Raphael Udeze & Ors. V. Paul Chidebe & Ors. (1990)

LawGlobal-Hub Lead Judgment Report

NNAEMEKA-AGU, J.S.C. 

This is a further appeal by the plaintiffs in this case against the dismissal, by the Court of Appeal, Enugu Division, of their appeal against the decision of Awogu, J. (as he then was) sitting in an Onitsha High Court.

The plaintiffs, as representatives of Azize Nnadi family of Amansi village of Ifite Nteje had, in 1974, that is before the Land Use Act, instituted an action against the 1st and 2nd defendants in their personal capacities. The 1st and 2nd defendants are also from Ezize family of Amansi, called Iruatu. On their own application, the 3rd to 5th defendants, and yet the 5th to 8th defendants, applied to be joined. Before the time the case went to trial the 1st to 5th defendants were given leave to defend the action as representatives of the whole of Ifite Nteje, to which the plaintiffs also claim to belong. The 6th to 8th defendants were also defending the action as representatives of Umunnakwe family of Ifite Nteje but they were asserting exclusive ownership of only “Ula” land, part of the land in dispute as originally shown on plaintiffs’ plan no. E/GA/216/74 filed with their statement of claim. The plaintiffs, however, discontinued their claim to Ula land, filed an amended plan no. P.O./E62/80 (exh. A) and discontinued their claim against the 6th to 8th defendants. By the amendment the plaintiffs limited their claim to “Ude Nnofia” land instead of the whole of “Nneofia” land which they were claiming originally. At the conclusion of the trial, 6th to 8th defendants were struck off the suit. So, they are no parties, as a separate unit, to this appeal.

The case for the plaintiffs in the court of trial, as revealed by their further amended statement of claim dated the 26th day of May, 1980, is that they are the exclusive owners of Ude Nnofia land (hereinafter called the land in dispute), and have owned it from time immemorial, exercising diverse acts of ownership and possession over it. They also averred that the defendants used to farm thereon occasionally as plaintiffs’ tenants and with the permission of the plaintiffs, upon payment of tribute up till 1971 when they (defendants) refused to pay any longer.

On the other hand the case for the defendants, as contained in the amended statement of defence dated the 7th day of January, 1975, is that the whole land in dispute is part of Mba Ohia land, which is a communal land of the entire Ifite Nteje community, who also exercised diverse acts of ownership and possession thereon. The plaintiffs are strangers from Nnadi town, near Nsugbe, but resident at Ifite Nteje. The plaintiffs as strangers, and like their fathers, have been allowed to farm the communal lands of the defendants while radical title resides in the defendants.

They also pleaded an Onitsha native council suit no. 282 of 1914 between one Okongwu of Ifite Nteje and Ibezi, Emenife and Ana ofNnadi over part of Mba Ohia land. As a result of that case in which the people of Ifite Nteje had judgment, the boundary between them and the people of Nnadi was held to be Oyi and Oboko streams. Therefore the defendants pleaded res judicata. They averred that the plaintiffs have no radical title to any land in Ifite Nteje and that the area where they now live was granted to them by Iruatu and Akamalu families of Ifite Nteje.

After trial by Awogu, J. (as he then was) he made a number of important findings of facts:

(i) He found that there is no fixed boundary between Nneofia land which the plaintiffs claimed originally and Ude Nneofia which they now claim by their further amended statement of claim and plan.

(ii) He observed that the case was between the plaintiffs as representatives of Ezize family, which they maintain is a part of Amansi, Ifile Nteje, and they claim as exclusive owners, whereas the defendants claim as communal owners for and on behalf of the whole of Ifite Nteje. He noted that defendants’ claim was supported by some people of Amansi to which the plaintiffs belong.

(iii) For the foregoing reason, he held that, as the plaintiffs were a part of Amansi, there should be evidence as to how they came to be exclusive owners, but that there was not. He noted particularly that there was no evidence in support of their case that they inherited the land in dispute, nor as to the root of the title of Ezize which they alleged they inherited.

(iv) He noted that the averment that 1st and 2nd defendants were customary tenants of the plaintiffs was not proved.

(v) As the native council case, exh. C., settled the boundary between Ifite Nteje and Nnadi, it is clear that the land in dispute was on Nteje side of the boundary. He therefore upheld the plea of res judicata in favour of the defendants.

On appeal to the Court of Appeal Enugu Division, that court, by the lead judgment of Macaulay, J.C.A., with which Katsina-Alu and Oguntade, JJ.C.A. concurred, confirmed all the above conclusions on the facts. That court further noted that there was nothing in the defence case to assist the plaintiffs and that the latter failed to discharge the onus of proof on them.

