Nnaemeka Okoye & Ors V. Ogugua Nwankwo (2014)

LAWGLOBAL HUB Lead Judgment Report

MARY UKAEGO PETER-ODILI, J.S.C.

The respondent herein as the plaintiff in this suit in the High Court of Anambra State holden at the Onitsha Judicial Division, in a representative capacity sued the appellants hereto, as the defendants also in a representative capacity claiming the following reliefs:

A. A declaration that the plaintiff as the head of Nwankwo Okonkwo family as well as the representative head of Obolua family in Anangwo (kindred) quarters of Ezi-Kwelle Ogidi is entitled to inherit under Ogidi Customary Rule of succession and customary right of occupancy at any time, at his will, ALL THAT PORTION OF LAND forming part of his ANCESTRAL HOME (PROPERTY) known as and called OWOKO ORURUIDE LAND valued N200.00 (Two Hundred Naira) lying, being and situate at Amangwu quarters of Ezikwell Nkwelle Ogidi in Idemili Local Government Area within the jurisdiction of this Honourable Court, the particulars of which will be furnished in a survey plan to be attached to the statement of claim to be attached to the statement of claim to be filed PRIOR OCCUPIED and used by this predecessors in the (occupation) of whom OKONKWO OBOLUA was his grandfather.

B. N5,000.00 damages for trespass in that on or about the month of June 1978 the defendants in collaboration with some hirelings each aiding and abetting the other did break and enter into the plaintiffs ancestral property (LAND) known as and called OWOKO ORURUIDE and therein cleared the bush, felled numerous economic trees including iroko and palm trees of the plaintiffs family, collected palm fruits therefrom, deposited sands, gravels and blocks and did divers manners of work therein without the leave or license of the plaintiff’s family. The defendants and their hirelings destroyed the plaintiffs blocks and demolished the plaintiffs foundation and have built and erected shops and constructed structures on portions of the land and have continued to ravage and commit several overt acts of trespass in aggravation on the said OWOKO ORURUIDE LAND.

C. A perpetual injunction restraining the defendants, their servants, agents and hirelings and privies from entering the land described or in any way dealing with or interfering with same without the permission of the plaintiff.

BACKGROUNDS FACTS

By a claim dated 13/7/81 but filed on 14/7/81 the respondent as plaintiff instituted this action at the High Court of Anambra State and filed a Statement of Claim. In answer the appellants as defendants filed their Statement of Defence. On the 14th day of June, 1988 the case proceeded to trial before Hon. Justice J. G. O. Aneke of the High Court of Anambra State and the case started ‘de novo’ before Chidozie Okike J. on the 9th day of June, 1993.

Before Chidozie Okike J. on 10th day of June, 1993 when the case came up for hearing the respondent’s counsel argued that from the state of pleadings that the defendants should start the case by calling their witnesses.

On the 9th July, 1993 the appellants’ counsel replied to the respondent’s argument stating that the onus of proof is on the plaintiff and never shifts in land matters and so the respondents should start first by calling their witnesses.

On the 23rd day of September, 1993, Okike J. started that the statement of defence being unequivocal that the plaintiff’s ancestor was the original owner of the land in dispute and the position is that with the defendants in their pleading admitting that the plaintiff was the original owner, the onus is on the defendants to prove an absolute grant to them.

The defendants dissatisfied appealed to the Enugu Division of the Court of Appeal Coram: Mahmud Mohammed, Sule Aremu Olagunju and Clara Bata Ogunbiyi and they affirmed the decision of Chidozie Okike J. and dismissed the appeal. Again dissatisfied the appellants have come before this court on appeal on a two ground Notice of Appeal. I shall restate the grounds without the particulars:

1. The learned Justice of the Court of Appeal erred in law by holding thus:

“Therefore having regard to the state of pleadings of the parties, it is quite clear that if no evidence at all had been forth coming from the defendants who have stated plainly in their statement of defence that the land in dispute originally belong to the plaintiff’s ancestor,… The defendants would definitely have failed. In other words by their own statement of defence, the defendants now appellants have divested the plaintiff now respondent of his right to begin…”

2. The learned Justice of the Court of Appeal erred in law by failing to consider other issues raised by the pleadings of the parties before coming to the decision that the defendants should begin to lead evidence.

