Anselm Chiejina Nwaeseh & Anor V. Godfrey Obiesie Nwaeseh (1999)
LawGlobal-Hub Lead Judgment Report
M.D. MUHAMMAD, J.C.A.
The appellants in this appeal were plaintiffs in suit No. 0/397/88 at High Court Onitsha Anambra State where a writ was taken out against the respondent before us who was the defendant then. The appellants were claiming the following reliefs:-
(i) Declaration that the property situate, known and called No. 19A Tasia Road (sic) is the family property of Nwaeseh and that under Onitsha Native Law and Custom only the male descendants of Nwaeseh are jointly entitled to inherit the property.
(ii) That under Onitsha Native Law and Custom all female descendants of Nwaeseh and their issues are not entitled to inherit the said property.
(iii) Possession of the property known as and situate at No. 19A Tasia Road, Onitsha from the defendant whose annual value is N50.00 (Fifty Naira).
(iv) Injunction restraining the defendant, his agents or privies from further acts of trespass on the said property.
Appellants’ case before the trial court was that they were descendants of one Nwaeseh of the Alamuzo family in Ogbeodogwu village Onitsha. In 1961 the Nwaeseh family lost out in a land suit No. 0/122/61 which loss rendered the family almost homeless. The plight of the family was considered by the Alamuzo family which in 1964 attempted to alleviate same. Consequently, the Alamuzo family under the headship of Akunwata Nwagbogu donated a plot of land to the entire Nwaeseh family. These facts are the import of paragraphs 4,5,6,7 and 8 of appellant’s statement of claim at p. 5 and 6 of the print record.
By paragraphs 10, 11, 13, 14 and 15 of their statement of claim, appellant’s further averred that Amechi Nwaeseh 2nd appellant’s father, who took the land for and on behalf of the Nwaeseh family, erected a house where the appellants all resided. The said Amechi was buried on the land now known as No. 19B Tasia Road Onitsha the subject matter of the dispute in the suit at the trial High Court, appellants in paragraphs 9, 16 and 17 of their statement, further averred that neither the respondent nor his father Martin Onyekwelu who being descendants of a female member (Nwadiani) of the Nwaeseh family had any rightful claim to the disputed family land.
It was also appellants’ case that they later left their family abode situate at the disputed land for rented accommodation; that in 1987 when respondent’s father died and was sought to be buried on the family land in dispute, appellants opposed the burial by instituting a civil suit at the customary court. The action failed on technical grounds; that it was after the death of respondent’s father that respondent began claiming the disputed property as a personal inheritance. Respondent continued to deny appellants into the properly thereby forcing them to institute the action at the court below.
On the other hand, the case of the respondent was that the disputed land was a personal grant. The grant of the land in dispute was effected by elders of Ogbeodogwu village in 1964 to his late Father Manin Onyekwelu who prepared a building plan in his name and developed same just before the civil war. The said Onyekwelu had occupied the building situate on the disputed land until his death in 1987. At the same meeting during which the personal grant of the disputed land was made to respondent’s father, Mr. Amechi was asked by elders of Ogbeodogwu to go and build in the ancestral land held by the head of the Alamuzo family. He failed to do so.
In 1981, the respondent claimed, the 1st appellant forced himself unto the disputed land. 1st Appellant made an illegal foundation which was, pursuant to a written protest by respondent’s father, proscribed by the Onitsha Local Government. It was respondent’s further case that in 1983, the Akpe of Onitsha, the political head of Ogbeodogwu village who, as an ordinary lifted man in 1964, attended the meeting wherein the personal grant of the disputed land was made to respondent’s father, made an explanatory memorandum for the parties. The memorandum contained decisions taken in the 1964 meeting. The respondent further claimed that the issue of his being an Nwadiani could only have arisen in inheritance of a family land and not in respect of a primary grant made to his Nwadiani father. Such a grant by custom was permissible. Finally, the respondent’s case was that his father allowed the burial of Amaechi Nwaeseh at the rear of the disputed land in order to obviate shame to the family and that respondent’s father being the owner of the disputed land was buried in the front.
The parties having exchanged pleadings and had issues joined, proceeded to trial. The main issue for determination at the trial was whether the land in dispute was a grant to Amechi Nwaeseh for and on behalf of the Nwaeseh family or a personal grant to the respondent’s father by the 1964 meeting of the Elders of Ogbeodogwu. At the end of trial, the judge adjudged that the disputed land was granted personally to the respondent’s father Mr. Martin Nwaeseh and dismissed the appellants’ case. Being dissatisfied with the decision of the trial court, the appellants filed this appeal. Briefs were filed, and adopted as arguments for the appeal.
The appellant’s brief contain three issues for determination in this appeal. These are:-
(i) Who granted the land in dispute and to whom was it granted?