The plaintiff (hereinafter called the appellants) have appealed further to this court. They filed eight grounds of appeal, running altogether to seven pages of typed script. I do not intend to set them out here, as they have been fully taken into account in the issues for determination, as settled by learned counsel for the parties. According to the learned counsel for the appellants, those issues are:

“1. Whether the Court of Appeal was right in affirming the decision of the trial court by holding that the native court case 282 of 1914 (exhibit “C”) operated as res judicata as against the plaintiffs/appellants.

2. Whether the Court of Appeal was duty bound to consider and/or make findings on all the grounds of appeal duly filed and argued by the appellants in their written brief and oral argument and if so, has the failure of the Court of Appeal to consider the complaint on misplacement of burden of proof in this case occasioned grave miscarriage of justice.
3. Whether the Court of Appeal was in error in affirming the decision of the trial court that on pleadings the plaintiffs/appellants assumed a burden to prove exclusive ownership of the land in dispute, in the face of the defendants/ respondents’ admission that the plaintiffs/appellants are in possession; and by its failure to advert its mind to the legal effect of section 145 of the evidence act.

4a. Whether the tendering of the plaintiffs’ plan is sufficient to discharge the onus placed on them in a land case of proving the identity of the land in dispute and its boundaries, where the defendants fail to challenge the said plaintiffs’ plan or where the defendants admit the identity of the said land in dispute.

b. Whether there was any burden placed on the appellants to prove the boundaries or the identity of other family lands in Ifite-Nteje, not in dispute.

5. Whether a photocopy of a plan is admissible in a trial court on the ground that it was tendered by the maker of the original (not tendered).
6. Whether the findings made and conclusion arrived at by the Court of Appeal are supported by the printed record and if not whether such unsupported findings affected the final decision of the court below.”

Learned counsel for the defendants (hereinafter called the respondents) framed the issues somewhat differently, thus-

“1. The respondents adopt the issue No.1 formulated by the appellants.

2. Is there any exceptional circumstance in this case entitling the Supreme Court to interfere and disturb the concurrent findings of the lower courts on issues of fact in a contest between the parties and on which the dismissal of the appellants’ case was based.
3. Did the appellants discharge the onus of proof to exclusive ownership of the land in dispute when faced with the claim of communal ownership by the community to which they belong, even if the issue of res Judicata raised by the respondents was wrongly decided which is denied.
4. Were the contentions of the plaintiffs in their pleadings of ownership from time immemorial and acts of possession and ownership as averred in paragraphs 9, 11 and 12 of their amended statement of claim established by the evidence led by them.
5. Whether there was any evidence from the respondents in this appeal or any admission in their pleadings and plan which supported the appellants’ claim and from which the appellants could draw strength to establish their case and rely on s.145 of the evidence act.”

I wish to begin, as indeed did the learned counsel for the appellants in his submissions, by considering the issue of res judicata, based on the Onitsha native council judgment in suit no. 282 of 1914, exh. C.

Chief Ikeazor, learned counsel submitted that the learned trial Judge was wrong to have upheld the plea of res judicata, based on exh. C., and the Court of Appeal erred by confirming the decision. In his submission, it is perfectly established that for the plea to succeed, the parties, subject matter and issues in the previous case and the case in hand must be the same Alashe v. Ilu (1964) 1 All N.L.R. 390. While conceding it that the plaintiff in exh. C. fought the case as a representative of Ifite Nteje community, he submitted that the case was between Ifite Nteje and Nsugbe; and so, submitted that exh. C. cannot be res judicata in the instant case which is between the people of Ifite Nteje inter se. It could only have been so if it was shown that the appellants were privies or representatives in interest of Nnadi Nsugbe people, the defendants in exh. C. Also, he submitted that it was necessary also to have shown that the parties sued and defended both actions in the same right and capacity. He cited: Marginson v. Black-burn Borough Council (1939) 1 All E. R. 273; Coker v. Sanyaolu (1976) 9 -10 S.C. 203.

In the present suit, he submitted, the appellants are representing not Ifite Nteje community who fought exh. C but Ezize Nnadi family an entirely different entity. All parties to this suit are from Ifite Nteje, he pointed out and Nnadi Nsugbe people who were the other party in exh. C. are strangers to these proceedings. Secondly it was “Oboko” “Nwobia” and Ogbuakwu” lands that were in dispute in exh. C, whereas it is “Ude Nneofia land, a separate, and distinct portion of Mba Ohia, that is in dispute in this case, so the subject matters are not the same in the two suits. Thirdly he submitted that the issues raised by the two suits are different. In exh. C, the central issue was the boundary between the two neighbouring towns, whereas in this, it is whether the land in dispute is communally owned by the whole of Ifite Nteje or separately by Ezize Nnadi family.

