Christian Soronnadi &anor Vs Aruji Durugo (2018)
LAWGLOBAL HUB Lead Judgment Report
KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, JSC
By their Writ of Summons filed on 14/3/1983 and Statement of Claim filed on 30/8/1983, Fidelis Durugo, Aruji Durugo and Dennis Durugo, for themselves and on behalf of the family of Amasa Ngugo Ikeduru of Ikeduru Local Government Area of Imo State, instituted an action against the appellants herein before the High Court of Imo State, Owerri Judicial Division seeking the following reliefs:
a.Declaration that the plaintiffs are entitled to customary rights of occupancy in respect of the piece and parcel of land known and called Umudurugo land annual value N10.00 situate at Umueze Amasa Ngugo Ikeduru within the jurisdiction and more particularly shown in the plan to be filed in court.
b.N50,000.00 general damages for trespass.
c.Injunction restraining the defendants by themselves, their servants and agents from entering the plaintiffs’ land and therein acting in any manner inconsistent with the plaintiffs’ customary rights.
The plaintiffs’ claim as per paragraphs 4, 5 and 6 of their statement of claim is that they have been in customary possession of the land in dispute from time immemorial. They traced succession to the land from their original ancestor, Duru Ibeneye, the founder of the land down to themselves by inheritance. It was their case that they had exercised numerous acts of possession undisturbed on the land. That at a point in time, part of the land was pledged by a member of their family to a member of the defendants’ family but was later redeemed. The felling of Iroko trees on the land in 1983 by the appellants is what gave rise to the suit at the trial court.
The appellants, as defendants contended that the land in dispute, which they called “ALA UHU UMUANU” devolved on them by inheritance through their original ancestor and common ancestor to the parties, one Emeze. They pleaded the devolution of the land from the said Emeze down to themselves. They claimed that at a point in time many years ago, there were many deaths occurring at the respondents’ homestead, which made it uncomfortable for Oleru Durugo, their ancestor to continue to live there. Oleru Durugo also happened to be an in-law to the appellants. Their case was that at Oleru Durugo’s request, he was granted the land in dispute to live on until he found something more suitable for himself and his family. That it was a temporary arrangement. That the relations who came with Oleru Durugo pursuant to the grant made to him, eventually left and settled elsewhere but Oleru Durugo remained on the land. Relying on some decisions arising from suits instituted at the native courts, they raised the defence of estoppel per rem judicatam and issue estoppel.
Both sides testified in respect of their various positions and called witnesses and tendered documents including survey plans. At the conclusion of the trial, the learned trial Judge rejected the pleas of res judicata and issue estoppel raised by the appellants and entered judgment on 17/6/96 in favour of the respondents as follows:
“I have already held that the grant was not proved and that plaintiffs therefore have the advantage of the operation of Section 46 of the Evidence Act. Plaintiffs maintained both in their pleading and evidence that the land in dispute is one stretch parcel of land on which they live. They gave evidence of traditional history as well as evidence of their acts of ownership and possession in and over the land in dispute which, according to them including living on the land, burying their dead on the land and reaping economic trees on the land. Plaintiffs’ plan of the land in dispute, Exhibit A, shows their houses, the ruined houses of their relations and the graves of their relations. Plaintiffs’ evidence of traditional history is in accord with their pleading and I find nothing materially contradictory in it.
Although defendants also pleaded and gave evidence of their traditional history, pitched against their failure to prove the grant pleaded by them and the evidence of DW2 that the land described in defendants’ plan, Exhibit K, differed from the land shown in the plaintiffs’ plan, Exhibit AI am inclined, on the evidence, to accept the case of the plaintiffs and find as a fact that the land in dispute as shown in Exhibit A belongs to the plaintiffs.
The cause of action is pleaded in paragraph 7 of the statement of claim as the felling in 1983, by the defendants of an Iroko tree on the land in dispute. Defendants admitted doing so in paragraph 12 of the statement of defence, claiming that they did so in their right as owners of the land. Having found that the land belongs to the Plaintiffs, it follows that the entry of the defendants on that land in 1983 to fell the Iroko tree is trespassory as plaintiffs have complained. An injunction can be granted to restrain further trespass in appropriate cases and the instant case is one such appropriate case….
In the final result, the action succeeds.”
The plaintiffs’ claims for declaratory and injunctive reliefs were granted with {42,000.00 general damages for trespass awarded in their favour against the defendants.
Being dissatisfied with the judgment, the appellants appealed to the Court of Appeal, Port Harcourt Division. In a considered judgment delivered on 17/1/2007, the appeal was found to be unmeritorious and accordingly dismissed. The appellants have now approached this court as the final arbiter vide their notice of appeal filed on 13/3/2007 containing four grounds of appeal.
