Emmanuel Chijioke Orlu V Chief Mpakaboari Gogo-abite (2010)
LAWGLOBAL HUB Lead Judgment Report
A. FABIYI, JSC.
This is an appeal against the judgment of the Court of Appeal, Port Harcourt Division (hereinafter referred to as the court below) which on 5th March, 2002 upheld the decision of Unigbuku, J. (as he the was) of the High Court of Justice, Port Harcourt dated 10th April, 1991 dismissing the Plaintiff/Appellant’s suit for failure to prove his case.
The claim of the plaintiff at the trial court as depicted in paragraph 13 of the Statement of Claim read as follows:-
“(1) A declaration that the plaintiff is entitled to the statutory right of occupancy over and in respect of the property known as No. 21 Nsukka Street Mile 1, Diobu Port Harcourt.
(2)A declaration that No. 21 Nsukka Street, Mile One Diobu was never an abandoned property within meaning of law and that the purposed sale or assignment of the said property to the defendant by the Rivers State Government or its agent is null and void
(3)A perpetual Injunction restraining the defendant by himself or agents or servants from interfering with the plaintiff’s use and enjoyment of the said property.”
It is pertinent to depict briefly the case put up by the parties based on their pleadings as filed and exchanged. The appellant, as plaintiff, maintained that the property in dispute was inherited by him as the first son of his father in accordance with Ikwere native law and custom. It was originally leased to James Orlu by the then Eastern Nigeria Government for seven years and when same expired, the said government gave him a new building lease and transferred it to him (plaintiff). The Ministry of Lands wrote Exhibit L to the tenants. Thereafter he started to collect the rents from the tenants. He renovated the house and also paid property rates.
The case put up by the respondent it that the area known as Mile 1, Diobu, Port Harcourt was originally called Rumuwijo Village. In 1956, the government of Eastern Nigeria cleared the village for the purpose of development. James Orlu, the plaintiff’s grandfather as one the original owners of the land was allocated Plot 15 block 220 otherwise called no. 21 Nsukka Street, Mile 1, Diobu, Port Harcourt for seven (7) years. When the duration of the lease was running out, James Orlu entered a building agreement with a contractor, Urum Kalu Ude to put up the building and collect rents from the house until his outlay was realized vide a building agreement Exhibit A dated 22nd March, 1961. James Orlu also donated an Irrevocable Power of Attorney, Exhibit F to Urum Kalu Ude on the same date.
James Orlu applied for government consent in October 1961 to assign the property to Urum Kalu Ude. Sunday Orlu, the original plaintiff, signed as a witness to the application for consent. The application was approved and James Orlu assigned the property to Urum Kalu Ude.
James Orlu realized that he could not pay back Urum Kalu Ude the cost of the outlay and so he agreed to sell the property. Necessary statutory consent was obtained with the knowledge of his son, Sunday Orlu who turned round to deny that his father sold the property to Urum Kalu Ude. He now claims ownership of the property by inheritance. When the head lease for seven (7) years expired the then Government of Eastern Nigeria renewed the lease to Urum Kalu Ude for another term of sixty (60) years from January 1964 as extant in Exhibit P the unexpired term of this lease was what Urum Kalu ude assigned to the Respondent after the necessary consent of the Government .
The learned trial judge applied the relevant laws to the facts garnered by him. He found that the plaintiff failed to prove his case and dismissed it on 10th April, 1991. The plaintiff felt unhappy with the decision of the trial court and appealed to the court below which on 5th March, 2002 dismissed same. This is a further appeal to this court by the plaintiff/appellant who desires to try his chance.
Briefs of argument were filed and exchanged by the parties in this court. On 26th October, 2009 when the appeal was heard, learned counsel adopted appellant’s amended brief of argument as well as amended appellant’s Reply brief both filed on 13/3/09 and urged that the appeal be allowed. Equally, learned counsel for the respondent adopted respondent’s brief of argument filed on 22nd April, 2004 and urged that the appeal be dismissed.
The two issues couched for the determination of the appeal by the appellant at page 5 of his brief of argument read as follows:-
“(i) Given the state of the pleadings and evidence, which of the parties, appellant or respondent, bears the onus of proof in his case
In the alternative
Whether the onus of proof in this case is not on the respondent.
(ii) Whether the respondent successfully discharged the onus on him to prove that James Orlu) Appellant’s father) divested himself of his original right/title to the property in dispute to his (Respondent’s) vendor, Urum Kalu Ude.”
The three issue formulated for determination of the appeal by the respondent as contained on page 6 of his brief of argument read as follows:-
“(i) having regard to the grounds of appeal and the particulars in support, whether the grounds are grounds of law alone or mixed law and facts in which case the appellant ought to have sought the leave of either the Court of Appeal or Supreme Court before commencing the appeal.
(ii) Having regard to the nature of the case, pleadings and evidence, who bears the burden of proof of title And if the burden had shifted to the respondent, has he successfully discharged the onus of proof that James Orlu (the appellant’s grandfather) divested himself of his original title to the property in dispute to respondent’s vendor, Urum kalu Ude
(iii) Whether the learned Justices of the Court of Appeal were right in upholding the trial judge’s decisions in admitting in evidence the Irrevocable Power of Attorney donated by James Orlu to Urum Kalu Ude (Exhibit F) and the Deed of Assignment (Exhibit O).”