On the 1st day of April, 2014 day of hearing, learned counsel for the appellants, Mr. Ogbuli adopted his Brief which he settled and filed on 20/9/13 in which he distilled a single issue, viz:

“Whether the Justices of the Court of Appeal were right in holding that from the totality of the facts of the case that the appellants ought to call their witnesses first.”

Chief Ikenna Egbuna of counsel for the respondent adopted his brief which he settled and filed on the 6th day of February 2014. He also adopted the issue as framed by the appellants.

SOLE ISSUE

The question here posed is whether or not the two courts below were right on the stand that the defendants ought to take the first slot with their witnesses.

Arguing against that position learned counsel for the appellants stated that in an action for declaration of title, damages for trespass and injunction such as the present case, the plaintiff must succeed or fail on the strength of his own case but not on the weakness of the defence. That the plaintiff is expected to prove his case on the preponderance of evidence and balance of probabilities. That in proving the case, the plaintiff must discharge the burden of proof placed on him by the issues joined on the pleadings, the evidential burden placed on him by the law and the burden of establishing the admissibility of evidence. He cited Longe v. FBN Plc (2006) 3 NWLR (Pt.967) 2 NWLR (Pt.538) 33; Kala v. Potiskun (1998) 3 NWLR (Pt.540) 1 at 17.

Mr. Ogbuli, went on to contend that upon the filing of pleadings by the parties, issues are joined and the state of the pleadings as joined by the parties will determine where the onus lies and who will first discharge the onus of proof. He said this also takes cognizance of the presumption of law imposed on the trial court by the Evidence Act and other statutes such as Section 131 – 140 of the Evidence Act, Laws of the Federation, 1990.

For the appellants was submitted that the court below erred in its judgment upholding the contention of the respondent that on the state of the pleadings, the onus is on the defendants to call their witnesses first. That the court failed to draw the distinction between the onus of proving one’s case and the duty to call witnesses first. That it is trite law that pleadings are not evidence and a party must lead credible evidence on his pleadings to succeed in a case. Mr. Ogbuli of counsel said by averment in a statement of claim which is not supported by evidence in court is deemed abandoned by the party. That a party can plead a veritable course of action but fail to lead evidence in support of same, such pleading is taken as abandoned. He stated that were there are admissions in the pleadings, the plaintiff is still duty bound to step into the witness box and give the bare bone of his case and his claim against the defendant especially as the defendant might decide not to testify in his defence despite the pleadings and admission thereat. Mr. Ogbuli, said the reason for the scenarios above stated is that the court is not duty bound to enter judgment on the admission of the parties in their pleadings without more, so it is the duty of the plaintiff to get into the witness box and tell the court his case and the fact that is admitted by the defendants. He referred to Buhari v. Obasanjo (2005) 13 NWLR (Pt.941) 1; N.A.S. Ltd v. UBA Plc (2005) ALL FWLR (Pt.284) 275; ASHDC v. Emekwu (1996) 1 NWLR (Pt.910) 241; Yusuf v. Oyetunde (1998) 12 NWLR (Pt.579); Olorunfemi v. Asho (2000) 1 SC 15.

Mr. Ogbuli further stated for the appellants that the parties joined issues on their pleadings on several fronts such as

a. Arbitration of 1965 by Igwe in Council

b. How the defendants ancestors came into occupation of the land in dispute.

c. Identity of the land in dispute

d. The reason for the plaintiffs ancestors flight from Ogidi town to Nkwelle Ezunnaka etc.

That these issues are live between the parties which the court shall be called upon to decide. That they, appellants admit that they got the land in dispute from the plaintiffs ancestors, yet the evidence act shifts the onus of proof from the plaintiff to the defendants but this onus can only shifts the onus of proof from the plaintiff to the defendants but this onus can only shift after the plaintiff had presented his case. That the onus on the appellants is to establish by credible evidence that the land validly came to them which is the shifting onus as distinct from the right to call witnesses.