(ii) Was the evidence regarding the status of the defendant’s father in the plaintiff’s Nwaeseh family and whether he had right to inherit family property under Onitsha Native Law and Custom properly evaluated?
(iii) Did the plaintiffs discharge the burden on them improving that the land in dispute was granted to the 2nd plaintiff’s late father as family land?
The respondent formulated four issues for determination as follows:-
(1) To whom was the land in dispute granted at the meeting of the elders of Ogbeodogwu village Onitsha in 1964 Amaechi Nwaeseh for Nwaeseh family or Martin Nwaeseh for his own occupation?
(2) Was the meetings of 1964 that of the elders of Ogbeodogwu village or that of the elders of Alamuzo family?
(3) Having found that the land in dispute was not the family property of the Nwaeseh family, which is said not to be inheritable by a Nwadiani (the son of a female member of the family) but a grant to the said Nwadiani, did the court need to go into the issue of the general capacity of a Nwadiani to inherit land under Onitsha Customary Law?
(4) Whose case as between that of the appellants and the respondent has more weight on the balance of probabilities?
Appellants’ under their first and 3rd issues referred to paragraphs 3, 4 and 8 of their pleadings and submitted that evidence of PW1 at P. 15 lines 9-15, P. 20 lines 30-31; p. 23 lines 1-6, p. 24 lines 25-29 and P. 251ines 16-27; P.w.2 at p.27 lines 18-23; P.W.4 at p.32 lines 13-20 and P.W.5 at p. 35 lines 16-17 had gone in proof of their claim as contained in their pleadings. It was averred and proved that the land in dispute was donated by the Alamuzo family to elders of Ogbeodogwu village who granted same to Amaechi Nwaeseh to hold for and on behalf of the Nwaeseh family. The event took place in 1964.
Respondent on the other hand, appellants contended, was ambivalent in his pleadings as to who made the grant. No where in his pleadings was it indicated that the Alamuzo family donated the disputed land. Appellants further contended that the respondent only referred to the Alamuzo family in his evidence under cross examination and since he did not plead same the evidence went to no issue. If respondent’s evidence under cross examination was allowed it would then mean that he had contradicted himself and appellants should be allowed to rely on this weakness in the respondent’s case. Appellants cited the following cases to support their arguments:-
Akintola v. Oluwo (1962) 1 SCNLR 352 All NLR 224; (1962) 1 SCNLR pg. 352 Ibeziako v. Nwagbogu (1972) All NLR (Pt.2) Pg. 200; (1972) 6 SC 53; and Ehimare v. Emhonyon 1 (1985) 1 NWLR (Pt. 2) 177.
It was appellants further contention under this issue that the court in its evaluation of the evidence pertaining the grant of the land particularly at P. 65 lines 17-36, P. 66 lines 4-8, the court failed to take into consideration the totality of the evidence led in proof of the grant and this failure led to miscarriage of justice. Appellants’ cited the case of Clay Industries Nigeria Limited v. Aina & Ors (1997) 8 NWLR (Pt. 516) pg. 208.
The appellants contended thereunder in their brief that since respondent was claiming family land exclusively it was his burden to prove his case his circumstance being an exception to the general rule regarding the burden of proof. Appellants’ referred to Adenle v. Oyegbade (1967) NMLR 136 at 138; Atuanya v. Onyejekwe & Anor (1975) 1 All NLR 62 at 65; Udeze v. Chidebe (1990) 1 NWLR (Pt. 125) pg. 141 and Ibero v. Ume-Ohana (1993) 2 NWLR (Pt. 277) Pg. 510 and submitted that since respondent did not discharge this burden, the court should have found for them, appellants submitted that in particular exh.H on which the respondent anchored his claim had been discountenanced by the court. The trial court had no basis of attaching the weight it did on the oral evidence adduced by the respondent. Fashanu v. Adekoya (1974) 1 All NLR 34 at 48; (1974) 6 SC Pg.83 and Eholor v. Osayande (1992) 6 NWLR (Pt. 249) Pg. 524 referred to Appellants further contended that in the absence of proof of personal grant on the part of respondent no amount of evidence of the exercise of ownership right of possession will entitle respondent to the disputed land. This position appellants submit have been held to be the law in Shelle v. Chief Asajon (1957) 2 FSC 65 at 67 (1957) SCNLR 286 and Adenle v. Oyagbade (supra).
Finally, if the relative strength of the cases of the two parties had been duly considered, argued the appellants, the court would have found for the appellants. They had proved grant and sufficient act of ownership of the disputed land. The decision of the trial court being perverse should be set-aside by virtue of the decisions in Arase v. Arase (1981) 5 SC 33 at 35 and Anyaduba v. Nigerian Renowned Trading Company Limited (1992) 5 NWLR (Pt. 243) 535 at 564.
