Lawrence Emenyonu & Ors V. Cyril Ndoh & Ors (2000)
LawGlobal-Hub Lead Judgment Report
IKONGBEH, J.C.A.
The appellants were the plaintiffs before the Imo State High Court, sitting at Orlu. They had taken out a writ of summons, for themselves and as representing the Amano village, against the respondents, claiming a declaration of title to land, damages for trespass, and an order of injunction. Both parties are farmers living in various villages of Eziachi town, of which Amano, the plaintiff’s village, was one.
The plaintiff’s case on their pleading before the trial court was, briefly, that the land in dispute was their homestead where they had lived and farmed from time immemorial. Their ancestors before them had lived, farmed, died, and had been buried there. Each of them traced his root to one Achi, the founder of Eziachi town, through Amonu, one of the five sons of Achi. They claimed to be the descendants of the four sons of Amonu. The land in dispute, they further claimed, was part of Amonu’s share of Achi’s land that he inherited when Achi’s land was shared out. On the death of Amonu, the land devolved on his four sons and then down the line on them and the other Amonu people that they represent. In addition to their root of title, they pleaded various acts of ownership and possession, such as planting economic trees, selling portions of the land to some of the defendant’s respondent’s people, and donating land for community and government projects. They also alleged that they have on a number of occasions successfully maintained court actions against the defendant’s people over the land. The action that gave rise to this appeal was commenced in 1975 because of alleged acts of trespass committed by the defendants in 1974.
The defendants too filed a further amended statement of defence. They joined issue with the plaintiffs on all the important averments by the latter. When the matter was transferred before G.O. Oyudo, J. who eventually heard the case to conclusion, the learned Judge directed counsel for the parties to settle the issues that they thought arose in the case for determination. Counsel jointly formulated and filed 8 issues.
The 1st plaintiff (1st appellant before us) testified as PW1. Two other witnesses testified for the plaintiffs. The 1st defendant (1st respondent before us) testified as DW1. Two other witnesses testified for the defendants.
After all the evidence was taken out before addressing the court counsel, again jointly, modified the issues earlier formulated, scaling them down to 4. These were the issues on the basis of which learned counsel on both sides pressed their respective client’s cases and on which the learned trial Judge decided the case. Considering some of the complaints made before us, these issues are bound to have some impact on this appeal. For this reason, I think I should set them out here:
(1) Whether the plaintiff’s ancestor Amonu was one of the sons of Achi as pleaded and whether Amann inherited the land in dispute from Achi.
(ii) Who were the original settlers on the land in dispute – plaintiffs or defendants?
(iii) What was the origin and traditional history relating to the plaintiffs’ ancestors, Eke Juju, Ohia Eke (Eke bush) and Eke market?
(iv) Whether the plaintiffs and their grantees enjoy exclusively the use front (sic) of the land in dispute as against the defendants.
At the end of the trial the learned Judge delivered a considered judgment on 15/3/93 resolving all four issues against the plaintiffs and, accordingly, dismissing their action in its entirety.
Aggrieved, the plaintiffs have appealed to this court on nine original grounds of appeal. With leave of the Court, they amended their Notice of Appeal and added a tenth ground. Out of the ten grounds the following issues for determination were formulated on behalf of the appellants:
“I. Whether the judgment of the High Court delivered outside the 3 months statutory period after final address of counsel did not amount to miscarriage of justice by reason of the delay, thus rendering it a nullity.
II. Whether the plaintiffs/appellants have discharged the onus of proof in this case as to entitle them to judgment in terms of their claim.
III. Whether the defendants/respondents succeeded in discharging the onus of proof on them that the plaintiffs/ appellants were customary tenants and/ or stranger elements put on the land in dispute by the defendants/respondents/ancestors.
IV. Whether the lower court applied properly or at all the principle of evaluation of evidence as laid down in the case of Mogaji & Ors v. Odofin & Ors (1978) 4 SC P.91.
V. In the alternative, whether in view of the finding of the learned trial Judge that the plaintiffs were customary tenants originally in possession of the land in dispute, it was right for him to have refused the plaintiff’s claim for trespass and injunction”.
Counsel for the respondents formulated the following:
“A. Whether the plaintiffs proved their claims to title to the land in dispute either by traditional evidence, or by acts of ownership as laid down by the decision in Ekpo v. Ita XI NLR 68.
B. Have the plaintiffs exclusive possession of the land in dispute to entitle them to their claims for damages for trespass and for injunction?.