In his reply, Mr. Ezeuko, for the respondents pointed out that as exh C was a native court decision. So, it is the substance, and not the form, that is to be regarded: Okumu v. Tsulsu 10 W.A.C.A. 89; Ohene Abuayi III v. Gyebu 3 W.A.C.A. 66

In exh. C., the native court decided that the land litigated therein belonged to Ifite Nteje and that Oyi and Oboko streams are the boundaries, the appellants cannot re-open the issues: Amos Ogbesusi Aro v. Salami Faboude (1983) 2 S.C. 75, 83; (1983) 1 SCNLR. 58.

He further submitted that the parties were the same in that the action in exh. C. was brought by the plaintiff representing the people of Ifite Nteje community. Also the cause of action was the ownership of the lands litigated upon in exh. C, which is within the Oyi and Oboko boundaries.

I believe it is right that I should look at exh. C. from the stand point that, being a decision of a native tribunal, it is the substance and not the form that ought to be regarded. Looking at it from that perspective and taking a close look at the plans filed by the parties in this case, that is exhs. A and B, it is pretty clear that although part of Mba Ohia land mentioned in the judgment were Obuakwu, Nwobia and Oboko lands, yet what is true of them is also true of Nneofia, particularly as the court decided that Oboko stream and Oyi river were the boundaries between the people of Nteje and the people of Nnadi.

I must, however, remember that estoppel per rem judicatam is not a technical doctrine. Put simply, a decision which may estop is one which decided in a previous suit before a tribunal of competent jurisdiction an issue of fact or of law on the same subject matter and which is put again in issue in the instant case between the same parties or their privies. Such a decision may consist of an express judicial declaration, at which case no difficulty in raising a plea of estoppel per rem judicatam arises. At other times, however, it may be a case of inferential judicial determination of disputed questions of law or of fact, deducible from the judgment. This situation usually arises in a case like this where the judgment to be relied upon for the plea was one, as usually, in native court proceedings, reached without the benefit of written pleadings and the plan. The inquiry becomes whether the subject matter and cause of action or issues in the present case are the same with those in the previous case. Once in a judgment in personam, answer is in the affirmative with respect to the subject matter and cause of action or the issues, then it estops the same parties and their privies. See on this Thoday v. Thoday (1964) 1 All E.R. 341; see also Spenur Bower & Turner Res Judicata (2nd Edn.) pp. 146-151.

In the instant case, I must of necessity, approach the problems from two cardinal perspectives. I must bear in mind the fact that, as exh. C was a native court decision, it is the substance and not the form that must be regarded; see Ohene Abuaji III v. Oyebu I W.A.C.A. 66; Mate Novo per Okuma v. Tsutsu 10 W.A.C.A. 89.

Secondly, I must also apply the principle adumbrated by Wigram, V.C. in Hetulerson v. Hetulerson (1843) 3 Hare, 100 at p.114 where he stated:

“The plea of res judicata applies, except in special cases, not only to points upon which the court was actually required by the parties to form an opinion and pronounce a judgment, but to every point which properly belonged to the subject of litigation, and which the parties exercising reasonable diligence, might have brought forward at the time. ”

It is from these two broad principles that I shall now proceed to examine the arguments.

Now the effective judgment in exh. C is brief and runs thus:

“The court decided that the land Obuakwu , Nwobia and Oboku belongs to the plaintiffs and that the streams of Oyi and Oboku should be the boundary between Nteje people and Nnadi. Defendants should pay the costs.”

Clearly a definite pronouncement was made with respect to the named three pieces of land. But the judgment did not stop there. It went further to make a definite pronouncement as to the boundary. Interpreting this aspect of the judgment from the plans filed by both parties in the present suit, that is exhs. “A” and “B”, it is pretty clear that all lands, shown on those plans, lying more or less north of Oboko stream and east of Oyi river were declared the property of Ifite Nteje respondents. And Ude Nneofia land in dispute although not expressly mentioned in the judgment is one of such lands. The learned trial Judge was right therefore when he stated that the land in dispute lies on Ifite Nteje side of the boundary. My conclusion, therefore, is that the subject matter of exh. C. is the same with that of the instant case.

Chief Ikeazor also submitted that the issues are not the same because the former case was as to the boundary between Nnadi Nsugbe and Ifite Nteje, whereas that in the present case is ownership of the land whether exclusively owned by appellants or communally by the respondents. I am inclined to agree with him. It is true that exh. C. decided both ownership and boundary which are also directly or indirectly in issue in the instant case. But it did not go far enough to spell out the type of ownership whether it is owned communally by the entire Ifite Nteje community or communally by the component villages or quarters or personally by the various Ifite Nteje people. I cannot therefore say that the issues decided in exh. C are the same with those in litigation in the present suit.

