaintiffs as suggested by the trial Judge.”

It may be observed that immediately after he had relied and used the testimony of the 1st defendant to prove the trial judge was wrong, in his second reason the learned Justice proceeded to reject the very testimony when he said:

“It was contended, in my view rightly, that mere user of communal land by any of its members, could not convert such land into his personal ownership, no matter the length of time. See Adenle, Otaoja of Oshogbo v. Michael Oyegbede (1967) N.M.L.R. 136, 137 Kuma v. Kuma 5 W.A.C.A. 61 Eze v. Giliegbe & Ors. 14 W.A.C.A. 61 Shelie v. Asonjon (1957) 2 FSC. 65.”

Finally, the learned Justice wrote as follows:

“The judgment of the trial Court in one breadth stated the principle correctly and in another failed to apply same. He threw the onus on the Plaintiffs. The Defendants rested their case on Uduma, denied the radical title of Uda through whom the Plaintiffs rested the title of both parties. I agree that the onus to adduce evidence in support of their case was on the Respondents and that they failed to discharge same. See Arase v. Arase (1981) 5 SC: 33 p.52. It is obvious that the trial Judge overlooked the evidence of DW.4 who admitted that Uda was the original owner of the land. This admission goes to strengthen the Plaintiffs’ case and to discredit the defence. The evidence is that even DW.4 was a member of Amuda community and a descendant of Uda. The judgement read as a whole without justification threw the onus on the Plaintiffs whereas it was for the Defendants to establish how Uduma, a descendant of Uda became the exclusive owner of the disputed land. See Ozumba Aladun Families v. Molake (1975) 12 S.C. 61. The Defendants themselves made no attempt whatsoever to discharge that onus. It seems that the learned trial Judge was prepared to turn every available evidence against the Plaintiffs in favour of the Defendants. He was not justified in doing so. In my view, there were obvious errors in his appraisal of oral evidence and ascription of probative values. In addition he made improper use of the opportunity of seeing and hearing the witnesses. His judgment cannot stand in such circumstances. See Fed. Com. of Works v. Lababedi (1977) 11 S.C. 15.”

I agree with the submission of Chief Williams that the Court of Appeal misdirected itself in law by placing the burden of proof on the defendants and it also erred in law when on the face of overwhelming evidence that individual ownership of land is permissible under the native law and custom of Eluama clan that court applied the general principle of communal ownership to the case. The submission of learned counsel for the Respondents which reiterated the errors of the Court of Appeal cannot stand.

It appears that by placing reliance on Oke-Bola & Ors. v. Molake (1975) 12 S.C. 61 and Arase v. Arase (1981) 5 S.C. 33 at 52 to shift the burden of proof from the Plaintiffs to the defendants, the Court of Appeal misconceived the issue as to the source of the respective title of the parties to the land in dispute. The parties did not claim that both had inherited the land from Uda, their common ancestor. It is clear that whilst both parties agree that Uda was their common ancestor, there is a sharp disagreement as to whether the land in dispute originally belonged to that common ancestor (Uda) as the plaintiffs have alleged or to Uduma an ancestor of the defendants as the defendants have alleged. The issue then has been who was the founder of the land in dispute, Uda or Uduma The defendants did not admit that Uda was the original owner and founder of the land. This important issue of fact was not appreciated by the Court of Appeal. The authorities upon which the Court of Appeal relied to shift the burden of proof were based on acceptance by both parties that the land in dispute had a common original owner or had been originally communal land but now the defendant alleges that it belongs to him to the exclusion of the community: Eu v. Giliegbe 14 W.A.C.A. 61 and Adenle v. Oyegbade (1967) N.M.L.R. 136.

The law is well settled as a general principle that in a claim for declaration of title to a piece of land the burden of proof lies on the plaintiff and he can only succeed on the strength of his case and not on the weakness of the defence. From the issue as joined by the parties, this general principle should apply: The trial judge did apply it correctly and found the plaintiffs had failed to prove their case. The Court of Appeal erred in law in reversing the onus of proof and in making findings in favour of the plaintiffs on that account.