At the hearing of the appeal on 2/10/18, there was no representation for the appellants. However, having filed a brief of argument settled by E.C. AJOKU ESQ., they were deemed to have argued the appeal pursuant to Order 6 Rule 8 (6) of the rules of this court. CHIDI B. NWORKA ESQ., adopted and relied on the respondents’ brief filed on 3/7/2008 in urging the court to dismiss the appeal.
The three issues formulated by the appellants for the determination of this appeal, which have been adopted by the respondents, are as follows:
1.Whether the learned Justices of the Court of Appeal were right in deciding that the Appellants failed to rebut the presumption of law that the respondents are the owner (sic) of the land in dispute by virtue of their being in occupation of the land in dispute.
2.Whether the learned Justices of the Court of Appeal were right in deciding that the Respondents had proved better title to the land in dispute than the appellants.
3.Whether the learned Justices of the Court of Appeal rightly held that it was impossible to ascertain that the land in dispute in the Native Court Suit No. 168/53 was the same land in dispute in the instant suit without plan filed in the Native Suit No. 168/53.
I shall consider Issues 1 and 2 together.
Issues 1 & 2
Learned counsel for the appellants argued that the respondents’ failure to deny the material averments in their Statement of Defence regarding the grant of land to their relation, Oleru Durugo, constituted an admission of those averments and therefore amounted to a rebuttal of the presumption of ownership which ought to inure in their favour. He referred to paragraphs 6, 7, 8, 9 & 10 of the Statement of Defence and the dispute plan, Exhibit K, filed along with it and submitted that the respondents did not file any reply to counter the averments. He argued that the effect of the non-denial is an admission of the fact that it was the appellants’ ancestor, Emereonyekwe, who permitted the respondents’ relation, Oleru Durugo, to live on the land. He relied on: Honika Sawmill (Nig.) Ltd. Vs Hoff (1994^ 2 NWLR fPt.326^ 252 @ 270; Ndiakaeme Vs Eqbuonu & Ors. 7 WACA 53: Din Vs Africa Newspaper Ltd. (199(n 3 NWLR (Pt.139) 392 @ 405.
He submitted further that the respondents did not challenge the evidence of DW1, Michael Emereonyekwe, who testified in support of the pleadings regarding how Oleru Durugo came to be in occupation of the land. He submitted that evidence not challenged during cross-examination remains credible and reliable and can be acted upon by the court. He referred to: Omoreabe Vs Lawani (1980) 3-4 SC 108: Okike Vs LPDC (2005) 15 NWLR (Pt.949) 471 @ 532-533 H-B; Baba Vs N.C.A.T.C. (1991) 5 NWLR (Pt.192) 388 @ 422 F-G.
He submitted that the appellants’ pleading and uncontradicted evidence on the temporary grant of land to Oleru Durugo was confirmed in the Native Court judgment in suit no. 168/53 between Osuji Oleru, the father of the respondents, as plaintiff, and Soronnadi Ajawuihe, the father of the appellants, as defendant in respect of the same land. He referred to the proceedings and judgment in the said suit, which were admitted in evidence as Exhibit B. Learned counsel referred to page 231 of the record and submitted that even the lower court found that the appellants’ ancestor Emereonyekwe permitted Oleru Durugo to occupy the land in dispute. He submitted that on this basis, the court ought to have allowed the appeal. I shall come back to this observation later in the judgment.
In support of the second issue, learned counsel submitted that contrary to their pleading in paragraph 5 of their statement of claim as to how the land devolved on them through their ancestors, the 2nd respondent who testified as PW1, admitted a different line of descendants, when put to him by the appellants’ counsel. He submitted that PW2, on the other hand, confirmed the true ancestors of the respondents as put to PW1. He argued that the traditional history they pleaded is at variance with the admission of the 2nd respondent during cross-examination. He contended that they failed to plead their true ancestors, whom they (appellants) pleaded to be as follows: (i) Okonomo, (ii) Ejikem, (Hi) Durugo, (iv) Oleru Durugo, and (v) Osuji Oleru. They assert that Osuji Oleru is the father of the 2nd respondent. Learned counsel submitted that they also failed to challenge the averments by filing a reply thereto.
He argued that the respondents failed to establish any of the five ways of proving ownership of the land in dispute as decided by this court in Idundun Vs Okumagba (1976) 9 – 10 SC 224 and therefore failed to prove the root of their title, which they predicated on traditional evidence. In the circumstances, he submitted, relying on Akulaku Vs Yongo (2002) 5 NWLR (Pt.28) 276 @ 287 G-H: Mogaji Vs Cadbury (Nig.) Ltd. (1985) 2 NWLR (Pt.7) 393 @ 430 G-H, the respondents’ claim ought to have failed. He contended further that the respondents did not deny the traditional history given by the appellants in line with their pleading regarding- their original ancestor and the intervening owners of the land and failed to challenge same under cross-examination. He submitted that such unchallenged evidence ought to be accepted by the court. He therefore rejected the finding of the lower court that the respondents proved a better title to the land.