I need to say it here that the respondent’s issues 1, as reproduced above, has no bearing with any of the grounds of appeal. In challenging the competence of the grounds of appeal, the respondent should have filed a Notice of Preliminary objection as dictated by Order 2 Rule 9 (1) and (2) of the Supreme Court Rules, 1999. Having failed to comply with the stated Rules of court, respondent’s issues 1 hangs on nothing and same should be discountenanced. I hereby pronounce accordingly.
The first issue formulated by the appellant, put simply, is which of the parties bears the onus of proof in this case
It is now settled that in civil matters, a plaintiff has the burden of proof to establish his claim. It does not shift to the defendant. See Elias v. Disu (1961) All NLR (Pt. 1) 215 at 220. The onus of proof in a suit for declaration of title, as in this appeal, lies on the plaintiff and he must succeed on the strength of his case and not on the weakness of the defendant’s case, if any. See Kodilinye v. Mbanefo Odu (1935) 2 WACA 336; Akinola v. Olumo (1962) 1 SCNLR 352 Mogaji v. Cadury Nig Ltd. (Pt.1985) 2 NMLR (Pt. 7) 393.
Let me also say it that as pronounced by this court in Idundun v. Okumagba (1976) 9-10 SC 227, there are five ways of proving ownership of land. They are as follows:-
- by traditional evidence
- by production of documents of title.
- Acts of ownership extending over a sufficient length of time, numerous and positive enough to warrant the inference that the person is the true owner.
- Acts of long possession and enjoyment of the land.
- Proof of possession of connected or adjacent land in circumstances rendering it probable that the owner of such connected or adjacent land would in addition be the owner of the land in dispute.
The plaintiff/appellant herein at the on-set relied on traditional evidence. He claimed that he inherited the property as the first son vides Ikwere native law and custom. On this point, the learned trial judge at page 92 of the Record of Appeal found as follows:-
“The plaintiff has by his pleading and evidence in court, brought into issue the Ikwere Native Law and Custom on Administration of Estate and Succession/Inheritance. Native law and custom are matters of evidence to be decided on the fact presented before the court in any particular case, unless it is of such notoriety and has been so frequently followed by the court that judicial notice would be taken of it without evidence required to proof. See Giwa v. Erinmilokun (1961) 1 All NLR (pt.2) 294……………………
Neither the plaintiff nor his witness PW2 gave evidence on the custom of inheritance in Ikwere Land. The particular custom being relied upon by the plaintiff has not been so frequently used by the courts that judicial notice would be taken of it without evidence required in proof.”
The court below, at page 145 of the record of appeal pronounced as follows on the point:-
“The Ikwere Native Law and custom on which he based his claim was not pleaded.
It is a fundamental principle of law that where a party intends to set up and rely upon native law and custom, the custom alleged must be specifically pleaded. The appellant failed woefully to plead and prove Ikwere Native Law Custom which governs inheritance upon which he predicated his claim.”
I completely agree with the two courts below. It is extremely important that custom should be strictly proved. Though such proof is not by the number of witnesses called, it is not enough that one who asserts the custom should be the only witness. Another witness who is versed in the alleged custom should also testify. This is as pronounced by this court in the cases of the Queen v. Chief Ozogula (1962) WNLR 136; Adeyemi & Ors. V. Alhaji Shitu Bamidele & Ors. (1968) 1 All NLR 31.
In this matter, the appellant, who rooted his claim on inheritance vide Ikwere Native Law and Custom failed to adduce any serious evidence in that direction. Both the appellant and his witness, PW2 failed to adduce any evidence on the point despite the fact that the custom being, relied upon has not been so frequently used by the courts that judicial notice would be taken of it without evidence required in proof; as found by the learned trial Judge. The conclusion on his point is clear. It is that the appellant has failed to prove his entitlement to the property through traditional evidence.
There is another option open to the appellant. It is for him to prove ownership of the property by production of title document(s). Unfortunately for him he had no letters of Administration to administer the estate of the late Sunday Orlu. This is as provided in section 2 of Administration (Real Estate) Law, Cap 3, and Laws of Eastern Nigeria 1963. The appellant had no documents to depict clearly that the property had been legally assigned to him. The appellant who asserted that he had relevant documents has the onus of proof to establish such facts vide the provision of section 135 (1) Evidence Act, 1990. In short, the appellant failed to prove ownership by tendering a subsisting title document as James Orlu, through whom he claimed, divested himself of the property in dispute since 28-4-62 by assigning his interest in Exhibit A to Urum Kalu Ude as evidenced in Exhibit O. The property was no longer available as from the said date to be inherited by the plaintiff or any other person claiming through James Orlu.
The appellant also tried to rest his title on long possession by virtue of section 146 of Evidence Act which provides that a person who claims title by being in possession must be shown to be in possession.