In response, Chief Ikenna Egbuna submitted for the respondent that the applicable rules of the trial court at the time of the case at the High Court is the High Court Rules of Anambra State 1988, Order 24 Rules 17 (1) to 17(3) while relevant Evidence Act are sections 131 (1) and (2) and 132; Section 133(1) also. That from the provisions of those sections it is abundantly clear that the burden of proof is not static but oscillates according to the circumstances of the case. That it is abundantly clear that the burden of proof is twofold, the first being the ability of a plaintiff to establish and prove the entire case or reasonable portion of his case before a court of law can given judgment in his favour which burden is constantly on the plaintiff. He said the other types is related to particular facts or issues which a party claims exist which is a burden that oscillates from one party to the other. He said while the first type of burden of proof is called legal burden or the burden of establishing a case while the second one is called the evidential burden while the second burden is the one operating in the case at hand.

Chief Egbuna of counsel said the appellants as defendants having asserted in paragraph 3 of their statement of defence that the defendants land named OWOKO OMALACHA was originally the land of the plaintiff’s ancestors called AMANGWU brought the evidential burden at play. He cited Federal Mortgage Finance Ltd v. Hope Offiong Ekpo (2004) 2 NWLR (Pt.856) 100 at 122.

For the respondent it was also submitted in the pleading of the defendants, that by virtue of the custom of the parties community Ogidi known as IKWA NKWA OCHU the plaintiff’s ancestor to avoid the consequences of his conduct paid with his land by making a gift that is neither revocable nor redeemable. That the appellants having admitted that at one time the radical title was in the respondents the onus is therefore on them to prove that the radical title had been extinguished by the alleged irrevocable and irredeemable gift. A situation which accorded with Order 24 Rule 17 (2) of the High Court Rules of Anambra State, 1988 and Section 133(1) of the Evidence Act, 2011. He cited.

George Onobruchere & Ors v. Iveeeeeromoebo Esegine & Ors (1986) 1 NWLR (Pt.19) 799 at 807;

Sampson Ochonma v. Asirim Unosi (1965) NMLR 321 at 323;

Nigerian Maritime Service Services Ltd v. Afolabi (1978) 2 SC 79 at 84. That the onus to commence this suit at the trial court was on the appellants since they stood to lose if no further evidence is led. He relied on Aire v. Adisa (1967) 1 ALL NLR 148 at 151; Buraimoh v. Bamgbose (1989) 3 NWLR (Pt.109 353 at 366.

Chief Egbuna further submitted for the respondents that the Court of Appeal and completely affirmed the findings of the learned trial judge and this court having the policy not to disturb concurrent finding of fact of two courts unless there is some miscarriage of justice or a violation of some principle of law or procedure which will justify such an interference. That since there was nothing negating the acceptance of those said concurrent findings this court should resolve the issue in favour of the respondents and dismiss the appeal. He relied on Nwobodo Ezeudu & Ors v. Isaac Obiagwu (1986) 2 NWLR (Pt.21) 208 at 215.

In summary the grouse of the appellant which he had ventilated from the trial court up to the Supreme Court is that the Court of Appeal failed to draw a distinction between the person that will call the first witness in a case and the onus of proof place on a party by the law taking into account the circumstances of this case which included the fact that several issues were joined on the pleadings and the fact that the plaintiff had opened his case and called several witnesses in the proof before the matter started de novo before a new judge.

Reacting to that stance of the appellant, the respondent said that by the provisions of Order 24 Rule 17(2) of the High Court Rules of Anambra State, 1988 and Section 131(1) of the Evidence Act, 2011 and a long line of judicial authorities, the burden of first proving the existence or non existence of fact depends on the state of pleadings of the parties. That with the defendants having pleaded in paragraph 5 of the statement of defence that the land in dispute originally belonged to the plaintiff’s ancestor who made an irrevocable and irredeemable gift to their ancestors, that set the stage for the defendants losing if no evidence was led and so they ought to take the first shot in proof.

