Christian Ewo & 3 Ors Vs Ogbodo Ani & 17 Ors (2004)

LAWGLOBAL HUB Lead Judgment Report

KUTIGI, J.S.C.

In the Enugu High Court, the plaintiffs in paragraph 19 of their statement of claim, claim against the defendants jointly and severally as follows –

1. Declaration of title of communal ownership by plaintiffs and 1st – 15th defendants of all that piece and parcel of land known as and called “IDUNE” situate in UGWUAJI, AWKUNANAW, NKANU DIVISION, more clearly shown and delineated in the plaintiffs’ plan No. E/GAO/1170 of 28/8170 attached herewith.
2. E150 (one hundred and fifty pounds) general damages for trespass committed by the defendants on the said land.
3. A PERPETUAL INJUNCTION restraining the defendants, their servants and/or agents from entering the land in dispute and in any manner whatsoever interfering with the said land without the prior consent of the plaintiffs.”

The defendants in paragraphs 15 & 16 of their amended statement of defence averred thus:

“15. The plaintiffs are not entitled as claimed in paragraph 19(1), (2), (3) of the statement of claim at all. The defendants would pray the court to dismiss this suit.

16. The defendants will at the trial show as follows:
17. That this suit is misconceived, frivolous and ought to be dismissed.
18. That the plaintiffs have no communal land with the defendants 1 – 15 and their people.
19. That the plaintiffs have brought this action out of sheer greed.”

After the filing and exchange of pleadings the case proceeded to trial, At the trial each side called witnesses in support of its case. In a considered judgment the learned trial Judge, Okagbue, J., after carefully, reviewing the evidence before him came to the conclusion that the plaintiffs woefully failed to prove that the land in dispute is held by the parties herein in common. Plaintiffs’ case was therefore dismissed with costs.

Dissatisfied with the judgment of the trial court, the plaintiffs appealed to the Court of Appeal holden at Enugu. In a reserved judgment the Court of Appeal unanimously allowed the appeal, set aside the judgment of the learned trial Judge and entered judgment in favour of the plaintiffs as claimed.

Aggrieved by the decision of the Court of Appeal the defendants have now appealed to this court on a number of grounds. In obedience to the rules of court, the parties filed and exchanged briefs of argument which were adopted and relied upon at the hearing.

Dr. Oguagha learned counsel for the defendants has on page 5 of his brief identified six (6) issues as arising for determination in this appeal. But having regard to the judgments of both the trial High Court and that of the Court of Appeal which I have read, only issues 1, and 3 are necessary for resolution in this appeal since they are the core issues and formed the basis of those judgments. In other words those judgments revolve around “traditional evidence” and the “onus of proof.” The issues are –

“1. Whether the Court of Appeal was right in coming to the conclusion that the plaintiffs pleaded and proved traditional history which ought to be accepted if the defendants did not plead and prove another version of traditional history,

2. Whether the Court of Appeal was right to have shifted the onus of proof of ownership on the defendants, and if it was not, what is the effect of such an error.

I will now proceed to treat the issues.

Issue (1)

It was submitted that the Court of Appeal was in error when it held that the plaintiffs pleaded and proved evidence of tradition and based on that reversed the trial Court and entered judgment for the plaintiffs. Dr. Oguagha said what the plaintiffs pleaded and proved was not evidence of tradition, but evidence of contemporary events. That issues on which living witnesses and written agreements can be found are not traditional evidence. He said the plaintiffs did not only fail to plead the origin of the land in dispute and its devolution from generation to generation and how their ancestors came on the land in dispute, but that they also failed to prove any of these requirements. A number of cases were cited in support including Kojo II v. Bonsie (1957) 1 WLR 1223; Ogunleye v. Oni (1990) 2 NWLR (Pt.135) 745; Bamgbose v. Oshoko (1988) 2 NWLR (Pt.78) 509; Olawuyi v.Adeyemi (1990) 4 NWLR (Pt. 147) 746.

He said the agreements, exhibits B & E, tendered by the plaintiffs and which the Court of Appeal relied upon, were of no value as no effort was made to show that the parties to those agreements are the same as those in the present suit. It could not also be proved that the lands in those agreements are the same as that in the present suit. The learned trial Judge therefore rightly rejected those exhibits and the Court of Appeal was to have relied on them. We were referred to the case of Mogaji & Ors. v. Odofin (1978) 4 SC 91.

Mr. Ofodile learned counsel for the respondents first of all made an observation to the effect that the judgment of the Court of Appeal was not based on his current appellants’ further amended brief of argument copied on pages 137 – 149 of the record wherein he raised six (6) issues for determination in that court. He said the judgment was based on his abandoned appellants’ amended brief of argument from where he treated the three (3) issues set out on page 176 of the record of appeal. It was therefore contended that the plaintiffs were not given a fair hearing because only the three (3) issues in the abandoned appellants’ amended brief were considered, and not the six (6) issues contained in the appellants’ further amended brief even though the plaintiffs still won the appeal. That he would not oppose going for a re-hearing of the appeal in the Court of Appeal. Dr. Oguagha is of course opposed to this idea. That the plaintiff had won in the Court of Appeal and there was no need for a re-hearing in that court. He wanted the appeal to be heard on its merit. My short answer to this is that as I have said above, after reading the judgments of both the High Court and that of the Court of Appeal, the three (3) issues set out on page 176 of the record and which were considered by the Court of Appeal formed the basis of the judgment in the High Court as well as in the appellants’ further amended brief. They all in the main deal with “traditional evidence” and “onus of proof.” They are also the same issues that are presently being considered in this appeal. I therefore rule that the plaintiffs were given a fair hearing in the Court of Appeal and that they were not prejudiced in anyway. Infact the judgment was in their favour.