Justus Nwabuoku & Ors V. Francis Onwordi & Ors (2006)
LAWGLOBAL HUB Lead Judgment Report
TOBI, J.S.C
This appeal involves two communities. Umuodafe of Ibusa and Okpanam. The people of Umuodafe of Ibusa are the plaintiffs/respondents. The people of Ogbeowele quarters of Okpanam are the defendants/appellants. Ibusa and Okpanam are neighbouring towns. They are separated by a large expanse of farm land. Apart from the large expanse of farm land separating them, this litigation has also separated them. The large expanse of farm land is the bone of contention of this appeal. Both parties claim ownership of the land.
The case of the plaintiffs/respondents is as follows: The foremost ancestor of the plaintiffs, Umuejei, founded Ibusa. He had three children Oshe, Ezebuogu and Ezemeze. Before Umuejei died, he shared the land amongst his three sons. Ezebuogu inherited Akwu Ogonogo, Akwu Ogonogo Ekiti, Akwu Okpokolo, Akwu Ogede, Akwa Mmanu, Akwu Imilikiti and Akwu Mkpili from his father. Like his father, Ezebuogu lived on the land, farmed on it hunted on it and reaped the economic trees on it.
Odafe, the son of Ezebuogu, inherited the parcels of land from his father and made use of them like the father. The plaintiffs, who are the descendants of Odafe, inherited the land and they have been farming, hunting, worshipping their juju on it, reaping the economic trees and letting portions of it to tenants. They traced the genealogy of Odafe. Plaintiffs said that the Achi tree is the boundary between the two communities. In October, 1979, the defendants crossed the boundary of the land and cleared part of the land of the plaintiff, the immediate cause of the action against the defendants.
The defendants/appellants understandably presented a different case. They inherited the land in dispute from their ancestor, Dioha, the founder of Obodogwugwu Dioha was the father of Okpalani who founded Okpanam many years ago. Okpalani had four sons: Ozoma, Achala, Anatogba and Dioha. Dioha who founded Obodogwugwu had seven children, namely: Chime, Ogboduma, Osedi, Obiajie, male, Idigbe and Omake. Before his death, Dioha told his children to farm on the land together.
On the southern part of the land are the people of Odauku and Odanta of Ibusa and after Odanta are the Ogboli Atakpo people of Ibusa, and that they have boundary with the people of Obodogwugwu of Okpanam on Etukuche land and the people of Obodogba of Okpanam. There is a cement pillar on the boundary between Obodogba people of Okpanam and Ogbeogwugwu people of Ibusa. The boundary between Ibusa and Okpanam is marked by Achi tree and Ububa Ngwulor tree but the Achi tree was burnt down. There are two hills on the boundary, Ani Obida (juju shrine), Alunsi Ngere, Okwuta Oji and at Okwuta Oji, they have a common boundary with Odanta people of Ibusa. They have been farming on the land and they have yams, cassava and other crops.
The plaintiffs/respondents brought an action for declaration that they are entitled to a Statutory Right of Occupancy over the land in dispute, N5,000.00 general damages for trespass and an injunction to restrain the defendants/appellants, their servants and agents from committing further acts of trespass on the land in dispute.
The learned trial Judge gave judgment to the plaintiffs/respondents. Appeal to the Court of Appeal was dismissed. Dissatisfied, the appellants have come to the Supreme Court. Briefs were filed and duly exchanged. The appellants formulated the following issues for determination.
“(a) Whether the learned Justices of the Court of Appeal were right in not upholding the appellants appeal having regard to the facts and circumstances of the case.
(b) Whether the plaintiffs/respondents discharged the onus of proof which rested on them in respect of the land which they claimed.
(c) Whether the disregard of Exhibit “D” by the courts below did not occasion a miscarriage of justice to the appellants.”
The respondents agree with the issues raised by the appellants.
Learned counsel for the appellants, Chief H.O. Ogbodo, said that in challenging the facts as presented by the respondents, the appellants were consistent throughout their testimony. He referred to Paragraphs 5 and 6 of the Amended Statement of Defence and Plan No. LSF7892. He submitted that the appellant denied every averment in the last Statement of Claim, including Exhibit A, Plan No. KPE2910. He cited Ezeudu v. Obiagwu (1986) 2 NWLR (Pt.21) 218.
