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Michael Ifeanyi Ojibah V. Ubaka Ojibah (1991) LLJR-SC

Michael Ifeanyi Ojibah V. Ubaka Ojibah (1991)

LawGlobal-Hub Lead Judgment Report

NNAEMEKA-AGU, J.S.C. 

This is a further appeal by the plaintiff against the judgment of the Court of Appeal, Enugu Division, coram Ikwechegh Katsina-Alu and Macaulay, JJ.C.A. which had dismissed an appeal against the judgment of F. O. Nwokedi, J., sitting in an Onitsha High Court.

In the High Court, the plaintiff had claimed for a declaration that he was entitled to a statutory right of occupancy over the piece or parcel of land situated at Ogbeodogwu village, Onitsha (hereinafter called the land in dispute), N1,000.00 damages for trespass and perpetual injunction restraining the defendant, his servants and agents from any further trespass to the land.

The Plaintiff’s case was that the land in dispute was given to him by his late father, Mr. Francis U. Ojibah, in his life time, in appreciation of his brilliant academic performance. In paragraphs 6 and 9 of the statement of claim he averred as follows:

“6. In 1956 when the plaintiff was proceeding overseas to study Law the plaintiff’s father told the plaintiff that he will own 40, Awka Road and the adjoining lands when the plaintiff completed his studies.

  1. By a Deed of Conveyance registered as No. 18 at page 18 in Volume 1012 of the Lands Registry in the office at Enugu the Plaintiff became the owner of a property situate between 40 Awka Road and Tasia Road, Onitsha. The Deed shall be founded upon during the trial”.

He himself also pleaded that the dispute over the land between him and the defendant, his brother of full blood and the first son of their father, was arbitrated upon by the Obi of Onitsha in Council and that the arbitrators decided that he should allow the defendant to build on the land in dispute. He however averred that he had told them that the land which was given to him by his father was not a subject for compromise.

The defendant’s case was that:

“5. The plaintiff was given a piece or parcel of land measuring 100′ X 50′ along Tasia Road but the area does not extend to Awka Road. The alleged Deed of Conveyance which the plaintiff claims to derive title from is not and cannot be a true and correct document. The legality of the document will be contested at the trial. The defendant will at the trial urge the court to set aside the said Deed of Conveyance in paragraph 9 of the settlement of claim and declare same as null and void.

  1. The late F. U. Ojibah died intestate there is no evidence that long before Mr. Ojibah’s death he allocated in his time No. 40 Awka Road, Onitsha to the plaintiff. Paragraphs 9 and 10 of the statement of claim are therefore denied.

XXXXXXXXXXXXXXXX

  1. On 13/8/77 the matter was finally settled in favour the defendant. Evidence will be led at the trial to show that the decision of the native tribunal (i.e.The Obi-In-Council) was in favour of the defendant and is binding upon the plaintiff.”

At the trial, plaintiff alone testified on his behalf in line with his statement of claim and tendered the document, Exh. A, which he stated was a conveyance of the land in dispute to him by his late father.

The defendant testified on his own behalf in line with his statement of defence and called a witness, Chief Joseph Etukokwu, a member of the Obi’s cabinet who took part in the arbitration. He testified how both parties submitted the matter to arbitration, and that they heard both parties. After inspecting the land, they told the plaintiff to hands-off the land and allow the defendant to build on it.

In his judgment the learned trial judge, summed up the crucial aspect of the parties case thus:

“The defendant had earlier reported his dispute with the plaintiff to the Obi of Onitsha and his Council. The plaintiff admitted that he appeared before the Obi and Council and stated his case, but eventually rejected their findings as it was slanted unreasonably in favour of the defendant. He also claimed that the unfavourable decision of the Obi and Council was dubiously secured by the defendant. The plaintiff admitted in cross-examination that he filed no plan with his pleadings in this case. He however denied in cross-examination that he ever submitted to the jurisdiction of the Obi and Council.

