Edeani Nwavu & Ors. V. Chief Patrick Okoye & Ors (2008) LLJR-SC

Edeani Nwavu & Ors. V. Chief Patrick Okoye & Ors (2008)

LAWGLOBAL HUB Lead Judgment Report

WALTER SAMUEL NKANU ONNOGHEN, J.S.C

This is an appeal against the decision of the Court of Appeal, holden at Enugu in Appeal No,CA/E/190/1997 delivered on the 14th day of April, 2003 in which the court allowed the appeal of the present respondents and set aside the judgment of the High Court of Enugu State holden at Enugu in Suit No, E/21/88 delivered on the 21st day of June, 1996 granting the reliefs of the appellants, then plaintiffs before that court.

“The claim of the plaintiffs, as stated in the Amended Statement of Claim, paragraph 32, is as follows:-

“32. WHEREFORE the plaintiffs claim against the defendants jointly and severally as follows:-

(i) A declaration that the plaintiffs and the defendants are jointly and communally entitled to the customary Right of Occupancy of the following pieces of land namely – Ukor, Ukpolikpo, Uzam Ani, Be Antunsi Awururu, Ubia and Agba :Ekpe lands situated in Akpawfu Nkanu Local Government, Area within jurisdiction

(ii) Perpetual injunction restraining the defendants, their heirs, ‘agents, servants, privies and all those claiming through them ,from further interference with the plaintiffs’ right of ‘enjoyment as joint and communal users of the land aforesaid”.

The case of the plaintiffs/appellants is simply that they represent the people of Akpawfu Community, in Nkanu Local Government Area, excluding the defendants/respondents in the action; that both parties to the action; descend from a common progenitor named Oyiwode who originally acquired the pieces of land now in dispute when they were virgin, which lands, after his demise have been owned and enjoyed in common with the defendants; that the parties jointly built and own a Maternity home, Elementary school and a Cassava farm on the lands in dispute. It is also the case of the appellants that the parties also defended, an inter tribal boundary dispute jointly against a neigbouring town of Obunaw Akpugo when the latter sued Akpawfu for the determination of their common boundary i.e between Obunaw Akpugo and Akpawfu communities which dispute was resolved by Mr. Hill, the then Assistant District Officer in favour of the Akpawfu community, which decision was confirmed by the Chief Commissioner, Eastern Provinces; that the demarcation of the boundary subsequently resulted in a suit by the said Obunaw Akpugo community against Ivurube Nwa Nnamni and 53 others in their personal capacities for allegedly straying across the said boundary in the Native Court Suit No. 11/52, which case was lost by the people of Obunaw Akpugo. The appellants also stated that both parties enjoyed the pieces of land in common until 1987 when the respondents destroyed (heir farms therein.

On the other hand, it is the case of the defendants/respondents that they do pot share a common ancestor with the appellants and they denied being sued jointly with the appellants in Suit No. 11/52, in a representative capacity. The respondents maintained that the appellants were immigrants from diverse places who were described as “Awbias” in local dialect and who constituted themselves into a community called “Umuodenigbo” and paid rents to the respondents for living and farming on the parcels of land now in dispute until 1987 when they refused to do so. The respondents did not counter-claim against the appellants.

As stated earlier in this judgment, at the conclusion of the trial, the learned trial judge found in favour of the plaintiffs/appellants and granted the reliefs, earlier reproduced.

The respondents were dissatisfied with the decision and consequently appealed to the Court of Appeal holden at Enugu in Appeal No. CA/E/19/1997 which court reversed the decision of the trial court resulting in the instant appeal to this court.

In the amended appellants’ brief filed on the 9th day of November, 2004 and, adopted and relied upon in argument by Learned Senior Counsel for the appellants Chief Chike Ofodile, SAN on the 20th day of October, 2008, the following issues have been identified for the determination of the appeal:-

“3.01 Whether the Court of Appeal was right in setting aside the judgment of the trial court and dismissing the plaintiffs /appellant’s case.

3.02 Whether on the proper application of the reasoning/ principle arising from the decision of the Supreme Court in Jonah Agbo & Ors vs George Ugwu & Anor (1977) 10 S.C page 77 or (1977) ANLR page 287 (facts of which are most identical to the instant case) the court below was right to have dismissed the plaintiffs/appellants case.

3.04” Whether the Court of Appeal was right in holding that estoppel does not apply in favour of the plaintiffs/appellants in this case.