Also, on the question of parties, I believe, the learned senior advocate for the appellants has a serious point to urge. Exh. “C” was a case between Ifite Nteje, the present defendants (as plaintiffs) and Nnadi Nsugbe as defendants. Although the respondents in the pleading sought to show that the present appellants were strangers from Nnadi Nsugbe, the learned trial Judge did not quite accept that case. He did not find that the appellants were strangers, although he accepted that they were Nnadi people. He decided the case on the basis that it was on intra communal dispute of the people of Ifite Nteje in which the appellants claim to be exclusive owners and the respondents claim ownership on behalf of the entire Ifite Nteje community.

In that state of facts, the question is: can the parties in the two cases be said to be in the same capacity and right when exh. C was fought on the basis of a contest between Nnadi Nsugbe and Ifite Nteje whereas the instant case is between the appellant family of Amansi, Ifite Nteje claiming to be exclusive owners and the whole of Ifite Nteje, claiming to be communal owners of the land in dispute I am of the clear view that by no stretch can the parties in the two cases be said to be suing and defending the suits in the same right and interest. So, if the issue of res judicata were taken as a sole issue and, as often happens, in limine, I would, for these reasons, have had no alternative but to agree with Chief Ikeazor that the learned trial Judge was in error to have held that the decision in exh. C. operates as res judicata in this case. See Mrs. G.A.R. Sosan & 2 Ors v. D.M.B. Ademuyiwa (1986) 3 N W.L.R. (Pt.27) 242, at p. 251; Coker v. Sanyaolu (1976) 9) 10 S.C. 203.

It must be noted in this regard that the great divide between the doctrines of stare decisis and estoppel per rem judicatam is that whereas the former is not concerned with determination of issues between parties as such but with a declaration of law that will ever remain binding on all persons, whether parties to the proceedings or not, and courts of coordinate or inferior jurisdiction in the judicial hierachy, although it may necessarily arise in a lis inter partes estoppel per rem judicatam can only arise and bind parties to the suit who want to relitigate the issues or cause of action on the same subject matter, and in the same right and capacity as in the previous suit. So, if res judicata were the sole issue, I would have resolved it against the respondent for the above reasons.

The issue as to boundary and ownership between Ifite Nteje and Nnadi cannot be relied upon for a plea of res judicata in a case between the people of Ifite Nteje inter se, that is between the respondents representing the whole of Ifite Nteje and the appellants as a part of the people of Amansi village of Ifite Nteje. With the learned Judge’s refusal (quite within his rights) to find that the appellants were Nnadi strangers or to find any connection between them and Nnadi defendants in exh. C, and therefore that they are fighting this case in the same right and capacity as in exh C, one essential ingredient of res judicata was gone. He was therefore wrong when he eventually concluded that exh. C. operated as estoppel per rem judicatam. See Coker v. Sanyaolu (supra).

This is, however, not the end of the matter. For, as a matter of practice, a plea of estoppel per rem judicatam in a land case can be dealt with by the party and the court in one of two ways. Where the decision in the previous suit is clear and self sufficient, then it is usually taken up in limine, often as the only issue. In that case, the success of the party’s case usually depends entirely on the success of the plea. But where, as in this case as is often the case when the previous suit being relied upon for the plea is a decision of a native tribunal, in which there was no plan or pleadings, the court first hears the whole evidence before it can reach its decision on the rightness, or otherwise, of the plea. In the latter case one of two situations may arise. It may be that, when all facts of the previous and present suits have been ascertained from the evidence, it becomes clear that all the ingredients of a successful plea of res judicata emerge. So, the present suit is just an ingenious attempt to relitigate the same issues on the same subject matter and between the same parties and their privies.

Effect must be given to the time honoured principle that nemo debet bis vexari pro uno et eadem causa no man shall be vexed twice for the same cause. On the other hand, a second situation may arise. It may turn out that, as is the case here, although there was a valid and subsisting judgment on the same subject matter as at present in litigation the present defendant cannot take advantage of it as res judicata either because the issues are not the same or because the right and capacity in which the instant suit is being fought is not the same with those in the previous suit even if the subject matter is the same. It does not mean that the previous suit is completely valueless for purposes of the instant suit.

