Chief Stephen Nwankwo Okonkwo & Anor V. Dr. Patrick Ikechukwu Okolo (1988) LLJR-SC

Chief Stephen Nwankwo Okonkwo & Anor V. Dr. Patrick Ikechukwu Okolo (1988)

LawGlobal-Hub Lead Judgment Report

G. KARIBI-WHYTE, J.S.C. 

This appeal is against the judgment of the Court of Appeal Division sitting at Enugu. On the 23rd January, 1985, the appeal by the Defendants against the judgment of Awogu J (as he then was) of the High Court of Anambra State sitting at Onitsha was dismissed. The learned Judge had on the 14th April, 1980 granted all the claims by the Plaintiffs against the Defendants, which are as follows –

“1. A declaration of title to that piece and parcel of land known as and forming part of OKPOKO lands, situate and lying on the left hand side at about Mile 3 1/2 on the Onitsha-Owerri Road, in Onitsha, Anambra State, as is more particularly delineated in Plan No.SE/ /76 filed by the Plaintiff in this Suit and therein verged PINK.

2. N1,000 (one thousand naira) damages for trespass on the said land.
3. Injunction restraining the Defendant, his servants and/or agents or anyone of them from interfering with the Plaintiffs ownership and possession of the said land.”

It is necessary to state the facts of this case which have given rise to this litigation. They are not complicated in any sense. I shall however dwell only on the material facts pertinent to the cause of action. I shall refer to the Defendants as Appellants and Plaintiff as Respondent, hereinafter. In 1941 one P.H. Okolo of Ogbeozala Village, Onitsha acquired a piece of land from one Menkiti Ikwuazom, the Okpala of Umuonogbo family of Onitsha, under Onitsha customary law. This family is also known as Umuozoma family of Onitsha.

The parcel of land acquired is part of the Okpoko land. During his lifetime P.H. Okolo took possession of the land acquired and remained in and exercised undisturbed optimum possession and ownership till his death in 1957. Meanwhile Menkiti Ikwuazom also died in 1944. The said P.H. Okolo had three children, of which the Respondent is the oldest male. On the death of the said P.H. Okolo the said land became the property of his family. The said family of P.H. Okolo, like their father, also exercised undisturbed acts of ownership and possession by farming on the land.

‘They have since 1966 surveyed the land and filed the plan of the land as surveyed with the Ministry of Lands and Surveys, Enugu. The family of the late P.H. Okolo have resisted the attempts made by the Appellants and other persons to dispute their title to the land acquired by the late P.H. Okolo. In September, 1975 1st Appellant relying and acting on a purported conveyance from the 2nd Appellant trespassed on the land acquired by the late P .H. Okolo and inherited by the children of P.H. Okolo.

After this trespass was abated by voluntary withdrawal, the 1st Appellant again repeated acts of trespass on or about the 25th day of March, 1976, by driving caterpillar into the land, scraping off top soil, grass and felling trees. 1st Appellant, who is a business man in Onitsha, and claims to have bought the said land from the 2nd Appellant who is the last son of Ikwuazom Menkiti, deceased, from who late P.H. Okolo bought the said land. 1st Appellant has refused to withdraw from the said land despite repeated warnings from the family of the Respondents. On the other hand the Umuonogbo family have acknowledged in writing the title of Respondent to the land. It is the obduracy by the Appellants in denying the title of the Respondents to the land acquired by late P.H. Okolo from Ikwuazom Menkiti, that has resulted in the present action.’ They have since 1966 surveyed the land and filed the plan of the land as surveyed with the Ministry of Lands and Surveys, Enugu.

The family of the late P.H. Okolo have resisted the attempts made by the Appellants and other persons to dispute their title to the land acquired by the late P.H. Okolo. In September, 1975 1st Appellant relying and acting on a purported conveyance from the 2nd Appellant trespassed on the land acquired by the late P .H. Okolo and inherited by the children of P.H. Okolo. After this trespass was abated by voluntary withdrawal, the 1st Appellant again repeated acts of trespass on or about the 25th day of March, 1976, by driving caterpillar into the land, scraping off top soil, grass and felling trees.

1st Appellant, who is a business man in Onitsha, and claims to have bought the said land from the 2nd Appellant who is the last son of Ikwuazom Menkiti, deceased, from who late P.H. Okolo bought the said land. 1st Appellant has refused to withdraw from the said land despite repeated warnings from the family of the Respondents. On the other hand the Umuonogbo family have acknowledged in writing the title of Respondent to the land. It is the obduracy by the Appellants in denying the title of the Respondents to the land acquired by late P.H. Okolo from Ikwuazom Menkiti, that has resulted in the present action.

On the 14th April, 1976 Respondent as Plaintiff caused a writ of summons to be issued against the Defendant claiming as follows:-

“1. A declaration of title to that piece and parcel of land known as and forming part of OKPOKO lands, situate and lying on the left hand side at about Mile 3 1/2 on the Onitsha-Owerri Road, in Onitsha, Anambra State, as is more particularly delineated in plan No. SE//76 filed by the Plaintiff in this Suit and therein verged PINK.

2. Nl,000(one thousand naira) damages for trespass on the said land.
3. Injunction restraining the Defendant, his servants and/or agents or anyone of them from interfering with the Plaintiffs ownership and possession of the said land.