He further admitted in cross-examination that there is a house standing at No. 40 Awka Road, Onitsha and that the defendant ever lived there.

He conceded in cross-examination that there area adjoining lands to No. 40, Awka Road, Onitsha but those lands were not part of No. 40, Awka Road, Onitsha. He finally denied in cross-examination that all that he was given near the area in dispute and at Tassia Road, Onitsha was a piece of land measuring 100ft. by 50ft. He claimed that he already has three other houses between No. 40 Awka Road, and Tassia Road, Onitsha. As observed earlier, plaintiff called no other evidence outside his own evidence.

The defendant both in his statement of defence and evidence denied that area in dispute was ever given to the plaintiff by their late father, F. U. Ojibah. He however admitted that plaintiff was only given an area measure 100ft. x 50ft, along Tassia Road outside No. 40 Awka Road, now in dispute by their father. The defendant disputed the alleged signature of their late father on Exh. “A” produced by the plaintiff. Defendant claimed that since 1959 when he retired from the service, he has been living at No. 40 Awka Road, Onitsha and that he also owned another house therein containing shops. Defendant further contended that in addition to reporting his dispute with the plaintiff to the Elders of his family who failed to settle the dispute, he later took the dispute to the Obi and Council who settled the dispute in his favour:”

Later he said:

“… I must point out that I am much disappointed by what appears to be less than adequate enthusiam with which the plaintiff presented his case. In a case of this nature the onus is on the plaintiff to show that he is the exclusive owner of the property claimed and that no one else except he alone is entitled to grant of certificate of occupancy if and when one is granted. The genesis of plaintiffs claim is undoubtedly Exhibit A, the validity of which was challenged by the defendant Plaintiff made no effort to discharge the onus cast on him to prove exclusive ownership of the land in dispute.”

He also held that on the state of the evidence a plan was necessary, but that none was tendered and so the identity and quantity of the land in dispute remained in doubt. Also he held that the dispute had been referred to customary arbitration and the plaintiff lost. He also said he would place no reliance on the conveyance, Exh. A. In his view the claim for damages for trespass and injunction were so linked up with the claim for a right of occupancy that they too were bound to fail. He therefore dismissed the plaintiffs case in its entirety.

His appeal to the Court of Appeal was dismissed. However the Court held that both sides knew the land in dispute and that a plan was unnecessary. In the lead judgment of Ikwechegh, J.C.A., he gave three reasons why he had to dismiss the appeal thus –

“…that he did not prove that he had exclusive ownership, and he did not establish the genuineness and validity of the Deed of Gift, and he could not resile from the decision given by the Obi and his Council.”

The plaintiff, hereinafter called the appellant, has appealed further to this Court, with leave of the Court of Appeal. Nine grounds of appeal were filed. The learned counsel for the appellant, Senator Anah, S.A.N, filed the appellant’s brief and reply brief. From the grounds of appeal, he formulated the following issues for determination.

“3.1 Whether the identity of the land in dispute was an issue both in the pleadings and the evidence before the court or in other words whether the identity of the land was known to both parties and non in dispute.

3.2 Whether in view of the finding of the Court of Appeal that the father of the appellant made a gift of the land in dispute to the appellant intervivos the lower court was right to uphold the judgment of the trial court which divested the appellant of the gift validly made to him.

3.3 Since the “factum of the gift” was in dispute whether the determination of the gift by Exhibit ‘A’ is still relevant except as to the quantum of the gift.

3.4 Having been admitted by the respondents that a part of the land in dispute measuring 100ft. by 50ft was given to the appellant by his deceased father was the Court of Appeal right to uphold the dismissal of the entire claim which will have the effect of making the appellant lose not only the area which the respondents admitted was given to him but the right to re-litigate for the portion the identity of which the respondents and the trial court hold is not definite and certain.