Whether Section 39 of the 1979 Constitution of the Federal Republic of Nigeria applies in favour of the plaintiffs/appellants “.

On the other hand, the Learned Counsel for the respondents, Chief J C Ifebunandu in the respondents’ brief of argument deemed filed on 27th November, 2007 and adopted in argument on the 20th day of October, 2008 identified the following two issues for the determination of the appeal:-

“(i) Whether the Court of Appeal was right in holding that there was a misplacement of the onus of proof by the trial court which occasioned a miscarriage of justice

(ii) Whether the Court of Appeal was right, in dismissing the Appellants’ case having regard to the whole circumstances of the case and the evidence tendered at the trial”.

In arguing Issue 1 Learned Senior Counsel for the appellants, referred the court to page 344, lines 19-22 of the record and submitted that the lower court erred in so holding as it is not the law that a plaintiffs case is to be dismissed because ” a judge badly handled” same but when a plaintiff fails to prove his case, relying on Olayioye vs. Oso (1969) 1 AUNLR 281; Green vs Green (1987) 3 NWLR 481; that it is not every error of a trial court that would vitiate the judgment on appeal and that the error of misplacement of the onus of proof assuming, this was the case has not and cannot be shown to occasion a miscarriage of justice; that the appellants proved their case as required by law particularly as the claim was that for declaration of communal/joint entitlement to customary Right of Occupancy. It is the further submission of Learned Senior Counsel that the appellants relied on traditional history and acts of possession as a mode of proving their claim to title and produced evidence to prove same at the trial; that the trial court found that the appellants proved acts of possession and that the lower court was in error in setting aside the findings, relying on the case of Iroto vs. Uka (2002) 14 NWLR (Pt. 786) 195 at 221 – 240, and submitted that the lower court ought not, in view of the findings on acts of possession, to have dismissed the case of the appellants and urged the court to resolve the issue in favour of the appellants.

In his reply, the Learned Counsel for the respondents submitted that the lower court was right, after a thorough consideration of the judgment of the trial court in holding that the findings of the trial court were based on wrong premise that the burden, in law was on the defendants to prove their denials, particularly as the law is that in a case of declaration of Right of Occupancy the party claiming title must satisfy the court by evidence of the right he claims, relying on the case of Eke vs. Okwaranyia (2001) FWLR (Pt. 51) 1974 at 1996 – 1997; Sorungbe: vs Motunisage (1988) 12 SCNJ (Pt. 1) 166 at 175; that the trial court misplaced the onus of proof on the respondents at pages 177 lines 11-19, 177 line 24; 178 line 5 and submitted “the [trial] court admitted ,that the plaintiff’s case (now appellants) was weak but held that the defendant had the burden of proving their defence and that since they did not discharge the burden the plaintiff’s weak case succeeded”. The Learned Counsel further submitted that the misplacement of the onus of proof on the respondents occasioned a miscarriage of justice in that the respondents were saddled with the burden of proving their defence contrary to Section 35-37 of the Evidence Act.

On the sub-issue of dismissal of the action by the lower court, Learned Counsel submitted that the lower court was right in so doing particularly as it is the duty of the appellants to prove their case on the balance of probability which they failed to do; that the trial court rejected the traditional history of the appellants and that the appellants failed to discharge the burden placed on them to establish numerous positive acts of possession and ownership over a long period of time, as laid down in the case of Archbong vs Ntoe Asim Ita 14 WACA 520; that rather than discharge the burden, it was shifted wrongly by the trial court and placed on the respondents and urged the court to resolve the issue against the appellants and dismiss the appeal.

It is not in dispute that while the appellants claimed communal ownership of the pieces of land in dispute as residing in both parties, the respondents claim exclusive ownership of the said pieces of land. Both parties, by their pleadings and evidence agree that the original owner of Akpawfu land including the parcels of land in dispute is Oyiwode.

However, while the appellants’ case is that the said Oyiwode was the progenitor of both parties, the respondents contend that Oyiwode was their exclusive progenitor as the appellants were stranger elements from different places of origin and were on the land as tenants of the respondents paying tribute or rents to the respondents for the use thereof.

