Ezeokafor Umeojiako & Anor Vs Ahanonu Ezenamuo & Ors (1990)
LawGlobal-Hub Lead Judgment Report
BELGORE, J.S.C.
The appellants were plaintiffs at the trial court and having lost their case there appealed to the Court of Appeal, Enugu Division, where their appeal was dismissed.
Both parties are from the same locality, Ikenga, but from two different villages of Akpuru or Akpulu – (perhaps due to dialectical preference!) and Amaokuko respectively. The appellants in their plan, which was exhibit A at the trial court, named the land in dispute over which they claimed ownership by praying for declaration of title and injunction, forfeiture and damages resulting from trespass as IKE UGWU AKPURU.
The plaintiffs claimed to represent Akpulu family of Ikenga. After several amendments of their claim and statement of claim, following closely on the respondents filing their own statement of defence, the case took off and the evidence offered by the parties lead to the close of the case. Learned trial Judge felt as if the plaintiffs were on a wild goose chase and this is evidenced by the record of proceedings substantially made up of amended pleadings by the appellants, provoked each time by the facts in the statement of defence.
The appellants submitted for evidence exhibit A, which according to them represented the land in dispute. Against this plan is exhibit B submitted by the respondents as defendants at the trial court. The two plans are drawn on the same scale 1″:200″, but there is a world of difference in their contents and scope.
Exhibit A tendered by the appellants has very limited scope, showing the area in dispute as pink verged and inside this pink verge are two areas verged blue which allegedly provoked the litigation leading to this appeal; and finally an area verged violet allegedly granted by the appellants to the respondents. Outside the area verged pink, the portion to the east, west and southwest are marked as Akpuru (Akpulu) land. Against this is the respondents’ plan, exhibit B which covers a larger area and thus having a wider scope. This exhibit shows a yellow verged area enclosing a pink verged portion corresponding to the land in exhibit A allegedly in dispute.
Both the area in dispute and the land surrounding it verged yellow, come under the name Akpuru or Akpulu used by the appellants to describe the land is not used in exhibit B. Scattered inside the disputed area and immediately outside it in the verged portion are various settlements and farms e.g. Monghalum, Nwafor Uba Atuegwu, Ezekiel Okonkwo, Aronu, Joseph Umeh, ancient hut of Ugwuowele and Ahanonu Ezenamuo’s compounds, all belonging to the respondents within the disputed area.
Similarly within the yellow verged portion but outside the portion verged pink are settlements of David Umeh, Nwankwo Odoeze, and others on the west and settlements occupied by Ugo Ezenemuo, Charles Dimkafor on the east, and farm of Ezeilo to the north, all occupied by the defendants/respondents family or their tenants.
All these areas are not shown on the appellants’ plan, exhibit A. The only common features in the two plans apart from identical scale of drawing and similarity of land in dispute are St. Philips C.M.S. Church, Infant School and Teachers buildings and teachers quarters. Apart from these missing features in the appellants’ plan, there is no dispute as to identity of the disputed land.
The appellants claimed the whole disputed land belonged to them and that whenever the respondents show presence therein, it was as a result of their permission by the appellants or through an act of trespass. In the usual manner of the naming of the land in dispute, the appellants call the land Ikengwu Akpulu or fully “Ana Ikengwu Akpulu.” This is because their family is called Akpulu family. This family according to the second plaintiff, Ezeanoikwa Umennaikwe, P.W.2, originated from the first settler on the land called Dimidiji, who begat Akpulu from whom the family derived its name. They claimed exclusive ownership of the land and that they farmed on it, harvested crops and planted economic trees on it and gave out portions to tenants. Some of the tenants they claimed, are Nwankwo Ezeilo, C.M.S. Mission, Ikenga, and one Okoye Ezeilo. This second plaintiff, P.W.1, is their spokesman and their case rested squarely on his evidence. He agreed that their Akpulu family is made up of three sub-families, to wit Umuezeotakwu, Umuokeke and Umuonono. He attempted to distance Umuonono as subfamily attached to Akpulu and as of no consequence. But evidence emerged, which learned trial Judge believed that indeed Umuonono is the principal branch of Akpulu family and being dissatisfied with the appellants’ claim disassociated themselves from the action giving rise to this appeal. Apparently, it was the plaintiffs’ wish to distance themselves from the Umuonono as found rightly by the trial Judge when he said inter alia as follows:
“the witness stated that Umuonono came and attached themselves to Akpulu family but they are all known as members of Akpulu family in Ikenga. This witness who is about fifty years old stated that Umuonono people have been living together with their family before he was born. It was his evidence that Umuonono sub-family does not own the land in dispute with the rest of the family. He further stated that they did not join them in bringing this action. He denied the suggestion that Umuonono sub-family is the head of Akpulu family.”
