Chief Obiagu Nnanna & Ors. V. Nze Nukwuaku Onyenakuchi & Ors. (2000)

LawGlobal-Hub Lead Judgment Report

AKPIROROH, J.C.A.

This is an appeal by the appellants in a consolidated suit Nos. HOU/1/95 and HOU/82 (formerly (HOG24/42 and (HOG/40/92) against the judgment of the High Court of Justice, Imo State sitting at Mgbidi delivered on the 16th day of July, 1996.

The claim of the appellants as plaintiffs in the court below in paragraph 12 of the amended statement of claim is as follows:-

“12. Wherefore the plaintiffs claim against the defendants as follows:

(1) an order of court that the portion of the land in dispute in the possession of the defendant verged blue in the plaintiffs’ amended plan is redeemed by payment of N400.00 to the defendant or into court for him.

(2) a declaration that the plaintiffs are entitled to statutory right of occupancy over the land in dispute verged pink in the said plaintiffs’ plan.”

The claim of the respondents in the court below as couched in paragraph 24 of the amended statement of claim is as follows:-

“Wherefore the plaintiffs claim against the defendant jointly and severally are as follows:

(1) A declaration that the plaintiffs are entitled to the statutory right of occupancy to that piece or parcel of land known as and called “(ISI-AWO)” lying and situate at Umuorji Mgbidi within the jurisdiction of this court.

(2) N50,000.00 (Fifty thousand naira) being special and general damages for trespass to the said “ISI AWO” land.

PARTICULARS OF SPECIAL DAMAGE

One massive “Ube-apia tree N5,000.00

N5.000.00

(3) Perpetual injunction restraining the defendants by themselves or through their agents, servants or workmen from further trespass to the said “IS I-AWO land”.

The case which was tried on the pleadings supported by evidence related to a piece of land called by the appellants and the respondents “Ala Ukwu” Awo and “Isi Awo” respectively.

From the pleadings and the evidence led in support, the appellants’ case put in a nutshell is that their ancestor, Okoronzu founded, the land in dispute. At his death, his two sons Onyemuche and Megha inherited it as their family land in accordance with Mgbidi customary law. Onyemuche begat two sons, Obiwuru (where line is extinct) and Nnanna the ancestor of the plaintiffs while Megha begat a son, by name Egbunine whose line is extinct also.

During his life time, Egbunine pledged the land in dispute with the consent of his family to Ozurumba and his nephew Okaforfor Ogu-uba-na-asato equivalent of N800.00.

Both of them shared the land in dispute and each took possession of his own share and farmed on it. Under Mgbidi customary law, land under pledge is redeemable. Sometime later, the plaintiffs sought to redeem their said land from the pledge but Umuozurumba Oka and Emeziena families refused. They then filed this action and when it was still pending Emeziena Oka family admitted the pledge and allowed them to redeem the portion of the land in their possession and the suit was struck out against them while they continued it with Umuozurumba Oka family (the defendants) who denied the pledge.

The respondents’ case put briefly is that the land in dispute was founded and deforested by Okoronzu who was survived by two sons Onyemuche and Megha both of whom inherited and shared it hence the land in dispute became the exclusive property of Megha excluding the appellants’ family.

Megha begat Egbunine who solely inherited the land in dispute. When Megha died, he subsequently made a gift of it as the owner to Ozurumba and Iheadoro in appreciation of their kindness when he impregnated a girl who had not performed the Ikwaezi custom of Mgbidi people.

At the end of the trial, the learned trial Judge delivered his judgment and dismissed the appellants’ claim and granted all the reliefs sought by the respondents in their statement of claim.

Dissatisfied with the judgment the appellants have appealed to this court on five grounds of appeal. The parties filed their briefs of argument. The appellants identified four issues for determination:

ISSUES FOR DETERMINATION

1. Whether the learned trial court was right in holding that, in a claim for declaration of title where the plaintiffs who are the original owners of the land in dispute pleaded a pledge of the land to the defendants and the latter pleaded an outright gift or grant of the land to them, the onus is on the plaintiffs to prove the pledge.
2. Whether firm the pleadings and evidence before the court, the learned trial court was right to dismissing the plaintiff’s claim and awarding statutory right of occupancy over the land in dispute to the defendants?
3. Whether the learned trial court was right in awarding to the respondents a lump sum of N10,000.00 as covering both special and general damages for trespass.
4. Whether the learned trial court was right in making a finding of fact that Egbunine was the original owner of the land in dispute contrary to the pleadings of the parties?”