In paragraph 6 of the Amended Statement claim at page 55 of the records, the appellants pleaded as follows:-

“6. The land in dispute is communally owned by the plaintiff’ and the defendants who inherited same from a common ancestor called Oyiwode and have been exercising diverse acts of ownership thereon from time immemorial”

The acts of possession and ownership allegedly by both parties include those pleaded in paragraphs 16, 17, 18 etc of the Amended Statement of claim to wit:

“16. As owners in possession, the plaintiffs and defendants cultivate the land in dispute during farming seasons without permission from anybody and plant thereon various economic crops. The plaintiffs and defendants enjoy the economic trees on the land in dispute together.

17. There is a primary school and an uncompleted maternity project in Ukor portion of the land in dispute. The areas where the primary school and maternity project were sited were presented by the Akpawfu community. The maternity project is being financed by the Akpawfu community assisted, by the Anambra State Government.
18. The Akpawfu Community cassava farm is in Ukor portion of the land in dispute. Some of the plaintiffs and the defendants are in the committee that manages the farm.”

In paragraphs 6 and 26 of the further Amended Statement of Defence, the respondents pleaded thus:

“6. The defendants deny paragraph 6 of the Amended Statement of claim and state flirt her that the said lands in dispute have never been communally owned by the plaintiffs ‘and defendants instead the defendants had from time immemorial owned the lands in dispute and some other lands exclusively. The defendants only gave part of their communal lands to the Akpawfu community for development purposes in the areas south of the land in dispute – Aputi land further the plaintiffs are not descendants of Oyiwode of Akpawfu instead the plaintiffs who are called Umu Odenigbo migrated to Akpawfu from diverse places and do not have one ancestor by any name..

“26.The defendants deny paragraph 31 of the Amended Statement of claim and state further that the defendants owned the entire lands acquired by Oyiwode their ancestor exclusive of the plaintiffs and their Kith and Kin. Further, that the plaintiffs were given an area called Ogbovu land some of the plaintiffs relatives bought lands from defendants, but the rest I live as tenants in other areas to look after their farm lands which were let out to the plaintiffs upon condition that annual tribute be paid to the defendants”.

In ‘*evidence in-chief, PWI stated, at pages 85 and 86 of the records, thus:

“The land in dispute is owned by Akpawfu in general. We farm on the land. The plaintiffs and defendants enjoy the land in common. We farm on the land, we worship a shrine on the land, we have bad bush, there, we have primary school on the land, and we have a maternity under construction on the land. . The Akpawfu community contributed money together with the money from old Anambra State was used in constructing the maternity. The defendants also contributed money in the construction of the maternity. We have a community cassava farm in Ukor portion of the land. We have a committee that looks after the cassava farm. The 2nd defendant, 3rd defendant, 1st plaintiff are some members of the committee…”

At gage 87, PW 1 stated, inter alia:

“We, started owing (SP) the land communally from time of our great ancestors, from time immemorial …

“We have never paid any tribute or any rent to anybody in respect of the land in dispute …”

The PW 1 maintained the story under cross examination at pages 88-89 of the record.

Under cross examination, DWI stated thus at page 146 of the record:

“We farm on parcels of the land in dispute. For purposed of farming the plaintiffs and defendants farm together. Both plaintiffs and defendants enjoy all facilities together – like maternity centre and primary school. The trial cassava farm belongs to the community together, plaintiffs and defendants. The committee that controls the trial cassava farm are drawn from the plaintiffs and defendants. The proceeds from the cassava farm go to the plaintiffs and defendants …”

The above facts were confirmed by DW3, the Igwe of Akpawfii Community also under cross examination from the second to last line at page 151 to line 8 of page 152 of the records.

The evidence in relation to the claim of exclusive ownership of the land in dispute includes the evidence in-chief of DWl at page 127 of the records, where he stated thus:

“The pieces of land in dispute are owned exclusively by Umubyiwode, the defendants in this suit…”

At page 36 of the records, DW1 stated, under cross examination as follows:- “The land in dispute belongs to the defendants as descendants of Oyiwode exclusively.

From the pleadings and evidence of the parties as reproduced supra, the nature of the claims and defence of the parties are made very clear.

In determining the case, the trial court formulated the following issues at page 173 of the records.