C. Whether the learned trial Judge properly evaluated the evidence before him within the principles of law enunciated in Mogaji v. Odofin (1978) 4 SC 91.
D. Does the delivery of the judgment of the court below on 15/3/93 exactly 3 months and 4 days from the final addresses of counsel occasion a miscarriage of justice to the appellants to warrant a setting aside of the judgment or declaring the same a nullity?.
Looking critically at the grounds of appeal and the issues formulated from them, it appears to me that there are really only two main issues involved in this appeal. They are:-
“1. Whether or not, having regard to the pleadings 3rd the evidence before the trial court, the learned trial Judge was right in dismissing the action of the plaintiffs/appellants.
- Whether or not, in the circumstances of this case, the delivery by the learned trial Judge of his judgment over three months after the final addresses of counsel, contrary to the provisions of Section 258(1) of the 1979 Constitution, rendered the judgment in this case a nullity”.
Thus, I think that only issues I and II in the appellants’ brief and issues A and D in the respondent’s brief are really the necessary ones. All the other issues formulated by counsel on either side are mere subsidiary or ancillary questions leading up to the central issues, i.e. the first issue just identified by me.
I propose to take the second issue first since it is in the nature of a threshold matter. If indeed the judgment was a nullity on account of its having been delivered outside the 3 months time limit and having occasioned a miscarriage of justice then there will be no call to consider any other issues. Mr. H.O. Oyibocha, who settled the appellants’ brief of argument, pointed out that the learned trial Judge delivered his judgment outside the period of three months stipulated in Section 258(1) of the 1979 Constitution. Learned counsel then submitted that:-
“Owning to the time lag between the commencement of addresses through the delivery of final addresses right up to the delivery of judgment the learned trial Judge lost his impression of the witnesses, their demeanour and indeed the evidence which had grown stale in the mind of the learned Judge…”
Learned counsel then drew attention to the observation by the learned Judge at page 222 of the record that:-
“It is not clear from either the further amended statement of claim or the evidence before me whether the four ancestors of the plaintiffs came into Eziachi together or at different times”
and contended that it showed that the learned Judge’s memory had dimmed owing to the passage of time and so he missed what the appellant’s case really was. He pointed out that it was not the case of the appellants that their ancestors migrated into the land. He then complained that because of the dimming of his memory, the Judge was led into confusing it to be so.
Secondly, according to counsel, this observation was made at a time when the Judge was yet to evaluate the evidence before him, thus showing that the Judge had prejudged the issues, whether or not the appellants came by the land as inheritors or as strangers, against them. As counsel made this last point elsewhere while arguing the appeal on the first issue identified by me, I shall reserve further comment on it until the appropriate time.
Let me point out straightaway that Section 258(1) of the Constitution does not stipulate that judgment must be delivered within three months from the commencement of the final addresses but after them. I mention this in passing because of Mr. Anomnachi’s contention embodied in the passage just quoted from his brief. I shall revert to it at the appropriate time.
For the respondents, Mr. Ogbuli, who settled their brief, in his reply pointed out that the judgment could have been delivered on 16/2/93, within time, but for the nation-wide strike action by civil servants or on 8/13/93 but for the absence from court of the appellant’s counsel.
It is beyond dispute that the judgment appealed from was delivered outside the three months time limit. It is clear from the record that final addresses were delivered on 11/12/92. Judgment was, however, not delivered until 15/3/93, a period of three months and four days after the final addresses. I shall now examine the facts and circumstances surrounding the taking of addresses and the delivery of judgment and decide on a broad basis whether or not I should nullify the judgment on account of this apparent infringement of the provisions of Section 258(1) of the Constitution. I can do this by virtue of the amendment effected to Section 258 by Decree 17 of 1985 by the addition of subsection (4), which provides:
“(4) The decision of a court shall not be set aside or treated as a nullity solely on the ground of non-compliance with the provisions of this section unless the court exercising jurisdiction by way of appeal from or review of that decision is satisfied that the party complaining of the non-compliance has suffered a miscarriage of justice by reason thereof”.
It is no longer mandatory on the court to nullify a judgment delivered out of the constitutionally prescribed period of time.