It certainly goes to strengthen the respondents’ case in the present contest James Uluba v. Chief Sillo (1973) 1 S.C. 37, Ajuwa v. Odili (1985) 2 N.W.L.R. (Pt.9) 710. Certainly, the successful assertion of communal title in Ifite Nteje in that previous suit is an important act of possession which the parties thereto can now take advantage of, along with other facts established by evidence. For this see further Kobina Ababio II v. Priest De-Charge, Catholic Mission (1935) 2 W.A.C.A. 380, pp.381-382; where the West African Court of Appeal stated:

“It was strenuously contended by learned counsel on behalf of the appellants that the judgments which were received in evidence before the learned trial Judge on behalf of the respondents (plaintiffs) were inadmissible in as much as the appellants predecessors in title were not parties to the proceedings. On this point Mr. Williams cited several authorities to show that these judgment cannot establish estoppel or res judicata against the appellants.

After reviewing the cases and agreeing that they cannot constitute res judicata, the learned Judge continued:

“These judgments show that for some years the people of Brenu-Akyinm have claimed these lands as their property. Apart from these judgments, which in my opinion, show definite acts of possession, another important fact may be mentioned.”

So, for many years such previous suits in which one of the parties to a land litigation participated have usually been accepted as good evidence of acts of possession. See further on this Mogo Chinwendu v. Nwanegbo Mbamali &: Anor. (1980) 3 – 4 S.C. 31, at p.50. In this case I shall so treat exh. C.

The next question therefore is conceding it, as I must, that the issue of res judicata was wrongly decided was the learned counsel for the respondent, Mr. Ezeuko, right when he submitted that taking exh. C. along with other facts as found by the learned trial Judge, they were enough to sustain the judgments of the courts below. In this respect, therefore, I shall take into account the fact that the case of the whole of Ifite Nteje, which on the above premises includes the appellants, in exh. C, was that the whole land east of Oyi river and north of Oboko stream (which certainly includes the land in dispute) is the communal property of Ifite Nteje. It, therefore, stands to reason that any person or group of persons from Ifite Nteje who assert that they own any land therein exclusively has, by virtue of exh. C., the onus of proof to show it. This is quite apart from the burden usually incumbent on a person or persons who assert exclusive possession or ownership, as against communal ownership, to prove it.

This latter presumption is a residuary and nagging vestige of our traditional concept of land ownership. From ancient times land was customarily conceived as belonging to a community, not to the individuals. Though this traditional concept of land ownership has been dented, and in fact obliterated in some places, by the impact of commercialization and modernity, it has not yet been completely effaced as a feature of our land tenure and ownership. So where an individual or a group asserts exclusive ownership as against a community’s claim to communal ownership, the law is that the onus is on the individual to prove exclusive ownership. In the instant case, the onus is on the appellants as against the respondents who assert communal ownership. See Udeakpu Eze v. Samuel Igiliegbe & Ors. (1952) 14 W.A.C.A. 61; Amodu Tijani v. Secretary, Southern Provinces, Nigeria (1921) A.C. 399.

One of the many findings of the learned trial Judge which finished up the appellants’ case is his conclusion that there is no marked boundary between Nneofia land which they originally claimed, and Ude Nneofia land which they now claim under their amended statement of claim and plan. The amendment, I must note, resulted from their conceding part of Nneofia land as originally claimed by them to the 6th to 8th defendants. As it is so, they have a burden of duty to show that there is a clear boundary between the land, as originally claimed, and the land now being claimed. What now appears on the appellants’ plan, exh. A as the alleged boundary between these two pieces of land is a mere crayon tracing, running from one corner of the plan to the other which separates Ude Nneofia which they assert is their own from the rest of Nneofia land which they have conceded is not their own. No identifiable physical or natural feature has been shown or proved on the alleged boundary between the two. But I must emphasize that when we talk about the clear boundary of a piece of land in a land case, it is an ascertainable boundary of which a surveyor can produce a plan and which any of the parties can identify on the ground. See on this Chief Nyong Etim & Ors. v. Chief Ben Oyo & Ors. (1978) 6 & 7 S.C. 91, at p. 97; Amata & Ors. v. Modekwe & Ors. (1914) W.A.C.A. 580; Udofia v. Afia (1940) 6 W.A.C.A. 216.

It has of course been stated in a number of decided cases beginning from Baruwa v. Ogunsola (1938) 4 W.A.C.A. 159 that the first duty of a person who comes to court for a declaration of title is to prove the area over which he claims with certainty. I believe the law should be regarded as settled that although a plan may not be necessary in cases where the identity and precise boundaries of the piece or parcel of land in dispute are known to the parties to the dispute (for which see Chief Daniel Allison Ibuluya & Ors. v. Tom Benebo Dikibo & Ors. (1976) 6 S.C. 97, p. 107; also Chief Sopui v. Chief Agbozo (1951) 13 W.A.C.A. 241, at p. 242), whereas in this case, there is a dispute as to the boundary or identity or both, such must be proved with certainty. So, on this finding alone the appellants failed to prove their claim for title.