This witness, P.W.1, insisted it was the plaintiffs that gave the church missionary society the land on which their church, schools and the teachers’ houses are built but offered no evidence in support. As against this is the evidence of the respondents, showing not only their being in possessions, but also their unequivocal grants to the C.M.S. Mission and other tenants and these grants and possession dated over a lengthy period of time that it is a certainty they and not the appellants have better title to the land in dispute. The nearest evidence to proving any right of the plaintiff over the disputed land according to the Judge, is that of P.W.2, Okerie Ezeilo, who claimed to be the plaintiffs’ tenant, not on the disputed land but on an adjoining land, “having a common boundary with the land in dispute.” This witness, however, confessed he did not know the families in Akpulu but knew the families seem to be “separated from each other” only the previous year before he gave his evidence. The other witness Okorondo Okeke, P.W.3, an in-law of the plaintiffs, said that he used to work for the plaintiffs on the land without being challenged; this was all he knew. For his part, Nwankwo Ezeilo, P.W.4, blandly said he knew the land in dispute belonged to the appellants without anything more, and that is because he paid tributes to them. He farmed the land only once and had left the land twelve years prior to his evidence. It is remarkable that none of these P.W.2, P.W.3 and P.W.4 ever in their lengthy evidence pointed at the very portion of the disputed land where they occupied, however briefly. The trial Judge had no reason to prefer their evidence to the cogent evidence of the defendants/respondents, who not only demonstrated where they occupied on the land in question, but also the grant to the C.M.S. Church. The evidence of the third defendant, as D.W.1, as to how the C.M.S. Church was given part of the disputed land in 1957 is clear and supported by the evidence of the district pastor, D.W.2. This witness, D.W.1, tendered exhibit C, a 1922 case decided in favour of his father against the plaintiffs’ family. As this was not enough, Okoli Ewerije, D.W.4, who is a member of Umuonono family, the principal family of Akpulu, and was the head of that family, testified that the disputed land belonged to the respondents.
The respondents of Amaokuko village call the land Ana Ugwu Owelle and they claimed that the land had been theirs from the time of their forefathers and that the appellants are only trying to divest them of it because they had land on the west of the disputed land as boundary men.
Learned trial Judge in a well considered evaluation of the evidence before him came to this strong conclusion: “After considering the evidence led by the parties in this case and the submission of their counsel, I have come to the conclusion that the plaintiffs’ case is very weak. I do not believe the plaintiffs and their witnesses that the defendants who undoubtedly live on a portion of the land in dispute live on the land as a result of a grant made by their ancestor to the defendants’ ancestors. I am satisfied and find as a fact that the defendants live on the land as of right and not as a result of any grant made to them by the plaintiffs’ ancestor. Each party claims making the grant to the C.M.S., a very important act of ownership. I do not believe the plaintiffs that the grant was made by them. 2nd plaintiff in his evidence stated that the grant was made by his father to the C.M.S. But P.W.5 appears to disagree with this claim for in his evidence he stated that the grant was made by his father to the C.M.S. According to him, 2nd defendant’s father, Umennaike, was merely present when his father made the grant. I agree with Mr. Anyaduba, the learned counsel for the defendants that failure on the part of the plaintiffs to call an independent witness to give evidence for them on this important issue weakens plaintiffs’ case.
…………….
The witness readily admitted under cross-examination that his brother, Anagbogu, is marrying the daughter of the late 1st defendant. Learned counsel for the plaintiffs has capitalized on this piece of evidence and has relied on it as a ground to discredit the evidence of the witness. According to him the witness is not an independent witness the reason being that he came to give evidence merely to support his in-laws. I do not share this view, Rev. Umeobi comported himself so well in court and was unruffled even when under cross-examination some uncomplimentary remarks were made about him. Rev. Umeobi undoubtedly impressed me as a most truthful witness. I accept his account in full about the establishment of the CM.S. in Ikenga and the humble role he played in bringing this about. I am satisfied and find as a fact that it was the late 1st defendant and the members of his family who gave the land to the C.M.S.”