“1. Are the plaintiffs strangers as referred to as Awbias

2. Are those strangers as referred to as ‘Awbias’ entitled to own land in common with those who call themselves freeborn as referred to as ‘Amadis’.
3. What would be the attitude of the court where people live together and do everything together and suddenly the defendants started to claimed everything exclusively to themselves and began to call the plaintiffs strangers or ,” Awbtas ”

“The trial court held that it is the duty of the defendants who averred that the plaintiffs were strangers to prove same – in relation to Issue 1 and held at page 174, inter alia as follows:-

“No evidence was produced by the defendants who have asserted to prove that the plaintiffs are strangers ….No evidence was shown that they paid fee or any homage to any person or group of persons in Akpawfu in recognition of their right to use the land except the evidence of DW3 and DW5 who gave evidence to prove payment of tributes but said that they never sued the plaintiffs for their failure to pay tributes and DW3 said that he never witnessed tributes being paid to the defendants by the plaintiffs, Therefore, I hold that the plaintiffs are not strangers in Akpawfu town “,

The trial judge treated Issues 2 and 3 together. Referring to the respective case of the parties, the Learned Trial Judge found at page 176 – 177 of the records as follows:-

“The averments in the plaintiffs’ Amended Statement of claim and the “evidence adduced in support, showed clearly that the claim was ‘based partly on traditional evidence and partly on acts of ownership, The averments in the defendants’ Amended Statement of defence and evidence given by them in support, gave a completely different version of the traditional evidence. Considering first the traditional evidence in this case, my view of that aspect of the evidence in defendants’ case whereby defendants have sought to establish that the land in dispute…belong exclusively to them and that the plaintiffs come from diverse areas and settled in Akpawfu is unconvincing as the stories do not refer to acts or facts in recent years as established by evidence, There is also no evidence of the extent or area covered by the defendants’ Oyiwode family nor is there any evidence which shows any act or acts in history which made the area exclusively their own…In the case at hand the defendants could not prove exclusive ownership since the numerous acts are preformed jointly by the plaintiffs and defendants…..”

It is very clear from the above passages that the trial court first found as a fact that the plaintiffs were not stranger elements in Akpawfu community as claimed by the defendants before proceeding to consider and reject; as unconvincing the defence of exclusive ownership of the pieces of: land in dispute in view of the evidence of acts of joint ownership’ and possession which the court held as proving communal ownership rather than exclusive ownership.

However, after making the above findings/holdings the trial court proceeded to hold thus- which is the crux of the decision of the lower court:

“I am further not assured as to the precise nature of title in respect of which a declaration is sought exclusively by the defendants. There is no conclusive evidence adduced by the defendants by which the court is satisfied that a title of this nature claimed by the defendants has been established………The onus of proof is on the party claiming family land to prove that he is infact entitled to the family land against all other family members … And that being so, the onus of proof in this case rests not on the plaintiffs but on the defendants. In the case of J. M Kodilinye vs. MOdu (1935) 13 WACA. 336 cited by Learned Counsel for the defendants it was held that in a declaration of title to land, the plaintiff must rely on the strength of his own case and not on the weakness of the defence. In the instant case, since the onus which is on the defendant is not discharged, the weakness of the plaintiff’s case (if any) will not help the defendants. The defendants pleaded and testified that the plaintiffs paid tributes to them but this averment was vehemently denied by the plaintiff’ … ”

It must be noted that the words “(if any)” appearing in the passage above between the words “case” and “will” were clearly omitted in the passage quoted in the judgment of the lower court at page 341 of the records. :The unfortunate omission makes it appear that the trial court found as fact that the case of the plaintiffs was weak, contrary to what the trial court actually stated.

In reacting to the above passage in the judgment of the trial court which will made an issue for determination, the lower court stated inter alia thus:

“Her pronouncement seeks to base this obtuse and greatly erroneous interpretation of the law on the premise that either the defendant now appellants were the plaintiffs or that they counter claimed. This attempt to give a new meaning to the age long accepted principle of law on where the onus (of) proof lies is standing the law on its head and metaphorically carried out or caricatured to look like the hideous medussa with a quisically ugly and sickening head. In the instant case, it is a fact that the appellants did not counter-claim for reasons best known to them but the onus of proof that the land is jointly owned property is that of the plaintiffs – respondents and not the appellants …”

In conclusion the lower court held thus at page 344 of the records.

“In my view the case was badly handled by the Learned Trial Judge in the court below. That being so I see merit in the appeal and it is allowed. The judgment of the High Court is hereby set aside. The suit itself is hereby dismissed”.

