Christian Ewo & 3 Ors Vs Ogbodo Ani & 17 Ors (2004)
LAWGLOBAL HUB Lead Judgment Report
KUTIGI, J.S.C.
In the Enugu High Court, the plaintiffs in paragraph 19 of their statement of claim, claim against the defendants jointly and severally as follows –
- Declaration of title of communal ownership by plaintiffs and 1st – 15th defendants of all that piece and parcel of land known as and called “IDUNE” situate in UGWUAJI, AWKUNANAW, NKANU DIVISION, more clearly shown and delineated in the plaintiffs’ plan No. E/GAO/1170 of 28/8170 attached herewith.
- E150 (one hundred and fifty pounds) general damages for trespass committed by the defendants on the said land.
- A PERPETUAL INJUNCTION restraining the defendants, their servants and/or agents from entering the land in dispute and in any manner whatsoever interfering with the said land without the prior consent of the plaintiffs.”
The defendants in paragraphs 15 & 16 of their amended statement of defence averred thus:
“15. The plaintiffs are not entitled as claimed in paragraph 19(1), (2), (3) of the statement of claim at all. The defendants would pray the court to dismiss this suit.
- The defendants will at the trial show as follows:
- That this suit is misconceived, frivolous and ought to be dismissed.
- That the plaintiffs have no communal land with the defendants 1 – 15 and their people.
- That the plaintiffs have brought this action out of sheer greed.”
After the filing and exchange of pleadings the case proceeded to trial, At the trial each side called witnesses in support of its case. In a considered judgment the learned trial Judge, Okagbue, J., after carefully, reviewing the evidence before him came to the conclusion that the plaintiffs woefully failed to prove that the land in dispute is held by the parties herein in common. Plaintiffs’ case was therefore dismissed with costs.
Dissatisfied with the judgment of the trial court, the plaintiffs appealed to the Court of Appeal holden at Enugu. In a reserved judgment the Court of Appeal unanimously allowed the appeal, set aside the judgment of the learned trial Judge and entered judgment in favour of the plaintiffs as claimed.
Aggrieved by the decision of the Court of Appeal the defendants have now appealed to this court on a number of grounds. In obedience to the rules of court, the parties filed and exchanged briefs of argument which were adopted and relied upon at the hearing.
Dr. Oguagha learned counsel for the defendants has on page 5 of his brief identified six (6) issues as arising for determination in this appeal. But having regard to the judgments of both the trial High Court and that of the Court of Appeal which I have read, only issues 1, and 3 are necessary for resolution in this appeal since they are the core issues and formed the basis of those judgments. In other words those judgments revolve around “traditional evidence” and the “onus of proof.” The issues are –
“1. Whether the Court of Appeal was right in coming to the conclusion that the plaintiffs pleaded and proved traditional history which ought to be accepted if the defendants did not plead and prove another version of traditional history,
- Whether the Court of Appeal was right to have shifted the onus of proof of ownership on the defendants, and if it was not, what is the effect of such an error.
I will now proceed to treat the issues.
Issue (1)
It was submitted that the Court of Appeal was in error when it held that the plaintiffs pleaded and proved evidence of tradition and based on that reversed the trial Court and entered judgment for the plaintiffs. Dr. Oguagha said what the plaintiffs pleaded and proved was not evidence of tradition, but evidence of contemporary events. That issues on which living witnesses and written agreements can be found are not traditional evidence. He said the plaintiffs did not only fail to plead the origin of the land in dispute and its devolution from generation to generation and how their ancestors came on the land in dispute, but that they also failed to prove any of these requirements. A number of cases were cited in support including Kojo II v. Bonsie (1957) 1 WLR 1223; Ogunleye v. Oni (1990) 2 NWLR (Pt.135) 745; Bamgbose v. Oshoko (1988) 2 NWLR (Pt.78) 509; Olawuyi v.Adeyemi (1990) 4 NWLR (Pt. 147) 746.