The respondents adopted issues 2, 3 and 4 identified in the appellants brief for determination.

On the first issue, learned counsel for the appellants submitted that the respondents, having admitted in their pleadings that the appellants’ ancestor was the original founder and owner of the land in dispute, the onus was on the respondents to establish a change of ownership by gift, stressing that there was no onus in law on the appellants to establish, the pledge and reliance was placed on the cases of George Onobruchere & Anor v. Ivwromoebo Esegine & Anor (1986) 1 NWLR (Pt.19) at 799, and Lasisi Akanni Buraimoh v. Ayinle Bamgbose (1989) 3 NWLR (Pt.109) 352 at 355. He contended that the learned trial Judge was wrong in the view he took on the onus of proof because the respondents having admitted the ownership of the land by the appellants in their pleadings, the onus of proving the absolute grant or gift of the land in dispute by the appellants to them because they are the people who will fail if no further evidence is led having regard to the state of the pleadings.

On the second issue, he submitted that the error as to where the burden of proof lay affected the learned trial Judge’s view of the evidence before him and as such, he could have not held that the onus was on the appellants to establish the pledge and that the respondents have no duty to prove the gift on which they relied on for their case. It was also his contention that the learned trial Judge was wrong when he held that to prove a pledge under customary law, there must be one or more witnesses to it and that the witnesses must include at least a member of the family of each party to the transaction. Customary law is a matter of fact to be proved in evidence and that it was not the case for the parties from their pleadings that for a pledge to be valid under Mgbidi customary law, it must be witnessed by at least a member of the family of each party to the transaction. The book on which the court relied on as evidence of the custom was not pleaded or shown to be recognised by the parties as evidence of the said custom he contended.

On the third issue, he argued that there was no evidence led in proof of special and general damages of N10,000.00 awarded to the respondents by the court and as such, the court was wrong in doing so and relied on many cases including Etim Ekpenyong & Ors v. Inyang Effiong & Ors (1975) 2 SC 71. He further argued that if the respondents had led evidence in proof of special and general damages for trespass, which is denied, the award of lump sum of money for both special and general damages for trespass is not tenable in law. It was also his submission that if the respondents had led evidence in proof of special and general damages which they failed to do the award made by the court amounted to double compensation for the same cause of action. Reliance was placed on the cases of Ezeani v. Ejidike (1964) 1 All NLR 402 at 405 and Onaga & Ors v. Micho & Co. (1961) All NLR 324; (1961) 2 SCNLR 101.

On issue four, learned counsel submitted that there was no basis for the court to have made a finding of fact that Egbunine was the original owner of the land in dispute which was not the issue before the court because both parties agreed that Okoronzu was the orginal owner of the land in dispute, stressing that what is admitted need no further proof. He cited in support the cases of Joseph Mangtup Din v. African Newspapers Nig Ltd. (1990) 3 NWLR (Pt.275) 357 and Muraina Akanmu Yekini Aladi v. Fassasi Adigun & Anor (1993) 7 NWLR (pt.304) 218.

Learned counsel for the respondents submitted on issue one that it is not relevant to this appeal and ought not to have been raised in some of the grounds of appeal or in the appellants’ brief of argument because it was not raised in the court below and the court did not hold that in a claim for declaration of title where the plaintiffs who are the original owners of the land in dispute pleaded a pledge of the land to the defendants and they later pleaded an outright gift or grant of the land to them, the onus is on the plaintiffs to prove the pledge. He further argued that the trial court did not hold that the plaintiffs are the original owners of the land in dispute and the defendants did not admit that the plaintiffs are the original owners of the land in dispute. It was also his submission that the statement of the trial Judge referred to on this issue and argued by the appellants cannot constitute a ground of appeal because a ground of appeal must relate to a decision of a court be competent for an appeal and relied on Atoyebi v. Governor of Oyo State (1994) 5 SCNJ 62 (1994) 5 NWLR (Pt. 344) 290. He also contended that assuming without conceding that on whom the onus of prooflies was an issue in the case, he submitted that since it was not raise at the lower court particularly as the appellants had admitted that the onus of proof lies on them, they cannot raised that issue at this stage without leave of court and cited the cases of Obioha v. Duru (1994) 10 SCNJ 48. (1994) 8 NWLR (pt. 365) 631.