The record of proceedings reveals the following facts. The last witness for the defence concluded his testimony on 30/10/91 and the case was adjourned to 6/11/91. Mr. Ogbuli, for the defendant was, however, absent from court on that day, so the case was further adjourned to 8/11/91 and 29/11/91. He commenced his address on 29/11/91, continued on 9/12/91, and concluded it on 2/3/92. At the instance of Mr. Anomnachi, for the plaintiff, the case was adjourned to 13/3/92 for him to commence his address. However, before that date, on 9/3/92, to be precise, he filed a notice of motion for leave to further amend the further amended statement of claim. There is no record of what transpired on 13/3/92. However, on 20/3/92, Mr. Anomnachi moved his motion part way and had to abandon it because the court observed that the amendments sought had not been cast in the correct format. Counsel then commenced his address. At his instance, however, the matter was further adjourned to 16/4/92 and 30/4/92. On 13/4/92 he re-filed his notice of motion for amendment. On 16/4/92 he was not in court, but sent in a letter asking for adjournment. The court left the case still adjourned to 30/4/92, the second of the dates to which it had earlier been adjourned. There is no record of what transpired that day. On 9/6/92, however, counsel continued his address, which had to be further adjourned to 23/6/92. On this latter date, counsel argued his application for amendment, which was refused. Continuation of address was further adjourned to 21/7/92 at the instance of counsel to enable him consider his next line of action following the refusal of his application. On the adjourned date, counsel continued with his address and the matter was further adjourned to 18/9/92. On that day Mr. Anomnachi handed in a written address and the case was adjourned to 20/11/92 for judgment. On this date, still well within the 3-months time limit, the learned Judge invited counsel to address it further on some aspects of the case. For this purpose he re-opened the case for further addresses on 11/12/92, a date that was still within the 3-months limit from 18/9/92, from which judgment had originally been adjourned. Counsel duly addressed the court on the scheduled date and judgment was reserved to 16/2/93. Judgment was, however, not delivered until 15/3/93, i.e., three months and four days after it had been reserved. The reason for this was recorded in that day’s proceedings as follows:
“P.S.
Mr. Ogbuli drew the attention of the court (sic) that this judgment should have been read on 11/3/93.
court: This judgment was originally adjourned to 16/2/93 but it was caught by the nation-wide strike which started on 3/2/93 and ended on 5/3/93. The fact is that the judgment was ready before 16/3/93 but could not be read because of the nationwide strike by civil servants. When the work resumed on 5/3/93 there was need to reach the parties through their counsel. On 8/3/93, Mr. Ogbuli and both parties were in court and it was agreed that in the absence of the counsel for the plaintiffs the judgment would be put off to 15/3/93 to enable the plaintiffs inform their counsel”.
The following facts stand out glaringly:
- Mr. Ogbuli, for the defendants/respondents concluded his address four months and two days from the conclusion of evidence.
(Between 30/10/91 and 2/3/92)
- Mr. Anomnachi, for the plaintiffs/appellants, on the other hand, took six months, sixteen days, from the date on which Mr. Ogbuli concluded his address, to conclude his first round of addresses. (Between 2/3/92 and 18/9/92)
- At the time the Judge called for further addresses on 11/2/92 the matter was still within time.
- The judgment was prepared before 16/2/93, so that, even assuming that it had been written on that day, it would have taken only two months and five days from the date on which the final addresses were taken.
- The judgment was not read on 16/2/93, to which it had been adjourned, because of the nation-wide strike action embarked upon by civil servants.
- After the strike action was called off it still could not be read on 8/3/93, still within time, because the appellants’ counsel was absent from court and the appellants insisted on waiting for him.
- The reading of the judgment fell outside the time limit by only four or five days.
On these facts and in the circumstances, I cannot agree with the appellants counsel that I ought to nullify the judgment. In the first place, as has been seen, the Judge was out of time by only four days. Also as has been seen, the judgment had been written before 16/2/93, well within time. Had the civil servants in the state not been on strike the judgment would have been validly delivered without any valid ground for complaint about the Judge’s memory having been dimmed by the passage of time between the commencement and completion of final addresses.
In the second place, as will be seen when I come to deal with issue 1, the Judge did not have to depend on his impression of the demeanour of the witnesses to decide the case before him. The crucial question that confronted him, as will be seen, turned on whether or not the appellants had proffered enough admissible evidence to enable them discharge the onus of proof on them. Credibility of witnesses, which is the factor that usually necessitates the calling in aid by the trial Judge of his impression that he may have formed of the witnesses, had no relevance to the crucial question that faced the trial Judge in this case.