He said the agreements, exhibits B & E, tendered by the plaintiffs and which the Court of Appeal relied upon, were of no value as no effort was made to show that the parties to those agreements are the same as those in the present suit. It could not also be proved that the lands in those agreements are the same as that in the present suit. The learned trial Judge therefore rightly rejected those exhibits and the Court of Appeal was to have relied on them. We were referred to the case of Mogaji & Ors. v. Odofin (1978) 4 SC 91.
Mr. Ofodile learned counsel for the respondents first of all made an observation to the effect that the judgment of the Court of Appeal was not based on his current appellants’ further amended brief of argument copied on pages 137 – 149 of the record wherein he raised six (6) issues for determination in that court. He said the judgment was based on his abandoned appellants’ amended brief of argument from where he treated the three (3) issues set out on page 176 of the record of appeal. It was therefore contended that the plaintiffs were not given a fair hearing because only the three (3) issues in the abandoned appellants’ amended brief were considered, and not the six (6) issues contained in the appellants’ further amended brief even though the plaintiffs still won the appeal. That he would not oppose going for a re-hearing of the appeal in the Court of Appeal. Dr. Oguagha is of course opposed to this idea. That the plaintiff had won in the Court of Appeal and there was no need for a re-hearing in that court. He wanted the appeal to be heard on its merit. My short answer to this is that as I have said above, after reading the judgments of both the High Court and that of the Court of Appeal, the three (3) issues set out on page 176 of the record and which were considered by the Court of Appeal formed the basis of the judgment in the High Court as well as in the appellants’ further amended brief. They all in the main deal with “traditional evidence” and “onus of proof.” They are also the same issues that are presently being considered in this appeal. I therefore rule that the plaintiffs were given a fair hearing in the Court of Appeal and that they were not prejudiced in anyway. Infact the judgment was in their favour.
Responding to issue (1) above, Mr. Ofodile submitted that the Court of Appeal was right when it came to the conclusion that the plaintiffs pleaded and proved traditional history. He said the court was equally right to have drawn inferences from exhibits B and D which are favourable to the plaintiffs. That having correctly assessed the plaintiffs traditional history, the plaintiffs were without more entitled to judgment. He cited the case of Ogunleye v. Oni (supra) in support.
It is settled law that there are five ways in which ownership of land may be proved as follows –
(a) by traditional evidence;
(b) by production of documents of title;
(c) by acts of person or persons claiming the land such as selling, leasing, renting out or farming on it;
(d) by acts of long possession and enjoyment of the land; and
(e.) by proof of possession of connected or adjacent land; (see the case of ldundun v. Okumagba (1976) 1 NMLR 200; (1976) 9 – 10 SC 227).
The Court of Appeal in its lead judgment on page 179 of the record said:
“After considering the submissions and argument in the briefs of the parties in this appeal, and upon a review of the state of pleadings on the issue of traditional history, I will agree with the plaintiffs/appellants that they have adequately pleaded the issue in their paragraphs 4, 6, 6A, 7 & 8 of the statement of claim.
…
In any case, even if we regard the denial by the defence in this case as sufficient and that the issue of communal usage of the land in dispute had been joined, it is my humble view that the plaintiffs/appellants had proved that at the lower court by means of exhibit ‘B’ and ‘E’ and by the evidence of P.W.’s 2, 4 and 8. It is on this basis that I regard the rejection of the traditional evidence adduced by the plaintiffs/appellants at the lower court as unjustified.”
I have had a close look at paragraphs 4, 6, 6A, 7 & 8 of the plaintiffs’ statement of claim which the Court of Appeal held to have sufficiently pleaded traditional evidence of the plaintiffs. Pleading in paragraph 4 that the plaintiffs owned and possessed the land in dispute from time immemorial is certainly not sufficient pleading of tradition. Paragraphs 6, 6A, 7 & 8 pertaining to 1928 Ugwuaji settlement and stories about court cases in 1943 and 1952 respectively cannot also by any stretch of imagination be regarded as pleading of tradition, being recent acts within living memory. In this regard the plaintiffs were bound, if they relied on tradition, to have pleaded who founded the land, how he or they founded it, and the particulars and names of the intervening owners through whom they claim (see for example Akinloye & Anor. v. Bello Eyiyola (1968) NMLR 92; Adejumo v. Ayantegbe (1989) 3 NWLR (Pt.110) 447).