Let me not be misunderstood to be saying that if the appellants claimed a larger piece of land, called Nneofia, but succeeded in proving the boundaries and title to a smaller piece of land, Ude Nneofia, they were bound to fail. To say so would be against the principle of decided cases in which it was decided that in such a case a plaintiff would be entitled to a declaration in respect of the smaller part of the land originally in dispute, the title and boundaries of which they had proved with certainty. In short, the court was entitled and bound to have granted a declaration of title over the smaller piece of land if the evidence so justified it. See on this Okon Owon v. Eto Ndon & Ors. 12 W.A.C.A. 71; Titus Sogunle & Ors. v. Amusa Akerele & Ors. (1967) N.M.L.R. 58; Josiah Sobanjo v. Adesina Ike & Anor. 14 W.A.C.A. 593; and Ajide Arabe v. Ogunbiyi Asanlu (1980) 6-7 S.cC 78, at pp. 85-87.

The problem of the appellants in the instant case is, therefore, not that they now claim title over a smaller piece of land than what they initially claimed. It is that there is no ascertainable boundary between that part of Nneofia land which they now concede as belonging to the 5th to 8th defendants and the southern boundary of Ude Nneofia land which they still maintain is their own. I must therefore, resolve the question raised by issue No. 4a of the above issues for determination as formulated by the appellants against them. It is immaterial, I believe, that the appellants’ plan as tendered and admitted in evidence without objection. Admissibility of a piece of evidence is one thing, whereas its cogency or probative value is quite another. For admissibility the court has to consider all the rules of exclusion and decide whether there are any grounds for which the court cannot look at the evidence at all. This is, even in a jury trial, a question for the Judge to decide. On the other hand, once the evidence has been admitted, the court will then consider what weight to attach to it; what it proves in the con of the issues in controversy between the parties. In a jury trial, this is for the jury. In this case, the fact that the appellants’ plan was admitted without objection will not entitle the Judge to ascribe to it a probative value which it did not otherwise possess when the plan itself is bereft of features which can give the boundaries in it the character of certainty.

Also, from the pleadings, the appellants claimed to be in exclusive possession. This is of course one of the necessary pre-requisites of land ownership. But as found by the learned trial Judge and confirmed by the Court of Appeal, they, as against the rest of the respondents who claim communal ownership, failed to show from their evidence of tradition how that their exclusive ownership originated. Although they live at Ifite Nteje, yet unlike the respondents, they do not claim through Ifite Nteje, but through Ezize. Yet, quite dramatically, from Ezize, their root of title dried at source in that they failed to plead or prove how and when Ezize acquired exclusive ownership, as against the rest of Ifite Nteje to whom they otherwise claim to belong or the rest of Amansi village who support the respondents’ claim to communal ownership. Nor did they say from whom or how Ezize derived his title. It is needless to emphasize that a claim to a declaration of title is not founded upon ownership by prescription under customary law (see K. O. Mogaji & Ors. v. Cadbury Nig. Ltd. (1985) 7 S.C. 59, at pp. 158-160. (1985) 2 N.W.L.R. (Pt.7) 393 per Obaseki, J.S.C.). So, where a person claims entitlement to a declaration of title based, not on numerous and position acts of ownership under the principle in Ekpo v. Ita (1932) 11 N.L.R. 68 as has been discussed and delineated in a number of cases, but on evidence of tradition, it is not enough to show that he has been in possession for a long time. To be entitled to a declaration of title in such a case he must prove the origin and nature of that possession. It follows, therefore, that, in the instant case, the appellants’ failure to show when and how Ezize acquired exclusive ownership as against the communal ownership of the rest of their Amansi village and Ifite Nteje town is fatal to their claim. Their averred root of title fractured on this point.