In response, learned counsel for the respondents submitted that the respondents relied on long possession and acts of ownership in proving their entitlement to the declaration sought. He submitted that they pleaded the original founder of the land and the intervening persons through whom the land devolved. He referred to paragraph 5 of the statement of claim. He submitted that apart from tracing the intervening owners of the land, the respondents gave credible evidence of long possession and acts of ownership, evidenced by features on the land. He referred to the evidence of PWs 2, 3 and 4. He noted that the appellants admitted the respondents’ long possession of the land in paragraph 7 of their Statement of Defence and confirmed by DW1.
He submitted that in light of the appellants’ admission that the respondents are in possession of the land in dispute, it was no longer necessary for them to prove the long possession they pleaded. He noted however, that notwithstanding the appellants’ admission, they still went ahead and firmly established their claim. He submitted that the five methods of proving title to land, as set out in Idundun Vs Okumagba (supra), are independent of each other and proof of any one is sufficient to establish ownership. He referred to: Nwosu Vs Udeaia (1990) 1 NWLR (Pt.125) 188 @ 218
He submitted that the appellants had the onus of rebutting the legal presumption of ownership in the “respondents’ favour by virtue of Section 146 of the Evidence Act, 2004 (now Section 143 of the Evidence Act 2011). He submitted that by Section 135 of the Evidence Act, the onus was on them to prove the alleged grant by their ancestor to the respondents’ ancestor. He submitted that the concurrent finding of the two lower courts is to the effect that the appellants failed to discharge this burden and therefore failed to rebut the presumption of ownership in favour of the respondents. He contended that in light of the concurrent findings, the appellants have a further burden of showing that the said findings are perverse. He referred to: Onwudiwe Vs F.R.N. (2006) ALL FWLR (Pt.319) 774 @ 816.
In reaction to the contention of learned counsel for the appellants that in the absence of a reply, the respondents are deemed to have admitted their pleadings, he submitted that the rules of pleading are to
the effect that, save in the case of a counterclaim, a plaintiff is deemed to have denied and therefore put in issue, any averment in the statement of defence. He referred to: Order 2 Rule 10 (1) of the Imo State High
Court (Civil Procedure) Rules 1988. He argued that having failed to lead credible evidence to prove the issue of the grant, there was nothing to challenge by way of cross-examination. He submitted that the portion of the judgment of the lower court at page 231 of the record, quoted by learned counsel, was not a finding of the court, as asserted by him, but a recap of the submissions of learned counsel.
With regard to the second issue, learned counsel submitted that having proved their title to the land by evidence of long possession, which is one of the five ways by which ownership of land may be established, the two lower courts were right to grant the respondents the declaration they sought.
On the alleged contradictions in the evidence of traditional history, he submitted that the respondents instituted their action in a representative capacity on behalf of the Umudurugo Family. He submitted that the land was said to be family land and not land belonging to the individual plaintiffs. He submitted that what is required where reliance is placed on traditional history is the founding of the land and the persons through whom the land passed, down to the present claimants. He referred to: Osafile Vs Odi (1994) 1SCN3 1 @ 15.
He submitted that it is irrelevant to plead who in a family begat whom or who was the direct son or father of whom, if such person had nothing to do with the land in issue. He submitted that where the land is communally owned by a family, the necessary family history to be pleaded and proved is the person who first founded the land and successive heads of the family who held the land in trust for the other members of the family until it came into the possession of the present claimants. He argued that in passing from one head of the family to the other, it may not necessarily be directly from father to son. He submitted that in the instant case, the respondents pleaded their original ancestor who founded the land and the various heads of the family who held the land in trust for the rest of the family, until the headship fell on the present respondents along with custody of the disputed land.
He submitted that the appellants misled themselves by setting up a family tree for the respondents, which had no business with the land in issue. He submitted that they could not impose it on them. He argued that extracting evidence from the witnesses as to who begat whom is irrelevant to their history with regard to the land. He urged the court to discountenance the submissions of learned counsel for the appellants and resolve both issues in the respondents’ favour.
There are five methods, which have been recognised by a legion of decisions of this court, by which title to land may be proved. The locus classicus on this issue is the case of Idundun Vs Okumagba (1976) 9 – 10 SC 227, where they were stated thus:
1.By traditional evidence;
2.By production of documents of title duly authenticated and executed.
3.By acts of ownership extending over a sufficient length of time numerous and positive enough as to warrant the inference of true ownership.
4.By acts of long possession and enjoyment.
5.By acts of possession of connected or adjacent land in circumstances rendering it probable that the owner of such adjacent or connected land would in addition be the owner of the land in dispute.
See also. Nkado Vs Obano (1997) 5 SCN3 33 @ 47: Owhonda Vs Ekpechi (2003) 9-11 SCNJ 1 @ 6.