After Respondent/Plaintiff had filed and served his statement of claim on the 1st Appellant, the 2nd Appellant filed a motion asking to be joined as a Defendant to the action. In his supporting affidavit he deposed as follows:-

“1. That I am a member of Menkiti Agba Ozoma family, Onitsha.

2. That I swear to this affidavit on the authority of other members of the said family.
3. That the land in dispute in this case belongs to the members of my family.
4. That I on behalf of my family conveyed the said piece of land to the Defendant in this suit for valuable consideration.
5. That the interest of the members of my family will be affected by the result of this case if I do not join to prosecute the defence of same.
6. That I swear to this affidavit believing all the averments to be true and in support of an application to join as a co-defendant in this suit.”

The case of the Appellants is that Ikwuazom Menkiti never sold the land in dispute to P.H. Okolo. It is their contention that Ikwuazom Menkiti was not a member of Umuonogbo family and was at no time the Okpala of that family. They admit he is a member of Umuozoma family. It is their contention that the land in dispute is the personal property of Ikwuazom Menkiti.

Respondent is claiming in a representative capacity; but sued the 1st Appellant in his personal capacity. 2nd Appellant sought to join as a Defendant in a representative capacity, representing the family of Ikwuazom Menkiti, but there was nothing in the joint statement of defence reflecting that position. In the amended statement of claim the Appellants were sued jointly and severally. It is instructive to observe that 2nd Appellant has admitted selling the land in dispute to the 1st Appellant. 1st Appellant did not appear in person throughout the trial of the action. After the application was granted, both Appellants filed a joint statement of defence. Respondent/Plaintiff thereafter filed and served on amended statement of claim. The Appellants/Defendants did not amend their statement of defence. They went to trial on the statement of defence and joined issues with the Respondents in respect of the questions whether (a) there was a sale of the land in dispute to the late P.H. Okolo the father of the Respondent by the late Ikwuazom Menkiti, the father of the 2nd Appellant,

(b) whether the land in dispute was sold by Ikwuazom Menkiti as Okpala of Umuonogbo or Umuozoma family of Ogbeabu Village, Onitsha.

The relevant averments in the pleadings in the amended statement of claim and statement of defence are as follows:- Paragraphs 3, 5, 6, 7, 9, 10, 12, 13, 15, 16, 17 of the amended statement of claim state as follows:-

“3, The late P.H. Okolo was the owner under Onitsha customary tenure in possession from time immemorial of various parcels of lands in Onitsha including in particular three separate parcels of land, lying along the Onitsha/Owerri Road, Onitsha, otherwise called Oguta Road and posited on various portions on the two sides of the said Road, after the Niger/Owerri Roads (Iweka) Roundabout.

“5, The land in dispute which is one of the afore-said three parcels of land belonging to the said late P.H. Okolo was acquired for value under customary tenure from time immemorial from the Umuonogbo Family otherwise known as Umuozoma Family of Onitsha. The said grant was made by the late Ikwuazom Menkiti as the head of the said Umuonogbo or Umuozoma Family of Onitsha.

“6. The said land now in dispute forms part of OKPOKO land and is situate on the left hand side of the Onitsha-Owerri Road, lying a little before the old mile three and half post, having boundaries with the lands of F.I. Oranye on the North, the Owerri-Onitsha (Oguta) Road on the West, and the other lands of them Umuonogbo or Umuozoma Family of Onitsha on the South and

East, as is more particularly delineated and walled off in PINK in the Amended Plan No. SE/AN/1A/76 filed by the Plaintiff in this suit.

“7. In Suit No. 0/3/49 (WACA No. 3323) Philip Akunne Anatogu and/Anor. v. Chief J.M. Kodilinye and Anor, a composite plan of the entire Onitsha lands along the said Oguta Road compiled and surveyed at the request and instructions of the Onitsha landlords including the said Umuonogbo Family, by the late C.C. Emodi, Licensed Surveyor, dated the 11th day of June, 1949 was tendered as Exhibit 13 and in which the said land in dispute was clearly marked off and designated “Land of P.H. Okolo.” The Plaintiff will rely on the said plan at the trial.

“9. The family of the late P.H. Okolo have over the years exercised maximum acts of ownership over the said land in dispute by farming on the said lands without any let or hindrance from anyone including the Umuonogbo Family up to the outbreak of the Nigerian war in 1967.

“10. On the death of the late P.H. Okolo, his heritable estate including the land in dispute enured for the benefit of the Plaintiffs family.

“12. By letter dated the 10th day of June, 1972, addressed to J.C. Okolo of the University of Nigeria, Enugu Campus, with copies to the Plaintiff and Mrs Okolo (the mother of the Plaintiff), of new American Quarters, Onitsha, the Umuonogbo Family through their Solicitor, C.E. Agba, Esq., and on their instructions admitted in clear terms the sale of the land now in dispute by their family head and representative, Ikwuazom Menkiti to the late P.H. Okolo. The Plaintiff will found on this acknowledge of title as contained in the said letter at the trial.