Learned counsel submitted that the learned trial Judge was wrong in disregarding Exhibit D, which the Court of Appeal also disregarded. Narrating the purpose of tendering Exhibit D, counsel cited Agbahomovo v. Eduyegbe (1999) 2 S.C. 79; (1999) 3 NWLR (Pt.594) 170 at 182.
Counsel submitted that a plaintiff who claims declaration of title to land must show the court with certainty the area of land in respect of which the claim is made. He contended that if Exhibit D was given due regard, it would have depicted the true picture painted by P.W.4 showing the South-East land of Odanta Umuodafe family as pleaded by the appellants. He cited Epi v. Aigbedion (1972) 10 S.C. (Reprint) 45; (1972) 10 S.C. 53.
Still on Exhibit D, learned counsel submitted that had the trial Judge given due consideration to the effect of the exhibit, he certainly would have dismissed the case of the respondents. Counsel lamented that the Court of Appeal fell into the same error.
Asking the court to do justice, counsel cited Ajide v. Kelani (1985) 3 NWLR (Pt.12) 248. He urged the court to allow the appeal.
Learned counsel for the respondents, Chief C.O. Ihensekhien, argued Issues Nos. 1 and 2 together. He submitted that where a fact pleaded by a plaintiff is not denied, no issue emerges for proof as no issue is in dispute. He cited Okonkwo v. Kpajie (1992) 2 NWLR (Pt. 226) 633; Lewis and Peat Ltd. v. Akhimien (1976) 6 S.C. (Reprint) 159; (1976) 7 S.C. 157.
Counsel submitted specifically that as the respondents did not join any issue with the appellants on the partition of the property, there was no need for the respondents to prove partition. He cited Eze v. State (1985) 3 NWLR (Pt.13) 429; Niger Construction Limited v. Okugbeni (1987) 4 NWLR (Pt.67) 787; Dikwa v. Modu (1993) 3 NWLR (Pt.280) 170 and Olanguno v. Ogunsanya (1970) 1 All NLR 223 at 227.
On the issue of boundary learned counsel submitted that in an action for declaration of title when the boundary is in dispute, the boundary that need be proved is that which is on the side in dispute. He cited Omoregie v. Idugiemwanye (1985) 2 NWLR (Pt.5) 41; and referred to the evidence of D.W.3 and D.W.4.
Learned counsel made reference to the findings of fact of the trial Judge were accepted by the Court of Appeal and urged this court not to tamper with the concurrent findings of the two courts. He cited Akintoye v. Eyilola (1968) NMLR 92 at 95; Woluchem v. Gudi (1981) 5 S.C. (Reprint) 178; (1981) 5 S.C. 291 at 320 and Ume v. Okoronkwo (1996) 10 NWLR (Pt.477) 133 at 134.
Taking issue No. 3, learned counsel submitted that Exhibit D which was relied upon by the appellants is a public document which ought to have been certified. As the document was not certified in accordance with the provisions of Section 111 of the Evidence Act, it is inadmissible. He cited Dobadina Family v. Ambrose Family (1969) NMLR 24; Okafor v. Okpala (1995) 1 NMLR (Pt.374) 758; Ipinlaye II v. Olukotun (1996) 6 NWLR (Pt.455) 417 at 428 and Udeze v. Chidebe (1990) 1 S.C. 148; (1990) 1 NWLR (Pt.135) 141. He urged the court to dismiss the appeal.
In this matter, both parties agree that the Achi tree is the boundary between them. In the light of this common position in an important aspect of the case, there ought to be normally no dispute but there is a dispute. This is because each party has knowledge or idea where the Achi tree, the boundary indicator, is. Curiously, the Achi tree, created and situate in its habitat does not move; what moves are the human eccentric concepts and claims of where the Achi tree ought to be. In view of the fact that the courts were not there to watch and see the origin of the Achi tree, they have to rely on the evidence of the parties. And that is what the two courts below did. And this is what this court will do also.
Although the appellants brief formulated three issues for determination, the arguments in the brief essentially covered the third issue on the disregard of Exhibit D by the two courts below. Where are the arguments on the first and record issues Are they abandoned The respondents’ brief is quite different. They raised the same three issues and argued them. I shall therefore take all the three in this judgment.