It is not disputed that the respondents did not counter claim against the appeli1nts for declaration of title to the pieces of land in dispute from the record, the appellants were the only ones who sought declaration of community ownership of the land in dispute and by law bear the burden of proving on the balance of probability the title they claimed, not the respondents. There was therefore an error by the trial court when it appears to have placed the onus of proof on the respondents.

However, it must be noted that the trial court had made specific and far reading findings of fact before committing the error in question. For instance, the court had found contrary to the pleading of the respondents that the appellants were not strangers in Akpawfu community and that the defence of the respondents to the effect that the respondents exclusively owned the pieces of land in dispute “is unconvincing as the stories do not refer to acts or facts in recent years, as established by evidence”. See pages 176 – 177 of the records and also the full passage earlier reproduced in this judgment.

The above findings were made before the error complained of.

The erroneous statement of the law, in view of the earlier findings by the trial court clearly refers to onus of proof of the defence of exclusive ownership put forward by the respondents in contradistinction to an onus of proof in claims for title. It is not in dispute that the defence of the respondents was that the appellants were strangers in Akpawfu and as strangers they are by custom and tradition incapable of owning land; that the appellants do not share a common ancestor with the respondents as claimed by them and that the pieces of land in dispute exclusively belong to the respondents. When one reads the judgment as a whole, it becomes clear that what the learned trial judge meant by onus of proof being on the respondents is actually with reference to their defence of exclusive ownership of the pieces of land in dispute vis-a-vis the appellants claim for communal ownership, The above becomes, apparent when one looks at this passage:

“The onus of proof is on the party claiming family land to prove that he is in fact entitled to the family land as against all other family members …” See page 177 of the records. The above statement of the law is very correct and applies to the facts of this case where the appellants are claiming communal ownership as opposed to the respondents’ case that the land is exclusively owned by them, To defeat the claim of communal ownership put forward by the appellants, the duly or burden is clearly on the respondents to establish their defence of exclusive ownership as the presumption is in favour of communal ownership. This is settled law.

It should also be stated that the trial court did not end the judgment there and then but proceeded to make further findings of facts, which when taken together with (he earlier findings make the position of the trial court very clear. With respect of the traditional history of the parties, the court held thus at page 178 of the records:-

“Since both sides rely on one common ancestor who died centuries ago it becomes difficult to accept which traditional history that will be acceptable to the court I find the plaintiffs and defendants properly settled on the land, as there is little to choose between the ,I rival traditional stories; therefore both parties own the land communally. ”

At pages 180 – 181 the trial court found inter alia as follows’-

“… it is beyond question that the plaintiffs whether they are from Umi Oyiwode or not whether they are “Awhias” or strangers definitely own the land in dispute in this case jointly with the defendants. I find as a fact that the plaintiffs and the defendants are members of Oyiwode family although they might belong to a different section of that family I also find as a fact that the parties communally own the land in dispute “.

That apart, it is trite law that it is not every error committed by a lower court that would lead to a reversal of its judgment except it is established that the said error resulted in a miscarriage of justice. It is my considered view that the misplacement of the onus of proof, if what happened may be properly so described, did not lead to a miscarriage of justice having regards to the pleadings of the parties, the defence of the respondents, the evidence before the court and the applicable principles of law.

“It is also my considered view that the lower court was in error when it dismissed the case of the appellants without reviewing the case of the parties vis-a-vis the findings/holdings of the trial court.

I therefore resolve the issue under consideration in favour of the appellants.

Having regard to the resolution of the above Issue 1, I am of the view that Issue 2 of the appellants becomes very irrelevant to the determination of the appeal.

On Issue 3, it is the submission of Learned Senior Counsel for the appellants that the land in dispute being part of Akpawfu land which they and the respondents and other Akpawfu people jointly and communally contested against Abunaw Akpugo people, the respondents are estopped from saying that the appellants are mere tenant settlers or strangers (Awbias) in Akpawfu and do not own the land in dispute in this case jointly or communally with them. Learned Senior Counsel referred to exhibit A, Suit No 11/52 as constituting the estoppel. Much energy was expended on this issue, spanning pages 22 – 35 of the Amended Appellants’ Brief of argument.

I must state forth-with that exhibit A, (Suit No. 11/52) was not instituted by the plaintiffs and defendants or the appellants and respondents as plaintiffs. The plaintiffs therein were the people of Akpugo while the present appellants and defendants were defendants.