In the third place, it will not, on the facts and in the circumstances of this case, be right to allow the appellants to benefit from the unfavourable environment that they themselves and their counsel had brought about. They, through their counsel, inordinately delayed the conclusion of addresses. Then when judgment could have been delivered on 8/3/93, within time, they did not see fit to notify their counsel before hand to enable him be in court on the crucial date. And rather than take the judgment and notify him later of the outcome, they chose to take an adjournment, a step that, in the circumstances guaranteed the delivery of the judgment out of time.
Let me hasten to say this. I do not mean to be understood as saying that if those circumstances have indeed led to the dimming of the Judge’s memory and impression of the witnesses any resultant perverse decision may be allowed to stand merely because the party complaining had brought them about or contributed to bringing them about. Every Judge, in my view, has a duty to properly and accurately appraise the evidence before him and I do not think he can excuse himself from blame by pointing out that it was the fault of one of the parties that he lost track of the facts of the case. Setting aside such a decision is not necessarily a personal reflection on the Judge. It is the demand of justice. Justice demands that the Judge be alert to all the requirements of the case before him, no matter how slovenly the manner in which the parties have conducted their cases. If the case of a party fails it should be because he has not brought it out fully or put it properly before the court. It should not be because the Judge’s memory has, for any reason, failed him and he has lost sight of some of the facts and the impression of the witnesses that he had earlier formed. If it is clear from the record that this has happened the decision is liable to be set aside even, if it had been delivered within time. I will demonstrate when I come to consider issue 1, that the learned Judge in this case was very much abreast of all the relevant facts of the case when he wrote his judgment.
As it has not been shown that the appellants have suffered a miscarriage of justice by reason of the delivery of the judgment outside the 3-month time limit I must resolve issue 2 against the appellants. In the circumstances of this case the delivery of the judgment of the lower court outside the 3-month time limit is saved by the Section 258(4) of the 1979 Constitution as no miscarriage of justice has been shown to have been caused to the appellants.
I now come to the first issue.
Arguing the points covered here in the appellant’s brief of argument, Mr. H.O. Oyibocha complained firstly, that the learned trial Judge did not properly evaluate the evidence before him in line with the guidelines laid down in Mogaji & Ors. v. Odofin & Ors (1978) 4 SC 91, before arriving at his decision to dismiss the appellant’s action. The Judge, it was said, had made up his mind from the outset to dismiss the claim. This last fact, in counsel’s view, is demonstrated by the observation by the Judge at page 222 of the record, earlier noted when I was dealing with the issue 2.
This observation, counsel complained, was prejudicial to the appellant’s cause because, at the time it was made, the Judge had not yet reviewed the evidence before him. He was therefore, in no position at that point in time to decide which side to believe on the point whether the appellant’s ancestor, Amonu, was the son of Achi, the original founder of the land in dispute, or he was a stranger on the land. By thus prematurely expressing preference for the traditional history as given by the respondents to that by the appellants the Judge placed an “unwarranted burden” on the plaintiffs to trace their ancestry to the defendant’s ancestor named ‘Achi’. For this reason counsel feels unhappy with the conclusion by the Judge at page 223 that-
“If the original Achi the ancestral father of Ebenasaa among which Eziachi is one, was not the ancestral grand father of the plaintiffs, then, Amonu must have been a stranger in Eziachi if he existed at all”.
According to counsel, had the Judge properly evaluated the evidence he would have seen that the evidence of PW1 alone more than adequately established the appellant’s ancestral history pleaded in paragraph 5, 5b and 6 of the further amended statement of claim. He would have seen also that there was nothing in the evidence proffered by the respondents that made their ancestral history preferable to the appellants’.
For the respondents, Mr. B.C. Ogbuli submitted that the appellants failed to prove the case they made in paragraphs 5 and 5b of their further amended statement of claim regarding their ancestral history. He contended that the evidence of PW 1 proved nothing in favour of the appellants. On the contrary, it supported the respondents’ case. Counsel submitted further that the Judge based his decision on a critical review of the evidence before him.
I shall now take an overall view of the case and see whether or not the learned Judge was right in his decision to dismiss the action. I shall also be answering the subsidiary questions raised on behalf of the appellants.
The plaintiff’s/appellant’s case before the trial court as to how they came to own the land in dispute was pleaded in paragraphs 5 and 5b of the further amended statement of claim. These averments played a very vital role in the trial court and hold the key to the resolution of some of the major issues contested before us. For this reason, I think I should set them out here together with the defendants/respondent’s answer to them. The paragraphs read:
“5. The land in dispute is the homestead of Amano Village where they have been living from time immemorial, where their ancestors lived and farmed and when they died, were all buried there.
