Chief Johnson Nwosu & Ors V. Jacob Uche & Ors (2005)

LawGlobal-Hub Lead Judgment Report

FABIYI, J.C.A.

This is an appeal against the judgment of Njemanze, J., while sitting at the High Court, Okigwe, in Imo State on 3rd March, 1997. The judgment was in respect of the claims in suit with number HO/20/91 filed by the appellants as plaintiffs. The learned trial Judge dismissed the claims in their entirety.

The resolution of this appeal principally relates to the propriety or otherwise of the findings of fact by the trial Court. It is therefore apt to recapitulate the facts leading to the judgment of the trial Court at a reasonable length.

Put succinctly, the plaintiffs’ claims, as can be gathered from paragraph 18 of the amended statement of claim, relate to a declaration of the court that the defendants are their customary tenants in respect of portions of land referred to as ‘Ogboenwe’ and ‘Ndiuhu’ situate at Ibinta in Okigwe Local Government Area of Imo State.

The land is said to be occupied and enjoyed by the defendants as their homestead and farm lands. As such tenants, the plaintiffs maintained that the defendant are not entitled to lay claims to ownership or title to the said portions of land or any portion of land in Ibinta wheresoever situate. The plaintiffs also claimed forfeiture of their tenancy since the defendants denied the title of the plaintiffs as customary owners of the said portions of land. The plaintiffs further claims the sum of N176,666.70 as mesne profits for the use and occupation of their lands as well as perpetual injunction to restrain the defendants, their servants and privies from further entry into the land.

The evidence put forward by PW1 is that the plaintiffs are the owners of the lands in dispute from immemorial antiquity. He said that through one Nwosu Okwozo, the land was let to one Chief Kanu Okoroji, a strong warrior of Arochukwu, who helped Nwosu Okwozo to procure nine slaves for the purpose of protecting the founders of a church and a school in Ibinta in 1904. According to PW1, the nine slaves formed the nucleus of the defendants. The defendants’ slave forefathers settled on the lands in dispute as customary tenants sequel to a covenant by them to be of good behaviour and to respect the custom of Ibinta and be loyal to the Chief of Ibinta. But contrary to the covenant, PW1 said the defendants denied the plaintiffs’ ownership of the lands which led to the filing of this suit for declaration of title and forfeiture against the defendants. The plaintiffs tendered a host of exhibits. The defendants denied the story and the account of their origin as stated by PW1. They maintained that the land in dispute referred to as ‘Alaikpa Ndiokoroji’ by them was acquired by their ancestor, one Kanu Okoroji, by conquest and they occupy the land up to date. The defendants denied being part of Ibinta or being known as ‘Aro Ibinta’. They relied on proceedings in respect of portions of the land and tried to put up a plea of res Judicata. The defendants contended that the plaintiffs did not discharge the onus of proof to prop their claims.

The trial Court, in it’s reserved judgment, dismissed the plaintiffs’ claims but held that res judicata did not apply. The plaintiffs who will from now on be referred to as the appellants felt unhappy with the stance of the learned trial Judge and have appealed to this court. Nine grounds of appeal accompanied the notice of appeal filed on 20-5-97. By the leave of this court granted on 12-10-99, one more ground of appeal was added to make the total number rise to ten (10). This ground of appeal, in effect, attempted to contest the jurisdiction of the learned trial Judge in exercising original jurisdiction in respect of land, the subject of a customary right of occupancy. The defendants shall from now be referred to as respondents.

It is only necessary to reproduce the three issues couched by the appellants and adopted by the respondents for a due determination of the appeal as can be seen at page 4 of the appellants’ brief of argument. They read as follows:

“(i) Whether the court below had the jurisdiction to adjudicate on the claim before it.

(ii) Whether having regard to the state of pleadings and the evidence adduced, the respondents could be said to be the customary tenants of the appellants.

(iii) Whether the appellants are entitled to the reliefs they claimed in the lower court.”

On 13-4-05, when the appeal was heard, M. O. Nlemedim, Esq., learned Counsel who appeared for the appellants, applied orally to withdraw issue NO.1 touching on the jurisdiction of the trial court to determine the suit. The learned Counsel for the respondent was at one with the appellants’ Counsel. It is clear that after the land mark decision of the Supreme Court in Adisa v. Oyinwola (2000) 10 NWLR (Pt. 674) 116, the jurisdiction or vires of the State High Court to determine suits in respect of land in non-urban areas ceased to be a moot point. Thus, the first issue couched in respect of same, as above reproduced, ceases to be relevant. Without much ado, it is hereby struck out since it has been withdrawn. I hereby discountenance arguments canvassed by learned Counsel for both parties in their respective briefs of argument on issue No.1.

Issue No. (ii) relates to appraisal of evidence and ascription of probative value to same. In the main, the case the appellant tried to put forward is that the respondents are their customary tenants in respect of portions of ‘Ogbaenwe’ and ‘Ndiuhu’ lands referred to as ‘Alaikpa’ by the respondents. The appellants contend that the respondents incurred the act of forfeiture when they denied the title of their overlords.

It is pertinent to state at this juncture to start from the known basic and well established principles of law relating to burden of proof in civil suits. A plaintiff has the duty to prove his case on the preponderance of evidence as dictated by Section 135 of the Evidence Act, Cap. 112, Laws of the Federation of Nigeria, 1990. A plaintiff has the duty to establish his case on the balance of probability. Burden of proof is not static. It lies on the party who would fail if no evidence is led. Refer to Are v. Adisa & Ors. (1967) NMLR 304; Ikwuka v. Anachuna (1996) 1 NWLR (Pt. 424) 355; Mogaji v. Odojin (1978) 4 SC 91 at P. 94; Bello v. Eweka (1981) 1 SC 101.