He finally submitted on this issue that admission of the respondents that the original owner of the land in dispute was Okoronzu from whom the plaintiffs’ Umunnanna family descended is not synonymous with admission that the original owner of the land in dispute was Umunnanna family more so when they did not prosecute the case as representing Okoronzu family or Umuokoronzu family as the plaintiffs stressing that Egbunine by whom the respondents took possession of the land in dispute as admitted by both parties was not a member of the plaintiffs Umunnanna family rather he was a lineage different from Nnanna whose descendants (Umunnanna) the appellants represented in the suit.

On the second issue, learned counsel submitted that once the respondents denied the title of Umunnannna family of the appellants to the land in dispute, the onus of proof is on the appellants to establish firstly their ownership of the land in dispute and relied on Ekpa v. Utong (1991) 6 NWLR (Pt.197) 258. He further submitted that Egbunine through him the respondents derived title to the land in dispute having been admitted by the appellants to be the owner of the land, there is no burden on the respondents to go beyond the person (Egbunine) from whom they derived their title and whose title was not put in issue and relied on Olatunji v.Adisa (1995) 2 SCNJ 90 (1995) 2 NWLR (pt. 376) 167 and Omoni v. Tom (1991) 6 NWLR (Pt.195) 93. He further argued that the absence of evidence by the appellants of the nature of inheritance between Onyemuche and Megha on the death of Okoronzu on one hand, and between Egbunine and Nnanna on the death of their father on the other hand as well as the nature of inheritance upon a lineage becoming extinct, the court cannot speculate to fill the vacuum for the appellants.

He further submitted that apart from failing to prove ownership of the land in dispute, they also failed to prove the alleged pledge as was rightly found by the trial court and relied on the contradictions in the evidence of P.W. 1 and P.W.4.

On the third issue, learned counsel submitted that the fact of trespass and deprivation of the respondents of their ownership on the Ube-apia tree on the land were established at the trial court because the appellants did not deny entering the land in dispute which is in possession of the respondents without their consent. He further argued that assuming without conceding that the award of damages is wrong on the ground that it amounted to double compensation; that alone cannot warrant a reversal of the judgment of the trial court as no miscarriage of justice has been occasioned.

On the forth issue, he submitted that the trial court accepted the fact, which the parties had agreed upon that Okoronzu was the original owner of the land in dispute by deforestation hence the trial court did not evaluate evidence as to the founder of the land and that the use of the word “Original” by the learned trial Judge is either a mere slip, or an error that an appellant court can correct suo motu or usage within the con and meaning of the person from whom the respondents derived their title to the land in dispute and not in the con of the founder of the land in dispute.

On the first issue for determination, I agree entirely with the submission of learned counsel for the respondents that it is not relevant to this appeal and it ought not have been raised in some of the grounds of appeal or in the appellants’ brief of argument because it was not raised in the court below. Besides, the learned trial Judge did not hold that in a claim for declaration of title, where the plaintiffs who are the original owners pleaded a pledge of the land to the defendants and the latter pleaded an outright gift or grant of the land to them, the onus is on the plaintiffs to prove the pledge. The learned trial did not make any findings of ownership of the land in dispute in favour of Umunnanna family who are the plaintiffs in the suit neither did the respondents admit any title to the land in dispute in the plaintiffs’ Umunnanna family.

The issue on whom the onus of proof lies was not made an issue before the trial court, as the parties were ad idem that the appellants as plaintiffs in the court below had the onus of proof on them, and did not form part of the decision of the trial court and cannot constitute a ground of appeal. A ground of appeal must relate to a decision of the court to be competent for an appeal. See Atoyebi v. Governor of Oyo State (1994) 5 SCNJ 65 (1994) 5 NWLR (Pt. 344) 290.Assuming without conceding that on whom the onus of proof lies was an issue in the case, since it was not raised at the lower court particularly as the appellants had submitted that the onus of proof lies on them, the appellants cannot raise that issue at this stage without leave of the court. See Obioha v. Duru (1994) 10 SCNJ 48 (1994) 8 NWLR (pt. 365) 631.

Again, there is no where throughout the proceedings either in the pleadings or in evidence where the respondents admitted that the land in dispute was at any time owned by Umunnanna family of the plaintiffs.