The claim in Suit No. 11/52 , is as fol1ows:-

“Declaration of title and ownership of lands known as- Egu Ishi (2) Ofia Ovu (3) Mgbeke (4) Egu Udene (5) Odo Okputa (6) Onu Eko (7) Ihu Agbana dispute arose 8 years ago” – See page 185 of the records.

The judgment of the native court is at page 199 of the record where the court stated thus:

“Judgment: For the plaintiffs for 7 portions of lands in question. Costs ‘97.51 inspection fee to be paid to the plaintiff”

The result of the appeal against the above judgment is at page 202 of the record where it was stated inter alia.

” … We don’t see with the plaintiff’ and therefore find for the defendants. No party should cross the established boundary”

The above decision was reviewed by Ado R. E Vacha on 1/7/52 at page 202 of record where he ordered thus:

“I therefore order that the judgment of the lower courts be set aside and order a retrial by the Supreme Court.”

From the pleadings the Akpugo people did institute the case ” at the Supreme Court but lost just as they lost an appeal to the West African Court of Appeal. It is on the basis of the fact that the parties to this action were defendants in the old case and did defend that case on behalf of Akpawfu community that the appellants are contending that the respondents are “estopped from excluding the appellants from joint and communal ownership of some including the land in dispute”.

It is not in dispute that the appellants and the respondents were not the plaintiffs in Suit No. 11/52, but defendants. They therefore defended the action as constituted by the plaintiffs therein.

Section 151 of the Evidence Act provides as follows;-

“When one person has by his declaration, act or omission intentionally caused or permitted another person to believe a thing to be true and to act upon such belief neither he nor his representative in interest shall be allowed in any proceedings between himself and such person’s representative in interest to deny the truth of that thing “.

The question is whether the facts of this case particularly as they relate to the Suit No 11/52 (Exhibit A), fall within the purview of section 151 supra. I hold the view that they do not.’ I had earlier observed that the parties to this action were not the plaintiffs in exhibit A but defendants who were sued, From the totality of exhibit A, it is clear that the action was defended on behalf of Akpawfu community but that is not enough to ground a plea of estoppel as defined by section 151 of the Evidence Act. Exhibit A is however evidence of the parties acting in common in respect of the Akpawfu land but to stretch it to cover the principles of estoppel will be going too far.

I therefore hold the view that the lower court was right when it held that exhibit A does not constitute estoppel and consequently resolve the issue under consideration against the appellants. On Issue 4, I hold the view that it is not relevant to the determination of the appeal as it is a matter that came by the way it was not part of the complaints of the appellants as plaintiffs at the trial. In any event, having regards to the resolution of appellants’ Issue 1 in favour of the appellants which included a confirmation of the findings of the trial court on relevant issues determined by that court, the present issue becomes of no moment and is consequently discountenanced by me.

In conclusion the appeal partially succeeds and is allowed by me. The judgment of the lower court is hereby set aside while that of the trial court is restored except the finding/holding in respect of estoppel. I assess and award the sum of N50,000.00 (Fifty Thousand Naira) by way of costs against the respondents and in favour of the appellants as costs follow events.

Appeal allowed.

NIKI TOBI, J.S.C: The gravamen of the dispute between the parties is customary right of occupancy over seven parcels of land located in Nkanu Local Government Area of Enugu State. The appellants who were plaintiffs in the trial court pleaded that they owned the parcels of land in dispute in common with the respondents who were defendants in that court. They pleaded that both descended from a common progenitor named Oyiwo Ode who acquired the parcels of land, originally virgin land, and that both parties had up to 1987 been enjoying the land in common. They also pleaded that they had such things as maternity home and elementary school in common on the land.

The respondents denied in their pleadings having a common ancestor with the appellants. They pleaded that the appellants were immigrants from diverse places who were described as “awbia” in local dialect and who constituted themselves into a community called “Uniodenigbo” and that they paid rents to the respondents for living and farming on parcels of the land in dispute until 1987 when they refused to do so.

The learned trial Judge, Edozie. J. gave judgment to the appellants. On appeal, “the Court of Appeal allowed the appeal and dismissed the suit of the appellant’s. This is an appeal from the decision of the Court of Appeal.

“Briefs were filed and exchanged. The appellants formulated the following issues for determination:

“3.01 Whether the Court of Appeal was right in setting aside the judgment of the trial court and dismissing the plaintiffs/appellants’ case.