The Court of Appeal also committed a very serious error by applying the principles of inconvertibility of communal land tenure to personal tenure as stated in Adenle v. Oyegbade, Eze v. Giliegbe (Supra) and by overlooking the overwhelming evidence that personal ownership of land is permitted by the relevant native law and custom. That Court appears to over-look the decision of this Court in Otogbolu v. Okeluwa (1981) 6-7 S.C. 99 at 137 to the effect that the general principle of communal ownership as pronounced in Amodu Tijani v. Secretary, Southern Nigeria (1921) 2 A.C. 404 would not apply where it is established by evidence that the native law and custom in any particular area differs from the general principle.

The evidence relating to personal ownership may now be stated. The evidence was adduced by the plaintiffs. In addition to their plan, Exhibit A, which shows the land in dispute to be surrounded by personal lands, their witnesses testified as follows:

P.W.4 said:

“In our place according to our custom an individual can own his personal land either by purchase or by clearing of a virgin forest. This land will be inherited by his son and grandsons. In our place no one can have plantation on communal land but he can have plantation on his personal land. The defendants’ people attended the settlement meeting.”

P.W.6 also said:

“I have my own land near the land in dispute. I did not buy the land but got it by clearing virgin forest.”

P.W.7 amplified thus:

“In Eluama people own private land and there is communal land. I have private land as well as my late fathers which I inherited. I got my own by clearing a virgin forest with my mother.”

It is correct as the Court of Appeal observed that the evidence of D.W.4 who testified that Uda was the original owner of the land went to strengthen the plaintiffs’ case and to discredit the defence. But the probative value of that evidence did not render the plaintiffs’ traditional evidence conclusive. The totality of the traditional evidence adduced by the parties including that of the D.W.4 must be subjected to the test laid down by the Privy Council in Kojo v. Bonsie (1957) 1 W.L.R. 1223 at 1227 per Lord Denning in these words:

“The best way is to test the traditional history by reference to the facts in recent years as established by evidence and by seeing, which of two competing histories is the more probable”.

I think the trial judge considered the traditional history in a correct manner. He applied the test to the traditional histories of the parties. On the one hand, apart from abortive negotiations between the plaintiffs and the Methodist Mission during which the plaintiffs attempted to grant a lease of some portion of the land in dispute, the trial judge found no evidence of recent acts in favour of the plaintiffs. On the other hand, he found the defendants have been having their plantations on the land and had rented a portion of the land to their tenant which, i.e. both acts, are inconsistent with communal ownership. Having regard to the recent facts in favour of the defendants and the fact that individual ownership of land is permitted under their native law and custom which is reinforced by the fact that the land in dispute is surrounded by lands owned by individuals, the learned trial judge concluded and quite rightly in my view – that the traditional history of the defendants was more probable. Accordingly, he dismissed the plaintiffs’ claim.

The decision of the trial Judge is impeccable. The Court of Appeal was wrong to interfere with it.

A. O. OBASEKI, J.S.C.: On the 26th day of March, 1985, after hearing counsel for the parties, I allowed this appeal with costs to the appellant assessed at N300.00 in the Supreme Court and N250.00 in the Court of Appeal against the respondents.

1. Adibe Nwankwo
2. Obioha Anasonye; and
3. Nwamadi Onyeike were the plaintiffs

and

1. Okoronkwo Chukwueke;
2. Okezie Chukwueke

were defendants in the Umuahia High Court suit No. HU/53/66 in which the plaintiffs by their writ of summons claimed

1. A declaration that the piece or parcel of land known and called “Ubi Oro” valued 10pounds (ten pounds) situate at Uzuakoli in Umuahia Judicial Division is owned jointly by both the plaintiffs and the defendants and that the defendants have no rights by themselves alone without the consent, agreement and participation of the plaintiffs to demarcate, sell, lease or give out all or any portion of the said “Ubi Oro”.
2. 50pounds:-:- damages against the defendants jointly and severally for demarcating and planting cement pillars on the said land without the consent, agreement and participation of the plaintiffs.
3. A perpetual injunction to restrain the defendants and their heirs from any sale, lease, gift or demarcation of all or any portion of the said “Ubi Oro” without the consent, agreement or participation of the plaintiffs.