The above briefly stated is what is being contested here and also what was disputed at the two courts below. The applicable Rules of court and the provisions of the Evidence Act would be quoted hereunder as guide for what this court should do.

Order 24 Rules 17(1) to 17 (3) of High Court Rules of Anambra State, 1988 provides as follows:

“17(1) The order of proceedings at the hearing of contested case shall be as prescribed in this rule.

17(2) The party on whom the burden of proof is thrown by the nature of the material issues or questions between the parties, according as the court may determine shall begin. He shall state his case.

17(3) He shall then produce his evidence and examine this witnesses-in-chief. They may be cross-examined and re-examined”

From the Evidence Act at Section 131(1) and (2) are prescribed as follows:

“1. Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts shall prove that those facts exist.

2. When a person is bound to prove the existence of any fact, it is said that burden of proof lies on that person who would fail if no evidence at all were given on either side”

In Section 132 is found “The burden of proof in a suit or proceedings lies on that person who would fail if no evidence at all were given on either side.”

Section 133(1) stipulates thus:

“In civil cases, the burden of first proving existence or non existence of a fact lies on the party against whom the judgment of court would be given if no evidence were produced on either side, regard being had to any presumption that may arise on the pleadings.”

It needs be said that Section 131-133 of the Evidence Act applicable at the time of the initiation of the cause of action have been replaced by Section 135 – 137 of the Evidence Act Laws of the Federation 1990 which was the law in place at the time of the judgments of the two courts below.

I shall recapture the salient parts of the judgment of the court below which was anchored in the lead judgment by Mahmud Mohammed JCA (as he then was) at pages 99 and 100 of the Record. I quote as follows:

“Therefore having regard to the state of pleadings of the parties, the relevant parts of which are fully quoted above, on the correct application of the provisions of the section 136 and 137(1) of the Evidence Act Cap 112 of the Law of the Federation of Nigeria 1990 and the cases earlier discussed in this judgment particularly the case of Adenle v. Oyegbade (supra), the onus of proof lies squarely with the defendants to start their case by calling the relevant evidence to show how the plaintiff’s ancestors made an absolute gift of their land to the defendants’ ancestors. Therefore having regard to the state of pleadings of the parties, it is quite clear that if no evidence at all had been forth coming from the defendants who have stated plainly in their statement of the defence that the land in dispute originally belonged to the plaintiff’s ancestors, they would have run foul of Section 136 of the Evidence Act and in the absence of evidence on the absolute grant of the land to them, the defendants would definitely have failed. In other words by their own statement of defence, the defendants now appellants have divested the plaintiff now respondent of his right to begin under normal circumstances if the claim of the plaintiff had been effectively traversed in the statement of defence as was the situation in the case of Are v. Adisa (1967) 1 ALL NLR 148 at 151. The learned trial judge was therefore right in his decision in his ruling of 23/9/93 now on appeal, in ordering the defendants now appellants to begin. This order no doubt is also in line with the decision of the Supreme Court in Buraimoh v. Bamgbose (1989) 3 NWLR (Pt.109) 352 at 366 where Nnemeka-Agu, JSC (as he then was) explained the position of the law that in a case of claim for declaration of title to land as in the present case the onus of proof does not always lie in the plaintiff and concluded –

“Also in quite a number of cases the onus of proof is on the defendant. An example is where the defendant in his pleading admits that the plaintiff was the original owner. The onus is on the defendant to prove an absolute grant to him. See Ochonma v. Unosi (1965) NMLR 321.”

On the whole this appeal fails and the same is hereby dismissed. The ruling of Okike J. of 23/9/93 ordering the defendants appellants to being is hereby affirmed.

A lot of judicial authorities have been cited and I shall have recourse to them to see my way through.