“13. Sometime in 1973, one Francis Ifeanyi Menkiti of Umuozoma Family of Onitsha Town Planning authority for a layout and development of the Umuonogbo Family lands under the name of Ikwuazom Menkiti Industrial Layout, purportedly claiming exclusive ownership of the said lands, in which the P.H. Okolo Family lands now in dispute was encompassed as part of the said layout. The Plaintiff will found on PLAN NO. MEC/203/71 which was made on 25/8/71 but countersigned by the Surveyor-General on 23/11/71.

“15. Sometime about the end of September, 1975, the 1st Defendant acting on a purported conveyance by the 2nd Defendant wrongfully incurred and/or trespassed on the land in dispute by going thereon with various workers, erecting several pillars and poles for a fence and planting concrete beacons on the land in dispute without the knowledge and/or consent of the Plaintiffs family. The Plaintiffs family went into the said land in dispute on 4/7/75 and removed all of the aforesaid illegal structures placed on the land by the Defendant. The 1st Defendant came on the land and met the said family group removing the aforesaid structures but merely pleaded to be allowed to collect the pillars and poles which had been so removed from the land in dispute, and was allowed to do so.

“16. By public Notice published in the Nigeria Mirror of 6/10/75 and in the Daily Star of 14/10/75, both of which are daily newspapers based in Onitsha and Enugu, respectively, the Plaintiff’s family again asserted the unquestioned paramountcy of its title over the lands now in dispute. And further by a warning notice published in the said Nigerian Mirror of 11/10/75, C.E. Agbu Esqr., Solicitor, on behalf of and on the instructions of the Umuonogbo Family re-emphasized its acknowledgment of the P.H. Okolo family title to the land now in dispute. The Plaintiff will rely on these publications at the trial, along with an affidavit sworn to by members of the Umuonogbo Family dated the 13th July, 1971. and deposited in the High Court Registry, Onitsha.

“17. On or about the 25th day of March, 1976, the 1st Defendant through his servants and/or agents unlawfully drove a caterpillar into the land now in dispute, scrapped off all the top soil, grass, tree and some of the beacons on the land in dispute and started making use of the same in a manner inconsistent with the ownership and possession of the Plaintiffs family, after posting thereon a sign-board which reads “Site for proposed Industry for Chief S. N. Okonkwo.”

Paragraph 2 of the statement of defence having admitted paragraphs 1 & 2 of the statement of claim aver in paragraphs 3, 4, 5, 6, 7, 8, 9, 12, 13, 14, 17, 20, 21 state as follows:-

“3. The Defendants deny paragraph 3 of the statement of claim and will put the Plaintiff to the strictest proof of the allegations contained therein.

4. Paragraph 4 of the statement of claim is denied but only with respect to Umuonogbo and Ogbaba and the Plaintiff will be put to the strictest proof of the allegations contained therein concerning the aforementioned two families.
5. The Onitsha lands along the said Oguta Road were originally the properties of various families in Onitsha some of which are Ojidoko, Oreze and Ikwuazom Menkiti Agba Ozoma.
6. The Defendants deny paragraph 5 of the statement of claim and will put the Plaintiff to the strictest proof of the allegations contained therein. In further reply thereto the Defendants state that Umuonogbo is completely different and distinct from Umuozoma family. The land in dispute was not granted or sold to P.H. Okolo by Ikwuazom Menkiti Agba Ozoma of Ogbeabu village, Onitsha.
7. The late Menkiti Ikwuazo a descendant of Menkiti Agba Ozoma of Umuozama family of Ogbeabu village Onitsha never granted the piece of land in dispute nor any portion of same to late P.H. Okolo, the father of the Plaintiff. The said Menkiti Agba did not belong to Umuonogbo family and never owned any portion of land with Umuonogbo family.
8. Save and except the fact that the land in dispute lies in OKPOKO land and situate on the left hand side of Onitsha Oweri Road the Defendants deny the rest of paragraph 6 of the statement of claim and will put the Plaintiff to the strict proof of the allegations therein contained.

In further reply to the said paragraph the Defendants state that the land in dispute which is better delineated and verged Pink in the Plan No. MEC/312A/71 filed with this statement of defence is surrounded on all sides by the lands of Menkiti Agba Ozoma family and not Umuonogbo family.

12. The Defendants deny paragraphs 9 and 10 of the statement of claim and will put the Plaintiff to strict proof of the allegations contained in the said paragraphs.
13. The Defendants are not in a position to admit or deny paragraph 11 of the statement of claim and will put the Plaintiff to the strictest proof of the allegations contained therein. The Defendants

will further contend that they are not bound by the documents referred to in the said paragraph.

