Kenneth Ndukuba & Anor. V. Nwarieji Izundu & Anor. (2006)
LawGlobal-Hub Lead Judgment Report
THOMAS, J.C.A.
The brief facts of this appeal is that the appellants as plaintiffs brought a suit in a representative capacity against the respondent in suit No. HOW/36/74.
The reliefs sought in the claim read:
(a) A declaration of title to the piece or parcel of land known as and called ‘Ikpa Eziama’ situate at Eziama in Owerri Judicial Division.
(b) Two Hundred Naira (N200.00) being general damages for trespass upon the said piece of land.
(c) Perpetual injunction permanently restraining the defendants, their agents from further trespass upon the said piece of land.”
Both parties filed plans. The appellants’ plan is exhibit A, while the respondents’ plan is exhibit M. The appellants’ case at the lower court as can be deduced from their pleaded further-further amended statement of claim at pages 51 – 56 of the record is that the land in dispute was their land from time immemorial, and that they had been in possession and had performed numerous acts of ownership. That such acts of ownership included dwelling on the land, farming there upon and also granting customary farming rights to strangers including the respondents and their people of Umueme Awo as well as doing free labour work on the road. They further alleged that they had also granted a portion of the land in dispute to the Ministry of Works as then known as Public Works Department. The appellants also pleaded and tendered documents stated in their plea of ownership.
The case of the respondents at the trial court is reflected in their further amended statement of defence as can be ascertained at pages 66 – 74 of the record of appeal. Their defence is that the land in dispute belonged to their forefathers from time immemorial. They denied the appellants’ claim that their people who previously occupied some part of the land in dispute was by the permission of the appellants. Both parties called their respective witnesses and tendered some previous judgments on which the respondents claimed that those judgments were in their favour, while the appellants denied same and stated that those previous decisions were later set aside on appeal. The learned trial Judge considered the evidence before the court and delivered his judgment on 16th December, 1996, which was in favour of the respondents. Dissatisfied with the decision, the appellants filed their notice of appeal on 31st January, 1997 with one ground, but on 10th November, 1999 this court granted the appellants to file an amended notice of appeal with 5 additional grounds of appeal, but the amended notice of appeal was filed outside the 14 days period to file the notice of appeal, and by leave of this court again the notice of appeal was regulated and was by leave of court filed on 29th February, 2003.
Distilled from the six grounds of appeal, the appellants formulated three (3) issues for determination as follows:
“2(a) Whether the learned trial Judge did misdirect himself as to the pleadings and evidence of both parties before him in a manner that occasioned a miscarriage of justice.
(b) Whether PW 1 was properly declared a false witness by the trial court.
(c) Whether the appellants did not discharge the onus to entitle them to the reliefs sought.”
On the part of the respondents,the issue raised in their brief is as follows:
“Whether the appellants discharged the onus placed on them so as to entitle them to the reliefs sought?”
I am of the view that respondents’ single issue, if considered, is enough to dispose of and cover the appellants’ issues 1 and 2. In other words, appellants issue 2(c) and respondents’ single issue, being similar and identical, are sufficient to dispose of the appeal, and this is what I will consider.
In their argument, appellants’ learned senior counsel, Ahamba, SAN, referred to page 130 line 26 to page 131 line 23 of the record where the trial Judge stated his reasons for dismissing appellants’ claim, and that the appellants complaint is that the trial Judge did not direct himself properly on the state of pleadings and evidence properly proved and admitted by the two parties.
Learned senior counsel referred to court judgments in suit numbers 933 and 1262 which respondents pleaded in their further-further amended statement of defence, but that DW2, tendered only exhibit H which was stated by the respondent that the judgment made by Oru native court in 1942 was a nullity. Learned SAN then submitted that it was wrong for the trial court to find that native court judgments 933 and 1262 were not established and that it was wrong for the trial Judge to say that several judgments of the native courts were in favour of the respondents.
Appellants also argued the reliance of arbitration award made in favour of the respondents. Learned senior counsel contends that the conclusion of the trial Judge on arbitration award in the native court system was bizarre, because it was not open to the Judge to hold that the appellants could not claim exclusive possession of the land in dispute, since it was stated that “by the arbitration the defendants were entitled to exclusive possession of half of the land in dispute from mile 48.”