The onus or burden of proof is merely an onus to prove or establish an issue. There cannot be a burden of proof where there are no issues in dispute between the parties and to discover where the burden lies in any given case, the court has a bounden duty to critically look at the pleadings.

The general rule is that it is the plaintiff who seeks a decree of declaration of title that has the onus of proof. See

Onobruchere v.. Esegine (1986) 1 NWLR (Pt.19) 799;

Kwamina Kuma v. Kofi Kuma (1934) 2 WACA 178 at 179;

Kodilonye v. Mbanefo Odu (1935) 2 WACA 336 at 337;

Ayitey Cobblah v. Tettey Gbeke (1947) 12 WACA 294 at 295;

Anachuma Nwafor & Ors Nwankwo Udegbe & ors (1963) 1 All NLR 107;

Nwankwo Udegbe & Ors v. Anachuma Nwokafor & Ors (P.C) (1963) 1 ALL NLR P.417;

Mogaji & Ors v. Odofin & Anor (1978) 4 SC 91;

Bello v. Eweka (1981) 1 SC 101 at 117 – 120.

The norm in civil cases is that the plaintiff starts the process of testimony first and his witnesses if any, thereafter the defendant proffers his evidence in defence.

In L. A. Are v. Adisa v. Anor (1967) 1 ALL NLR 148 held by the Supreme Court that in the light of Section 135 of the Evidence Act and of the pleadings, the onus was on the plaintiff to prove his averment that the necessary approval was not duly obtained.

In civil cases, proof is based on balance of probabilities and it rests on the party who asserts the affirmative, in this case the appellant and he failed to discharge the burden on him. Daodu v. NNPC (1998) 2 NWLR (Pt.538) 355 at 365 (SC); Lewis & Peat (N.R.I.) Ltd v. Akhimien (1976) 7 SC 157 at 169; Mogaji v. Odofin (1978) 4 SC 91; Elias v. Omobare (1982) 5 SC 25.

The point has to be made that it is not in all instances where the usual or the norm must play out. This is because certain peculiar features might present which will change the course of events like who takes the first shot at the evidence.

The courts and counsel should move away from discussing technical matters when the substantial matter in a case is the issue.

Buhari v. Obasanjo (2005) 13 NWLR (Pt.941) 1 AT 297 per Parts-Acholonu JSC; Broad Bank (Nig.) Ltd v. S. Olayiwola & Sons Ltd (2005) 3 NWLR (Pt.912) 434.

In the matter of who testifies first, at the bottom of it is the pleadings of the parties.

The purpose of pleading is to afford the opponent the opportunity of knowing the case he would meet at the trial. It is for that reason that all facts relied upon by the party in a civil matter before a superior court of record must be clearly pleaded in numbered paragraphs. The reason for this principle of practice is that no party should take advantage of locking away facts from his pleadings and unleashing a surprise in court by evidence on a matter not pleaded. Buhari v. Obasanjo (2005) 13 NWLR (pt.941) 1 at 193, 200 – 201; Emegokwue v Okadigbo (1973) 4 SC 113; Pascutto v. Adecentro (Nig.) Ltd (1997) 11 NWLR (pt.529) 467.

Before a Court decides whether or not there is an admission or reply to a suit in respect of an averment in a statement of claim, it must consider the entire pleadings of the parties as whole. Buhari v Obasanjo (2005) 13 NWLR (pt.941) 1 at 193, 261; Lion of Africa Inc. Co. v. Fisayo (1986) 4 NWLR (Pt.37) 674; A.G. Anambra State v. Onuselogu Ent. Ltd (1987) 4 NWLR (Pt.66) 547: Titilayo v. Olupo (1991) 7 NWLR (Pt.295) 519: Ugochukwu v Co.operative Commerce Bank Co Ltd (1996) 6 NWLR (Pt.486) 524: Pan Asian African Co. Ltd. N.I.C.O.N. Ltd. (1982) 9 SC 1.