I will take Issues No. 1 and 2 together. That will cure the vagueness of Issue No. 1, standing alone. The burden of proof in land matters, though depends on the state of the pleadings, is mainly on the plaintiff, in the first place. It could thereafter move to the defendant, like a circus circle. It is elementary in our property law that he who seeks title to land must prove that title. This burden is firm and it stands unequivocally on the face of the plaintiff, who must discharge it. This burden does not shift one second to the defendant. It is constant on the plaintiff as the sun which rises from the East and sets in the West everyday. It is only after the plaintiff has given evidence of title to the land that the defendant leads contrary evidence to expunge the plaintiff’s evidence.
In a claim for a declaration of title to land, the onus is on the plaintiff to prove title to a defined area to which the declaration can be attached. See Odesanya v. Ewedemi (1962) 1 All NLR 320.In Idundun v. Okumagba (1976) 9-10 S.C. (Reprint) 140; (1976) 9-10 SC 227; this court held that there are five ways in which title or ownership of land could be proved. They are (1) By traditional evidence. (2) By production of documents of title duty authenticated and executed. (3) By acts of ownership extending over a sufficient length of time, numerous and positive enough as to warrant the inference of true ownership (4) By acts of possession and enjoyment. (5) Proof of possession of connected or adjacent land in circumstances rendering it probable that the owner of such connected or adjacent land would, in addition, be the owner of the land in dispute. See also Omoregbe v. Idugiemwanya (1985) 2 NWLR (Pt.5) 41; Mogaji v. Cadbury (Nigeria) Ltd. (1985) 2 NWLR (Pt.7) 393; Ezeoke v. Nwagba (1988) 1 NWLR (Pt.72) 616; Fasaro v. Beyioku (1988) 2 NWLR (Pt.76) 263; Okpuruwa v. Chief Okpokam (1988) 4 NWLR (Pt.90) 554.
A plaintiff need not prove all the five ways to succeed in an action of title to land. He can succeed if he proves even one of the ways. In other words, the five ways enumerated in Okumagba are not cumulative but concurrent.
Both parties gave traditional evidence as to how their ancestors came to the land. While P.W.4 gave traditional evidence for the respondents. D.W.4 and the 4th defendant gave traditional evidence for the appellants. The learned trial Judge took time to examine the veracity or authenticity of the traditional evidence of both parties. On the evidence of the plaintiffs/respondents, the learned trial Judge said at page 175 of the Record.
“The traditional evidence of the plaintiffs as given by P.W.4 is consistent with Paragraphs 5-11 of the Amended Statement of Claim. I accept and believe the traditional evidence of the plaintiffs that their foremost ancestor, Umuejei who came from Izu in Anambra State founded Ibusa which was a virgin forest and that before his death, he shared his lands among his three children and Ezebuogu, one of them inherited the parcels of land now in dispute and Odafe, one of the children of Ezebuogu inherited them and they who are the descendants of Odafe inherited them from Odafe.”
On the evidence of the defendants/appellants, the learned trial Judge said at pages 174 and 175 of the Record, and I will quote what he said in extenso:
“D.W.5 testified that Dioha founded Obodogwugwu while the 4th defendant testified that all the villages founded by the 7 children of Dioha are called Obodogwugwu. In effect, the evidence of the 4th defendant showed that Ohodogwugwu was founded by the children of Dioha. This evidence is in conflict with Paragraph 8 of the Amendment Statement of Defence where it was pleaded that when Okpalani got old, (he) made a gift of his lands to his sons including Dioha and the area given to Dioha is now called Obodogwugwu lands with specific names to specific areas. It is trite law that parties are bound by their pleadings and any evidence which is at variance with the averment in the pleadings goes to no issue and should be disregarded by the court… The evidence of D.W.5 and the 4th defendant that the descendants of Obiaji are called Umuobiaji is in violent conflict with Paragraph 9 of the Amended Statement of Defence in which it was pleaded that the children of Obiaji are called Umuomake. In their evidence, they also stated that the descendants of Omake are called Umuomake but it was not pleaded in Paragraph 9 of the Amended Statement of Defence that the children of Omake are called Umuomake… These conflicts and missing linkages or gaps in the traditional evidence of the defendants which was predicated on Dioha and Obodogwugwu heritage and relied on heavily by them renders their traditional evidence contradictory, inconsistent inconclusive; and can result in nothing less than the total collapse or breakdown of their traditional evidence as set out in their pleadings.”