The writ was issued on the 13th day of Angust, 1966. But before the trial leading to this appeal both defendants died. The 1st defendant died on the 13th day of September, 1974while the 2nd defendant died on a later date.

Following the application of Enyinnaya Okoronkwo Chukwueke the son of the 1st defendant by motion dated 22nd February, 1975 filed on 24th February, 1975, Obi Okoye, J. on the 11th day of April, 1975 made an order at the Okigwe High Court substituting the appellant, Enyinnaya Okoronkwo Chukwueke as the only defendant but in a representative capacity.

The 1st plaintiff, Adibe Nwankwo died on the 12th day of October, 1975 and by Court order made by Obi-Okoye, J. on 23rd February, 1976, Oji Nwankwo was substituted for him.

The plaintiffs had filed their statement of claim on the 23rd day of January, 1967. On the 27th May, 1975, the defendant/appellant filed an amended statement of defence. After the close of pleadings, hearing commenced on the 14th day of April, 1978 before Ononuju, J. After hearing evidence and addresses of counsel Ononuju, J. on the 5th day of May, 1979 gave a well considered judgment dismissing the plaintiff’s claim. In the concluding paragraphs of his judgment he said:

“I find myself unable to believe the plaintiffs and their witnesses looking at the plan tendered in this case and considering the evidence before the court……On the totality of the evidence before me, I hold that the plaintiffs have not proved their case. There is no counter-claim. I therefore dismiss the plaintiffs’ claim.”

Being aggrieved, the plaintiffs appealed to the Court of Appeal on several grounds 14 in all. The Court of Appeal in a considered judgment allowed the appeal, set aside the judgment of the High Court and granted the declarations and injunction claimed.

It is against the decision of the Court of Appeal that the defendant has now appealed. Grounds 1, 4 and 5 of the grounds of appeal read:

“1. The Federal Court of Appeal erred in law and on the facts in reversing the findings of the trial judge to the effect that from the character of the lands surrounding the land in dispute as deduced from the plans and evidence before him, Section 45 Evidence Law was applicable for the purposes of deciding the issue of ownership of the said land in dispute.

4. The Federal Court of Appeal was wrong in its evaluation of evidence of acts of ownership and possession adduced by the parties in this case.

Particulars

(i) Plaintiffs gave evidence of acts of possession and ownership but did not call their surveyor.

(ii) Defendant gave evidence of acts of ownership and possession and called the surveyor who saw and identified the plantations of the land in dispute.

(iii) Other plaintiffs’ witness who gave evidence of individual ownerships of portions of land around the land in dispute claimed they had plantations on their lands;

(iv) The lower court did not consider side by side or at all facts of the existence of defendants’ witness evidence that people do not establish plantations on communal lands;

(v) The lower court failed properly to evaluate the rest of the evidence before it.

5. Judgment is against the weight of evidence.

The questions for determination in this appeal are not many. The learned counsel for the appellant formulated the questions properly in his brief as follows:

(1) was the learned trial judge correct in holding that on the totality of the evidence before him the plaintiff has failed to establish that the land in dispute is the property of the Amuda Eluama community

(2) Whether the learned trial judge was correct in holding that Exhibit C was not of much assistance to the plaintiffs’ case.”