3.5 In the face of the evidence of the D.W.1 that the appellant said ab initio before the arbitrators that the gift of the land was “not negotiable” the concession by the respondent that part of the land was given to the appellant and the finding of the lower court that the appellant was given the entire land in dispute whether the arbitration was just, fair and binding so as to divest the appellant of the gift it was his father’s pleasure to give him bearing in mind the decision in Omanhene Kobina Foli v. Akese 1 WACA 1 at p.2

3.6 Whether the Court of Appeal was right to uphold the grounds; apart from the identity of the land, upon which the trial dismissed the appellant’s case.

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3.7 Whether the Court of Appeal put the right onus on the appellant to prove that Exhibit ‘A’ is a genuine document and not a forgery.

3.8 Whether the Court of Appeal was right not to have considered the issues of trespass and injunction.”

I must point out that some of the above issues are rather argumentative and inelegantly drafted. They should not be so.

Also, the defendant, hereinafter called the respondent, with leave, filed a notice of cross-appeal. The single ground of appeal attacks the reversal by the Court of Appeal of the trial court’s finding that the identity and quantity of the land in dispute was uncertain. Based on this ground and the grounds filed by the appellant, the respondents formulated the following issues for determination in the appeal, namely:

“(i) Was the area alleged by the plaintiff to have been trespassed on by the defendant within the plot of land given to him by his father in his life time

(ii) Was the description of the said gift in Exhibit A such that any surveyor could mark on the ground the precise area of the gift, so that the mere tendering of Exhibit A was enough proof of the precise boundaries of the gift

(iii) Were the two courts below wrong in their concurrent findings of fact on the other issues canvassed in the case on which the trial court dismissed the plaintiffs suit”

It is clear that issue No. (iii) rolls into one the three grounds upon which the Court of Appeal dismissed the appeal. I believe the issues formulated by the respondent more precisely cover the questions for determination in this appeal.

I wish to begin with the issue raised on Exh. “A”, which is the foundation of the appellant’s title. The Court of Appeal confirmed the finding of the learned trial judge that the appellant did not establish the genuineness and validity of the deed of gift, Exh. “A”. Learned counsel for the appellant submitted that by the respondent averring in his statement of claim that their father did not sign Exh. “A” he pleaded forgery. On the principle that he who asserts a state of facts must prove the same, it was the responsibility of the respondent, as the defendant, to have proved his assertion. He contended, without saying on what ground, that Exh. A raises a presumption of proper execution and, relying on Godwin Nwankwere v. Joseph Adewunmi (1966) All NLR 129 and Ojukwu v. Governor of Lagos State (1985) 2 N.W.L.R. (Pt 10) 806, at p.818, he submitted that the standard of proof is very high.

The learned counsel for the respondent pointed out that as the issue as to the validity and genuineness of Exh. A. arose from the pleadings, it was part of the onus which was incumbent on the appellant, as plaintiff, to discharge. The learned trial Judge and the Justices of the Court of Appeal were alive to this, particularly the failure of the appellant to call one of his brothers who was said to have witnessed the document to testify. He therefore submitted that the courts below carne to a correct conclusion on the issue. He denied that fraud was pleaded.

I have already set out the pleading in paragraph 5 of the statement of defence. It simply denied that it was a true and correct document, and gave notice that the respondent would contest its legality at the trial. I have my doubts whether this could amount to a pleading of fraud. In saying so, I associate myself with the observation of Wills, J., in Ex parte Watson 21 Q.B.D. 301 where he stated:

“Fraud, in my opinion, is a term that should be reserved for something dishonest and morally wrong, and much mischief is, I think, done, as well as much pain inflicted, by its use where “illegality” and “illegal” are the really appropriate expressions.”