Burden of proof is two-fold. The first is the ability of a plaintiff to establish and prove the entire or reasonable portion of his case before a court of law that can give judgment in his favour. This is always constantly on the plaintiff. The other type is related to particular facts or issues which a party claims exist. It is this burden of proof that oscillates from one party to the other. While the first type of burden of proof is called legal burden or the burden of establishing a case, the second one is called evidential burden. Federal Mortgage Finance Ltd v. Ekpo (2004) 2 NWLR (Pt.856) 100 at 122; Ogule Ankpa Agatu Co-operative Group Farming Society v. Nigeria Agricultural and Co-operative Bank (1999) 2 NWLR (Pt.590) 234.

At this point I shall restate some of the relevant paragraphs of the pleadings so as to have them in con with the principles of law and the decided cases on the point. Paragraphs 4 and 5 of the statement of claim state:

“4. The land in dispute is known as Owoko Oruruide and is situate in Amangwu quarter of Ezi-kwelle and is more particularly known and delineated and verged pink on the plaintiff’s Plan No. plan No. ME/1007/81 filed with this statement of claim.

5. The land in dispute originally belonged to one Obolua, the ancestor of the plaintiff from time beyond human memory. The said Obolua got the land as his own share when the people from Amangwu shared their lands in the olden days. The said Obolua begat Okonkwo popularly known as Okpobalaku. Okonkwo begat Nwankwo popularly called Iruiliaku. The said Nwankwo alias Iruiliaku begat the plaintiff. The said Obolua during his life time exercised maximum acts of ownership and possession over the said land such as farming the same and living therein without any let or hindrance.”

Reacting to the pleadings of the plaintiff/respondent, the defendants/appellants in their statement of defence averred in paragraph 4, 5 and 6 as follows:-

“4. The defendants deny paragraph (4) of the Statement of Claim and in further answer thereto say that the land in dispute is called Owoko Omalacha. It is situate in Uruowelle Quarters of Nkwelle Ogidi. It belongs to the defendants’ family of Obiajulu as a community. The extent of the defendants’ Owoko OMALACHA land, part of which is in dispute in this case is shown verged blue on Survey Plan No. V.D/ASP/82 filed with this Statement of Defence. The plaintiffs survey plan No.MEC/1007/81 shows other pieces of land belonging to other families in Uruowelle Nkwelle-Ogidi.

5. Save and except that the plaintiff, Nwankwo and Okonkwo are descendants of Obolua the defendants deny emphatically paragraph (5) of the statement of claim. In further answer to paragraph (5) of the statement of claim the defendants state that the defendants’ OWOKO OMALACHA land was originally the land of the plaintiff s ancestor called Amangwu. Amangwu many years ago, and before the advent of British administration in Nigeria killed a descendant of the defendants’ ancestor, Obiajulu, called Okonkwo. Under the customary law of Ogidi, this incident would attract an attack by the aggrieved family of Obiajulu against the offending family of Amagwu and a seizure and loot of Amagwu’s chattels and lands. This in customary parlance is called IKWA NKWA OCHU. Under the same customary law of Ogidi two options were open to Amagwu via (a) to give a girl from his own family in replacement of the murdered Okokwo Obiajulu. (b) To give a parcel of land as compensation. In this way the wrath of the goods of the land and of the defendants’ family would be stemmed. Amagwu therefore gave the land shown verged blue on the defendants’ plan to the descendants” ancestor Obiajulu. The gift is called in local parlance “NRACHI OCHU” is neither revocable nor redeemable. It is absolute gift by the customary law of Nkwelle Ogidi.
6. From the time of the gift the defendants’ ancestor Obiajulu started to make use of the land, inter alia; by cultivating the land, planting and reaping economic fruits on the land, establishing and worshipping two juju shrines on the sane and prospecting timber trees. The descendants of Obiajulu referred to in Paragraph (2) herein inherited the land from their father by customary law of Ogidi, lived on the land and exercised maximum acts of ownership over the same as did their father before them, to the knowledge of the plaintiffs’ ancestors without let or hindrance from them or any person whatsoever. The defendants inherited the land from their ancestors and, have from time immemorial cultivated it and reaped economic fruits growing thereon, lived on it, cut timber trees and worship their juju thereon.”