It is left for me to mention that the courts below also found that although the appellants pleaded that the respondents were their customary tenants who occupy the land in dispute on payment of tribute, they failed to prove such a tenancy. It is significant to note that a customary tenant is in possession of his holding during good behaviour, and until it is forfeited for misbehaviour. Once it is the case that such a person is a customary tenant, and, therefore, in possession, then, like any other person in possession of land, there is a presumption of ownership in his favour. Although that presumption is rebuttable, by due proof of a tenancy the onus is on his adversary to rebut it, if he can. Whereas in this case, the customary tenancy is not proved, such a pleading may turn out to be a dangerous admission of possession in the opposite party, upon which the trial court may base a presumption of ownership, unless, of course, it is rebutted. I shall come back to this when I shall deal with onus of proof. Suffice it to say at this stage that there is great force in the argument of Mr. Ezeuko that the several weighty concurrent findings of fact in favour of the respondent coupled with the clear act of possession implicit in the native court proceedings, exhibit C, clearly put paid to the appellants’ claim to a declaration of title. As, after a careful scrutiny of the above concurrent findings by the two lower courts, I am of the view that they have not been faulted in the arguments before us in that each of them is borne out by the evidence before the court and the conclusions on them are not perverse, unreasonable or unsound; nor has it has been shown affirmatively that some substantial principle of law or of procedure has been violated or that there has been occasioned a miscarriage of justice, I must apply the principle in numerous decisions of this court in many cases. In particular, as they are all findings on primary facts, in contradistinction to inferences from facts, I must take the view that I cannot disturb any of them from printed evidence, even if I might have reached a different conclusion on any of them, which I very much doubt on the state of the evidence in this case. See on these Otuoha Akpapuna & Ors. v. Obi Nzeka & Ors. (1983) 2 SCNLR 1, Victor Woluchem & Ors. v. Chief Simeon Gudi & Ors. (1981) 5 S.C. 3 9, p. 326; Ebba v. Ogodo (1984) 1 SCNLR 372 and Chinwendu v. Mbamali & Anor. (1980) 3 & 4 S.C. 31

These findings virtually conclude this appeal against the appellants.

But learned counsel on their behalf has raised some important issues on possession and onus of proof. Chief Ikeazor has complained most bitterly of the failure of the Court of Appeal to consider ground 9 of the appellants’ amended grounds of appeal. In that ground, he contended that the learned trial Judge was in grave error when he held that the appellants assumed the burden of establishing that they were exclusive owners in possession of the land in dispute, when the respondents admitted that the appellants were in possession. Under section 145 of the evidence act, it should have been, on a proper direction, the burden of the respondent to prove that the appellants (plaintiffs) were not the owners, in so far as the appellants were admitted to be in possession, counsel submitted. This is a fatal misdirection, he argued, because it was fully argued in the brief and ought to have been considered, but was not.

In his reply, Mr. Ezeuko submitted that there was no such admission of possession in the appellants and that, in any event, the crucial question was whether the appellants proved exclusive possession as against the communal ownership claimed by the respondents.

I would like to begin my consideration of the points raised by the above submissions by noting that misdirection results from failure of the court to give due regard to a party’s legal and constitutional right to have the case which he has made, in pursuit of defence, submitted fully and correctly for the consideration of the tribunal. See on this Bray v. Ford (1896) A.C. 44, at p. 49; Wahid Chidiak v. A. K.J. Laguda (1964) N.M.L.R. 123.

Although the concept of misdirection originated in jury trials in which the Judge has a duty to direct the jury fully and correctly, it equally applies in our system in which every Judge in court or other tribunal has a duty to direct himself fully and correctly on every aspect of the case brought by the parties. If he does not direct himself on an important aspect of a party’s case. he is guilty of misdirection by non-direction. Where he puts a party’s case wrongly to himself, he is guilty of a positive act of misdirection. The effect is the same.

It does appear to me that Macaulay. J .C.A., slipped when he stated that the appellants filed and argued eight, and not ten, grounds of appeal. It goes without saying that if the court’s failure to advert to the other two grounds of appeal amounted to a misdirection, it would be fatal to his decision, as any misdirection as to onus probandi will be fatal, if it occasioned a substantial miscarriage of justice. See on this Bray v. Palmer (1953) 1 W.L.R. 1455, Burford v. Burford (1955) 1 W.L.R. 1242

But I must quickly add that the emphasis is on substantial miscarriage of justice, as it is not every slip committed by a Judge in his judgment that will amount to a misdirection, be that by positive misdirection or non-direction, and result in the appeal being allowed. See on this the judgment of the privy council in the case of Nwuba Mora & Ors. v. H.E. Nwalusi & Ors.(962) 1 All N.L.R. 681, at p. 689.

It is true that, as a general proposition, where a party is admitted to be in possession of land in litigation between the parties, the onus is on the other side which is asserting the contrary to prove that he is not the owner of the land. See section 145 of the Evidence Act; also Onobruchere v Esegine & Anor. (1986) 2 S.C. 385 (1986) 1 N.W.L.R. (Pt. 19) 799. But the real problem of such cases is that quite often, as in this case, there is tendency to confuse possession with mere occupation. “Occupation” as used in relation to land entails mere physical control of the land in the time being. It is a matter of fact. Such a control may have originated from permission from the true owner; it may have been by stealth; or it may be a tortious trespass. Possession of land, on the other hand, may, sometimes entail or even coincide with, occupation of it but is not necessarily always synonymous or contemnous with it. A man, such as a landlord who collects rents from his tenants, may be in legal possession of the land even though he does not set his foot on it. This is why distinction is often made between de facto possession, which is mere occupation, and de jure possession which entails possession animo possidendi with that amount of occupation, control or even, sometimes, the right to occupy at will sufficient to exclude other persons from interfering. See Lasisi Akanni Buraimoh v. Rebecca Ayinke Bamgbose (1989) 1 N.W.L.R. (Pt. 109) 352. at p. 366.