See also Boyse v. Rossborough 6 H.L. Cas. 481, at p.49, per Cranworth C. In my view, fraud carries far much wider implications than impugning the truth or correctness of a document. At common law, its foundation is deceit of which the intention to mislead and a false representation are material. In equity it is, in sum, infraction of fair dealing and its consequences upon the person aggrieved are of paramount importance. Although the word “fraud” need not be used, one of the most fundamental rules about the pleading of fraud is that the pleading must contain precise but full allegations of facts and circumstances, with all necessary particulars, leading to the reasonable inference that the fraud was the cause of the loss complained of: see Lawrence v. Lord Norreys (1890) 15 App. Cas. 210, at p.221. The law requires that fraud must be distinctly alleged, with all necessary particulars, and distinctly proved: Davey v. Garrell (1878) 7 Ch.D. 473, at p.489. In New Port Dry Dock & Engineering Co. v. Paynter (1886) 34 Ch.D. 88 it was held that to plead that “all the accounts rendered to the plaintiff are untrue” is no pleading of fraud. Also in Patrick v. Lyon (1933) Ch. 786, it was held that to say that a person contravened section 265 of the Companies Act, 1929, was no allegation of fraud. So, in the instant case; to have pleaded in paragraph 5 of the statement of defence that Exh. “A” “is not and cannot be a true and correct document” and give notice that its legality would be contested at the trial was no pleading of fraud. By the pleading the defendant did not assume the onus to prove anything. Rather, he put the plaintiff on notice as to what he (plaintiff) was required to prove.

It appears to me from the state of the pleadings that proof of due execution of Exh. “A” was part of the onus which was incumbent on the appellant to discharge. He did not even as much as call his own brother who purportedly witnessed the document and whose attestation thereof had been challenged to testify. Without doubt, he had a duty to have called the attesting witness to testify. See Whyman v. Garth (1853) 153 E.R. 1578; Bowman v. Hodgson (1867) L.R.I.P. & D. 362. Nor did he call any other person who was familiar with his father’s signature to testify that the signature on the document was his father’s : see section 99 of the Evidence Act.

The appellant seeks umbrage under certain presumptions allegedly in his favour. He did not, however, specify. It appears to me however that the document which was ex facie made in 1966 and tendered in evidence in 1980 did not qualify for any presumption of due execution under section 122 of the Evidence Act, as it was not yet twenty years old. Clearly it was his duty to prove due execution which was in issue, but he failed to do so. On the other hand, there was positive evidence from the respondent, which was not challenged under cross-examination, that the signature on the document, Exh. “A”, was not that of their father. I therefore agree with the courts below that the appellant failed to establish the genuineness and validity of Exh. “A”, the deed of gift which is the foundation of his claim to title to the land in dispute. Needless to state that although production of a document of title is one of the five ways of proving title: see Idundun & Ors. v. Okumagba (1976) 9-10 S.C. 227, P.246; Piaro v Tenalo (1976) 12 S.C. 31, P.37; yet, a plaintiff who bases his claim to title upon such a document has the necessary duty of upholding its validity by proving its due execution and attestation unless in a situation where a presumption of due execution enures to his advantage. That duty is stronger in a case like this where its validity and due execution had been seriously put in issue on the state of the pleadings and there was evidence to contrary effect.

The conclusion I have reached on the first issue has its effect also on the issue whether the appellant proved with certainty the area to him. Before considering the issue, I must observe that the fact that their father gave him some land was not in issue; what was in issue was that precisely did their father give him. While he claims that their father gave him No. 40, Awka Road and the adjoining lands (see para. 6 of the statement of claim), the respondent maintains that he was given a piece of land measuring 100 feet x 50 feet along Tasia Road but that the area does not extend to Awka Road. Unfortunately, the appellant did not file any plan of the land in dispute in this suit and the learned trial Judge did not find in his favour on the point. Admittedly a plan is not an absolute necessity in every land case: where it is certain that the parties know and are ad idem as to the location and boundaries of the land in dispute no plan is required. See on this Chief Daniel Allison Ibuluya & Ors. v. Tom Banebo Dikibo & Ors. (1976) 6 S.C. 97, p.107; Atolagbe v. Shorun (1985) 1 NWLR (Pt2) 360. But in this case, from the state of the pleadings both parties were not ad idem as to its location. It is obvious from the evidence given at the trial that Awka Road and Tasia Road are not the same. They appear to have met at a point, but what exactly is the relationship between them with reference to the land in dispute is not clear from the evidence. Dealing with this problem, the learned trial Judge said:

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“I do not accept the evidence of the plaintiff and the submissions of his learned counsel that since identity of the land in dispute is known, survey plan is unnecessary. It is by no means clear that the identity of the area in dispute is known, because whilst the plaintiff says that area in dispute is between junction of Awka Road and Tasia Road, including the adjoining land measuring 200ft from Awka Road, the defendant says that plaintiff was given only 100′ by 50′ at Tasia Road. It is therefore clear that in the face of conflicting evidence about the identity of the area in dispute there is need for a survey plan. In the absence of a plan it would be difficult to comprehend the area, an injunction if one is granted would cover. Besides no one now knows the extent of the adjoining lands which plaintiff claimed was also given to him in addition to No. 40, Awka Road by his late father, Mr. F.U. Ojibah.”

The learned Judge appears to be correct.

With respects to the learned Justice of the Court of Appeal, he thought he should resolve that issue in favour of the appellant simply because he thought that the respondent denied the gift in his pleading but admitted it in evidence where he stated:

“I know that our late father in his life time gave a piece of land measuring 50 x 100 feet to the plaintiff. The area does not include land in dispute in this case”

After referring to this piece of evidence, the learned Justice of Appeal stated that it was an admission which took care of this issue, whereas it did not. With respects, he did not seem to have appreciated that from the beginning, in his pleading in paragraph 5 of the statement of defence, the respondent admitted that their late father made a gift of land to the appellant but said that gift was a piece of land 100 feet by 50 feet along Tasia Road and that it did not extend to Awka Road. That raised the issue whether the land was along Awka Road or along Tasia Road.

Another difficulty raised by the appellant’s case on the question of identity and quantity of the land is that he claims that he was given both No. 40, Awka Road and some surrounding lands. How much of the surrounding lands he claims to have been given to him will remain unknown in the absence of a plan showing the abuttals and dimensions of the land he claims. The parties appear to know No. 40 Awka Road but not the quantity of the surrounding lands given. Even for that reason alone, I am of the firm view that a plan was necessary.

I note that the learned Justice of the Court of Appeal finally believed that he got over this problem by quoting copiously from the purported deed of gift, Exh. “A”, and coming to the conclusion that the description of the land in Exh. A could be delineated by a surveyor from the description of the land in Exh. “A” – on the principle in Kwadzo v. Kwasi Adjei 10 WACA 274. It appears clear to me, with respects, that, having held that the appellant failed to establish the genuineness and validity of the deed of gift, Exh. “A” the learned Justice could not rightly turn round to use it to buttress the appellant’s case. A document which is not shown to be genuine and legal is of no forensic value. No right can be hoisted upon it. Besides, certain features of Exh. A leave more than a sour taste in the mouth. The document was purportedly made on the 21st of December, 1960. It had no plan attached to it. The plan annexed to it was made on the 22nd of August, 1977, some eight years after the donor, appellant’s father died on the 15th of August, 1969. Both its execution by the donor and its signature by a brother of the appellant were challenged; and yet no effort was made to call a shred of evidence in proof of its authenticity. In my view, the learned trial Judge was right to have held that it had no evidential value.

The nature of the problems that have arisen on this issue exposes the danger of deciding cases or issues therein on established legal jingles and catch-phrases without fully asking oneself how well they fit into the particular facts of the case. Yes, where parties know a land in dispute well, a plan is not necessary. But, as in this case, parties may know some pieces or parcels of land pretty well but do not quite agree as to the location and boundaries of the particular piece in dispute. In such a case the principle in Kwadzo v. Adjei (supra) has no place: a plan showing the particular portion which the plaintiff claims is the only answer.