Another important principle to be borne in mind is that where a party seeks declaratory reliefs, he must succeed on the strength of his own case, and not on the weakness of the defence, if any. See: Dumez Nig. Ltd. Vs Nwakhoba (2008) 18 NWLR (Pt.1119) 361: Bello Vs Eweka (1981) 1 SC (Reprint) 63; Emenike Vs P.D.P. (2012) 12 NWLR (Pt.1315) 556; Ilori Vs Ishola (2018) LPELR-44063 (SC). A declaratory relief must be proved to the satisfaction of the court notwithstanding default of defence or any
admission in the defendant’s pleading. See: Okoye & Ors Vs Nwankwo (2014) 15 NWLR (Pt.1429) 93; Equamwese Vs Amashizemwen (1993) 9 NWLR (Pt.315) 1 @ 30. Furthermore, where the defendant does not file a counter claim, the burden is heavier on the claimant to prove his title to the land in dispute. The defendant has no duty to prove his own title to the disputed land. See: Onovo Vs Mba & Ors. (2014) 14 NWLR (Pt.1427) 391: (2014) LPELR-23035 (SC) @ 73 B – D: Elias Vs Disu (1962) ALL NLR (Pt.l) 214 @) 220: Kodilinye Vs Odu 2 WACA 336 (5) 337 – 338: Idundun Vs Okumaaba (supra).
Section 133(1) & (2) of the Evidence Act provides:
“(1) In civil cases, the burden of first proving existence or non-existence of a fact lies on the party against whom the judgment of the court would be given if no evidence were produced on either side, regard being had to any presumption that may arise on the pleadings.
(2) If the party referred to in subsection (I) of this section adduces evidence which ought reasonably to satisfy the court that the fact sought to be proved is established the burden lies on the party against whom judgment would be give if no more evidence were adduced, and so on successively, until all the issues in the pleadings have been dealt with.”
Thus, where the claimant has adduced sufficient evidence to warrant a declaration being made in his favour, the onus shifts to the defence to satisfy the court that his own title is such as to oust the title of the original owner. See: Ojo Vs Adejobi & Ors. (1978) 3 SC 65; Sanyaolu Vs Coker (1983) LPELR-3012 (SC) @ 26-27 E.
The first issue to consider is the basis of the respondents’ claim at the trial court. This can be found in paragraphs 4/5 and 6 of the statement of claim at pages 11 – 12 of the record, to wit:
“4. The land in dispute has from time immemorial been in the plaintiffs’ customary possession and user of the plaintiffs and their ancestors. As persons in customary possession the plaintiffs as did their ancestors have put the land in dispute into diverse use such as farming and harvesting the economic trees thereon, pledging portions thereon without let or hindrance from the defendants, their ancestors or from any other person or persons whatsoever. On the land in dispute can also be seen plaintiffs’ permanent dwelling houses, plaintiffs’ shrines, ruined graves of plaintiffs’ ancestors.
- The first plaintiffs’ ancestors to enter into the land in dispute as a virgin land was Duru Ibenenye who made use of the land in the manner hereinbefore stated. Other plaintiffs’ ancestors who were in customary possession of the land in dispute in the manner aforesaid include Nwaigbo Duru Ibenenye, then Duru Oriaku, then Durygo, then Chukwuleke on whose death the land descended to the plaintiffs. These generations of plaintiffs’ ancestors farmed on the land in dispute, harvested the economic trees thereon, lived and died thereon without let or hindrance from the defendants, their ancestors or from any other person or persons whatsoever.
- There was a time one Ekuonu, the plaintiffs’ ancestor, pledged a portion of the land in dispute verged yellow in the plan to one Ajawuihe, an ancestor of the defendants for the sum of9s.6d. in cowries. The said Ajawuihe re-pledged the land to one Eke from whom Osuji Durugo, a relation of Ekwuonu redeemed the land. Since then, the entire land in dispute has been in plaintiffs’ possession and use.”
In reaction to the above averments, the appellants pleaded in paragraphs 3, 5, 6 and 7 of their statement of defence at pages 16 – 19 of the record:
“3. That paragraph 4 is not correct as the defendants are in possession by inheritance from time immemorial. The plaintiffs and their great grandfathers had never been in customary possession and had never exercised any maximum acts of possession or user, such as farming, harvesting economic crops thereon or pledging. The defendants have protested vehemently against some permanent buildings being erected on the defendants’ land as such runs counter to the conditions which were agreed upon by Oleru Durugo before Emereonyekwe allowed him a portion verged yellow” in the defendants’ plan filed herein.
5.The defendants deny paragraph 5 of the statement of claim and further aver that the land of the defendants now in dispute was not a virgin land cleared and inhabited by Duru Ibenenye. The defendants further aver that the entire land now in dispute was originally owned by one Emeze who had three male issues….