5b. The plaintiffs ancestor is Amonu of the 5 sons of Achi the founder of Eziachi. Amonu inherited the land in dispute as a share of his father’s (Achi) land according to native law and custom of Eziachi people. The plaintiff’s Amonu had 4 sons namely: Ezealaeke, Durumba, Ezealaoha and Dumeke. It is from these 4 sons that Amana derives its name “AMANO” meaning 4 kindreds. These 4 sons of Amonu inherited their father’s land which is the land in dispute.
(i) Ezealaeke begot Ibekwe, Emenaha Aku. Aku begot Dike father of Emenyonu then of Lawrence
the first plaintiff.
(ii) Durumba begot Duruigbo and them begot Ejiofor the father of George the 4th plaintiffs.
(iii) Ezealaoha begot Ezealanwanma, Chukwu, Agu who had Mbagide father of Duru who begot Hyginus the 3rd plaintiff.
(iv) Duruike begot Egbunine who begot Okorie the father of Madukwem who begot Oguike the second plaintiff.
(v) Plaintiffs and their ancestors have inherited the land in dispute of their own right being slave to none and consecrated to no juju.
(vi) The land in dispute is part of Amonu’s land inherited from his father Achi. It is the homestead of plaintiffs. No other village or kindred in Eziachi lives nearer plaintiffs and the land in dispute than one mile”. (Italics mine).
The defendant met the case made by the plaintiffs as regards their root of title in paragraphs 5,5b, 6, 7, and 8 of the further amended statement of defence, which read:
“5. The defendants deny paragraph 5 of the Amended Statement of Claim and in further answer thereto say as follows:
(i) The whole of the plaintiff’s people of Amano live all Eziachi land (Defendants’ land).
(ii) Amano (plaintiffs) are strangers from neighbouring town. Their ancestors originally settled Ground the precincts of Eze Juju Shrine otherwise known as Ohia Eke land shown all the defendants plan upon the sufferance of defendant’s ancestors.
(iii) Defendant’s ancestors viz:- Okwara Chukwu, Okwaraji, Duruaku and Oba admitted the plaintiff’s ancestors viz:- Ezealaeke, Ezealaoha, Durumba and Dumke into their fold, and gave them land to settle all the defendant’s communal land. In course of time, the plaintiff’s people were given portions of land in Eziachi outside Ohia Eke land by various families to live and cultivate. These portions of land are shown on the defendant’s plan.
(iv) The plaintiff’s ancestors in the days of slavery were acquired and consecrated to the Eke Juju of Eziachi, hence their original name OBINEKE. Later in 1956, by a public notice appearing in the Nigerian Spokesman of 27/8/56 they changed their name to AMA-ANO, after their original ancestors. The plaintiffs have no right to land in Eziachi beyond those rights to any land which the defendant’s ancestors and the defendants gave to them.
(v) The defendants deny paragraph 5(b) of the Amended Statement of Claim and further say there was no Eziachi man by the name AMONU. The defendant’s ancestor Achi had seven sons Amonu was not one of them. The plaintiffs descendants of Ezealaeke, Ezealaoha, Durumba and Duruke who were plaintiff’s ancestors, intermarry among themselves. They do not intermarry with Eziachi citizenry.
(vi) The defendants deny paragraphs 5(b)(i), 5(b)(ii), 5(b)(iii), 5(b)(iv), 5(b)(v) and 5(b)(vi) of the Amended Statement of Claim and further say that the plaintiff’s ancestors mentioned herein came to Eziachi at different times and that the plaintiffs and their ancestors lived in an enclave around the juju shrine of “EKE” in Eziachi”.
5b. The defendants deny paragraph 5(b) of the Amended Statement of Claim and say that there was never a name, Amomu, in the history of their ancestors nor in the history of their neighbour strangers, the plaintiffs. Further, the defendant’s ancestor Achi had 7 sons viz;- (1) Eziachi, (2) Umudioka, (4) Umuzike, (5) Amike, (6) Orlu and (7) Umuowa. These are called together Ebe Eziachi Asa.
- The defendants deny paragraph 6 of the Statement of Claim and further say that the plaintiff’s ancestors are strangers to Eziachi Town.
- The defendants admit paragraph 7 of the amended Statement of Claim but say that the plaintiffs enjoy these portions granted them by the defendant’s people only as customary tenants. By the customary law of Eziachi their occupation of the land is subject to good behaviour. They are liable to forfeit such rights by any misbehaviour.