Also this Court has held times without number that it is for a donor or grantor to show the dimensions and extent of a piece of land which is the subject of a grant. Where he fails or neglects to do so and the donee or grantee purports to do so, particularly after the death of the grantor or donor, that would be an exercise in futility. In Alhaji A.W. Elias v. Alhaji B.A. Suleiman & 2 Ors. (1973) 1 All NLR (Part 11) 282, at p.295 where the children of the grantee attempted to do so 25 years after the death of the grantor, this Court held that the document whereby the grantee’s children tried to define the land was completely worthless. So is Exh. “A” in this case.

Equally, the plan exhibited to Exh. “A” which was not a plan made for this case but one purporting to show the subject of the grant years after the death of the grantor is equally worthless. In conclusion on this issue, I am of the view that in so far as the parties did not agree on the location and quantity of the land given to the appellant, particularly the quantity of land surrounding No. 40, Awka Road which formed part of the land given to him, a plan was necessary. Exhibit “A” which had been successfully impugned could not be resorted to in order to clear the uncertainty. I therefore hold that the appellant did not establish the area over which he is in exclusive possession by reason of his father’s gift. The cross-appeal succeeds.

The two courts below found on the pleadings and the evidence called at the trial that both parties voluntarily submitted their dispute to arbitration by the Obi-In-Council on the 13th of August, 1977, and that the arbitrators found in favour of the respondent. Learned counsel for the appellant has tried to attack the binding effect of the arbitration on many grounds all of which I believe are untenable. First he stated that the appellant from the beginning told the arbitrators that the gift which his father gave him was not negotiable, which, according to him, meant that he was not going to be bound by their decision.

It was in fact the appellant who first pleaded the arbitration in paragraphs 18, 19, 20 and 21 of his statement of claim. It sounds quite strange to me that parties to such a dispute could voluntarily submit their dispute to a customary arbitration body, appear before such a body and one of the parties arrogates to himself the right to dictate to it what or what not to inquire into or what decision it would accept. There was only one dispute on record and that is the land dispute. In my view the learned trial Judge correctly summed up the correct situation thus:

“There is evidence that both parties appeared before the Obi and Council and each side canvassed his case before the Obi and Council, one of the Red Cap Chiefs, the Oduah Ngu of Onitsha, Chief Etukokwu, a relation of the Ojibah family as D.W.1. in this case also testified before the Obi and Council. The decision of the Obi and Council went against the plaintiff who later according to his evidence rejected the decision. Whilst not accepting the decision of the Obi and Council as res judicata the fact remains that the parties having initially voluntarily submitted to the jurisdiction of the Obi and Council it was immoral for the plaintiff to reject the unfavourable decision of the Obi and Council against him without leading evidence to show that the decision was wrong in principle.”

Later he continued:

“I accept the evidence of Etukokwu, the Oduah Ngu of Onitsha D.W.1 that the Obi and Council of Onitsha mediated the dispute between the parties in this case, and that the decision was against the plaintiff. I also believe his evidence that plaintiff did not on the spot reject the decision of the Obi and Council. I am satisfied that the purported rejection came subsequently.”

The Court of Appeal, after reviewing the evidence relating to the arbitration, adverted to the fact that the appellant who first pleaded it did not even call any witness on it or show in the Court of Appeal that the decision by the learned trial Judge was wrong in principle. The court therefore used it as one of the three pillars upon which it hoisted its decision by concluding that the appellant “could not resile from the decision given by the Obi and his Council. I have not been persuaded that the learned Justices of the Court of Appeal were wrong.

As I indicated above, I do not think from the concurrent findings of the courts below on the point that the appellant expressed any reservation during the submission of the dispute to the customary arbitration body. I should also accept the concurrent finding that he did not even resile from the decision against him soon after the arbitral body handed down their award but that he tried to do so afterwards. He could not do that. In my view, the law is pretty settled that where two parties to a dispute voluntarily submit their matter in controversy to arbitration according to customary law and agreed expressly or by implication that the decision of the arbitrators would be accepted as final add binding, then once the arbitrators reach a decision; it is no longer open to either party to subsequently back out of such a decision. See on this: Ozo Ezejiofor Oline & Ors. v. Jacob Obodo & Ors. (1958) 3 F.S.C. 84 p.86; (1958) SCNLR 298; Opanin Asong Kwasi & Ors. v. Larbe 13 WACA 7; Philip Njoku v. Felix Ekeocha (1972) 2 E.C.S.L.; R. 199; Omanhene Kobina v. Akese 1 WACA 1, at p.2. On the ground of binding arbitration alone, I should dismiss this appeal.