From the pleadings of the defendants, particularly their paragraph 5, they averred that they agreed that the land in dispute belonging originally to the plaintiff’s ancestor called ‘AMANGWU and the said Amongwu had made an absolute gift to defendants’ ancestor hence the defendants assertion to the entitlement of the land in dispute and that since that gift, the defendants have been exercising powers of ownership.

At this juncture certain facts of a burden of proof need be taken into consideration in order that a court does not just operate in vacuo.

The burden of proof in civil cases has two distinct meanings, viz.

(a) The first is the burden of proof as a matter of law and the pleadings usually referred to as legal burden or the burden of establishing a case.;

(b) The second is the burden of proof in the sense of adducing evidence usually described as the evidential burden.

While the legal burden of proof is always stable or static the burden of proof in the second sense i.e. evidential burden of proof may oscillate constantly according as one scale of evidence or the other preponderates. In civil cases, while the burden of proof in the sense of establishing the case initially lies on the plaintiff, the proof or rebuttal of issues which arise in the course of proceedings may shift from the plaintiff to the defendants and vice-verso as the case progresses. Federal Mortage Finance Ltd v. Ekpo (2004) 2 NWLR (Pt.856) 100 at 130 per Olagunju JCA; Balogun v. Labiran (1988) 3 NWLR (pt.80) 66; Nwosu v Udeoja (1990) 1 NWLR (Pt.125) 188; Elemo v. Omolode (1968) NMLR 359; Chigwu v. Baptist Convention (1968) 2 ALL NLR 294: Adegoke v. Adibu (1992) 5 NWLR (pt.242) 410.

In Samson Ochonma v Asirim Unosi (1965) NMLR 321 the facts are thus:

The plaintiff in this case sued for a declaration of title to a piece of land, damages for trespass and on injunction. In his statement of claim, he pleaded that he was the owner of the land by right of inheritance, and the defendants admitted that he had at one time been the owner.

The defendant in statement of defence pleaded that the piece of land verged Red was the only piece of land which the defendant had ever obtained from the plaintiff, and that the plaintiff made an absolute grant of it in 1936. The parties were agreed that the transaction of 1936, whatever its nature, included the payment by the defendant, to the plaintiff of a sum of money which they both described as “kola”

The Federal Supreme Court pee Brett JSC held that the defendant having admitted that the plaintiff was the original owner of the land, the onus was on him to establish his plea that there had been an absolute grant to him. In Nwobodo Ezeudu & Ors v Isaac Obiagwu (1986) 2 NWLR (pt.21) 208 at 220 per Oputa JSC.

“We have in our Lower Courts almost tacitly accepted that it is a ritual in land cases for the plaintiff to prove the features before calling all boundary men before it can be held that he had established the identity of the land in dispute. This erroneous belief accounts for a good deal of the delays in land cases. The onus on the plaintiff is an onus to prove on issue. Where therefore the identity of the land is not an issue, there, I will make bold to say that the mere production and tendering of the plaintiff’s plan in evidence is enough to establish the identity of the land. In fact in such cases the plan can and should be tendered by consent. See Rowland Omoregie & 3 Ors v Oyiamwonyi Iduiemuanye & Ors (1985) 2 NWLR (pt.5) 41 at 60”.

By admitting that the respondent’s ancestors were and that the respondent is still in possession of the land in dispute or even part of it but on a pledge the onus of proof that those in admitted possession were not the owners of the land in dispute shifted to the defendants/appellants by the operation of Section 145 of the Evidence Law Cap 49 of the Laws of Eastern Nigerian 1963 in force in Imo State. The trial court should have called upon the defendants to begin, not the plaintiff who should not have been called upon to establish what the law presumes in their favour. Per Oputa JSC in Ezeudu v Obiagwu (1986) 2 NWLR (Pt.21) 208 at 221; Lawrence Onyekaonwu & Ors v Ekwubiri & Ors (1966) 1 ALL NLR 32 at 34.