14. The Defendants deny that they instructed Barrister C.E. Agbu or any other counsel to write the letters referred to in paragraph 12 of the statement of claim to the Plaintiff or anyone whomsoever and will put the Plaintiff to strict proof of the allegations contained in the said paragraph. The Umuonogbo Family were never owners of the land in dispute and could not admit the sale of any portion of the land in dispute to the Plaintiff.
15. The 1st & 2nd Defendants admit the allegations of wanton destruction of survey beacons on the land carried out by the members of the Plaintiffs family. In further reply thereto the 1st and 2nd Defendants state that the said wanton destruction was carried out when the 2nd Defendant was away to Lagos and that on his return he asked the 1st Defendant to whom he had conveyed a portion of the land in dispute to remain thereon. The 1st Defendant admits that he came to the land to inform the Plaintiff agents that he had already got legal title to the land. The 1st Defendant denies that he pleaded with the Plaintiff to allow him to collect the pillars and poles.
16. The land in dispute is part of Okpoko land of Menkiti Agba Ozoma family of Ogbeabu village who have been owners of some from time beyond human memory. As such owners they have instituted and defended actions in respect of the said land as absolute owners anti not as co-owners with Umuonogbo family. Among the actions may be mentioned the Onitsha Native Court suits numbers 215 of 1926 and 133 of 1942. The Defendants will found on the proceedings in the said suits and particularly the evidence of Ikwuazom Menkiti the father of the 2nd Defendant, Amazonwu of Obosi, his tenant and James O. Onuora of Umu Anumudu Umuasele Onitsha.
17. The 1st Defendant denies that he destroyed any beacons on the land but admits that as owner in possession by virtue of a Deed of Conveyance in which the 2nd Defendant is the Vendor he exercised his legal rights over the said piece of land.”

After oral evidence on both sides have been adduced, in terms of their pleadings the learned judge stated quite clearly that the litigation before him was not between the 2nd Appellant and the Umuonogbo family in respect of title over Okpoko land and the issue before him was not whether Okpoko land belonged to Umuonogbo family or not. He pointed out that Okpoko family became relevant and important because the father of 2nd Appellant, the late Ikwuazom Menkiti was alleged to have sold the land in dispute as Okpala of Umuonogbo family, a fact which 2nd Appellant denied throughout the trial.

Turning to the issues joined, the learned judge stated as follows-

“…..what concerns me in this trial is whether or not Ikwuazom Menkiti held himself out as Okpala of Umuonogbo family when he sold land in dispute to late P.H. Okolo. There is abundant evidence in support of this. The Plaintiff said so. P.W.2 who bought a portion of the land in 1926 said so. P.W.3 a member of Umuonogbo family said so.”

The learned judge also found as a fact that the land in dispute represents what was sold to late P.H. Okolo. For this finding he relied on the evidence of the Plaintiff, the P.W.3 who is a member of the Umuonogho family. The learned judge observed that although the Defendants denied that there was any sale of the land in dispute to late P.H. Okolo, and suggested in their evidence that Exh. J encroached upon more land than was sold, they offered no evidence to support that suggestion. He declared at p.110

“I believe the evidence of the Plaintiff that the land in dispute represents the land which was sold to the father of the Plaintiff by the father of the 2nd Defendant. The evidence of the purchase complied with acts of possession of over twenty-eight years before the 2nd Defendant returned in 1969 to challenge for the first time, Plaintiffs possession of the land, is conclusive evidence in support of the claim of the Plaintiff.”

The learned judge rejected the contention of counsel for the Appellant that there was no satisfactory evidence of the purchase and that the interest transferred was uncertain. He held that the evidence of unchallenged possession was sufficient for the declaration sought.

The learned judge held that on the evidence before him and by the joint statement of defence filed, both Defendants committed the acts of trespass alleged.

The Defendants appealed to the Court of Appeal. Here they contended in the only relevant ground 2 that the learned judge erred in law in failing to dismiss the Plaintiffs claim when it was not proved. Ground 3 was that the learned judge erred in law to have relied on Exh. J as further proof of the land in dispute. The contention was that the identity of the land mentioned in Exh. J was not proved to be the land in dispute.

As I have already stated in this judgment, the Court of Appeal unanimously affirmed the judgment of the learned judge and dismissed the appeal of the Appellants. The Court pointed out that

“The dispute between the parties centered on whether the land was granted to P.H. Okolo, whether Umuonogbo is the same as Umuozoma, and whether the 2nd Defendant’s father, Ikwuazom Menkiti belonged to Umuonogbo and was its Okpala up to his death.”

The Court upheld the finding of the learned judge that there was a sale of the land in dispute in late P.H. Okolo by the father of the 2nd Appellant. Observing that the claim was clearly founded on Onitsha Customary tenure, it was said at p. 167

“The evidence of PW4 is clear as to the nature of the grant and its incidents. The case was fought not on custom of the grant but that there was never a grant to P.H. Okolo. The evidence before the trial Court was clear as to grant to P.H. Okolo, and the 2nd Defendant struck to one issue only; that there was never a grant. He was involved in writing to Respondent through PW2 (the legal practitioner), all the plans indicate the presence of the land belonging to P.H. Okolo, and the evidence carried no weight with the learned judge for sound reasons.

Referring to the identity of the land in dispute, the Court of Appeal said, at p.168

“The extent of the land was certainly not in dispute at the trial court. There was a time when the 2nd Defendant tried to get the family solicitor to allege in Exhibit D that there was encroachment over the original grant. All the plans from 1944 up to date clearly indicate the land of P.H. Okolo that there was no doubt as to the size and boundaries of the land in dispute.”

The Court of Appeal like the trial judge accepted the evidence of PW4

“as proof of the grant or conveyance as it is in Onitsha Custom, the precise size and location of the land being known with certainly.”

The Court went on to hold at p.168 that

“There was conclusive evidence not only from the Plaintiff but also from members of the second Defendant’s family that the Respondent’s father had a grant of the land in dispute from Ikwuazom Menkiti in presence of witnesses and in accordance with Onitsha Native Law and Custom and principle in Ajadi v. Olanrewaju (1969) 1 All NLR.382 is not violated. Evidence of PW3 is clear and the fact that it was elicited under cross-examination is no reason to make it unreliable.”