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I also agree with Mr. Anyamene, S.A.N., that much of what the appellant tried to raise again in this appeal relates to facts upon which the two courts below had made concurrent findings, based on the evidence before them. By a long line of decided cases, appellate courts have consistently decided not to disturb such findings unless it is shown that such findings are perverse, or that there is some miscarriage of justice or a violation of some important principle of law or procedure which, if corrected the finding cannot stand. See on this- The Stool of Abinabina v. Enyimadu (1953) 12 WACA 171, p.173; Etowa Enang & Ors. v. Fidelis Ikor Adu (1981) 11-12 S.C. 25, p.42; Nwadike v. Ibekwe (1987) 4 NWLR (Pt. 67) 718. That is as it should be. For, if the highest courts in a judicial hierarchy have to meddle with primary findings of facts and reverse them at will when they have not the advantage of hearing the witnesses or watching them testify, the whole system of appeals will collapse. I have not been persuaded that there are any grounds for which I can validly interfere in this case.

Finally, I shall deal with the issue on the dismissal of the appellant’s case as it relates to trespass and injunction and the confirmation of the dismissal by the court below.

Learned counsel for the appellant has argued that it is not correct, as the learned trial Judge stated, that these two claims depended on the claim for title which had failed, as the contrary was the case. He further submitted that the trial Judge’s finding that the appellant did not lead evidence of his possession of the land and trespass thereon by the respondent was perverse because he did. The Court of Appeal, in his submission was in error not to have made any finding on trespass and

injunction.

In my view, although the fact that a plaintiff who comes to court on a claim for title, damages for trespass and injunction may fail on title and succeed on trespass could be correct as a general proposition of law, yet fitted to the facts of this case, it is a non-sequitor. For a person who has failed to prove his title to a communal land can only succeed in a claim for trespass in the same action over the same land against a member of the community only where he has proved exclusive possession of the particular piece or parcel of land. This is because joint ownership by all the male members of the community is one of the incidents of such communal ownership, unless and until the property has been partitioned or the particular piece of land is conveyed to the plaintiff by the head of the community with the concurrence of the principal members thereof.

In such cases, too, proof of user does not necessarily prove exclusive possession for the simple reason that the communal ownership entitles every member of the community to use the land, though quite often the head of the family or community allocates portions of the land to individual members for their use. In the instant case, the plaintiff relied on the gift by their father by Exh.A and to prove that the area trespassed upon fell within the area of their father’s land which was the subject of the gift, he cannot succeed in a claim for trespass or an order of injunction.

There was also one more piece of evidence tendered by the appellant which did a serious damage to his case in this respect. It is Exh. B, a letter said to have been addressed to him by the Ministry of Works when the respondent demolished the garage which the Ministry built on a portion of the land in dispute which the appellant showed to them in 1977. The letter reads as follows:

“GOVERNMENT OF ANAMBRA STATE OF NIGERIA

Telegrams: PERMWORKS ENUGU MINISTRY OF WORKS AND HOUSING

Telegrams: ENUGU 2556 RECONSTRUCTION PROJECT,

Your ref. ……….. ONITSHA.

Our ref. ONSITE/MCC 3/142

(All replies to be addressed to the Permanent Secretary)

M. I. Ojibah,

Landlord,

NO.1 Tasia Road,

Inland – Town,

Onitsha.DEMOLITION OF OFFICE GARAGES OF

M.O.W. & H. OFFICE AT NO.! TASIA ROAD

Please refer to our office letter No. Onsite/MCC 3/141 dated 13th June, ’77 regarding excavation of trench around the office garages and let us know who is responsible for the demolition of garages.