6.There was a period of time, many years ago when Oleru Durugo lived in their land “UHU OGBAIGWEOKU”. As that homestead became too bad for Oleru and his relations because of many deaths, Oleru with his wife, called Chineka, approached Emereonyekwe to allow him and his relations to live in this land in dispute until he found another suitable place. Onyegono was the wife of Emereonyekwe and also a sister of Chinyeka. Emereonyekwe showed Oleru a portion of the “UHU-UMUANU” land now in dispute verged yellow” in the defendants’ plan to live for a time until Oleru got another place. This was on the clear understanding and undertaking that Oleru should stay on temporary basis and not to erect any permanent buildings thereon. Oleru agreed and took possession of the said portion after performing the customary rites such as wine, kola nuts, etc.
- Oleru brought along with him the following relations to wit: – Amadi Durugo, Egonu Durugo, Ekonye Durugo, etc. They lived there for about 35 to 40 years and moved away to their own place and the defendants took back their land from where they moved out. Oleru did not move out with his relations and continued to stay thereon. Oleru, while he lived on this portion verged yellow” on the defendants’ plan had the following as his children….”
From the pleadings above, it is evident that the respondents, as plaintiffs, relied on the third method of proving title as stated in Idundun’s case (supra) i.e. long possession and enjoyment. They pleaded that they are owners in possession. They did not rely on traditional history, as asserted by the appellants. In their pleadings and in their evidence before the court, they testified as to how possession of the land devolved through various family members down to themselves. The appellants, by their statement of defence, challenged the respondents’ claim of ownership by long possession and contended that their possession of at least part of the land is based on a grant made to their forefather, Oleru Durugo by the appellants’ ancestor, Emereonyekwe. The alleged grant was the main thrust of the defence.
My Lords, as stated earlier, in a claim for declaratory reliefs, the onus is on the claimant to establish his case on a preponderance of evidence. He will not be entitled to such reliefs, even on the admission in the pleadings of the defence because the court must be satisfied that he is entitled to the relief claimed. In the case of Sanusi Vs Ameyogun (1992) 4 NWLR (Pt. 237) 527 @ 547 D – F this court noted that the first stage of enquiry in a claim for declaration of title is to consider whether the claimant has made out a prima facie case. This was likened to what the court considers when a submission of “no case to answer” is made in a criminal case. If the court finds that the claimant has made out a prima facie case, it proceeds to the next stage where the evidence of either side would be placed on an imaginary scale to see where it preponderates. The court held thus at page 547 F – G (supra):
“In a land case such as the instant, the onus of proof usually lies on the plaintiff who must rely on the strength of his own case and not the weakness of the defence. …But this is subject to the qualification that the plaintiff can in so doing take advantage of such aspects and facts of the defence which support the plaintiff’s case.”
The respondents, through their witnesses, particularly PW1 (2nd plaintiff) and PW2 (a boundary man), gave evidence of their customary possession of the land in dispute from time immemorial and of acts of possession thereon such as the construction of dwelling houses, the cultivation of economic trees, burial of their ancestors on the land and the existence of shrines thereon. PW4, a registered surveyor, who prepared Exhibit A, the survey plan relied upon by the respondents, testified as to the features he found on the land, which included old and recent graves, shrines and inhabited buildings. These pieces of evidence, as found by the learned trial Judge, constituted positive acts of possession of the land in dispute. In addition to this positive evidence led by the respondents, the appellants conceded that they are in possession of at least part of the land in dispute, but contended that such possession arose from a grant of the land to their ancestor, Oleru Durugo by the appellants’ ancestor, Emereonyekwe. The learned trial Judge, at. pages 109 – 110 of the record held as follows:
“… it is common ground that the plaintiffs are in possession of (at least part of) the land in dispute. Plaintiffs have contended that they are in such possession as owners while defendants maintain that plaintiffs are in such possession by virtue of a grant from their (defendants’) family.
By Section 146 of the Evidence Act –
“when the question is whether any person is owner of anything of which he is shown to be in possession, the burden of proving that he is not the owner is on the person who affirms that he is not the owner”.
So the burden is on the defendants of proving that the plaintiffs are not the owners of at least that part of the land in dispute which they (defendants) pleaded was granted to plaintiffs’ forbear. …In other words, plaintiffs’ possession presumes them owners until the defendant can establish that they (plaintiffs) are not the owners. Defendants can only do so by proving the grant.”
The court below had this to say in respect of the above finding of the learned trial Judge as to where the burden of proof lay in the circumstances of this case:
“In considering the 1st and 3d issues for determination in this appeal, let me recall what S.145 of the Evidence Act provides: The section provides:
….
It draws from the foregoing that the learned respondents’ counsel is, without any doubt, right in his support of the lower courts findings given parties’ pleading and evidence. Appellants’ burden it is, having conceded that respondents are in possession of at least part of the land in dispute, to show that the possession had indeed been acquired following the grant by appellants’ forbears of the land in dispute to the respondents’ forbears. The lower court’s reliance inter alia on the decisions in Omuma Vs Okpere (1991) 5 NWLR (PL 189) 36 @ 52; Oke Vs Atoloye (1986) 1 NWLR (PL …) 241 @ 262 and Obodo Vs Ogba (1987) 2 NWLR (Pt.54) 1 @ 14 in support of its finding as to whose burden it was between the parties herein to prove ownership is most unassailable. The respondents, on the state of the pleadings, are presumed by law, to be the owners of the land in dispute until the appellants had rebutted the presumption.”