The Court finally held that evidence of the identity of the land was satisfactorily given by PW3, PW4 and DW1, in their testimony. Similarly, the finding by the learned judge that late P.H. Okolo purchased the land in dispute from Ikwuazom Menkiti as Okpala of Umuonogbo or Umuozoma family was held to have been established on the evidence.

Appellants have filed five grounds of appeal against the judgment of the Court of Appeal. The grounds of appeal are as follows:-

“GROUND 1: The learned Justices of Court of Appeal erred in law and fact in failing to hold that the learned trial judge ought to have dismissed the Plaintiffs claim for failing to plead sufficient evidence to prove his case.

PARTICULARS OF ERROR

(i) The incidents and nature of customary tenure under which the Plaintiff claimed the Okolo family held the land was neither pleaded or sufficiently pleaded, nor proved;

(ii) the extent of the land allegedly sold by the late Ikwuozom Menkiti as the head of the Umuonogbo or Umuozoma family of Onitsha to the Plaintiffs father was not proved;

(iii) the sale of the land was not proved

(iv) there was no plea nor proof that the Plaintiffs father was put in possession after the sale.

GROUND 2: The learned Justices of the Court of Appeal erred in law and in fact in failing to hold that the learned trial Judge ought not to have relief on Exhibits “J” “C” and “D”.

PARTICULARS OF ERROR

(i) The identity of the lands referred to in Exhibits “J” “C” and “D” were not established to be the same as the land in dispute.

(ii) Exhibit “J” referred to an unpaid 86 pounds now N172.00 whereas the Plaintiffs case was that his late father bought the land for N100.00

(iii) Exhibit “J” could not be used as an admission against interest, because the persons who wrote Exhibit “J” were not parties to this action, nor were their representatives in interest parties.

GROUND 3: The learned Justices of the Court of Appeal erred in law in failing to hold’ that the award of damages against the 2nd Defendant was erroneous having regard to the fact that there was no iota of evidence led against him to establish trespass.

GROUND 4: The learned Justices of the Court of Appeal erred in law and in fact in failing to hold that on the pleadings and the evidence, the case of the Plaintiff was so contradictory and so manifestly unsustainable that the claim ought to have been dismissed.

PARTICULARS

(i) the evidence of the Plaintiff and PW3 conflicted as to the nature of interest the late P. H. Okolo acquired in the land in dispute.

(ii) whilst there was a plea that the land was acquired from time immemorial the evidence was that the land was acquired in 1941-

(iii) the Plaintiff alleged that the purchase price of the land in dispute was 50 pounds (N100.00) but relied on a document Exhibit “J” showing that there was a balance of 86 pounds N172.00) yet unpaid by the Plaintiffs family.

(iv) the evidence of the Plaintiff that on the death of the late P.H. Okolo the land in dispute was inherited by his sons went to no issue as the customary law relating to inheritance was not pleaded.

(v) the evidence of PW10 was to the effect that it was customary in Onitsha to mark out the boundary of land with “Ogilishi” “Egbedegbe” “Ogbu” and “Echiechi” but the various plans tendered contained no such trees except Exhibit” A” which contained only “Egbedegbe.”

GROUND 5: The learned Justices of the Court of Appeal erred in law and in fact in holding that the evidence of the Plaintiff as regards the sale of the land in dispute was traditional evidence, having regard to the fact that the sale in question took place in 1941 at a time when the Plaintiff had already been born.

The grounds of appeal relate to the question whether respondent had proved his case, i.e. his father acquired title to the land in dispute by virtue of sale to him by the father of the 2nd Appellant – (Grounds 1,2,4), whether the evidence of Plaintiff as to the sale of the land in dispute was traditional evidence, the sale having taken place in 1941. (Ground 5), and that the damages awarded against the 2nd Appellant was erroneous (Ground 3).

Counsel filed and served their written briefs of argument. It is interesting to observe that there is no agreement between them as to the issues which fall for determination in this appeal. Counsel for the Appellant and Respondent have formulated the issues differently.

Appellants formulated the issues as follows-

“1. Whether the Respondent proved the sale of the land in dispute under customary law

2. Whether exhibit J could have been used against the Appellants by the Respondents in further proof of the sale of the land in dispute
3. Whether the evidence led on behalf of the Respondent was not violently in conflict with the pleadings on the one hand and whether the Respondent’s witnesses did not violently contradict themselves on the other hand, such that the Respondent’s case ought to have failed
4. Whether the evidence of the Respondent as regards the sale of the land in dispute was traditional and,
5. Whether there was any basis for awarding damages against the 2nd Appellant having regard to the evidence led

Respondent has formulated the following issues-

(i) What were the issues joined for determination between the parties at the trial of the suit

(ii) Was there sufficient evidence in law supporting the verdict and conclusions reached by the trial Court and the appeal Court.

(iii) Do the grounds of appeal now being advanced accord with the issue joined between the parties at the trial

It is important to emphasise that the formulation of the issues for determination should be based on the grounds of appeal filed and related to the judgment challenged. A formulation of issues for determination which ignores the grounds of appeal seems to me to be raising issues which do not fall within the scope of the grounds of appeal. An Appellant can only canvass issues covered by the grounds of appeal filed; and so will the issues formulated for determination. The appeal before this Court is against the judgment of the Court of Appeal. The judgment of the High Court is only an issue to the extent affirmed or rejected by the Court of Appeal.