We erected the garage in the adjoining land with your approval but unfortunately on 20th June, we found that the garage was demolished and lying on the ground.

Please attend the meeting on 23rd June at 2.30 p.m. in this office to discuss the matter with the Principal Resident Engineer.

(Sgd.)

(R. AHMID)

RESIDENT ENGINEER

FOR: PRINCIPAL RESIDENT ENGINEER ONITSHA TOWNSHIP ROADS”

The letter clearly shows that the residential house of the plaintiff is at No. 1 Tasia Road, and not No. 40 Awka Road, as he pleaded in paragraphs 6 and 7 of the Statement of claim. Also, as Mr. Anyamene pointed out, shows that the cause of the quarrel was a garage which the Ministry erected on “the adjoining land” with the appellant’s approval and not at No. 40, Awka Road and the surrounding land which he claims. Finally, as if to deal the last devastating blow on his own case, he testified:

“No. 40 Awka Road belongs to the Ojibah family jointly. My father has other pieces of land al Onitsha. Such lands are situate at Tasia Road, Ojibah Lane by Okosi Road, at Ojedi Road and at Oguta Road by New Cemetery Road”

If on his own showing 40 Ogula Road belongs to his family and there is a separate property at Tasia Road, where he has already built upon, I do not see how he can now claim No. 40 Awka Road and the surrounding lands. The case of the respondents that the land given to him was at Tasia Road appears more probable. Appellant’s claim to No. 40, Awka Road and the surrounding lands therefore fails and was rightly dismissed by the courts below. But the dismissal should not affect his rights over his property at Tasia Road where he Slated he already has put up some buildings.

In the result, the appeal fails and is hereby dismissed. The cross-appeal succeeds and is allowed. I assess and award costs of N500.00 to the respondent against the appellant.

Before I stop, I must note that learned Senior Advocate for the respondent after formulating the issues went ahead to argue the appeal on the grounds of appeal. This Court has made it clear that to now argue one’s appeal on grounds of appeal rather than on issues formulated for the appeal is a case of non-compliance with the rules and one which makes the task of the Court much more difficult. It will no longer be tolerated. But as the appellant who filed his brief but was absent and not represented at the hearing has taken no objection to this as he should, we allowed the irregular practice this time.

M. L. UWAIS, J.S.C.: I have had the privilege of reading in advance the judgment read by my learned brother, Nnaemeka-Agu, J.S.C. I agree with his reasonings and conclusion. Accordingly, the appeal by the appellant is hereby dismissed and the appeal by the respondent is allowed with N500.00 costs favour of the respondent against the appellant.

A. G. KARIBI-WHYTE, J.S.C.: I have read the draft of the judgment just delivered by my learned brother P. Nnaemeka-Agu. J.S.C. in this appeal. I agree entirely with both the reasoning and the conclusion that this appeal should be dismissed. I also will dismiss and hereby dismiss the appeal. I abide by the costs awarded in the judgment of my learned brother P. Nnaemeka-Agu, J.S.C.

S. M. A. BELGORE, J.S.C.: I agree with my learned brother, Nnaemeka-Agu, J.S.C. that this appeal totally lacks in merit and ought to be dismissed. The appellant in a gift inter vivos by his father had a house built on the land at Tasia Road. It seems he intended, by virtue of this gift, to encroach on the remaining family land adjoining this house. The evidence is very clear as to this intention. I adopt the reasoning in the leading judgment as mine and dismiss this appeal. I award N500.00 as costs against the appellant in favour of the respondent

A. B. WALI, J.S.C.: I have read before now the lead judgment of my learned brother, Nnaemeka-Agu. J.S.C. I agree with his reasoning and the conclusion that the appeal lacks merit and must fail while the cross-appeal succeeds and sarne is allowed.

I abide by the consequential order contained in the lead judgment.

Appeal dismissed.

Cross-Appeal allowed.


SC.128/1988

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