He therefore found no merit in the plaintiffs/appellants’ case and dismissed it in its entirety. In the Court of Appeal, the following grounds of appeal, were canvassed by the appellants:
(1) “The learned trial Judge erred in law in relying heavily on hearsay evidence of Rev. Umeobi D.W.2 in giving his judgment for the defendants.
PARTICULARS OF ERROR:
(a) Rev. Umeobi who was then only a student, was not present and never participated in the negotiation of granting land to the CM.S. and never told the court on the finding of the trial Judge that “it was Ahanonu who told him that he gave the land on which the church was built to the CM.S.”
(b) Rev. C. Oti who was mentioned by the witness to have negotiated with the 1st defendant was still alive and in Imo State was not called to give detail of land donation.
The learned trial Judge misdirected himself on facts when he held as follows: “Each party claims making the grant to CM.S. a very important act of ownership. I do not believe the plaintiffs that the grant was made by them. 2nd plaintiff in his evidence stated that the grant was made by his father to the CM.S. But p.w.5 appears to disagree with this claim for in his evidence he stated that the grant was made by his father, Umennaike was merely present when his father made the grant. I agree with Mr. Anyaduba, the learned counsel for the defendants that failure on the part of the plaintiffs to call an independent witness to give evidence for them on this important issue weakens plaintiff’s case. Defendants, on the other hand called Rev. Umeobi a native of Ezinifite to give evidence about the grant.”
PARTICULARS OF MISDIRECTION:
(a) Grant of the land to C.M.S. is one of the acts of ownership and was as important as other acts of ownership given in evidence by the plaintiffs.
(b) The learned trial Judge disbelieved the plaintiffs because the 2nd defendant said that his father made the grant whereas the P.W.5 said that it was his father who made the grant. The 2nd defendant Ezeanoikwa Umennaike and the P.W.5 is Richard Umennaike and both are of the assertion that their respective father was the person who made the grant.
(c) The plaintiffs called many independent witnesses on several acts of ownership and, even if, Rev. Umeobi is not an independent witness where his brother is marrying the daughter of the 1st defendant.
(d) Rev. Umeobi’s evidence which the learned trial Judge accepted in disbelieving the plaintiffs contradicted the evidence of the 1st defendant’s son D.W.1 in that Rev. Umeobi said that 1st defendant agreed that “he and members of his family will become members of C.M.S. Church” as a condition for helping to establish the church whereas D.W.1, the son of 1st defendant agreed that he was a roman catholic and his father (1st defendant) died a juju priest.
- The judgment is against the weight of evidence.
ADDITIONAL GROUNDS OF APPEAL:
- The learned trial Judge erred in law being completely misconceived of the real issue before him.
PARTICULARS OF ERROR:
(a) The plaintiffs pleaded that the land in dispute which they own is in Akpulu village in Ikenga town.
(b) The defendants on the other hand pleaded that the land in dispute which they also own is in Amaokuko village also in lkenga town.
(c) Yet the learned trial Judge failed to consider and therefore decide where in fact is this land in dispute in Akpulu village or in Amaokuko village.”
The learned trial Judge misdirected himself both in law and in fact when he adjudged as follows:-
“The learned counsel for the plaintiffs when cross-examining these two witnesses introduced a version nowhere pleaded by the plaintiffs in their statement of claim.”
PARTICULARS OF MISDIRECTION
(a) The learned trial Judge failed to consider the rules that ought to, and should be observed when pleadings are ordered.
(b) The learned counsel for the plaintiffs never introduced any new version.
(c) All that the learned counsel for the plaintiffs did was to lead evidence to expound what was already pleaded namely that the land in dispute is in Akpulu village in Ikenga town.”
The argument on the grounds seemed to have coalesced into two issues of whether
(a) the judgment was perverse having regard to the claim for declaration of title as the Judge failed to make findings on issues seriously contested, and
(b) the judgment was perverse as to the claims of both parties on the grant to C.M.S. church.