Admission by the respondents that the original owner of the land in dispute was Okoronzu from whom the appellants descended is not by any stretch of the imagination synonymous with admission that the original owner of the land in dispute was Umunnanna family. This is more so when the appellants did not prosecute the suit as representing Okoronzu family as plaintiffs but Umunnanna family, and Egbunine by whom the respondents took possession of the land in dispute, as admitted by the appellants and the respondents were not member of the plaintiffs, Umunnanna family rather they were of a lineage different from Nnanna whose descendants (Umunnanna) the appellants represented in the suit. The case of George Onobruchere v. Esegine relied on by the appellants is inapplicable to the facts of this case. This issue is therefore resolved in favour of the respondents against the appellants.

With respect to issue two, the respondents having denied the title of the appellants to the land in dispute and pleaded that it was exclusively owned by Egbunine who inherited it from his father Megha who owned it as his share from his father Okoronzu, the onus of proof therefore lies on the appellants to establish their ownership to the land first before considering the issue of pledge. The learned trial Judge was quite right in my view when he said that the burden of proof lies on the appellants.

The next question that calls for consideration is whether or not the appellants have succeeded in proving their title to the land in dispute and that it was pledged by Egbunine to Ozurumba and Emegina Oka. From the pleadings and the evidence led in support the parties agreed that the land in dispute was founded by their ancestor Okoronzu and that after his death, his two sons inherited it. The point of disagreement is that while the appellants contended that after the death of Okoronzu, his two sons, Onyemuche and Megha inherited the land jointly and made common use of it until their death when it came into the joint possession of their sons – Egbunine and Nnanna who survived them.

The respondents on the other hand contended that after the death of Okoronzu, the land was partitioned by his two sons, Onyemuche and Megha and after the death of Megha, his son Egbunine inherited it and later pledged it to the respondents.

In paragraph 6 of the further amended statement of claim, the appellants pleaded as follows:

“At his Okoronzu’s death the land was inherited by his two sons, namely Onyemuche and Megha. Onyemuche begat two sons namely Obiwuru (whose line is extinct) and Nnanna, the ancestor of the plaintiffs, Megha begat Egbunine whose line is extinct.”

There is nothing to show from the above pleadings the nature of the inheritance by the two sons of Okoronzu whether it was shared or they owned it jointly.

In paragraph 17 of the statement of defence in the cross-action the appellants pleaded as follows:-

“At the death of Okoronzu the land in dispute was inherited by his two sons, Onyemuche and Megha as their joint property and they made use of same until their demise when the land in dispute came into the joint possession of Egbunine and Nnanna who survived them”.

There is no iota of evidence led by the appellants in proof that Egbunine and Nnanna owned the land in dispute, jointly and made common use of it. It is trite law that pleading which is not supported by evidence is abandoned hence the pleadings that Onyemuche and Megha inherited the land in dispute as joint property and made common use of it and thereafter came into the joint possession of Egbunine and Nnanna has not been proved and therefore abandoned. See Nwabuoku v. Ottih (1961) 2 ANLR 487; (1961) 2 SCNLR 232 and Ayoke v. Bello (1992) 1 NWLR (Pt.218) 380 at 403. Equally, there was no evidence led by the appellants to show what is the nature of inheritance or lineage of an ancestral link becoming extinct.

Egbunine from whom the respondents derived their title to the land in dispute through a descendants of Okoronzu who founded the land was never a member of the appellants’ Umunnanna family. The appellants having admitted that Egbunine who pledged the land in dispute was the owner in possession they have failed to prove that it was owned by Egbunine jointly or in common with Nnanna. At page 76 of the records lines 16 – 18 of the records, PWI testified as follows:-

“Before Egbunine died he pledged the land in dispute and his brother Nnanna was aware that the land was pledged”.

PW4 testified that it was Egbunine, brother of Nnanna who pledged the land. There is nothing either in the appellants’ statement of claim as amended or in the evidence of any of their witnesses that Egbunine pledged the land in dispute with the consent of Nnanna of their family. The only evidence led by the appellants is that Egbunine pledged the land and that Nnanna was aware of it. At page 112 lines 29-31, PW1 said that under Mgbidi custom, no member of a family can pledge land of the family without the consent of other members of the family and that a land owner who owns the land personally does not require the consent of anybody to pledge it. From the evidence of PW1, it is quite clear that Egbunine dealt with the land in dispute in his personal capacity. The pleading of the appellants that Egbunine pledged the land with the concurrence of Nnanna was not supported by evidence.