What were the material facts pleaded by the plaintiff They are in paragraphs 5 to 10 of the statement of claim. Apart from paragraph 8, the defendants denied and joined issues with the plaintiffs on the facts pleaded in paragraphs 5, 6 and 7 of the statement of claim. These paragraphs, read:

“5. The land in dispute is owed jointly and in common by the people of Amuda Eluama in Uzuakoli comprising both the plaintiffs and the defendants. The land is also in the possession of this community. The pieces of land contiguous with the land in dispute on the eastern, nothern, and western boundaries are owned by individual persons from Amuda Eluama community as shown on the plan filed in this case. The land on the northern boundary is similarly owned by the people of Ndagbo Eluama Uzuakoli.

6. The owner from time immemorial of the land in dispute who exercised maximum acts of ownership in and over it without let or hinderance was UDA (deceased), Uda begat Okala, Okpugu and Ogwudu. The descendants of these children who include the plaintiffs and the defendants and who form the Amuda Community are respectively known and called Umuokala, Umuokpogu and Ama Ogwudu. Defendants are from Umuokala family of the community.
7. The children of Uda did not share the land in dispute when their father died. Ever since till this day, it has remained communal land. This community has owned and possessed the land in dispute. They farm and use the land in dispute in accordance with the decisions they take in the village from time to time and in accordance with local custom. Palm fruits harvested on the land are sold and used for the development of the community in general. In 1957 the plaintiffs agreed to allow the Methodist College authorities to build their College on the land in dispute, subject to certain conditions. A letter dated 26th June, 1957 from the Principal stating the conditions under which the College authority would take the land in dispute will be founded upon during the trial..
8. In or about the year 1965 the defendants engaged a surveyor who on their instruction demarcated and planted cement pillars on the land in dispute and on lands contiguous to it as shown on the plan filed by plaintiffs in this action. Those pillars number serially from EA8468 to EA8480 (on the land in dispute) and EA8481 to EA8539; EA8442 to EA8450 (on the land contiguous to the land in dispute).
9. From 1965 defendants claim the area verged yellow on plaintiffs’ plan as their land. Their claim over the land in dispute is made to the exclusion of the plaintiffs. Defendants are not owner in possession of portions of the lands contiguous to the land in dispute which are included in the plan and verged yellow; they own the land in dispute jointly and in common with the plaintiffs not alone by themselves.
10. In 1966 without the consent, leave or licence of the community and contrary to local custom, the defendants farmed portion of the land in dispute. They have also attempted to sell, lease or otherwise part with the ownerships, rights and title in the land.”

The defendants did not hesitate in admitting paragraph 8 of the statement of claim. The defendants as already mentioned above, denied the facts alleged in paragraphs 5, 6, 7, 9 and 10 of the statement of claim. More particularly, paragraphs 4 and 5 of the amended statement of defence read:.

“4. The defendants deny each and every allegation of fact in paragraph 5 of the statement of claim and will put the plaintiffs to the strictest proof thereof. The defendants say that the disputed land has been the exclusive property of the defendants from time immemorial having been first cleared, cultivated and occupied by Uduma from whom the defendants directly descend. The defendants say that since the time of the said Uduma their ancestors and themselves have been in effective and peaceable possession of the disputed land which is only a part of the land known as ‘Ubi-Oro’ which is verged purple in the defendants’ plan throughout which the defendants have old plantations of rubber, cashew, oil palm and other cash crops.

5. In answer to paragraph 6 of the statement of claim, the defendants deny that the disputed land was ever occupied by Uda. Save that the defendants admit that Uda was remote ancestor of both the plaintiffs and the defendants deny each and every allegation contained in paragraph 6 of the statement of claim and will put the plaintiffs to the strictest proof thereof.”

From the pleadings issues were joined on every material point. Issues were joined on original ownership, on communal ownership of the land in dispute and also on possession of the land in dispute. Seven witnesses called by the plaintiffs testified while five witnesses called by the defendants testified in an effort to prove the respective cases set out in the pleadings. The joinder of issues on every material point placed a very heavy burden on the plaintiffs. Even if the defendant failed to adduce any evidence, the onus on the plaintiffs would still not be lighter because in a claim for declaration of title, the plaintiffs must succeed on the strength of their own case and not on the weakness of defence.