The Court of Appeal (Aseme, Ogundare, Katsina-Alu, JJ.C.A.) rightly found the only issue of law was the plea of res judicata concerning exhibit C, a 1922 native court case. The strong point of the appellants’ case in that court is certainly that of the court’s finding on the grant to C.M.S. church. The only evidence of a grant to C.M.S. by the plaintiffs is that of P.W.1. It is far from being conclusive, at best it is an allegation. But the onus is on the plaintiff to prove his case; he wins by the strength of the evidence he profers and it is not the duty of the defendant to help him. In this case the defendants, now respondents, took the trouble of showing clearly through a minister in the C.M.S. Church that the land was actually granted by the respondents in 1957. D.W.2, who offered this evidence did not have to go far than this on behalf of the respondents as the primary duty of the plaintiffs/appellants to prove their case had not been fulfilled. As for the different naming of the land in dispute by the parties, Aseme J.C.A. in the lead judgment has this to say:
“Both parties agreed therefore that the land is in Ikenga but as usual in these land matters they named the land in dispute differently, the plaintiffs called it “Ikengwu-Akpulu” as shown in their survey plan no. PP/E45/76 while the defendants on the other hand called the land “Aniugwu Owelle” as shown in their survey plan no. E/GA/209/72. Whatever the land is, the two survey plans which are on the same scale and prepared by two surveyors have shown the land in dispute. Plaintiffs did not call the surveyor who prepared their plan and so did not the defendants.”
The court dismissed the appeal, and thus the appeal to this court. The grounds of appeal complained that the Court of Appeal never adverted to the cases of Amata v. Modekwe 14 W.A.C.A. 580 and Worhi Dumiye v. Stephen lduozo & Anor. (1978) 2 SC.1. Further, it was contended that the evidence of D.W.2 ought to be regarded as
hearsay and discountenanced. In short, the appellants are contending that the evidence of D.W.2 Rev. Samuel Umeobi was hearsay. The Court of Appeal, just as the trial court did, found and to my mind rightly so, that this witness being the superintendent of the C.M.S. Church on the land in dispute must know who his landlords are. It should be borne in mind that this witness was a party to the moves leading to the establishment of the church on the land since he was a seminary student on holidays in 1957, by introducing the respondents to Rev. J.C. Oti, who was then the superintendant pastor of the area.
The issues formulated for determination by the appellants in this court are:
(1) “Whether as complained by the appellants the defendants/respondents met their (appellants’) case or whether as stated by the Court of Appeal it was a question of ascribing different names to the same piece of land.”
(2) “Whether the oral testimony of one of the defendants’ witnesses namely D.W.2 of what he was told by the 1st defendant on record on the issue of who gave land to the C.M.S. was hearsay or not.”
(3) “Whether the judgment is perverse.”
The Court of Appeal rightly held, in affirming the trial court’s decision that the appellants seemed unsure of their case by the numerous amendments of their statement of claim. It was certainly not an extraordinary sentiment by the lower courts; the appellants waited each time for the respondents to file amended statement of defence provoked by the statements of claim to further amend their pleadings. It is true a party can amend his pleading up to the close of the case and before the judgment. But as in this case the appellants amended not only the pleadings but also the claim (which at any rate was superceded by the pleadings) amounting to a departure from the original claim. One has to juxtapose the various statements of claim to know the collosal reconstruction of the initial claim with the final one. The complaints of the appellants are not understandable in view of the position taken in their respective plan by the parties.