Accordingly, the first issue for determination in this appeal as formulated by Counsel for the Respondent cannot be an issue properly arising for determination before this Court. The 2nd and 3rd issues formulated seem to me to fall generally within the grounds of appeal filed. It is therefore convenient to discuss them under the general penumbra, in the issues formulated by Counsel to the Appellants.

Counsel to the Appellants has in his brief of argument discussed each of the issues separately. It seems to me clear however that generally considered, they amount to the contention that Plaintiff/Respondent did not on the evidence and pleadings establish his claim, and ought not to have been given judgment. Secondly, since the 2nd Defendant/Appellant was not alleged to have committed any acts of trespass, damages should not have been awarded against him. These two issues in my opinion adequately cover the five grounds of appeal filed and the issues for determination formulated.

Mr. Sofunde for the Appellants has submitted that the averments to the statement” of claim and the evidence of Plaintiffs witnesses did not disclose any of the incidents under customary tenure, and on the ground alone the Plaintiffs claim ought to have failed. He cited and relied on Taiwo v. Dosunmu & anor. (1966) NMLR.94 at 99; Emegwara v. Nwaimo, 14 W.A.C.A. 347 at p.348. He submitted that a lot of the evidence of the Plaintiff’s witnesses went to no issue. It was submitted that the evidence of PW3 and the Respondent were contradictory and insufficient as proof of customary tenure. Counsel submitted that the statement of claim did not contain incidents of customary tenure and could not be cured by better particulars even if this was demanded and supplied, as was suggested by Aseme J.C.A. in the Court of Appeal. It was contended that incidents of customary tenure were material facts which ought to be pleaded. Counsel submitted that although evidence of the sale was given by Plaintiff’s witnesses, and a survey plan Exhibit “A” tendered, the Exhibit “A” cannot be used in identifying the land sold to P.H. Okolo. This he contended is because, Exh. “A” is a plan including several families. The plan was made in 1944 when the purchase was from time immemorial or alternatively in 1941. Counsel contended that Respondent was not present during the sale. Conceding that the identity of the land litigated upon was not in dispute, but it was in dispute in so far as sale of the land in dispute was in dispute. The identity of the land is an essential ingredient of sale. He referred to Bello v. Kassim (1969) 1 NMLR.148; Elias v. Suleiman (1973) 12 SC.113 at p.115; Okuoja v. Ishola (1982) 7 SC.314.

Counsel to the Appellant submitted that the trial judge was wrong to have used Exh. J as evidence that the late Ikwuazom Menkiti sold the land in dispute to the late P.H. Okolo and in the capacity alleged by the Respondent. It was submitted that there was no nexus between Exh. J and the land in dispute. Counsel submitted that the identity of the land in dispute was never in dispute. What was in dispute is the identity of the land sold. In any event counsel submitted that Exh. J was not admissible against the Appellants. Exh. J was written for and on behalf of the Umu-Onogbo family which was not a party. 1st Appellant was sued in his personal capacity, 2nd Appellant for himself and on behalf of lkwuazom Menkiti Agba family. He relied on Section 23 of the Evidence Act for his submission.

Mr. Sofunde referred to the time of the sale in 1941 and the expression “time immemorial” used in the pleadings by the Respondent, and submitted that Respondents were bound by the pleadings and that the expression was not a misnomer. Counsel also referred to the nature of the grant and referred to the evidence of P.W.3 and of the Respondent and submitted that they were in conflict. He also referred to evidence of the purchase price which he said were contradictory. Counsel submitted that the boundaries of the land sold were not stated clearly in evidence. Finally counsel submitted that evidence of the Respondent about the sale was hearsay and therefore inadmissible. He argued that since the Respondent was born at the time of the transaction in 1941 and the PW3 who witnessed the sale was still alive, the evidence could not have been traditional evidence.

Mr. Okolo, counsel to the Respondent, both in his brief of argument and in his oral elaboration of his arguments before us replied to the arguments of counsel in the order in which they were presented. He pointed out and I agree with him that the issues joined between the parties was whether the land in dispute was ever sold to the Respondent’s father as alleged. What the Appellants have denied is the sale, and that by itself cannot put in issue the incidents of the tenure. He submitted that having pleaded the material fact of grant under Onitsha Customary law, the Respondent was entitled to give evidence in support thereof regarding the nature of the tenure under which the land was acquired. Counsel for the Appellants did not allege either the non-fulfillment of any of the incidents, or indeed challenge the inadmissibility of the evidence supporting the sale averred. Counsel relied on Okagbue & ors v. Romaine (1982) 5 SC.133 in support of the submission that the evidence led was permissible. Abowaba v. Adeshina 12 WACA 18 and Ayeni v. Sowemimo (1982)5 SC 60 were also cited and relied upon. Mr. Okolo pointed out that the identity of the land sold to Respondent was never one of the issues raised. He referred to the evidence of PW4, PW3, and DW1. He submitted that the confusion arose from the purported distinction between the land in dispute and the land sold.