In arguing their 2nd issue, appellants submitted that the trial court had also failed to consider the status of the respondent vis-a-vis his claim to the ownership of family property. It was their contention that under Onitsha Native Law and Custom the respondent being a “Nwadiani” was not entitled to the inheritance of family property.
Appellants urged that the Appeal be allowed. The respondent argued his 1st, 2nd and 4th issues together. In these arguments he conceded that parties were bound by their pleadings and like the appellants referred to the relevant paragraphs of the pleadings i.e. 3, 4 and 8 in respect of the statement of claim and 3, 4 and 16(a) of the statement of defence to define the case of the parties. He conceded further that evidence led outside of pleaded facts must be ignored as same would have gone to no issue. Respondent in his brief relied on the following authorities: Aniemeka Emegokwue v. James Okadigbo (1973) All NLR (Pt. 1) 379; George & Ors v. Diminion Flour Mills Ltd. (1963) All NLR 71; (1963) 1 SCNLR 117: National Investment & Properties Compmy v. Thompson Organization Limited & Ors. (1969) 1 NMLR 99.
The respondent contended that although he did not specifically plead that the disputed land was donated by the Alamuzo family, like the appellants, he did plead that the disputed land was granted by the elders of Ogbeodogwu in a meeting held for that purpose in 1964. Furthermore, under cross examination, the fact was admitted to by respondent at P.45 Lines 20. The court, submitted the respondent, based all the entire pleadings and evidence found that there was only one and the same meeting in respect of the grant of the disputed land in 1964 in which the grant was made to respondent’s father. A finding of fact by the trial court based on the pleadings and evidence of parties should not be interfered with on appeal. Respondent relied on the following cases: Chief Patrick A. Abusomwan v. Mercantile Bank of Nigeria Limited (1987) 6 SCNJ 146; (1987) 3 NWLR (Pt.60) pg. 196; Sunday Nwosa v. Board of Customs & Excise (1988) 12 SCNJ 313; 5 NWLR (Pt.93) pg. 225; Benedict Agwunedu & ors v. Christopher Onwumere (1994) 1 SCNJ 106; 1 NWLR (Pt. 321) pg. 375; Jadauna Joel Gukas v. Jos Int. Breweries Limited (1991) 6 NWLR (Pt.199) pg. 614 and Hyancenth Nwachukwu Nzeribe v. Dave Engineering Limited (1994) 9 SCNJ 161; (1994) 8 NWLR (Pt.361) pg. 124 and urged this court to affirm the findings of the lower court.
Regarding his 3rd issue, respondent submitted that since the court had found that the disputed land was a personal grant to his father and not to Amechi Nwaeseh to hold for and on behalf of Nwaeseh family, it became unnecessary for the court to consider the capacity of the grantee as an Nwadiani respondent cited the decisions in Louis Oniah v. Chief Obi J.I.G. Onyia (1989) 1 NWLR (Pt. 99) 514 to support his argument. He urged that the lower courts decision be affirmed and that the Appeal be dismissed.
From the state of pleadings of the parties the only outstanding issue is to whom the grant of the disputed land was made. Appellants in their brief have contended that respondent in his pleadings did not indicate that the land in dispute was donated by the Alamuzo family and that the lapse was fatal to his case. I do not subscribe to this view.
Much as it is the rule that parties should not adduce evidence which goes outside their pleaded facts, the real essence of pleadings is to compel parties to delimit the issues which shall form the basis of contest as accurately and precisely as possible in order to avoid surprise to the other party. Once by the pleadings of the one, the other is able to ascertain the issues between them and the court of trial is able to determine the limits and extent of such issues as well as the scope of the evidence open to parties to adduce in the contest, the rules pertaining to sufficiency, accuracy, comprehensiveness and freedom from ambiguity required of pleadings would have been complied with. See Ukaegbu v. Ugoji (1991) 6 NWLR (Pt. 196) 127 at 155 and 156; SC; and Ugbodume v. Abiegbe (1991) 8 NWLR (Pt. 209) at 261 at 272 SC.
In respondent’s pleadings sufficient facts had been averred to and both the appellants and the court had been put on sufficient notice as to who made the alleged grant of the land in dispute and to whom and what evidence was likely to be adduced in proof of such a pleaded fact.
In proof of their case the appellants testified and called other witnesses. The evidence of P.W.1 at p.15 lines 9-15, p. 24 lines 25-29, p. 20 lines 30-31, p.23 lines 1-6; p.25 lines 16-27; P.W.2 at p.27 lines 18 to 23; P.W.4 at P. 32 lines 13-20 and P.W.5 at p.35 lines 16-17 was all geared towards proving to and by whom the land in dispute was granted.
The respondent’s proof of the main issue in controversy between the parties was channeled through the testimonies of DW1 at page 33-36 and D.W.2 p. 68 lines 8-15.