It is on record that the original plaintiff occupied only one room out of 34 rooms, in the property in dispute. He said he put in tenants who were paying rent but stopped doing so. He failed to tender any receipt issued to any tenant. As well, he did not call any tenant to testify on his behalf. The learned trial judge was right in arriving at the conclusion that there were no documents for receipts and property rates to be tendered by the appellant. The provision of section 149 (d) Evidence Act should operate against him. He did not prove acts of ownership, long possession and enjoyment sufficient, positive and numerous enough to warrant and inference that he is the true owner of the property in dispute. See Idundun v. Okumagba (supra)
The respondent, on his own part, testified that he put in tenants and collected rents from them. He also paid ground rents to the Government and tendered Exhibits M, M1 and M2. It appears that he was able to show better title. See Amakor v. Obiefuna (1974) 1 All NLR 119, Aromire v. Awoyemi (1972) 1 All NLR (pt. 1) 101.
The appellant failed to prove exclusive possession. His claim no doubt, rest on shifting sand and should fail at the end. See Arabe v. Asanlu (1980) 5-7 SC 78 at 81; Kodilinye v. Odu (supra).
It is clear to me that the appellant, who has the burden of proof failed in all directions. The burden of proof remains at the door steps of the appellant. It did not shift to the respondent since the appellant failed to establish his title by any known means.
I resolve issue one (1) against the appellant and in favour of the respondent.
Issue (ii) is ‘whether the respondent successfully discharged the onus on him to prove that James Orlu (appellant’s father) divested himself of his original right/title to the properly in dispute to his (respondent’s) vendor, Urum Kalu Ude’.
On behalf of the appellant,’it was seriously contended that Exhibits F and O, Irrevocable Power of Attorney by James Orlu to Urum Kalu Ude and Deed of Assignment, respectively were not properly admitted by the learned trial judge. The appellant claimed that both exhibits are defective because the copies tendered were neither signed nor thumb printed and bore no jurat.
On behalf of the respondent, it was submitted that the respondent gave evidence that the originals of Exhibits F and O were missing and DW2, a Deputy Director of Lands gave evidence and tendered Exhibit O, a certified true copy of the original which conforms with section 17(3) and section 27 Land Instrument Registration Law Cap. 72 Laws of Eastern Nigeria 1963 as applicable in Rivers State. The case of Jules v. Ajani (1980) 5-7 SC 96 at 105 was cited. Learned counsel stressed that Exhibit O complied with the law and was rightly admitted.
Learned counsel for the respondent observed that Exhibit A and F were made on the same day. He felt that signed Exhibit A was thumb-printed and jurat was duly signed, the original of Exhibit F must also have been thumb-printed with jurat signed.
Evidence was led that the original of Exhibit F was lost and certified true copy from the records of the Deeds Registry was tendered. He submitted that Exhibit F was properly admitted in evidence.
I do not see the rationale for the fuss generated with respect to the admission of Exhibits F and O by the learned trial judge. In Salami v. Savanah Bank (Nig) Ltd (1990) 2 NWLR (Pt 120) 100. It was held that while the writer or preparer of a document signed by an illiterate cannot take advantage under it unless the provisions of the Illiterate protection Law are strictly complied with, where the document creates legal right between the illiterate and the person other that the writer or the preparer of the document, not only is the document admissible but all pieces of evidence may be adduced or introduced to prove what happened at the time the document was prepared and signed. In this matter, the respondent is not the maker of the document but the appellant’s father, James Orlu. I agree with the court below that Exhibit F is admissible in evidence. See: Ezeka v. Ndukwe (1981) All NLR 564.
The contention of the appellant that Exhibit O was executed in 1962 while James Orlu was alleged to have died in 1961 was found to lack substance by the court below on the ground that there is nothing to show that James Orlu died in 1961. I agree with the court below in that from my perusal of the record I cannot see any authentic evidence that he died in 1961.
Apart from the above Exhibits F and O were certified true copies of the documents tendered from proper custody by DW2, a Deputy Director of Land and in compliance with the provisions of section 17 (3), section 27 of Land Instrument Registration Law cap.72 Laws of Eastern Nigeria, 1963. See Jules v. Ajani (supra).
I must resolve issues 2 against the appellant and in favour of the respondent.
I am of the considered view that this matter principally has to do with findings of fact by the two courts below. The finding of fact by the learned trial judge were amply supported by the evidence on record. The court below was right in affirming the findings. I see no trace of misdirection as to the onus of proof of title. This court will not interfere unless for compelling reasons clearly depicted. I cannot see my way clear in interfering with the concurrent finding of fact able arrived at by the two courts below. See: Seven Up Bottling Co. v. Adewale (2004) 4 NWLR (Pt.862) 183; Anaeze v. Anyaso (1993) 5 NWLR (Pt.t291) 1; Kale v. Coker (1982) SC 252; Oduntan v. Akibu (2000) 7 SC (pt.2) 106.
In conclusion, I affirm the judgment of the court below. The respondent is entitled to cost assessed at =N=50,000:00 against the appellant.
SC.234/2002