Counsel referred to the relevance and admissibility of Exh. J and submitted that the parties joined issues in their pleadings on this issue, and the evidence of PW3, PW4 and 2nd Appellant were clear evidence. Exh. J was written on the express instructions of the 2nd Appellant on behalf of the Umuonogbo family.

In answer to the effect of the use of the expression “time immemorial” in the statement of claim to describe the grant, counsel conceded that the expression was inelegant but submitted that the expression qualified as it was;

and the fact that the parties understood the term as used throughout the trial, and never challenged the expression having not been misled. He relied on Ayeni v. Sowemimo (1982) 5 SC.60.

Finally counsel submitted that the evidence of Respondents was clearly admissible and Alade v. Awo (1976) 4 SC.215 relied upon by Appellants was inapplicable.

It seems indisputable and clear from the pleadings before the trial court, that the crux of the case before the learned judge was whether the late P. H. Okolo, the father of the Plaintiff/Respondent acquired under Onitsha customary law the piece of land in dispute from Ikwuazom Menkiti, the Okpala of Umuonogbo family, the father of the 2nd Appellant. 2nd Appellant has denied that there was any such sale of the land in dispute or any Okpoko land to late P.H. Okolo by his father. He went further to deny that his father was at any time the Okpala of Umuonogbo family.

It is pertinent to point out that these are questions of fact in respect of which primacy of determination is given to the trial court. It is important to observe here that Appellants have not adduced sufficient reasons why this Court ought to interfere with the following findings of fact of the trial Court that

(i) There was a transaction in respect of the sale of Okpoko land between late P.H. Okolo and late Ikwuazom Menkiti.

(ii) The transaction was in accordance with Onitsha Customary law

(iii) The land in dispute is the same as the land sold to late P.H. Okolo by late Ikwuazom Menkiti

(iv) Ikwuazom Menkiti was at the time of the transaction, the Okpala of Umuonogbo family and was so held out by the Umuonogbo family.

The main thrust of the appeal is the contention that Respondent did not prove the sale of the land in dispute under customary law. Concisely stated, counsel to the Appellant is contending that having pleaded a title under Onitsha customary law, Respondent failed to lead sufficient evidence in proof thereof. I do not think the contention is substantiated.

It is now well settled that a declaration of title under customary law will be made when the court is satisfied of the precise nature of the title and there is evidence before it to establish the claim. Accordingly it is essential for the party seeking a declaration to state specifically the nature of the title and the terms of the grant.

There is the pleading that the land in dispute was acquired under Onitsha native law and custom. The incidents of such custom are merely evidence of subordinate facts which are not necessary to be stated in pleadings. In the appeal before us Mr. Sofunde has contended that Respondent has not proved his title to the land in dispute. I do not think this is correct assessment of the evidence established before the trial judge. I agree with Mr. Okolo that the issue of the validity vel non of the sale of the land in dispute was not before the Court.

What was before the Court was whether the land in dispute was sold to P.H. Okolo. This is an issue of fact in respect of which there have been concurrent findings in the two Courts below. The trial Court and the Court of Appeal have held that the land in dispute was sold to P.H. Okolo by Ikwuazom Menkiti in accordance with the customary law of Onitsha. There was abundant evidence before the court to justify such a conclusion. It is now well settled that payment of purchase price and delivery of possession are sufficient to effect a valid sale and a valid title by native law and custom – See Akingbade v. Elemosho (1964) 1 All N.L.R. 154. Mr. Sofunde has relied on Emegwara v.Nwaimo (supra) to submit that Respondent has not proved the nature of his title. I think this is a misunderstanding

of the judgment in that case. The claim in that case was for “titular ownership” which obviously is a vague expression meaning “nominal ownership.” Of course a nominal ownership cannot ground a declaration is respect of title. The claim in the appeal before us is clearly different. In Emegwara v. Nwaimo, the learned judge did not have before him a claim or any evidence that will justify the making of a declaration. There is both a valid claim and evidence in the appeal before us.

The finding of fact that Ikwuazom Menkiti was at the time of the sale of the land in dispute, the Okpala of Umuonogbo family and that the land in dispute was sold to late P.H. Okolo in that capacity and that late P. H. Okolo remained in undisturbed possession until his death is conclusive evidence of a valid transaction. It seems to me clear from the evidence that Ikwuazom Menkiti was held out as Okpala of Umuonogbo family as having authority to conclude transactions in respect of Okpoko lands on behalf of members of the family. In such a circumstance the transactions so made are valid and binding on the family – see Secretary L.T.C. v. Soule (1939) 15 NLR 72. Udo v. Melifonwu (1961) 5 ERLR.93 at p.98.

The question of the distinction made between the land in dispute and the land sold appears to have been subsequently raised by Mr. Sofunde. It was not an issue raised in the pleadings. Surely if Appellants contend that Ikwuazom Menkiti did not sell any land at all, it is inconceivable that there can be two pieces of land in issue. Respondent’s claim is that the land in dispute was the land sold to late P.H.Okolo. That was the finding of the two courts below.

It was on this that issues were joined. The contention of Mr. Sofunde that the boundaries were marked out in plans made after the sale is not any argument that they were the boundaries of the land sold. Exh. J which is a letter written at the instance of the 2nd Appellant representing the Umuonogbo family and referred to the land in dispute. It was therefore strange to contend that there was no nexus between Exhibit J and the land in dispute.