- The defendants admit that the plaintiffs live and farm on the land in dispute but say that it was the defendants and their ancestors who gave the plaintiffs and their ancestors the portions of the land they lived and farm. At the same time the defendants and their ancestors retained and still retain portions of the land where they farm and or build commercial stores. It is admitted that the plaintiffs could and often do sell to the defendants portions of land which the defendant’s ancestors had granted to the plaintiffs. But it is denied that the sale of land to Madam M. Uzoma, Mr. S. Anusonwu was by plaintiffs. These two transactions affected the communal land of Eziachi shown verged green on the defendant’s plan (otherwise described as Offia Eke). They were done clandestinely. Hence by their counsel’s letters dated 5/7/74 and 7/12/74 respectively Eziachi Community warned Madam Uzoma and Mr. S. Anusonwu when the transactions came to their notice. These letters will be founded upon. (Italics mine).
It can thus be seen that the parties firmly joined issue on, inter alia, the very root of title of the appellants. This brings to the fore the first three issues that counsel on both sides submitted to the learned Judge for resolution. I have set them out earlier on in this judgment. The first and, of course, the most crucial question is: Did the appellants prove their root of title pleaded in paragraph 5b of further amended statement of claim?
Now, what was the evidence before the learned Judge on it? Only PW1, (the 1st appellant) and PW2 said anything on the point. The third, and the last, witness for the plaintiffs/appellants. PW3, did not say anything in that direction. In his evidence-in-chief, PW1 testified as follows:
“We descended from Amaonu the son of Eziachi. The Land in dispute was a share of Amonu when Eziachi’s land was shared. Eziachi is otherwise known as Ohie Amaonu had four sons namely: Ezealaeke, Durumba, Ezealaoha and Duruike. I descended from Ezealaeke. The four sons make up Amano village. My father gave me the history of our family. I was not told that our ancestors migrated from somewhere”.
It can be seen straightaway that the italicised portion of the witness’ testimony of the witness was a complete departure from the case pleaded by the appellants. As has been seen, the story on the pleadings was that Amonu, from whom the appellants claimed to have descended, was one of the five sons of Achi. Under cross examination he testified:
“Amaonu was one of the sons of Achi. It is true that Achi had seven sons – viz: Eziachi, Umuna, Umudioka, Umuzike, Amike Orlu, Umuowa. They call Ebe Eziachi Asa. I did not show lands of other sons of Achi in Exhibit ‘A’ because all are now autonomous. I merely showed these sharing a common boundary with us…”
Two points are of note here. It can be seen from the italicised words firstly, that the witness reverted to old story pleaded, namely, that Amonu was one of the sons of Achi. Secondly, it can also be seen that the witness, who was not only the star witness for the appellants, but also was the 1st appellant, confirmed the respondent’s averment in their pleading that Achi was the father of the seven sons listed in the said pleading by the respondents.
The witness continued in cross-examination:
“Amaonu was one the descendants of Eziachi otherwise called Achi for short. I was not told by my father that Eziachi allocated Eke Juju to Amaonu. I have heard the name Okwarachukwu who were descendants of Eziachi now known and called Amato. I have heard of Duruaku as a descendant of Eziachi. The same applies to Umuachi. These three were not the only descendants of Eziachi. Amaonu was one of them.”
Yet another shift in position. The witness reverted to the new story that Amonu was one of the descendants of Eziachi, not Achi. Another twist was added to the story. For the first time it is alleged that Eziachi was also known as Achi, for short. Another noteworthy point here is that the witness confirmed yet another aspect of the respondent’s pleading, i. e. that Okwarachukwu, Duruaku and Umuachi were among the descendants of Eziachi. Be it noted that none of these was among the seven persons admitted by the witness to be the sons of Achi. A clear implication of this is that Achi and Eziachi could not be one and the same person. The significance of this observation will become apparent anon.
Under cross-examination PW2 testified on the point:
“…Amano means four kindreds. I do not know the original Eziachi – nor his sons, etc. I do not know who founded Eke market… I did not know when and how Amano came to live where they now live. I don’t know the degree of relationship between us and Amana people”.