The finding of the two lower courts on this issue cannot be faulted. The respondents established by a preponderance of evidence that they are in possession of the land in dispute and have been in such possession from time immemorial. They traced their possession through their various ancestors. I am in agreement with learned counsel for the respondents that it is not the appellants’ place to make out a case for them. They gave evidence as to how possession passed down to them. The fact that it may not have passed chronologically from father to son, as asserted by the appellants, cannot detract from their unchallenged evidence that the land has been in possession of their family for generations. The testimony of PW4 that he found old graves and juju shrines as well as inhabited houses on the land supports the respondents’ pleadings in this regard.
In order to prove the transfer of land under customary law, certain facts must be established. It must be pleaded and proved that the grant was made in the presence of witnesses who saw the actual handing over of the property. The names of the persons who witnessed the transfer and handing over must be pleaded. See: Cole Vs Folami 1 FSC 66; Folarin Vs Durojaiye (1988) 1 NWLR (Pt.70) 351 @ 353 & 365 D – E; Mogaji Vs Odofin (1978) 4 SC 91 @ 96.
The main evidence in support of the alleged grant to Oleru Osuji was given by the 2nd defendant who testified as DW1. The learned trial Judge at pages 110 -113 of the record, painstakingly considered the evidence of DW1 alongside the evidence of DW3 and DW4 and found as follows:
“Under cross-examination, 2nd defendant stated that he was 10 years and was present at the time of the grant. But it was never pleaded by the defence that the 2nd defendant witnessed the alleged grant. Evidence of a fact not pleaded goes to no issue, and this is the legal position whether it is evidence elicited in-chief or during cross-examination….
DW3 who also gave evidence of the grant was not pleaded as a witness to the grant nor did he even give evidence that he was present and witnessed the grant. Indeed, under cross-examination he was asked and he answered as follows:
Q: Do you know the boundaries of the portion of the land in dispute you allege was granted plaintiffs?
Ans: The land granted the plaintiffs within the land in dispute is large.
Q: What is the extent of that land granted them?
Ans: I did not measure the extent of the area granted them and so I do not know the extent.”
Again, DW4 who also gave evidence of the grant was not pleaded as a witness to the grant. According to this witness under cross-examination, the grant was made by 2nd defendants father to 2nd plaintiff’s father. But the pleading and the evidence of DW1 showed that the alleged grant was made to Oleru Durugo. Oleru Durugo was not 2nd plaintiffs father as the evidence of DW4 shows. His father was Osuji Oleru. Besides, DW4 was asked under cross-examination when the grant was made. He said he did not know.”
His Lordship referred to the essential elements of a transfer of land under customary law, as stated above and continued thus:
“In the instant case, none of these essential facts of a grant under native law and custom was pleaded and led in evidence. None of the witnesses called by the defence (DW1, DW3 and DW4) was pleaded as a witness to the grant nor did DW3 know the extent of the area alleged granted. DW4 himself did not know when the grant was allegedly made.
In the face of these fundamental lapses in the case of the defence on the issue of grant and the positive assertion of the plaintiffs that they are in possession of the area of land on which they live, I do not find that the defendants proved the grant The answer to the first issue is therefore bound to be in the negative. In other words, I find that no such grant was made to the plaintiffs.”
The court below affirmed these findings in the following words:
“The fact remains that since the appellants have averred that the respondents had gone into possession of the land in dispute by virtue of the grant made to them by the appellants, the burden of proof of ownership that was primarily that of the respondents had shifted to the appellants by virtue of S. 145 and 135 of the Evidence Act. Respondents’ claim to title given their possession over the land would only be defeated if appellants had traced the former’s possession to a grant by appellants’ forbears.
As rightly found by the lower court, appellants had failed to discharge the necessary burden. It is for these reasons that the 1st and 3rd issues for determination are resolved against the appellants.”
The above findings, in my view, are unassailable. I have taken the trouble of reproducing the findings of the two lower courts in such detail, because of the trite position of the law that this court would not disturb concurrent findings of the two lower courts unless such findings are shown to be perverse. The findings would be perverse if they were not supported by the evidence on record or if the learned trial Judge or the Hon. Justices of the court below have taken into account extraneous matters leading to a miscarriage of justice. The findings would also be interfered with where there has been some violation of principles of law or procedure. See: Aiguokhian Vs The State (2004) 7 NWLR (Pt.873) 565: Hassan Vs Aliyu (2010) 17 NWLR (Pt.1223) 547: Ugwuanyi Vs FRN (2012) 49 NSCOR 1243: Oruwari Vs Osier (2013) 5 NWLR (Pt.1348) 535.