3.02 whether on a proper application of the reasoning/principle arising from the decision of the Supreme Court in Jonah Agbo & Ors vs George Ugwu & Anor (1977) 10 SC. Page 77 or (1977) A.N.L.R Page 287 (Facts of which are most identical to the instant case) the court below was right to have dismissed the plaintiffs/appellants’ case.

3.03 Whether the Court of Appeal was right in holding that estoppel does not apply in favour of the plaintiffs/appellants’ in this case.

3.04 Whether Section 39 of the 1979 Constitution of the Federal Republic of Nigeria applies in favour of the plaintiffs/appellants.”

The respondents formulated the following issues for determination:

“(1) Whether the Court of Appeal was right in holding that there was a misplacement of the onus of proof by the trial court which occasioned a miscarriage of justice

(2) Whether the Court of Appeal was right in dismissing the appellants case having regard to the whole circumstances of the case and the evidence tendered at the trial.”

Learned Senior Advocate for the appellant, Chief Chike Ofodile, submitted on Issue 1 that the Court of Appeal failed to resolve in its judgment fundamental issues and therefore wrongly dismissed the case of the appellants. He argued that a plaintiff’s ‘case is not without more to be dismissed just because “a judge badly, handled” same and that the judgment of the Court of Appeal is a far cry from what the law expects of a good judgment. He urged the Court to find for the appellants on their acts of possession since the learned trial Judge found for them in clear words.

He cited Olayioye v Oso (1969) 1 All NLR 281; Green v.Green (1987) 3 NWLR 11 481; Ezeoke v Nwagbo (1998) 1 NWLR (Pt. 72) 616 at 629; Odukwe v. Biyi (1998) 8 NWLR (Pt.561) 339 at 350 and 1rolo v Uka (2002) 14 NWLR (Pt.786) 195.

Learned Senior Advocate submitted on Issue 2 that on a proper application of the meaning and principles arising from the decision of the Supreme Court in Agbo v. Ugwu (1977) 10 SC 77, facts of which are most identical to the instant case, the Court of Appeal was wrong to have dismissed the case of the appellants. Counsel examined the case of Agbo v Ugwu in great detail and urged the court to adopt and apply the reasoning and principles in the case.

Taking Issue 3, learned Senior Advocate submitted that the Court of Appeal was wrong in holding that estoppel did not apply in favour of the appellants. He contended if that as the land in dispute form part of Akpawfu land which they alongside the respondents and other Akpawfu people jointly and communally contested against Abunaw Akpugo people, the respondents are estopped from saying that the appellants are mere tenant settlers or strangers (Awbias) in Akpawfu and do not own the land in dispute in this case jointly or communally with them. He relied on Exhibit A.

On Issue 4, learned Senior Advocate submitted that section 39 of the 1979 Constitution applies in favour of the appellants in the case. He argued that discriminatory practice against the appellants in Akpwafu community make section 39(2) of the Constitution applicable. He relied on paragraph 25(a) and (b) of the further Amended Statement of Defence and the evidence of DW.1 and DW.2.

Counsel urged the court to allow the appeal.

Learned counsel for the respondent, Chief Ifebunandu, submitted that the onus is on the plaintiff who seeks a declaration of right of occupancy to prove the claim. Citing Eke v Okwaranyia (2001) FWLR (Pt.51) 1974, Sorungbe v. Motunwase (1988) 12 SCNJ (Pt.2) 166 at 175, Archibong v Ita (2004) ALL FWLR (Pt.197) 930 and Fashanu v Adekoya (1974) 6 SC 83, counsel submitted that the appellants failed to discharge the burden and the Court of Appeal was therefore right in allowing the appeal. He argued that the appellants resort to section 39 of the 1979 Constitution is an attempt to becloud the issue in dispute. Counsel did not see any discriminati6n in the case. He also argued that the situation in Agbo v. Ugwu is quite different from this case. He urged the court to dismiss the appeal.

Leaned Senior Advocate in his reply brief, referring to paragraphs 1, 2, 3, 6, 14, 16, 17, 18, 28, 30 and 32 of the Amended Statement of Claim. paragraphs 3,6, 8, 9, 11, 18, 26, 27 and 28 of the Further Amended Statement of Defence and the evidence of DW.1. DW.4 and DW5, submitted that by section 137(1) of the Evidence Act; the onus of proof in the case lies on the respondents, regard being had to the presumption of ownership under section 46 of the Evidence Act.