This witness knew nothing of how the appellants’ alleged ancestor, Amonu, came on the land in dispute. He could not, therefore, testify to the appellants’ root of title. The evidence of PW1 (the 1st appellant) was not quite in harmony with their pleadings and with itself. He did not seem able to make up his mind on the answer to the most crucial question whose son his alleged ancestor, Amonu, really was. Was he the son of Achi, who, as the appellants pleaded in paragraph 5b of the further amended pleading, had five only sons? Or was he the son of another Achi, who, as the 1st appellant (PW1) admitted in cross-examination, had seven sons, including Eziachi? Were these two Achis one and the same person? Then, how does one explain away how in one breath he had seven sons and in another he had five? Or was he the son of Eziachi? Was the Eziachi, known as Achi, for short, the same as the Achi of the seven sons? Then how come none of the names of his sons confirmed by PW1 corresponded with the names of the sons of Achi that the witness also confirmed. Who was the father of this Eziachi? Was it Achi of the seven sons or Achi of the five sons? Too many important questions were left unanswered by PW1 to makefor easy understanding of the appellant’s case. Hence the learned trial Judge quite justifiably observed at p. 223 that-
“The plaintiff’s pleadings and their evidence on the traditional history of how the land devolved on them is far from clear …”
Mr. Anomnachi’s argument that there were two Achis, namely- one the founder of Ebenasaa and the other the founder of Eziachi was not specifically pleaded and his submission that the defendants could only join issue on their (plaintiffs) averment that Eziachi was the ancestral father from whom the land in dispute devolved on them is untenable. If the original Achi the ancestral father of Ebenesaa among which Eziachi is one, was not the ancestral grand father of the plaintiffs, then, Amaonu must have been a stranger in Eziachi if he existed at all.
He then referred to the Supreme Court decision in Total Nig. Ltd. & Anor. v. Nwako & Anar. (1978) 5 SC 1 (also reported in 11 NSCC 289), and held that the appellants would not be allowed to led evidence on a root of title different from that pleaded.
Now, in view of the decision in Nwankwo’s case supra, and the fact that there was no other evidence before the trial court besides the confused babble by PW1 I do not think that anybody can fault the learned Judge’s conclusion at p.234 that the appellant’s root of title dried up at source as “the chain cut without linking up to Achi”. This conclusion was quite justified. Any evidence by PW1 to establish any other fact than that Amonu was one of the five sons of Achi went to no issue and was properly rejected by the Judge. Parties are bound by their pleadings.
Learned counsel for the appellants contended that it was irrelevant to dig into the root of title of the appellants beyond Eziachi. With respect, counsel could not be more wrong. The appellants were the party seeking a declaration of title to land. They alleged that Amonu inherited it from his father, Eziachi or Achi. The respondents joined issue on their claims that Eziachi was the founder of the land and that their ancestor, Amonu, had any blood relationship to the line of Achi, the founder of the land.
The law is well settled as to which of the parties has the onus of proof in situations as are present in this case. The law is also settled as to what the claimant has to establish to discharge that onus. The onus was squarely on the appellants as claimant to prove on the balance of probabilities not only the root of title of their immediate predecessor in title but also the root of title of everybody up the chain to the original founder of the land. This court has always followed the principle of law laid down in this regard by the Supreme Court for a long time now. In Odi v. Osafile (1987)2 NWLR(Pt.57) 510,this Court,per Ajose Adeogun, J.C.A.,said at pages 520 – 521 –
“In this particular case on appeal, the respondents, by their pleading, were relying on the ownership and acts of possession by their ancestors’ from which theirs were derived. It is therefore logical that respondents must first successfully establish their ancestors ownership and acts of possession in order to sustain theirs. Otherwise, their own alleged ownership and acts of possession would have no foundation and must crumble.
As already indicated above, the alleged ownership and acts of possession by respondents’ ancestors, forefathers and fathers were not even fully and satisfactorily pleaded, let alone being given in admissible evidence. Thus, the learned trial judge was, in my view, wrong to have found in favour of the respondents on both issues of ownership by inheritance and long possession.”
The point being made above has been well illustrated in the case of Kalio v. Woluchem (1985) 1 NWLR (Pt.4) 610 at page 628 where Karibi-whyte, J.S.C,. observed as follows:-
“The averment in paragraph 3 of the statement of claim suggests unquestionably that respondents relied in their claim on customary title. In the circumstances, they must give evidence of how that title was derived. See Ekpo v. (1932) 11 NLR 68; Thomas v. Preston Holder 12 WACA 78. Abinabina v. Chief Enyimade (1953) AC 207; 12 WACA 171. Thus where title is derived by grant or inheritance, the traditional history or evidence of acts of continuous exclusive possession should be given to justify the grant. See Alade v. Awo (1975) 4 SC 215. In Piaro v. Tenalo & Ors (1976) 12 SC at 31, this court held that in such cases the pleading should aver facts relating to the founding of the land in dispute, the persons who founded the land and exercised original acts of possession, and the person on whom the title in respect of the land was devolved since its first founding, as necessary for determination of the issue in what communal capacity the land was being held.”