Learned counsel for the appellants referred to part or the judgment of the lower court at page 231 of the record, lines 6 – 17, wherein he contended that the court made a finding that indeed Emereonyekwe, the appellants’ ancestor made a grant of the land in dispute to Oleru Durugo. This submission is misconceived. The portion of the judgment referred to was part of the court’s summary of the submissions of the appellants’ counsel in support of their 3rd issue for determination. I am fortified in this view by the fact that immediately after the reproduced portion, the court stated at lines 18 and 19 on the same page of the record:
“On the whole, learned appellants’ counsel urges that the appeal be allowed.”
In effect, learned counsel for the appellants has failed to advance any compelling reason for this court to interfere with the concurrent findings of the two lower courts. In the absence of proof of the alleged grant to Oleru Durugo, the presumption of ownership in favour of the respondents by virtue of Section 143 of the Evidence Act, 2011, arising from their credible evidence of long possession and enjoyment, stands unrebutted and the court is entitled to give effect to it. Issues 1 and 2 are accordingly resolved against the appellants.
Issue 3
Whether the learned Justices of the Court of Appeal rightly held that it was impossible to ascertain that the land in dispute in the Native Court Suit No. 168/53 was the same land in dispute in the instant suit without the plan filed in the Native Court suit no. 168/53.
The record of proceedings in suit no. 168/53 was admitted in evidence as Exhibit B. It can be found at pages 120 – 139 of the record. Osuji Oleru’s claim in that suit against Soronnadi Ajawuihe, was for:
“(i) Title to land known as Oru Ihe Ewkuonu pledged to defendant due two years; and
(ii) An order of Court compelling defendant to accept 9/6d in cowries in redemption fee on the said land due 2 years.”
Learned counsel for the appellant submitted that the land in dispute in Suit No. 165/53 case is the same land referred to by the respondents in their pleading wherein they averred that their ancestor pledged a portion of the land to Ajawuihe for the sum of 9/6d in cowries, which was later redeemed. He submitted that in the native court case, Michael Emereonyekwe testified that his father, Emereonyekwe allowed Oleru Durugo to live on the land in dispute. He contended that by their pleadings, both parties accepted that the land in dispute in the native court case and the land in dispute in the instant case are the same. He submitted that the respondents did not deny their averment that the land is the same. He submitted that the evidence of DW1 (the 2nd appellant) and PW1 (the 2nd respondent) confirmed the fact that the land in dispute is the same land litigated upon in Exhibit B. He contended that from the pleadings and evidence, the land in dispute in both suits could be ascertained without the help of a survey plan.
He submitted that the plaintiff in Exhibit B was the father of the 2nd respondent while the defendant in that case was the father of the 1st appellant and that the 2nd respondent’s father lost the case. He submitted that in law, the respondents are estopped from re-litigating the same case.
In response, learned counsel for the respondent submitted that a cursory perusal of Exhibit B would reveal that evidence was given of several pledges and redemptions of different portions of land. He contended that it was therefore not possible to ascertain whether the land in dispute is the same as the land referred to in Exhibit B without the aid of a survey plan. He submitted that no description of the land disputed in Exhibit B was given and tied to the land in the instant case. He noted that Exhibit E is a plan that was used in one of the previous suits in the native court and covers the same land that was in dispute in Exhibit B. he noted further that DW2 who testified for the appellants, stated thus at page 82 line 26 to page 83 line 6 of the record:
“I see plaintiffs’ plan, Exhibit A. On a comparative basis, Exhibit A and K do not precisely relate to the same (sic) especially as regards the North West portion and the South West portion. In Exhibit A, the land in dispute is not shown to extend beyond the Ngugo/Uzoagba road while in Exhibit K the land in dispute is shown to extend beyond that road at the North West portion. Also in Exhibit A, the land in dispute extends further to the South West than Exhibit K. Apart from these there are other differences in the shape and dimensions of the two plans, Exhibits A&K.”
Learned counsel posed the following question:
“… since Exhibit K shows the same land shown in Exhibit £> which in turn depicts the land disputed in Exhibit B, and Exhibit K shows a different land from that depicted in the respondents’ plan, Exhibit A, can there therefore be any doubt that the land disputed in Exhibit B is also different from that shown in Exhibit A?”
He submitted that the evidence of DW2 completely knocked the bottom off the appellants’ contention that the land which is the subject matter of Exhibit B is the same as the land in dispute in this case. He submitted that DW2 gave evidence against the appellants’ interest and they did not lead any evidence to counter or discredit his evidence. He urged the court to resolve the issue against the appellants.