On donation of part of the land in dispute to C.M.S. Church, appellants contend that they had pleaded this in their para. 4(a) of their relevant pleading as also contained in their exhibit A, but that the respondents did not join issue with the appellants since the respondents statement of defence did not plead that they gave their own land in possession to the CMS, but despite this fact, the respondents later gave evidence that they donated land to their church who trained (4) four of their children. Appellants are contending that the trial court should have discountenanced the evidence made by the respondents’ witness since it was never pleaded, but the trial Judge wrongly admitted same and denied the rights of appellants’ plea which was not pleaded by the respondents.
As traditional history of evidence, learned SAN contends that neither of the parties pleaded the founder of the land in dispute.
That their own traditional history was more reliable than that of the respondents, but trial Judge misconstrued the pleadings of parties and their proof of evidence on acts of ownership which was more reliable on the appellants’ act of ownership.
On the part of the respondents at page 8 of their brief, learned counsel submitted that at the trial court, the judgment of the native court, exhibit H, was tendered by their witness and that the exhibit stated, was acknowledged that the respondents were physically on part of the land in dispute and that no boundary existed in the past between the two parties.That the appellants’ further amended pleadings did not controvert their exhibit H where it was found as a fact that parts of the land in dispute was awarded to the respondents as well as the appellants.
The respondents further submitted that the appellants did not reply to their pleadings, but rather tendered exhibits R.1 and R.5 through DW5 at page 104 of the record where their witness stated clearly that:
“in 1944 these native court suit came before Commissioner on Appeal and the plaintiff was non suited.”
And that in paragraph 2 of exhibit 5, which was also tendered by the same appellants, it is clearly stated that:
“The arbitration in this case appears to have been submitted to voluntarily by two parties representing tribe or town as an alternative to a fresh and fruitless action for title in the native court following an order for non-suit by the Chief Commissioner in respect of an action between them in native court.” (Italic is mine)
Learned counsel for the respondents then submitted that what is admitted needs no proof since it was the case of the appellants in their exhibits R.1 and R.5 that the native courts suits in 933 and 1262, were eventually set aside and a non-suit entered in favour of the respondents cannot now be attacked by the appellants against the findings of the trial Judge who ruled that respondents won the case. That it was the appellants who instituted the native court suit No. HOW/6/63 where it was struck out for gross of irregularities and the appellants were advised to file a new suit which they never did again. Counsel for the respondents referred to exhibit F in the record of appeal.
As to the contention of the appellants that the respondents did not plead that they gave part of their land in dispute to the CMS Church for which their children were trained, learned counsel for the respondents has submitted that it is elementary principle of law that reference to a document in a party’s pleadings, makes such document part of the pleading, and counsel relied on the case of B.G.C.C v C.M.D.S. (1962) 1 All NLR 570; (1962) 2 SCNLR 310.
Counsel then submitted that their exhibit M was pleaded in para. 4 of their further amended statement of defence as well as their evidence before the trial court.
On arbitration raised by the appellants, learned counsel for respondents conceded that the arbitration was set aside by the trial court because the Supreme Court had set it earlier but that the set aside of the arbitration was not a translation of proof for title to the land in dispute for the appellants.
The complaint of the appellants is that the trial court wrongly declared their PW1, a false witness. In their argument, learned silk at pages 11 – 12 of their brief, submitted that PW 1 was their major witness and that PW 1’s evidence was not contradictory to the evidence of PW3 and PW3. That there was no justification for the attitude adopted against a witness whose evidence was clear. Learned silk while orally arguing, he referred this court to the case of Amadi v. Nwosu (1992) 2 NSCC 94, 99,102 and 103, (1992) 5 NWLR (Pt.241) 273; Omoregbe v. Lawani (1980) 3 – 4 SC 108, 117 in support that where a testimony was not challenged, the trial court could act on it. He urged this court to accept the totality of evidence proffered by PW1 at the lower court, as it was not challenged.
Learned counsel for the respondents has relied appellants’ argument in rejection and disbelief of PW1’s evidence. The respondents termed PW1 as a so-called boundary witness whom the trial court disbelieved. Counsel contends that the evidence of PW1 was that he has a land called “Uzo Mmiri” which shares a common boundary with the land in dispute but that strangely enough, the appellants never pleaded that “Uzo Mmiri” land belonging to Nze Akubo Osuoha shared a boundary with the land in dispute; and that the purported Uzo Mmiri land, nor village of PW1 have not appeared or shown in exhibit A tendered by the appellants. That the trial court rightly also, rejected the evidence of PW1 when he had admitted under cross-examination that he had a personal grudge against the respondents whose brother he was accused of murdering but was discharged by the court. Respondents counsel, urged this court to hold, that PW1 had every reason to testify falsely against the respondents for which the trial court disbelieved him.