Exhibit A, the appellants’ plan, called the land in dispute Ugu Akpuru (which I believe means the same thing as Ugwu Akpulu). Even though this plan is on 200 feet to 1 inch scale as the exhibit B of the respondents, there is however a world of difference in what each one indicates. Exhibit A merely shows the land in dispute and surrounded it with open space on four sides and except southeast thereof which is conceded to Ezinnifite people, claimed the entire surrounding land belonged to Akpuru people. Whereas in exhibit B, the respondent enclosed the same land to the north and west of a wall (defensive wall called Ekpe) touching the Ekpe in the south but floating in another encirclement to the east before the Ekpe, to the north and substantially to the west, all verged yellow and claimed that entire yellow verge as Ugwu Owelle. To the east of this yellow verge is the land of Ezeobu Umuetu, to the southeast is the Ezinnifite, and to the southwest is the land of Igbo-Ukwu. West of this yellow verge is the land of Umuonono and also to the north. Umuonono is the principal sub-family of Akpuru who refused to join the appellants in this dispute. To my mind the appellants have no land within the yellow verged on exhibit B, they only wanted to encroach from the west and the north but would have no cooperation of their kindred, Umuonono. There is no confusion, both Amaokuko (where the respondents live) and Akpuru (of the appellants) are in Ikenga. The inference being drawn by the appellants from the cases Makanjuola v. Balogun (1989) 3 N.W.L.R. (Pt. 108) 192, 194; Egonu v. Egonu (1978) 11 and 12 S.C. 134, 135; Emegokwue v. Okadigbo (1973) 4 S.C. 113 is completely inapplicable to this case. There is hardly any averment that the respondents never traversed, neither were there matters unpleaded that were relied upon by the respondents. I can hardly find any support or relevance in the appellants’ case with the decisions in Amata v. Modekwe 14 W.A.C.A. 580,582 or in Nwadike v. Ibekwe (1987) 4 N.W.L.R. (Pt.67) 718, 741. Surely, the evidence before the trial court in support of the appellants as plaintiffs was so scanty that their case cannot be supported. In all civil cases, the person who asserts must prove. In the case of the plaintiff it is he that must first prove his case and make it strong enough to support his pleading. Should he fail to do this, his case will remain unproved, however elegant his pleadings. The failure of the defendant to prove, even his refusal to testify cannot alleviate the primary burden on the plaintiff to prove his case. In the instant case, the plaintiffs’ case was far from being proved, and in the absence of admission of their case by pleading and or evidence of the defendants, the case of the plaintiffs had been doomed from the trial court.
As for the alleged hearsay evidence of the evidence of D.W.2, it appears the appellants are escaping from their primary duty. Can it be said that they proved their averment that a grant was made to the church-missionary Society to build St. Philips Church, School and teachers’ houses The church is not dead for it is the church that will testify who made the grant. The plaintiffs never called the church. Rather, the superintendant priest of the church was called by the respondents as D.W.2. Whether his evidence was primary or hearsay is not here relevant, at best, it is a weak link in the case of the defence. But can the weakness of the defence exonerate the plaintiffs from their primary duty of proving their case Their case, they failed abysmally to prove. Mr. C.O. Anah, of counsel, for the appellants, said the evidence of D.W.2, being that of a non-member of any of the two families in dispute, should be regarded as hearsay and therefore inadmissible. Learned counsel went to great pains of supplying authorities to back up this proposition. Ben Ikpang & Ors. v. Chief Sam Edoho Anor. (1978) 6 and 7 S.C. 221,247,248 and 249. He also posited that evidence of a right must exist for a longtime to be of any use in deciding the issue of title as in this case. He relied on The Stool of Abinabena v. Chief Kojo Enyimadu XII W.A.C.A. 171,172; F. M. Alade v. Lawrence Awo (1975) 4 S.C. 215, 223; Adeyemo v. Popoola (1987) 3 N.W.L.R. (Pt.66) 578, 589 and 590. These cases, with respect, have no bearing to the circumstance of the appeal now at hand. They certainly made remarkable statements of law and are valid, but have no application here. One concerned chieftaincy dispute and that a member of the family in dispute is the best witness on happenings in the family or family history; this should not be extended by analogy to land case in the strict sense.
Anybody connected with land whether due to family link with the land or as a witness to what happened to the land or as a party to a transaction on the land is definitely a competent witness. But in the instant case, the primary duty of the appellants, as plaintiffs in the court of trial was to prove their case and not to fish for weakness of respondents’ case. The appellant failed to discharge this primary duty; they never proved their case. They are precluded from looking for faults in the respondents’ case. All the evidence of D.W.1 did was to corroborate the claim of the respondents in defence of plaintiffs’ claim. I see no merit in this submission by the appellants.
I find no merit in this appeal and it must be dismissed. I hereby dismiss this appeal as entirely lacking in merit. I award N500.00 as costs of this appeal against the appellants.
Other Citation: (1990) LCN/2443(SC)