The trial court considered the evidence of these witnesses at P.65 lines 33-36: P.66 line 1; P. 67 lines 18-23.
Here I must re-emphasize an age long principle which has become trite: The sacred duty of assessing and evaluating material evidence is exclusively within the domain of the trial judge. The judge at that level must not only discharge the imperative, he must be seen to have done so clearly and fairly too. By this very imperative he gives consideration to the evidence adduced, ascribing probative value to same. It is after the discharge of this primary duty of evaluation of the quality of the evidence adduced and the credibility of those who deposed to same that the judge then finds for that party whose evidence by preponderance weighs more. Where this duty is fully discharged it will not be open for the appellate court to interfere and off-set a finding so meticulously and fairly reached. See Mogaji v. Udofin (1978) 4 SC 91; and Ezeoke v. Nwagbo (1988) 1 NWLR (Pt. 72) 616.
In the instant Appeal I am satisfied that in its evaluation of the evidence relating to whom and by whom the grant of the disputed land was made as recounted above and its subsequent consideration of the evidence regarding who erected the building on the disputed land as contained at P.67-69; the court had discharged the duty placed on it by the law. It is not possible to interfere at this stage with both findings of fact.
Appellants had made one contention of which specific note need to be made of here. They argued that since respondent had anchored the proof of his title to the disputed land on a document since same had been discountenanced, it was not open to the respondent to rely on the oral evidence he adduced at trial. I am unable to agree with appellants in their contention.
Proof of a person’s case by documentary means is one manner which the law in s.75 and s. 90 of the Evidence Act allows a litigant to adopt. Where the document is relied upon as an extra measure to establish one’s case, its negation or disregard by the trial court would not, as in the instant case, prove fatal to the eventual decision of that court.
The truth is, as submitted by counsel on both sides that in an action for declaration of title to land the burden, except where the land in dispute is a family land, is on the plaintiff who must succeed on the strength of his case. I further agree particularly with appellants’ counsel here that a plaintiff can take advantage of any evidence adduced by the defendants which tends to support the plaintiff’s case. But that is as far as my agreement with appellants’ counsel would go. See Kodilinye v. Odu (1935) 2 WACA 336; Madubonwu v. Nnalue (1999) 11 NWLR (Pt. 628) 673 at 681. There was nothing in the evidence of the respondent which tended to support the case of the appellants in this case.
The evidence adduced by the respondent through the testimony of DW2 had rebutted the presumption that the land in dispute was family land and as such the respondent could not exclusively be entitled to it. The onus of proof from that point had shifted to the appellants and this burden the appellants as plaintiffs had failed to discharge. Not surprisingly but correctly too, the trial court found that appellants having failed to shoulder the burden of proof in respect of their claim, they were not entitled to the claim they made.
It is no longer open to doubt that as a general rule no amount of use or the length of period of usage could confer ownership on such a user, it behoves such a party to prove his title in the first place in order to justify the use to which the land in dispute had been put to. Enjoyment of a land in dispute cannot precede title nor can it indicate same. See Registered Trustees of the Apostolic Faith Mission v. James (1987)3 NWLR (Pt. 61) 556. In the instant case what had happened was that the respondent had used his evidence of acts of ownership as an effective weapon of defence. See Nkado v. Obiano (1997) 5 NWLR (Pt. 503) 31 at 64.
“I am, for the foregoing reasons, unable to find for the appellants in respect of their 1st and 3rd issues”
Lastly, Appellant had contended that the status of the respondent’s father was not properly evaluated. This contention is certainly of no moment. At P.64 lines 2834 and P. 65 lines 1-10 the trial judge stated as follows:-
“Counsel for both parties substantially agreed that the single issue for determination is to whom was the land in dispute granted……If I find that the land was personally granted to Martin Nwaeseh (respondents father), that will be the end of the matter and whether or not Martin Nwaeseh as “Nwadiani” can have interest in the Nwaeseh family property or the defendant can inherit such interest through him becomes immaterial”.
From the above passage it could be seen that by the time the court made its finding that the land in dispute was personally granted to Martin Nwaeseh, the issue of inheritance by him or through him ceased to be a live issue of inheritance by him or through him ceased to be a live issue before the court. The trial judge was perfectly right to have declined delving into a lifeless issue consideration of which would not have had any positive part in the resolution of the real issues before the court. See Olaniyi v. Aroyehun (1991) 5 NWLR (Pt. 194) 652.
Appellants’ 2nd issue, therefore, also fails. I am for the foregoing reasons unable to interfere with the decision of the trial court. I find for the respondent in respect of all his issues. The appeal is without merit. It is dismissed. The decision of the Lower Court is hereby affirmed.
Respondent is entitled to cost N3,000.00 is ordered in his favour.
Other Citations: (1999)LCN/0472(CA)