In relation to whether the appellants had failed to satisfy the onus placed on them to succeed in their claims, learned Senior Advocate submitted that it is trite law that proof of acts of ownership within recent memory over a land in dispute can be accepted as a right of declaration of right of occupancy. Counsel relies on the case of Idundun v. Okumagba (1976) 9 SC 227. Learned senior counsel at paragraph 3.03B of their brief at page 13 thereof, contended that pleadings of both parties did not rely on traditional history, but rather, both relied on claims of acts of ownership extended over sufficient length of time which acts were numerous and positive to warrant the inference that, that party is the owner of the land. Learned senior counsel referred to appellants’ further-further amended statement of claim in paragraphs 4(a) to 4(b) as acts of ownership; but that on the part of the respondents, they failed to plead enough particulars of their acts of ownership as shown in paragraphs 5 and 6 of their further-further amended statement of defence.
That despite all these, the trial court preferred the case put forward by the respondents, and that the trial court had contradicted his findings at page 132 and page 126. That the trial Judge’s approach to the issue of traditional history evidence was highly contradictory and that it misdirected the trial Judge by failing to consider the totality of evidence before him.
Appellants contend that the respondents did not prove a single item of their claim that they had acts of ownership and that they claimed on arbitration award which they claimed was extant but was disproved by the relevant documentary exhibits. Senior counsel concluded his argument that the learned trial Judge was clearly in error when he failed to weigh on the imaginary scale of justice the totality of evidence proffered by the appellants on the acts of ownership. He urged this appellate court to allow the appeal and enter judgment in terms of their reliefs sought in their further-further amended statement of claim at the lower court.
In my considered opinion, the appellants at the lower court, claimed that the land in dispute is known and referred to as ‘Ikpa Eziama’ which they asserted, was their own land from time immemorial and that the people of Obabi Nkpokwu, inherited same from their ancestors. But it is to be noted that, when a party could not name nor show the particulars and movements of the histories of the so-called ancestors, nor pleaded on same, can it be right to say that the people of Obabi Nkpokwu town inherited the land of their ancestors? I am of the view that the appellants should have named at least one of their ancestors from whom other ascending inheriters, got the land before the people of Obabi Nkpokwu inherited the land in dispute. It is not enough to just make a general statement as the appellants did, that the land in dispute was their own from time immemorial; and that the people of one town inherited it. It is settled law that evidence of inheritance from time immemorial is synonymous with traditional evidence as a way of proving ownership of the land in dispute. See Idundun v. Okumagba (supra). In the instant appeal, the appellants in their paragraphs 4(a) of their further-further amended statement of claim had thus relied on root of title on traditional history. This fact on reliance of traditional history, was asserted by the appellants’ counsel G. C. Nzimako at page 111 lines 17 – 18 – lines 29 – 32 of the record. The learned trial court considered the appellants pleaded paragraph 4(a) of their claim as well as the evidence proffered by the appellants’ witnesses and found that the evidence of traditional history was not enough and the learned trial Judge properly rejected the appellants’ traditional history. See page 126 lines 27 – 31 of the record. After the trial court considered the two sides, claims and proofs of title based on traditional history, the trial Judge weighed on the imaginary scale of justice and pronounced as follows at page 131 of the record:
“That of course is the better title the plaintiffs should have shown when they raised and relied in traditional history, as their root of title. But I have examined their evidence of traditional history and found same as hollow as it was unproved.” (Italics are mine for emphasis).
I have carefully considered the findings of the trial Judge, and I am satisfied that his findings are sound. Based on the hollow and unproved appellant’s evidence at the trial court, I have no reason to alter the sound findings of the trial Judge. It was not pervert. An appellate court has no business to accept acts of ownership in a case where the same party as done by the appellants in the instant appeal, could not establish their root of title as pleaded from time immemorial and act of ownership. The root of title ought to be proved before establishing acts of ownership could be considered by the trial court; see the case of Obioha v. Duru (1994) 8 NWLR (Pt. 365) 631 where the Supreme Court jurist – Onu, JSC at 645 stated:
“one cannot really talk of acts of ownership without first establishing that ownership where a party’s root of title is pleaded …
That root of title has to be established first and any consequential act following therefrom can then properly qualify as acts of ownership.” (Emphasis is mine) Now having arrived at the above findings that the appellants could not prove their traditional root of title and their exhibits B, C, D, E and F tendered by PW2 and admitted by the trial court are inadmissible evidence in law because the exhibits B, C, D, E and F being acts of ownership, cannot be accepted as appellants had not proved their root of title and therefore their admission as tendered were of no effect. In addition to its rejection, the evidence of appellants’ PW2 at pages 42 – lines 21 of the record was purposely surveyed for the appellants to create that they need evidence of acts of ownership of the land in dispute. PW2 said as follows:
“At the commencement of this suit, the court ordered me to make a plan of the land in dispute.”