Kodilinye v. Mbanefo Odu (1936) 2 WACA 336

Chief Frank Ebba v. Chief Ogodo (1984) 1 SCNLR 372; (1984) 4 SC 84

Okafor v. Idigo (1984) 1 SC NLR 481

The learned trial judge dealing with the question of proof and the discharge of the burden of proof in this case said:

“It is clear to me that the acts of possession and enjoyment of the lands surrounding the land in dispute by the different owners do not show that the different owners own the land in dispute communally but that the nature of the ownership of the lands in this area…………..including the one in dispute is individual ownership…………..It is the law, that generally, in a claim for declaration of title to land the onus lies on the plaintiff who must succeed on the strength of his own case. But there is qualification that the onus lies on the defendant who claims that a dispute land which is alleged to be communal land belongs to him to the exclusion of the community as a whole See Eze v. Igiligbe 14 WACA page 61 and Kuma v. Kuma 5 WACA page 4. This is so because from time African land tenure is presumed to be communal ownership. The above judgments and others similar to them are based on the theory of communal ownership as the basis of land tenure in Africa. This is why the courts over the years have leaned very heavily in favour of communal ownership of land. But there must be evidence not only introducing communal ownership but establishing it.”

The court cannot consider facts not pleaded in the pleadings as the parties are bound by their pleadings and can only operate within the four corners of their pleadings. The issues joined on the pleadings being one challenging the existence of communal ownership and the allegation that Uda was the original owner of the land, there is no room for presumption that the land in dispute was ever communal as pleaded by the plaintiffs. The existence of individual ownership featured prominently in the evidence led by both sides. However, the Court of Appeal was of the opposite opinion on the issue of on whom lay the onus of proof.

Coker, JCA. delivering his judgment concurred in by the other two Justices, Belgore and Karibi-Whyte, JJCA. said:

“The judgment of the trial court in one breadth stated the principle correctly and in another failed to apply the same. He threw the onus on the plaintiffs. The defendants rested their case on Uduma, denied the radical title to Uda through whom the plaintiffs rested the titles of both parties. I agree that the onus to adduce evidence in support of their case rest on the respondents (i.e. defendants) and that they had failed to do so. Arase v. Arase (1981) 5 SC. 33 p.52. It is obvious that the trial judge overlooked the evidence of d.w.4 who admitted that Uda was the original owner of the land. This admission goes to strengthen the plaintiffs’ case and discredit the defence.”

I may recall that the learned trial judge disbelieved the evidence of the plaintiffs and their witnesses and held that on the totality of the evidence, the plaintiffs have not proved their case. The evidence of d.w.4 on the issue of the land in dispute being a communal land is more in favour of the defence than the plaintiffs. In one breadth he says Uda was the original founder of the land in dispute. In another he says I do not know Uda and Uduma and then goes on to say Amuda have no communal land and that the land in dispute is not the communal land of Amuda community. More importantly, he was caretaker of the land for the defendant for 20 years and surrendered the land to the family when they returned from self exile in Amamiba Uzuakoli where they took refuge to avoid being wiped out. It is significant that almost everyone of the plaintiffs’ witnesses admitted the existence of individual ownership of land under native law and custom in the area immediately surrounding the land in dispute. The evidence of Oji Nwankwo in cross examination that

Okorie Chiori not from Amuda

Uda Iregbun from Amuda

Okorie Ndulaka from Amuda

Kanu Anum from Amuda

Johnson Nn chiri and Adibe Nwankwo

have their individual personal land around the lands in dispute certainly weakens the case of the plaintiffs to its very foundation. The learned trial judge was therefore justified in his rejection of the case for the plaintiffs.