It has been held by this court that there are two types of estoppel: “cause of action estoppel” and “issue estoppel”. The difference between the two was explained in the case of Fadiora Vs Gbadebo (1978) 3 SC 219 @ 228 & 229, per Idigbe, JSC thus:
“Now, there are two kinds of estoppel by record inter partes or per rem judicatam as it is generally known. The first is usually referred to as ’cause of action estoppel’ and it occurs when: the cause of action is merged in the judgment. That is, transit in rem judicatam. See King V. Hoare (1844) 13 M & W 495 @ 1504. Therefore, on this principle of law (or rule of evidence), once it appears that the same cause of action was held to lie (or not to He) in a final judgment between the same parties, or their “privies, who are litigating in the same capacity (and on the same subject matter), there is an end to the matter.
There is however, a second kind of estoppel inter partes and this usually occurs where an issue has earlier on been adjudicated upon by a court of competent jurisdiction and the same issue comes incidentally in question in any subsequent proceedings between the same parties (or their privies): in these circumstances, ‘issue estoppel’ arises. This is based on the principle of law that a party is not allowed to (i.e. he is precluded from) contending the opposite of any specific point which having been once distinctly put in issue, has with certainty and solemnity been determined against him.
… Issue estoppel applies whether the point involved in the earlier decision is one of fact or law or one of mixed fact and law.”
See also: Ito & Ors. Vs Ekpe & Ors. (2002) 2 SC 98: Ebba & Ors. Vs Ogodo & Ors. (2000) 6 SC (Pt.I) 133. To succeed on their plea of estoppel per rem judicatam or issue estoppel in this case, the respondents were bound to satisfy the court that (i) the parties in the two suits are the same; (ii) that the land is the same; and (iii) that the subject matter of the two suits is the same. See: Ogbogu & Ors. Vs Ndiribe & Ors. (1992) LPELR-2283 (SC) & 30 B – C: Coker & Anor. Vs Sanyaolu (1976) LPELR-877 (SC) @ 20 D – E: Aiibove Vs Ishola (2006) 13 NWLR (Pt.998) 628.
The learned trial Judge, at page 117 of the record reviewed the evidence of DW2 and held:
“Asked under cross-examination, whether he went to the land in dispute with plaintiffs’ plan, Exhibit A, the witness answered that he did not Now, if Exhibits A and K do not relate to the same land as stated by DW2 and if DW2 did not go to the land in dispute with plaintiffs’ plan, how can it be said that the land in dispute depicted in plaintiffs’ plan, Exhibit A and thereon edged pink is the same land that was in dispute in the suits at the Native Courts.
In an action for declaration of title to land, where plans have been filed, unless there is a cross-action or a counter claim, it is the plaintiffs ‘plan that is the material plan for it is to it that any declaration if made will be tied.
For the reasons I have given above, it is my view that the defendants have failed to establish that the land now in dispute had been adjudged in their favour in previous suits. The defendants’ plea of res judicata and issue estoppel as pleaded must fail.”
The court below was unable to fault the findings of the learned trial Judge and agreed that in absence of any plan being tendered in the proceedings in Exhibit B to define the land called “Oru Ihe Ekuwonu” by the appellants and “Ala Umuanu” by the respondents, it was not possible to ascertain that the land in dispute in suit No. 168/53 is the same as the land in dispute herein. I am inclined to agree with their Lordships.
DW2 categorically stated that Exhibits A and K do not relate to the same piece of land. Although the appellants also relied on Native court judgments in suit Nos. 336/53 and 337/53, as rightly held by the learned trial Judge, they failed to tie the land in dispute in suit no. 336/53 to the land in dispute in these proceedings. Even though a plan was filed in that suit (Exhibit F), it was not shown to relate to the land presently in dispute. The learned trial Judge found that even on a cursory comparison of the land in Exhibit F and the land depicted in Exhibits A and K, it was evident that the land in Exhibit F was much smaller than the land shown in Exhibits A and K. His Lordship further found that no evidence was led to show that the plaintiffs in the instant case are privies to the plaintiffs in the previous case.
These findings are the result of a careful appraisal of the evidence before the trial court. I agree entirely with the view expressed by the lower court at page 239 of the record, to wit:
“Certainly, in an action for declaration of title where there is no counter claim, it must be conceded, it is the plaintiffs’, here the respondents’ plan that is relevant since the declaration being sought by one and contested by the other must necessarily be tied to that plan.”
I agree with the two lower courts that, having regard to the facts of this case, the absence of a survey plan in the proceedings in Exhibit B, made it impossible for the court to make a finding that the land in dispute in suit No. 168/53 is the same as the land in dispute herein. Both courts were therefore on a sound premise when they held that the defence of estoppel per rem judicatam or issue estoppel was not made out by the respondents. This issue is accordingly resolved against the appellants.
In conclusion, I hold that the appeal lacks merit. It is accordingly dismissed. The judgment of the lower court is affirmed. Cost of N300,000.00 are awarded in favour of the respondents against the appellants.
No appearance for the Appellants.
SC. 21/2008