The only transaction between late P.H. Okolo and the Umuonogbo family is the land in dispute. Exh. J refers to it. Mr. Sofunde was in error when he contended in his brief of argument that “the transaction took place immediately before the end of the last world war i.e. 1948.” Surely 1948 cannot be immediately before the end of the last world war, which was in 1945. Respondent is nearer the correct date when he said the transaction was in

1941. Exh. J was therefore an unequivocal admission of the transaction between late P.H. Okolo and the Umuonogbo family through its Okpala, Ikwuazom Menkiti. The denial by 2nd Appellant that Ikwuazom Menkiti was never the Okpala of Umuonogbo and that Ikwuazom Menkiti was not a member of Umuonogbo family was rejected in favour of overwhelming contrary evidence.

Mr. Sofunde has impugned the transaction on the alleged ground that evidence thereof is hearsay. It is well settled that writing is unknown in customary transactions, hence evidence of such transactions can only be given by the parties themselves and/or the witnesses present. In the absence of such persons other persons to whom the story of the transactions has been told. It is because of this defect that the wise provision of section 44 of the Evidence Act was made to enable evidence of such transactions.

Section 44 provides that –

“Where the titles to or interest in family or communal land is in issue, oral evidence of family or communal tradition concerning such title or interest is relevant”

The section enables oral evidence of transactions in customary law not reduced in writing to be adduced by the parties concerned whenever title or interest in land is in issue – See Commissioner of Landi v. Adagun (1937) 3 WACA 206. There is no doubt that the title of P.H. Okolo family is the land in dispute is in issue, hence oral evidence of the transaction concerning the title is admissible. The contention of Mr. Sofunde that such evidence is inadmissible, as hearsay will, if accepted, result in the exclusion of all evidence of transactions in respect of land under customary law as soon as the parties and witnesses are dead. It is naive to think that oral transactions no longer exist because of the prevalence of writing. Transactions made under customary law orally and without writing, still exist and are valid. It is sufficient for the Plaintiff to adduce credible evidence of such transaction – See Akuru v. Olubadan-in-Council (1954) 14 WACA.523

Although Traditional evidence seems to relate to transactions which have been made several years ago and has been aptly described in Alade v. Awo (1975) 4 S.C. at 223 as “hearsay upon hearsay,” it is unarguable that its origin is the recognition and acceptance of the story of transactions which has been handed down orally from father to son, and from generation to generation. It does not in my opinion cease to be traditional history merely because it is oral and that the first generation is relying on such oral account of the transaction. The indicia of “evidence as to rights alleged to have existed beyond living memory… “required in Abinabina v. Enyimadu 12 WACA at p.172 seems to me too restrictive. The true basis of and rationale for the admission of oral evidence of such transactions that is they are evidence of customary law, are not in writing and that the parties and witnesses to the transaction are most probably dead or no longer available. Antiquity is one, but not the only of the factors of the transaction that is to be considered. The fact that no witnesses can speak from personal knowledge of the transaction is a most persuasive and relevant consideration – See Alade v. Awo (1975) 4 S.C. at p.224. The Courts below were right in the view they took of the evidence of the transaction. This disposes of the 1st-4th issues for determination and grounds 1, 2, 3 and 5 of the grounds of appeal which are hereby dismissed.

I turn to the issue of the damages for trespass awarded against Appellants which is the subject matter of the 4th ground of appeal. Mr. Sofunde submitted that there was no basis for the award of damages against the 2nd Appellant, against who no complaint of trespass was made. Counsel appears to have ignored the pleadings in the case. Appellants, as correctly pointed out by Mr. Okolo for the Respondents were sued jointly and severally; and they filed a common defence to the claims of the Plaintiff. I think it is the law that where there is an action against tortfeasors, they are jointly liable for the tort which they both commit or for which they are both responsible, but not for a tort for which each is responsible for a different injuria and the two injuriae happen to produce the same damnum – See The Koursk (1924) p.140. Paragraph 21 of the statement of defence avers as follows-

“The 1st Defendant denies that he destroyed any beacons on the land but admits that as owner in possession by virtue of a Deed of conveyance in which the 2nd Defendant is the vendor he exercised his legal rights over the piece of land.”

This court has held in Plateau Publishing Co. v. Adophy (1986) 4 N.W.L.R. (Pt.34) p.205, that where the claim against the Defendants is joint, they are bound by the case of one of the Defendants and also liable for the default of any of them. See also Ogunleye v. Arewa (1966) WRNLR. 9, Y. Boshali & Co. Ltd. v. Arikpo (1961) 1 All NLR.161. The Defendants in this appeal who were sued jointly and severally have made a joint defence to the action.

The Court of Appeal was therefore right in finding the two Appellants liable for trespass even though only the 1st Appellant admitted acts of trespass. This ground of appeal therefore also fails. All the grounds of appeal argued having failed, they are hereby dismissed. The appeal accordingly fails and is dismissed.

The judgment of the Court of Appeal affirming the decision of Awogu J (as he then was) of the High Court of Onitsha dated the 14th April, 1980 is hereby further affirmed. Appellants shall pay the sum of N500 as costs to the Respondent.

SC.147/1986