The same principle differently stated in the words of Aniagolu JSC in Ezeudu v. Obiagwu (supra) at 216 are hereby recaptured thus:

“One important feature of this case on appeal is that the defendants have admitted that the plaintiff is in possession of the portion of the land in dispute, explaining that possession by contending that they pledged the land to the plaintiff’s ancestor – a pledge which the plaintiff stoutly denied. The plaintiff has asserted that he and his forebears have been in possession of the land by right of their ownership of the land. With this admission by the defendants that the plaintiff was in possession, the onus shifted on the defendants to prove the pledge which they alleged. If they failed to prove the pledge then the presumption of law, having regard to the provisions of Section 145 of the Evidence Act would be that the plaintiff was the owner of the land of which he is in possession. That section rightly states that when the question is whether any person is the owner of anything of which he is shown to be in possession, the burden of proving that he is not the owner is on the person who affirms that he is not the owner. See George Onobruchere & Anor v. Ivwromoebo Esegine (1986) 1 NWLR (Pt.19) 799 (SC)

Since the parties agreed and found as a fact by the trial judge that the plaintiff were the original owners of the land in dispute, the onus is on the defendants to establish a change of ownership by sale. There is no onus on the plaintiffs to establish a pledge. With that onus being on the defendants, it is their duty to begin to adduce evidence, for it is they who would lose if no more evidence is adduced having regard to the state of the pleadings. Another way of stating it is that when it is accepted by both sides and found as a fact by the trial court that the plaintiffs, ancestor was the “original founder” of the land in dispute, the presumption as their successors in title continued to be owners of the land in dispute until the contrary is proved.

It might seem strange or even radical and revolutionary for a trial court to call on a defendant to take the witness stand by himself or his witnesses before the plaintiff would be heard. But in truth there is nothing novel or out of the ordinary and so the two courts below were well guided by the applicable Rules of Court of the High Court of Anambra State, Order 24 Rule 17 and Sections 135 – 137 of the Evidence Act to decide that the appellant take the first slot of testimony before the respondent as plaintiff. These concurrent findings well founded, I see nothing upon which to base a departure from what they did or upset those earlier findings and conclusion. The case of Nwobodo Ezeudu & 2 Ors v Isaac Obiagwu (1986) 2 NWLR (Pt.21) 208 at 215 is helpful in that regard.

Section 135 of the Evidence Act will compel a defendant who admits that the plaintiff is in possession of the land in dispute to establish that such plaintiff is not the owner, a fortiori, a finding by a court that the plaintiff descended from the “original founder” of the land in dispute coupled with the defendant’s averment of sale to them by the plaintiffs will definitely shift the burden of proof on the defendants to show that the original owners had extinguished their title. To hold otherwise will be to “overlook the established rule that once it is proved (here it was admitted by the defendants and found by the trial court) that the original ownership of the property is in a party the burden of proving that the party has been divested of the ownership rests upon the other party.

It needs be said that when there has been a misapprehension as to the onus of proof and a misdirection casting such onus on the wrong party, there is therefore a likelihood of a miscarriage of justice. Also such misdirection can also affect the credibility of witnesses. See Onobruchere v Esegime (1986) 1 NWLR (pt.19) 799.

From what I have tried to put across above, it is clear that the two courts below were well grounded and sure footed when they concluded that being led by the pleadings of the defendants they should testify first at least to resolve the fundamental and crucial part of the evidence as to the historical background of the land in dispute which they claim resided originally in the plaintiff/respondent’s ancestor from which the appellants derived their title which they assert should not be questioned. The conclusion easily made is that the appeal lacks merit and I do not hesitate in dismissing it. I dismiss the appeal and uphold the decision of the Court of Appeal which affirmed the decision of the trial judge ordering that the defendants start their testimony first. Therefore I order that the trial court continues with the suit with the defendants starting their testimony first.

I make no order as to costs.

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SC.234/2004