Chief F. R. A. Williams, SAN., learned counsel for the appellant quite correctly submitted that the Court of Appeal erred in viewing the case from the well known general principles of communal ownership laid down in Amodu Tijani v. Secretary of State Southern Nigeria (1921) 2 AC 399 in the face of overwhelming evidence from both sides on the existence of individual land ownership under native law and custom. He then cited in support of the judge’s view, Orogbolu v. Okeluwa (1981) 6 SC. 99 at 115 and 131. In that case. I had cause, while dealing with identical contention on communal ownership of land, to say at page 155 the following:

“It is part of our law that customary law is a question of fact to be ascertained from the evidence before the court if judicial notice is not available through decided cases of the Superior Courts. There was evidence before the trial court accepted by the trial judge in this case that Ogene Okwosa acquired the land about 4 generations back. This piece of evidence was accepted in preference to the contrary evidence tendered by the defendants/respondents that the land was communal land owned by Umuagade family before it was allocated to the 5th defendant. I must say that at this stage of our knowledge of Native Land Tenure System acquired from cases coming to our courts, I can safely say that there is no uniform customary land tenure system spanning the length and breadth of Nigeria.”

My learned brother, Uwais, JSC. at page 137 line 6 of the report of the same case, said:

“It is to be remembered that although the general principles of Native Law and Custom are capable of applying throughout Nigeria, a departure from such principles is possible if it is established by evidence that the native law and custom in any particular area differs from the general principles in Michael Chigbu Agu v. Joseph Gladstone Nezianya etc 12 WACA 450 at 451. This point was also emphasized in Amodu Tijani’s case (Supra) at pp.430-404.”

This case, on the evidence accepted by the learned trial judge, is a further illustration of a departure from the general principles of communal ownership under native law and custom, the defendants’ ancestor, Uduma, having acquired individual ownership by deforestation of the virgin communal land.

It should be noted that the land in dispute is only 2 acres in area. It is a small piece of land the ownership and possession of which ought not cause a stir if other attendant deep-seated differences do not exist. It should be noted that where partitioning intervenes, communal ownership ends. Also to be noted is the fact that the original founder owned the property individually and not communally so that this communal ownership of land depends on the facts and circumstances of each case. The evidence by the plaintiffs’ witness in this case is most revealing.

P.W. 2 – Nwokporo Ariwodo in his testimony said.

“The original owner of the said land was one Uda. Uda is dead and we are his descendants……….. The pieces of land surrounding the land in dispute are owned by individuals…………Ogbonna Agbugba and Okorie Ndunaka are Amuda people who own land near the land in dispute.”

P. W.3 Okorie Chiori’s evidence in part reads:

“I have common boundary with the land in dispute. I have cashew trees along the boundary and palm plantations in my own land When I die my son will inherit my own land,”

P. w. 4 Peter Nochiri’s evidence in part reads:

“…….It is Johnson Nochiri whose land has common boundary with the land in dispute. Johnson Nochiri is from Amuhi, and I am from Nagbo…….In our place, according to our custom, an individual can own his personal land either by purchase or by clearing of a virgin forest. In our place no one can have plantation on communal land but he can have plantation on personal land.”

P.W.5 Nworisa Anasonye’s evidence in part reads:

“I do not support the plaintiffs. I come to the court because of my plantation….”

P.w. 6 Anyaogu Ofor’s evidence in part reads:

“We came to the world and learnt that the land in dispute was owned by our great ancestor called Uda. I have land which has common boundary with the land in dispute called Uzo Nkume………I have my own land near the land in dispute. I do not buy the land but got it by clearing virgin forest. When I cleared forest and got my own land Ubi Oro land was a farm land not a forest. Since I was born I have not seen Ubi Oro land as a forest. There is a palm plantation on Ubi Oro land going to Ndagbo road. The plantation belongs to p.w.5…………….. I am not the only person who owns land there. Ude Inegbu has land there also. Who clears land there owns there……………..