The crux of this appeal is in respect of the burden of proof. The issue is on whom the burden of proof lies and whether that burden was discharged. The burden of proof is on the party who alleges the affirmative. The burden of proof lies on the party who will fail in the case where no evidence is given. Although the burden of proof is generally on the plaintiff, it is not invariably so. There are instances in our adjectival law where the burden of proof shifts to the defendant. It depends on the state of the pleadings.

One important reason, if not the only important reason why the Court of Appeal dismissed the suit of the appellants is that “the case was badly handled by the learned Trial Judge” as the Judge “generally goofed to push the onus to the respondents. Is the Court correct The answer can be found by reference to the evaluation of the evidence by the learned trial Judge, Edozie J, in evaluating the evidence of the parties said, and I will quote the Judge in some detail.

“They (the defendants) concede that the plaintiffs cultivate the land in dispute, live on portions of the land in dispute and cut palm trees on them. They concede that the plaintiffs and defendants enjoy schools and maternity hospitals together; they have a farm and have a committee made up of both plaintiffs and defendants who are empowered to sell and grant leases of portions of the land in dispute and that the proceeds from the community farm go to the plaintiffs and the defendants. These concessions notwithstanding, defendants’ state that the plots of land belong to them as owners in fee simple and that the plaintiffs as strangers were I merely tenants allowed the right to use the land upon term………..The averments in the Plaintiffs’ Amended Statement of Claim and the evidence adduced in support showed clearly that the claim was based partly on traditional evidence and partly on acts of ownership. The averments in the Defendants Amended Statement of Defence and evidence given by them in support, gave a completely different version of the traditional evidence in this case. My view of that aspect of the evidence in Defendants’ case whereby Defendants have sought to establish that the land in dispute Uko, Ukpolikpo, Uzam Ani, Be Autusi, Awululu Ubia and Agba Ekpa land belong exclusively to them and that the plaintiffs come from diverse areas and settled in Akpwafu is unconvincing as the stories do not refer to act or acts in recent years as established by evidence. There is also no evidence of the extent or area covered by the Defendants’ Oyiwode family nor is there any evidence which shows any act or acts in history which made the area exclusively their own”

The above findings are clearly borne out from the evidence before the court. I do not therefore see the justification for the castigation of the learned trial Judge by the Court of Appeal. In my view, the castigation is misplaced, and I so hold.

Did the learned trial Judge goof “to push the onus to the respondents” The main and final burden to prove joint or communal ownership was on the appellants, I hold the view that the appellants discharged that burden as in the pleadings. Thereafter, the burden of personal or private ownership shifts to the respondents.

Did they prove that I do not think so.

Learned Senior Advocate for the appellants took time and pains to examine and analyse the decision of the court in Agbo v Ugwu and submitted that the decision should be adopted. Learned counsel for the respondents submitted that the situation in this easer quite different from the facts of Agbo where both sides admitted that they are members of the same family.

I do not see any meaningful difference between Agbo and this case. Apart from the fact that both cases emanate from the same neighbourhood of Nkanu communities in Enugu State, they also relate to the issues of Awbia, strangers, free borns and the right to own land in the communities. The brief of the appellants comprehensively and adequately analysed the case and related it to this appeal at pages 10 to 21. The respondents brief did not fault the arguments of the appellants.

It is not enough for them to say that the cases are different. I expected them to go into the details as dealt with by the appellants.

“Even in times past the Awbias were strangers, there is no evidence that they are still regarded as

such. There can be no better evidence of their interest in the land than the position accorded them in the control of not only the land but also the funds of the family. The appellants unsuccessfully tried to prove provisions of native law and custom, which deprives the Awbias of any right or interest in the land in dispute apart from those granted by the Awbias……….We observe that the appellants failed to establish their contention and we are therefore unable to agree with counsel’s contention that because the respondents were once regarded as Awbias, they cannot be members of Unuaniebo family and (as such cannot) own land jointly with the Amadis. The burden was clearly on them to establish this fact but they failed woefully.

I do not see my way clear in departing from the above position taken by this court in Agbo. And what is more, learned counsels for the respondents did not proffer arguments to enable me depart from Agbo. I therefore agree with learned Senior Advocate for the appellants that this court should follow Agbo and I so follow the decision.

I think I can stop here. It is for the above reasons and the more detailed reasons given by my learned brother, Onnoghen, JSC that I too allow the appeal. I abide by his order as to costs.

SC.214/2003