In the case now on appeal before us the appellants were obliged, if they were to obtain the declaration they sought, to establish by cogent evidence how Eziachi or Achi came to own the land. They had to prove that Amonu was indeed the son of Eziachi or Achi. They had to prove that he inherited the land from his father. They had to prove how his father became the owner of the land. The learned Judge found their evidence in all these regards far from satisfactory, and with justification too, I may add.
As has been seen, it was Mr. Anomnachi’s complaint that the learned Judge wrongly placed the onus of proof on the appellants. He also argued, in paragraphs 2.6 (p.8) and 3 (pp.12-13) of the amended appellants’ brief, that the onus was on the respondents to prove that the appellants were their customary tenants and that they failed to discharge this onus. This, with respect to counsel, is to look at the matter from the wrong end. The plaintiffs were, as already pointed out, the party seeking a declaration of title to the land in dispute. The respondents did not seek any relief from the court. They were merely repelling the action by the appellants against them. The fact that they pleaded certain facts did not place the persuasive burden on them. They only had the evidential burden of establishing the facts that they had pleaded to enable the Judge employ the imaginary scale to weigh the respective cases of the parties. On the authorities, the court should consider the strength or otherwise of the case of the defendant only if and after it is satisfied that the plaintiff has discharged the onus on him of establishing the case he set up in his pleading. See Duru v. Nwosu (1989) 4 NWLR (Pt.113) 24, at 41, per Nnanani, J.C.S. 49-50, per Oputa, J.S.C., 54-55, per Nnaemeka-Agu, J.S.C. See also Owoade v. Omitola (1988) 2 NWLR (Pt.77) 413, at 420-422. If after the exercise the court is not satisfied that the plaintiff has discharged this onus, then the weakness of the defendant’s case will be of no consequence whatsoever, and the plaintiffs’ claim must fail. See Kodilinye v. Odu (1935) 2 WACA 336, at 337.As has just been seen, the Judge was, with justification, far from being satisfied with the case put forward by the appellants. Whether or not the respondents discharged the evidential onus on them was of little or no moment.
That notwithstanding, however, the Judge did consider their case and was satisfied that they discharged the onus on them. He took the four issues submitted to him by counsel one by one. He considered the pleadings and evidence on both sides and concluded that the respondents made a better case on the balance of probabilities.
On the contention that the Judge was wrong to have preferred the case of the respondents to the appellants, it is trite law that evaluation of evidence and the ascription of probative value is the responsibility primarily of the trial court, where that court has carried out that duty after applying the correct principles an appellate court should not and will not interfere merely because it would have arrived at different conclusion from its own assessment. In the case in hand, the learned Judge, as I have shown, applied the correct principles. What is more, no reasonable tribunal would, on the available evidence, have come to any conclusion contrary to the one that the learned Judge came to. Not only was the evidence of PW1 not supported by the pleadings of the appellants, but also it was sketchy and contradictory. It left many questions, as I showed earlier on, unanswered. On the other hand, the witnesses called by the respondents testified consistently with their pleadings and cogently linking the respondents along an unbroken chain to the original father.
They were even supported in some aspects by the admissions by PW1. In the circumstances, I do not agree with the appellants that the Judge’s decision to accept the respondent’s story in preference to the appellant’s can be faulted. Since the appellants failed to discharge the burden on them of proving their root of title the learned it goes without saying that they were not entitled to the declaration they sought. Nor can they now fall back on long possession and acts of ownership. They had first to have a valid root of title to be able to talk of ownership or acts of it. In the face of the learned Judge’s finding that the respondents had a better title than the appellants the alleged possession by the latter cannot avail against the former.
In all the circumstances, I must hereby resolve issue 1 against the appellants. All the issues having been resolved against the appellants their appeal must fail. Accordingly, I dismiss it. I affirm the decision of the trial court dismissing the appellant’s action. Appellants shall pay costs of this appeal assessed at N3,000.00.
Other Citations: (2000)LCN/0740(CA)