And finally, p.w.7 Chiekweiro Ugorji’s evidence in part reads:

“In Eluama people own private land and there is communal land. I have my own private land as well as my later father which I inherited. I got my own by clearing a virging forest with my mother……….I do not know all the boundaries of the land in dispute but I know the boundary of the part I farm.”

The individual ownership was pleaded by the plaintiffs themselves in their paragraph 5 of the statement of claim.

With all these pieces of evidence before the learned trial judge, it will require more than the ipsi dixit of the plaintiffs to satisfy him that the land in dispute is communal land and that the plaintiffs are entitled to such a declaration.

Mr. Ogbuagu, learned counsel for the respondent had an uphill task to answer and counter the submissions of Chief F.R.A. Williams. He had to answer the question whether the Court of Appeal was in law entitled to interfere with the findings of fact made by the learned trial judge. Learned counsel tried in vain to show that there was wrong evaluation of evidence by the learned trial judge and wrong application of the principles of customary law. He cited Adenle (Ataoja of Oshogbo) v. Oyegbade (1967) NMLR 136 at 137, Otogbolu v. Okeluwa (Supra) to show that no matter how long a member of a community may use communal land, it remains communal land.

This case does not raise the issue of mere user of the communal land. The issue raised is whether the land was land belonging or owned by the Amuda community or land belonging to or owned by Chukwueke family. The real contention is as to the original owneship. Was it Uda who originally founded the land as alleged by the plaintiffs/respondents or was it Uduma as alleged by the defendants/appellants If it had been proved to be land owned by Amuda community, user by the appellants, no matter how long will not change the character of ownership. But with the weight of evidence of individual ownership of surrounding parcels of land by the plaintiffs’ witnesses the burden on the plaintiffs to adduce more congent evidence than that on record in order to counter the claim of the defendants became heavier and the failure to discharge this burden was fatal to the case of the plaintiffs.

The Court of Appeal is not entitled to substitute its own view of the evidence for that of the court of trial as it had done.

Chief Frank Ebba v. Chief Warri Ogodo (1984) 1 SCNLR 372;

Okafor v. Idigo (1984) 1 SCNLR 481

This is exactly what the Court of Appeal did when it commented and held (per Coker, JCA.)

“It seems that the learned trial judge was prepared to turn every available evidence against the plaintiffs in favour of the defendants. He was not justified in doing so. In my view, there were obvious errors in his appraisal of oral evidence and ascription of probative values. In addition, he made improper use of the opportunity of seeing and hearing the witnesses. His judgment cannot stand in such circumstances.”

The learned trial judge was entitled to assess and evaluate the evidence against the plaintiffs in favour of the defendants in his judgment more so as the plaintiffs in paragraph 5 of the statement of claim conceded individual ownership.

It was for the above reasons and the reasons lucidly set out in the Reasons for Judgment just delivered by my learned brother, Bello, J.S.C., the draft of which I had the privilege of reading after writing the above reasons, that I allowed the appeal on 26th day of March, 1985.

M. L. UWAIS, J.S.C.: I have had the privilege of reading in draft the reasons for judgment read by my learned brother Bello, J.S.C. It is for the same reasons that I agreed on 26th March, 1985 at Enugu that the appeal should be allowed. Accordingly the decision of the Court of Appeal was set-aside and the decision of the trial court was restored. Costs assessed at N250.00 in the Court of Appeal and N300.00 in this Court were awarded in favour of the appellant. I adopt the said reasons as mine and do not wish to add anything.

S. KAWU, J.S.C.: I have had the advantage of reading in draft the reasons for judgment just delivered by my learned brother, Bello, J.S.C. and I agree with them. I will adopt these reasons for allowing the appeal on 26th March, 1985, setting aside the decision of the Court of Appeal and restoring the judgment of the trial court.

Appeal allowed.

Judgment of Court of Appeal reversed.

Judgment of Trial Court restored.

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SC.215/1984