What did the Court of Appeal say on the traditional evidence Ba’aba, JCA, said at page 254 on the findings of the learned trial Judge:
“It is clear from close study of the pleadings and the evidence adduced that the respondents as plaintiffs founded their case on traditional evidence which is one of the five recognized methods of establishing or proving ownership of a piece or parcel of land in dispute, but still proceeded to prove acts of ownership of the land in dispute amongst other things.”
The above are concurrent findings of the trial court and the Court of Appeal, findings I cannot dislodge because they are clearly borne out from the evidence before the court, the crux of the matter is the boundary between the parties vis-a-vis the area in dispute. I should take that issue now. As I said earlier, both parties zeroed in on Achi tree but parted ways as to the real position of the tree. Dealing with the issue, the Court of Appeal eulogized the learned trial Judge at page 257 of the Record.
“Above all, learned trial Judge after his admirable appraisal of the entire evidence adduced before him made finding of facts and accepted Exhibit A, the survey plan No. KPE 2910 as the correct area of land in dispute amply supported by the evidence. Having read the record, I agree that the parties knew the land and almost al the witnesses who testified for both the appellants and the respondents’ stated Achi tree was the ancient boundary between the parties.”
I am at one with the Court of Appeal on the eulogy. The learned trial Judge, Akpiroroh, J., (as he then was), did a beautiful job. His evaluation of the evidence of the witnesses was fantastic. The learned trial Judge found in the evidence of D.W.5 and the 4th defendant, supporting the case of the respondent. He said at pages 175 and 176 of the Record:
Under cross-examination, D.W.5 admitted that the plaintiff have settlements on the land in dispute. This piece of evidence supports the evidence of the plaintiffs that they are in possession of the land… The plaintiffs in this case, are therefore, entitled to rely on the evidence of D.W.5 which supports their case. Exhibit A also shows the various camps of P.W.1 and P.W.2 on the land. Still under cross-examination, the 4th defendant admitted that one Alphansus Nwosu with whom he had a dispute over the land is a tenant of the plaintiffs. This piece of evidence also supports the plaintiffs’ claim that they are in possession of the land in dispute.”
The very curious and flabbergasting aspect of this appeal is that the appellants did not attack any of the above findings and conclusions of the two courts below. Accordingly, the findings and conclusions remain uchallenged and as far as the case of the appellants is concerned, they are correct. I say this because the short brief of the appellants concentrated on the disregard of Exhibit D by the learned trial Judge. Although counsel formulated issues covering the entire case, the brief dealt only with Exhibit D which was the basis of Issue No. 3.
And that takes me to the almighty Exhibit D. paragraph 17 of the Amended Statement of Defence is relevant. It is in following terms:
“The defendants would rely on the Survey Plan No. LSF4111 tendered in Suit No. A/14/79 – Michael Egobudika Nnando & 2 Ors. v. Obi Okwulese & 6 Ors. to show that the plaintiffs are laying claim to almost identical area and using common features.”
Exhibit D is the Survey Plan No. LSF 4111, which the appellants claimed was tendered in Suit No. A/14/79. The learned trial Judge did not agree with the averment in Paragraph 17 of the Amended Statement of Defence when he said at page 178 of the Record.
“Ex facie, there is nothing to show that Plan No. LSF4111 was tendered No. A/14/79 because was not marked.”
I entirely agree with the learned trial Judge. I have also looked at the exhibit, and I do not see any mark on it in respect of Suit No. A/14/79. It is part of our adjectival law to mark exhibits tendered and admitted in court by clearly stating the suit number and the identity of the exhibit, either by letters of the English alphabet starting from A or by numerical figures starting from 1. In the absence of such clear identification usually made in “red”, the learned trial Judge’s conclusion on the exhibit cannot be faulted.