There is no doubt, the order made above was to show the identity of the land in dispute. The order was not to show acts of ownership. I am therefore of the view that it was purportedly made to create acts of ownership after the case was filed in court and I reject them being improper basing of proving acts of ownership.
It is settled law that in a claim for declaration of title to the land in dispute, the claimant has the onerous task of establishing his title on the strength of his case and not on the weakness of the other party, see Kodilinye v. Odu (1935) 2 WACA 336.
In the case of Igwegbe v. Ezuma (1999) 6 NWLR (Pt. 606) 228 this court had established that the plaintiff has the onus of proving his title based on the strength of his case and not on the weakness of the defendant, see also Abba v. Jumare (1999) 5 NWLR (Pt. 602) 270.
In a land matter claiming proof of title as in the instant appeal and the plaintiffs failed to prove their root of title relied on, the proper order to make in such circumstances is to dismiss the plaintiff’s case. See Kasuguma v. Gambo (1998) 8 NWLR (Pt. 560) 60. This is what happened in the present appeal at the trial court where it held at page 132 of the record that – “in the final analysis and considering the evidence as led and evaluated, the plaintiffs have failed to prove their case. The order of this court therefore, is that the claim of the plaintiffs is hereby dismissed.”
I am of the considered view that there is no need to look for other different basis for the dismissal of the appeal because once the claim of plaintiff(s) for proof of title has collapsed, what has been declared is that the plaintiffs’ had not discharged the onus placed on them as to entitle them to the reliefs sought.
On the findings of the trial court Judge, that appellant PW1, Nze Akubuo Osuoha was a false witness whose evidence was not reliable, cannot be disposed as the appellants would want this court to say. At page 127, learned trial Judge was aware that PW1 was the appellants’ star witness who testified on several issues i.e. bound neighbours with the appellants and how ancestors of both parties came to the land in dispute. To accept the evidence of a star witness, the trial court is not to swallow hook line and sinker and without critical and relevant evidence of other witnesses. The trial court is also bound to consider the assertion of the other party during cross-examination showing that a witness has a hidden motive in disparaging the other party. At page 39 of the record, PW1 had clearly admitted that there was a time when the respondents dragged him to court on allegation of murder, though he was discharged. PW 1 claimed that he was 107 years as at the material time he testified, yet he knew and recalled that the respondents had complained to the Police that he killed one Victor, a brother of the respondents. The trial court had every reason to suspect PW1 as a false witness. It was not safe to accept his evidence. PW1 claimed that he had a land boundary with the appellants, but as a neighbouring landowner, he was not aware that the appellants surveyed and made the plan of the land in dispute. He testified under cross-examination as follows:
“I was not present when the plaintiffs made their plan.”
If one may ask, why did not the appellants call PW1 who owned a neighbouring farm to witness that the land in dispute was being surveyed, but used him only as a star witness to support their title to the land in dispute? The appellants further-further pleaded statement of claim at page 51 paragraph 3 did not say that PW 1 has boundary with the land in dispute. Para. 3 states:
“The land in dispute is known and called Ikpa Eziama and situate at Eziama … is bounded as follows: On the North by Njaba Stream; on the South by the land of the plaintiffs; on the East by the land of Umuele; on the West by the land of Akabo.”
Evidence of PW1 that he owned a land Uzo Mmiri bounded by the land in dispute was not pleaded. His evidence was therefore rightly rejected. He was not only a false witness, but useless witness whose evidence was of no use.
Based on the above, appellants’ issue 2(c), which is in pari materia with respondents sole issue is resolved in favour of the respondents.
Appeal is dismissed with costs of N7,000.00 against the appellants.
Other Citations: (2006)LCN/2039(CA)