Obviously if the plaintiffs did not plead traditional evidence as indicated above, it would be futile considering any evidence in that line as such evidence would go to no issue and ought to be disregarded (see Oke Bola v. Molake (1975) 12 SC 61; Emegokwue v. Okadigbo (1973) 4 SC 113). Consideration of the so called agreements, exhibits ‘B’ and ‘E’ which clearly are not documents of title therefore no longer arises. The Court of Appeal was thereby clearly in error when it came to the conclusion that the plaintiffs had proved their ownership of the land by traditional evidence.
Generally speaking I think the learned trial Judge was right when he said in his judgment on page 98 thus –
“In the instant case what is urged on the court is certainly not traditional evidence. It is not every story which touches on the land in dispute that can be categorized as traditional evidence. The story about the dispute which is said to have been taken before the district officer is definitely not traditional evidence but evidence of contemporary history, histories of events which apparently happened within living memory and which 628 have to be strictly proved in accordance with the laws of evidence.”
That would have been the end of this appeal, the plaintiffs having failed to prove their only root of title on which they relied. But before I conclude I would like to comment briefly on issue (2).
Issue (2)
This simply has to do with who between the plaintiffs and the defendants has the onus or burden of proving that the land in dispute is communally owned together by the two sides to the dispute. The plaintiffs clearly in paragraph 19(1) of their statement of claim above, claim –
“Declaration of title of communal ownership by plaintiffs … of all that piece and parcel of land known and called “IDUNE”
The defendants .in paragraph 15 of their statement of defence above denied the claim.
The learned trial Judge on page 99 of the record rightly in my view resolved the issue thus –
“In my view the onus clearly lies on the plaintiffs to prove that the land is held by both parties in common since the parties have not been shown to belong to the same family and to all intents and purposes are strangers to each other. This they have not succeeded in doing and I have no alternative but to dismiss their claim and it is hereby dismissed with costs assessed at N250.00.”
But the Court of Appeal in the lead judgment on page 187 had this to say –
“In any case the said lower court did not specifically hold that the traditional evidence was inconclusive. Therefore there is no need to cast any burden on the plaintiffs/appellants as was done by the lower court. In other words, the lower court should have placed the onus of proof on the defendants/respondents who from the state of their pleadings are claiming exclusive ownership of the land which was said to be owned communally.”
I think the Court of Appeal was, with all due respect, completely wrong. It got mixed up. Family land is certainly not the same thing as communal land, but the principles are the same. If a member of a family claims ownership of family land he or she, the claimant, must prove how he or she came to own family land to the exclusion of other members of the family. So also in the instant case, though not family land, the plaintiffs who are claiming to own communally with the defendants the land in dispute which land they acknowledge to be in the control or possession of the defendants, have the burden or onus to prove that the land in dispute is held by both parties in common. The law is very clear on the point. He who asserts must prove (see Sec. 134 of the Evidence Act). Again the burden of proof in a suit lies on that person who would fail if no evidence at all were given on either side (see Sec. 135 of the Evidence Act). The plaintiffs obviously from the nature of their cause are not saying that the defendants do not own or control the land in dispute but are only saying that they (plaintiffs) own the land together with the defendants communally. So the trial court was right in placing the burden squarely where it belonged, on the plaintiffs. They failed to discharge the burden and their claims were, rightly in my view dismissed.
This issue must as well be resolved against the plaintiffs.
All the issues having been resolved against the plaintiffs, the appeal must be allowed. The judgment of the Court of Appeal is set aside while that delivered by the Enugu High Court on the 24th January, 1977 is restored. For the avoidance of doubt plaintiffs’ claims are dismissed.
The defendants are awarded costs assessed at N 10,000.00 only.
SC.62/1997