Within the meaning of this concept of possession a man ordinarily living in Maiduguri may be in possession of a vacant house in Lagos if he is in possession of the keys. But, in my opinion, that possession the admission of which is capable of raising a presumption of ownership of land under section 145 of the evidence act must be that which amounts to de jure exclusive possession, not mere occupation.

It is from the above concept of possession that I shall now examine whether there was an admission by the respondents that the land in dispute was in the possession of the appellants. Learned counsel for the appellants pointed out that in paragraph 7 and 7(a) of the appellants’ further amended statement of claim they averred that they were in possession of the land in dispute. This was not only not denied in the defence but was confirmed in paragraph 6 of the statement of defence filed by the respondents, he contended. Now in paragraphs 7 and 7a of the further amended statement of defence filed on the 26th of September, 1980, the appellants averred, inter alia, that they “exclusively controlled and managed the land in dispute.” The respondents who had filed their defence on 8/2/75 did not further amend their statement of defence. Paragraphs 6 and 7 of this pleading runs as follows:

“6. In further answer thereto, the defendants say that the plaintiffs like their fathers before them are strangers from Nnadi near Nsugbe and resident at Ifite Nteje on the sufferance of the said Ifite Nteje people. Like their fathers before them they have been allowed to farm the communal land of the defendants while the radical title resides on the defendants the owners of the land from time immemorial.

7. In exercise of maximum acts of ownership and possession over the entire “Mba Ofia” land, the defendants farm the said land reap the fruits of economic trees therein, show the said land to seasonal tenants who farm the land on payment of tribute, without any let or hinderance from the plaintiffs or anybody else. The defendants have brought and defended actions in respect of the several pieces of “Mba Ofia” land.”

For me to decide whether or not the respondents admitted appellants’ possession of the land in dispute, I must look at the defence pleading as a whole. See Pan Asian African Co. Ltd. v. National Insurance Co. (Nig.) Ltd. (1982) 9 S.C. 1, p.48. If I do, the only conclusion I can reach is, putting it at the highest in favour of the appellants, that both parties farm the land in dispute. There is no admission of exclusive possession to raise the presumption of ownership under section 145 of the evidence act in their favour.

But assuming, but not conceding that there was an admission of possession, the presumption would still not have been available to them on the nature of the case which the respondents brought to court. Respondents’ case is that of communal ownership. So any supposed admission they were alleged to have made must be considered on the basis of that case.

It is trite that once it is claimed that land is communally owned, it instantly conjures up a number of vagaries incidental to our indigenous system of tenure and ownership of land. Among them are the rights of the head of the community (Okpala in Ibo land) to allocate parcels thereof on condition of varying occupational rights, ranging from separate ownership to mere temporary occupation. Can it be stated that once a person is shown to be in occupation of a parcel of land which forms part of land communally owned, he should be presumed to be the owner I think not. Moreover it has been held in a number of cases, such as Eze v. Igiliegbe (1952) 14 W.A.C.A. 61; vie v. Onoriobokirhe (1957) WR.N.L.R. 169, p.170 that the burden is on the person claiming that land has ceased to be communal property to prove such a claim. So, on this principle there is a presumption in favour of communal ownership, at least in such areas as Ifite Nteje which have not been shown to have come under the pressure of commercialization. The presumption set against that under section 145 of the evidence act sets the matter at large. In my view, as against a member of the same community no presumption of ownership will arise by mere de facto possession of part of a communal land, the nature and effect of such a possession ought to be a matter of evidence.

I do not see how issues numbered 5 and 6 in the respondents’ brief arose from the grounds of appeal before the court. And the respondent did not cross appeal after they were settled by the Court of Appeal. I need not deal with them.

It follows therefore from what I have been saying that the failure of Macaulay, J.C.A., to directly consider ground 9 of the grounds of appeal, although an obvious slip, has not occasioned a miscarriage of justice. It was enough that he directed himself correctly all through as to the burden of proof incumbent on the appellants, which they failed to discharge. The appeal is hereby dismissed, with N500.00 costs to the respondents.

I must express my appreciation to counsel on both sides for the industry and expertise they exhibited in their briefs and oral argument.

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Other Citation: (1990) LCN/2446(SC)