In paragraph 11 of the amended statement of claim of the respondents in suit No.HOU/82/95 they pleaded that Okoronzu lands were partitioned by virtue of which Egbunine inherited the land in dispute as his personal and exclusive property. They also pleaded in paragraph 13 of the said statement of claim that the land was made to Ozurumba and Ihedoro as a gift. The appellants only denied these pleadings and put the respondents to the strictest proof of the said pleading.

The effect of such improper traverse is that the averments in the statement of claim were not denied. See Akintola v. Solano (1986) 1 NLR 31 (1986) 2 NWLR (Pt. 24) 598. The evidence led by the appellants as to whom the land in dispute was pledged and who was in possession is contradictory. PW1 (3rd appellant) testified that the land was pledged to Ozurumba Oka and Emeziena Oka who took possession and shared it. PW4. Chukwuemeka Ngaobidi testified that it was pledged to Umuozurumba and Umuihedoro. Besides, the fact that Umuemezinna being one of the persons in possession of the land was not proved because PW4 did not say he used to see the Umuemejienna on the land in dispute. PW5 June Nosoiba who is a member of Umuemezinna gave evidence to the effect that he did not know whether Emezienna had anything to do with the land in dispute and also did not know if any member of Umuemezinna had done anything on the land.

At page 201 lines 24-27 of the records, the learned trial Judge said:-

“I hold that Emezienna Oka was not involved in the transaction relating to the land in dispute I also hold that the land in dispute was handed over to Ozurumba Oka and his brother Ihedoro by Egbunine”. At page 202 of the record of proceeding the learned trial Judge made the following findings of facts:-

“2. That the land in dispute was not divided into two portions.

3. That the land in dispute was given to Ozurumba Oka and Ihedoro by Egbunine who was the original owner of the land as an outright gift.
4. That the said Egbunine gave the land in dispute to Ozurumba and Ihedoro in appreciation of their help to him in the time of his difficulties.
5. That the said Egbunine pregnated an Mgbidi girl who did perform the customary rites of “Ikwaezi”
6. That this incident and the making of the gift predated 1929″.

The findings of fact by the learned trial Judge is supported by the evidence led before him.

As I said above, the title of Egbunine from whom the respondent came into the land in dispute having been admitted by the appellants there is no further burden of proof on them. This issue is also resolved in favour of the respondents against the appellants.

On the third issue, the appellants admitted that the respondents were in possession of the land. They also admitted entering it and cut the Ubeapia tree. This is clearly borne out by the evidence of PW1. They contended that as the pledgors, they are entitled to enter the land without the consent of the respondents.

There was no evidence led in support of this averment. It is trite that he who alleges has the burden of proof. Giwa v. Erimilokun (1961) All NLR 294. (1961) 1 SCNLR 377. In any event, the trial court having found as a fact that the land was not a subject of pledge but a gift, mere entering it by the appellants without the consent of the respondents constitute trespass to the land for which the appellants are liable. See Okagbue v. Romaine (1982) 5 SC 133 at 134; Solomon v. Mogaji (1982) 11 SC at 10. Even if the award of damages is wrong as contended by the appellants, this alone in my view is not sufficient to warrant a reversal of the judgment of the trial court as no miscarriage of justice has been occasioned. See the cases of Onifade v. Olayiwola (1990) 1 SCNJ 10 (1990)7 NWLR (Pt. 161) 130 and Anyawu v. Mbara (1992) 5 NWLR (pt.242) 386.

On the fourth issue I am in full agreement with the submissions of learned counsel for the respondents that the learned trial Judge accepted the fact which the parties agreed upon that Okoronzu was the original founder of the land in dispute by deforestation hence the court did not evaluate evidence as to the founder of the land and the use of the word “original” by the learned trial Judge to my mind is an error or slip.

In any event slips and error of surplusages are of common occurrences hence it has been held that not every error committed by trial court can lead to reversal of judgment on appeal. See Olatunji v. Adisa (supra).

In conclusion, this appeal fails on all the issues on which it was argued and it is hereby dismissed. The judgment of the lower court is affirmed. There will be costs of N6,000.00 in favour of the respondents against the appellants.

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Other Citations: (2000)LCN/0806(CA)