Okorie Echi & Ors. V. Joseph Nnamani & Ors (2000)

LAWGLOBAL HUB Lead Judgment Report

EJIWUNMI, J.S.C.

The action that led to this appeal was commenced by the appellants at the High Court of the defunct Anambra State High Court presided over by Okadigbo J. The appellants had in that action sued the respondents claiming the following reliefs:-

“(a) Declaration of title to the piece and parcel of land known as and called Agbirigba and Ogoye situate at Awkunanuw in this judicial division.

(b) N200.00 being general damages for trespass.

(c) An order of perpetual injunction to restrain the defendants their agents and assigns from further trespass into the said land.”

Pleadings were filed, exchanged and amended with the leave of the trial court. Though the respondents were sued jointly by the appellants, the suit was defended upon two separate statements of defence. The 1st-3rd respondents filed their own statement of defence, and the 4th-6th respondents also filed their own separate statement of defence.

At the hearing, both sides, i.e. the appellants and the 1st-3rd respondents, called witnesses in support of their respective cases. The 4th-6th respondents offered no evidence at the trial in the High Court. Exhibits were also admitted in evidence at the trial. The case for the appellants was that the land in dispute was communally enjoyed by them and the two sets of respondents until 1943. The appellants claimed that at a family meeting held that year between the parties, it was resolved that the respondents should be the exclusive owners of Achara Ukwu (now Achara Layout in Enugu) and Owerre Agbai lands. And that the appellants, were given to own exclusively Agbirigba and Ogoye lands. In their capacity as owners of the said lands, the appellants claimed that as owners of the said land, which are now in dispute, they enjoyed maximum acts of ownership over them by farming on them, reaped economic trees thereon, and leased/let out portions thereof.

The 1st-3rd respondents denied that no family meeting was held in 1943 with the appellants and the 4th-6th respondents when lands were shared as claimed by the appellants. They claimed that the appellants as well as the 4th-6th respondents were strangers (Awbias) in Awkunanaw and such do not own any land in common with the free borns (Amadis). They denied that the appellants exercised acts of possession over any part of the disputed lands. The only land that the appellants are entitled to is the Ugwuaji settlement granted to them in 1928 by the free borns. The 4th-6th respondents, were according to the 1st-3rd respondents, equally Awbias whom they also granted land.

The 4th – 6th respondents by their pleadings also, on their part, denied that the lands in dispute belong to the appellants. They claimed that the lands in dispute were jointly owned by them and the 1st- 3rd respondents. Also pleaded was suit No. E/165/71 where it was allegedly held that Achara Ukwu land is jointly owned by the 1st-3rd respondents and the 4th-6th respondents. With the conclusion of the hearing of evidence, and addresses by learned counsel for the parties, the learned trial judge delivered a considered judgment. By that judgment the appellants claims were dismissed. Dissatisfied with that judgment, the appellants appealed to the Court of Appeal. Enugu Division. They lost again in that court, and have now further appealed to this court, following the leave granted to them. At the hearing before this court, the learned counsel appearing for the parties pleaded reliance on their respective briefs, and also addressed the court thereon. The appellants in their brief raised three issues for the determination of the appeal. Also three issues were raised in the brier filed for the 1st-3rd respondents. For the 4th – 6th respondents, two issues were raised in their brief.

After due consideration of the issues so raised in the briefs filed on behalf of the parties, it is my view that the issues set down in the various briefs, are similar in terms of their purport and intent. I will. However, consider this appeal on the basis of the issues identified in the appellants’ brief. They read thus:-

“1. Were the learned Justices of the Court of Appeal right when they held that the failure of the plaintiffs to lead evidence on how the two families (plaintiffs and defendants) acquired title to the lands in dispute was fatal to their claim when the plaintiffs did not rely on traditional evidence in proof of their title’

2. Were the learned Justices of the Court of Appeal right when they held that the plaintiffs did not rely on acts of possession in proof of their title but rather on the alleged sharing of the land in dispute in 1943 If answered in the negative, were the learned Justices of the Court of Appeal right when they failed to investigate the plaintiffs’ complaint that they have proved the ownership of the land in dispute by adducing acts of possession sufficient and numerous to warrant the inference that they were the exclusive owners of the lands in dispute,
3. Were the learned Justices of the Court of Appeal right when they failed to pronounce on issue No, 2 raised by the plaintiffs before them on the ground that a resolution of the said issue is not material for determining the live issue in controversy in this case

On a proper appraisal or issues 1 & 2 raised in the appellants’ brief, I think that they could be conveniently considered together. This is because the argument proffered in their brief and during the oral hearing before us is concerned with whether the court below appreciated their claim with regard to their root of title to the disputed lands. It is therefore argued for the appellants that as the court below had rightly held that the trial court was in error when it held that the appellants relied on traditional history in proof of their title, the court below, however, fell into error by holding that the appellants did not lead evidence of traditional history in support of their case. It was therefore submitted that as the court below contradicted itself by demanding that evidence of traditional evidence should have been led to support appellants’ case, having already held that their case was nor based on traditional history, their appeal should he allowed.

On issue 2, it is contended for the appellants that the court below misdirected itself when it held that the appellants did not rely on acts of possession in proof of their title to the land. But rather on the alleged sharing of the lands in dispute in 1943. It is the further contention of learned counsel for the appellants that as sharing of land is not one of the five methods of proving title to land, the appellants are not required to lead evidence in that regard. Their counsel has therefore argued for the appellants that as their root of title is based on possession, the court below should have accepted their evidence on acts of possession as given in relation to the use to which the disputed land was put by them. In support of all the arguments advanced for the appellants in respect of the two issues, reference was made to the following cases: Nelson Nwosu Onwugbufor & 2ors v. Herbert Okoye & 3ors (1996) 1 NWLR (Pt.424)252; (1996) 1 SCNJ 1 at pages 20-21; Chief Oyelakin Balogun & 2ors v. Oladosun Akanji & Anor (1988) 1 NWLR (Pt.70) 301; (1988) 2 SC (Pt.2) 199 at 239; Wuta Ofei v. Danguah (1961) 1 WLR 1238 at 1243; Osafi v. Odi (1994) 2 NWLR (Pt.325) 125 at 141; Oluwi v. Eniola (1967) NMLR 339 at 340; Adegbite v. Ogunfaolu (1990) 4 NWLR (Pt.146) 578 at 597.

The response of the 1st – 3rd respondents as could be gathered from their brief may be put thus – The court below was right to have observed that the appellants ought to have in the first place pleaded traditional history and led evidence to establish that they were joint owners of the disputed land with the 1st -3rd respondents. This point, it is argued must first be established for the appellants to prove their claim that the disputed land was shared or partitioned to them in 1943. If on the other hand it is held that the Court below was wrong in that regard. That observation is not enough to conclude that there was a miscarriage of justice to entitle the appeal to be allowed. Moreso, as the dismissal of the appellants’ appeal was based on the ground that they failed to establish their claim as per their pleadings.