The above part, the learned trial Judge raised another fundamental aspect on the exhibit. He said at page 178 of the Record:
“More importantly, Exhibit D is a public document by virtue of Section 109 of the Evidence Act, Cap. 112 Laws of the Federation, 1990 and by virtue of Section 97(1)(e) and (f) and 97(2)(c) of the Evidence Act, only a certified true copy of it can be tendered in court. Section 111 of the Evidence Act describes what a certified copy of a public document should contain. Exhibit ‘D’ violently violates Section 111 of the Evidence Act in that it was (not) signed and certified. I therefore agree with the submission of learned counsel for the plaintiffs that Exhibit ‘D’ is inadmissible in evidence.”
The Court of Appeal dealt in some useful detail, the history behind Exhibit D at pages 258 and 259. After that useful detail, the Court of Appeal said at page 259:
“The question, one would like to ask here, is Plan No. LSF 4111 referring to Plan No. KPE 2910, the amended plan, filed by the respondents It does not appear to be referring to Plan No. KPE 2910 because the appellants did not join issue with the respondents on that issue as submitted by the learned counsel for the respondents. Be that as it may, it is clear from both Paragraph 17 and the evidence of the 4th defendant that emphasis is on the case in Suit No. A/14/79. Exhibit “D” appears to me to be a process of the court having been tenders in evidence during trial before a court. It is only relevant in my view because of the said suit, otherwise, it would be like any other plan. I agree with the learned trial Judge that going by the provision of Section 132 of the Evidence Act, Exhibit “D” is not admissible and I hold the view that the learned trial Judge was right in attaching no weight to Exhibit D and in discountenancing the said exhibit in his judgment.”
The Court of Appeal raised a pertinent question on Exhibit D and arrived at a pertinent answer. The brief of the appellants did not deal with the issues raised by the Court of Appeal but only dealt with the issue of admissibility which I will now examine.
There is no argument that Exhibit D is a public document. Both parties agree. The only argument is that the learned trial Judge was wrong in disregarding the exhibit.
Admissibility, one of the cornerstones of our Law of Evidence, is based on relevancy. A fact in issue is admissible it is relevant to the matter before the court. In that respect, it is correct to say that relevancy is a precursor to admissibility in our Law of the Evidence. Flowing from the above, the negative statement that what is not relevant is not admissible is correct.
It is not the law that every document admitted by a court of law must be assigned probative value. A document could be admitted on the ground of relevancy but the court may not attach any weight on it, in the light of the circumstances of the case. In other words, admissibility which is based on relevancy is distinct from weight to be attached to the document.
Section 111 of the Evidence Act provides for the certification of public documents. This is done by a certificate written at the foot of a copy of the document that it is a true copy of such document or part thereof as the case may be. Such certificate must be dated and subscribed by a public officer in custody of the document with his name and his official title with a seal, if the officer is entitled in law to make use of a seal. By Section 112 of the Act, only such certified copy or copies would be produced in proof of the contents of the public document.
I have carefully examined Exhibit D and I do not see any certificate as provided in Section 111 of the Evidence Act. In this case, the admissibility of Exhibit D was objected to at the trial court but it was wrongly admitted.
A trial Judge has the competence to either completely reject admitted evidence or disregard such evidence admitted at the stage of writing judgment if he comes to the conclusion that the evidence, documentary or oral, was wrongly admitted. This is because at the stage of writing judgment the trial Judge is fully exposed to the totality of the evidence before him and therefore in the best position to determine the probative strength of the evidence. Accordingly, where a document earlier admitted does not carry any probative value by virtue of the Evidence Act in the light of the five issues before the court, the Judge can expunge the document or disregard it in the course of evaluating the totality of the evidence before him to enable him arrive at a proper decision. That is what the learned trial Judge did and I cannot fault him.
As I said earlier, the appellants’ grouse is on the learned trial judge’s disregard to Exhibit D. Where an appellant heavily and totally relies on a document as basis for faulting the judgment of the lower court and this court comes to the conclusion that the document has no probative value and therefore rightly disregarded by the lower court, the appeal crumbles and must be dismissed. Exhibit D which is the cynosure of this appeal, not being certified within the meaning of Section 111 of the Evidence Act, was rightly disregarded by both courts.
In sum, the appeal fails and it is dismissed. I award of N10,000.00 costs in favour of the respondents.
SC.344/2001
