Patricia Ifeoma Ezeaku V. Michael Aforcha Anachuna & Ors (2016)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

MISITURA OMODERE BOLAJI-YUSUFF, J.C.A. (Delivering the Leading Judgment)

This is an appeal against the judgment of the High Court of Anambra State sitting in Awka Judicial Division delivered in suit No. A/128/2002 on 12th December, 2011. The appellant as the plaintiff claimed the following reliefs against the respondents as the defendants:

“(a) N500, 000 damages for trespass.

(b) An order of perpetual injunction restraining the defendants, their servants and agents from entering the plaintiff’s Obeagu land (farming and planting economic crops inclusive) or remaining on the plaintiff’s Obeagu land verged pink in the Plan No. EZ/AN/D01/2003 or doing anything thereon or from in any manner continuing in their acts of trespass in the same portion verged pink or doing anything whatsoever in the entire land of the plaintiff verged blue in survey Plan No. EZ/AN/D01/2003.

(c) A declaration that the plaintiff is entitled to a grant of a statutory right of occupancy over Obeagu land situate at Isiekwulu village Ukpo, Dunukofia Local Government Area within the jurisdiction of this Honourable Court.”

The respondents

counter claimed as follows:

(a) A declaration that the defendants are the owners in possession of the portion of Obeagu land situate at Enu Isiekwulu Ukpo in Dunukofia Local Government Area of Anambra State and verged red in the defendants’ plan NO. GC/DO8/2005 filed with this amended statement of defence and accordingly, are the entitled to the grant of customary right of occupancy.

(b) A declaration that the purported sale or customary grant of their Obeagu land by the late sons of late Nweke Orjiakor to the plaintiff is illegal, null, void and of no effect whatsoever.

(c) An order of Court setting aside the purported customary grant of the defendants’ Obeagu land by the late sons of late Nweke Orjiakor to the plaintiff.

(d) N75, 000.00 special damages being the cost of yam seeds, coco yam seeds, cassava stem, vegetables and tipper load of sand removed and or destroyed by the plaintiff and her thugs on the defendants? portion of Obeagu land.

(e) Perpetual injunction restraining the plaintiff, her husband, their thugs, agents, servants and privies from further committing acts of trespass on the defendants’ Obeagu land.

(f)

N5,000,000.00 being general damages against the plaintiff for trespass.

Pleadings were filed and exchanged. The parties called their witnesses and filed written addresses. In a considered judgment delivered by Hon. Justice J. C. Iguh, the Court entered judgment as follows:

“In the final result and for all the reasons that I have given above the plaintiff’s claims fail and the defendants’ counter claim succeed. The plaintiff’s claim must be and are hereby dismissed. Judgment is hereby entered in the suit for the defendants against the plaintiff as follows:

I declare that the defendants and their family – Okpala Anakor family are the owners in possession of the portion of Obeagu situate at Isiekwulu village Ukpo in Dunukofia Local Government Area of Anambra State the disputed land in the suit, which is well known to the parties in the suit and shares common boundary with the compound of the late Mr. Ikegwuonu.
I declare that the purported sale or customary grant of the defendants’ Obeagu land by the children of the late Nweke Orjiakor to the plaintiff is illegal, null, void and of no effect whatsoever.
The purported customary grant

of the defendants’ Obeagu land by the children of the late Nweke Orjiakor to the plaintiff is hereby set aside.

The plaintiff shall pay the sum of N75,000,00 as special damages being the costs of yam seeds, coco yam seeds, cassava stems, vegetables and a tipper load of sand of the defendants removed and/or destroyed by the plaintiff and her thugs on the defendants’ portion of Obeagu land.
Although the defendants claimed N5,000,000.00 as damages for trespass, but I have carefully assessed the damages and I award against the plaintiff the sum of N50, 000.00 as damages.
I make an order of perpetual injunction in favour of the defendants restraining the plaintiff, her thugs, agents, servants, servants and privies or anybody claiming title through her from further acts of trespass on this land.”

The appellant is aggrieved by the judgment and has appealed to this Court on 6 (six) grounds of appeal by a notice of appeal filed on 19th December, 2012. The grounds of appeal without their particulars are:

“GROUND ONE: ERROR IN LAW

The judgment is against the weight of evidence.

GROUND TWO: ERROR IN LAW

The learned trial

judge erred in law when, despite abundant evidence of title by the plaintiff, he held that the plaintiff did not prove title of her grantors to the land in dispute, and that occasioned a miscarriage of justice.

GROUND THREE: ERROR IN LAW

The learned trial judge erred in law when, in spite of unchallenged evidence of the plaintiff’s witnesses, he held that plaintiff’s witnesses are not in agreement as to who originally owned the land in dispute and as such the plaintiff failed to prove the traditional history of her grantors which she relied on.

GROUND FOUR: ERROR IN LAW

The learned trial judge erred in law in that the decision given by him is wholly perverse being contrary to law.

GROUND FIVE: ERROR IN LAW

The learned trial judge erred in law when he failed to analyze the proceedings of the visit to the locus in quo viz-a-viz the various claims of the parties in the course of his judgments, and that occasioned a miscarriage of justice.

GROUND SIX: ERROR IN LAW

The learned trial judge misdirected himself when he held that the plaintiff having failed to prove traditional history, cannot rely on another one of the five ways

of proving title and thereby occasioned a miscarriage of justice.”

The appellant’s brief of argument was filed on 27th April, 2012. The respondents’ brief of argument was filed on 26th February, 2012 and deemed properly filed and served on 28th February, 2012. The appellant’s reply brief was filed on 6th March, 2012.

The appellant formulated the following six (6) issues for determination:

(1) Was the judgment of the Honourable Court not against the weight of evidence laid before the Court?

(2) Whether given the evidence before the Court the appellant did not satisfactorily prove the title of her grantors to the disputed land.

(3) Whether given the pleadings and the evidence of the appellant’s witnesses, she did not satisfactorily prove the traditional history of her grantors on the disputed land to be entitled judgment.

(4) Was the judgment of the trial Court when confronted with the true position of the evidence before the Court, not perverse, and not contrary to law.

(5) Was the learned trial judge not wrong when he failed, in his record of proceedings at the locus to place his findings side by side the claims of the

parties.

(6) Was the Honourable trial Court right when he held that the plaintiff having failed to prove traditional history cannot rely on another one of the five ways of proving title.”

The respondents formulated the following four (4) issues for determination:

(1) Whether the appellant as the plaintiff at the lower Court discharged her burden satisfactorily before that Court, as to be entitled to judgment at the lower Court in terms of all her claims listed above?

(2) Whether the plaintiff/appellants pleadings at the lower Court are not in direct conflict with testimonies of the plaintiff and some of her witnesses on their evidence of traditional history?

(3) Whether the judgment of the lower Court can be said to be perverse in any material particular, as to warrant the intervention of this Court to disturb the findings of facts made by the lower Court?

(4) Whether the reply to statement of defence dated 12th day of October, 2005, & purportedly filed by the appellant on the 11th October, 2005, can be said to be part of the pleadings to be relied upon by the lower Court, in challenging the respondents’ amended statement of

defence dated 25th January, 2005 & filed on 26th January, 2006?”

I have considered all the issues formulated for determination by counsel to both parties, it is obvious that all the issues can be subsumed into issue 1 of the appellant. That issue is whether the judgment of the lower Court is not against the weight of evidence laid before the Court.

The appellant’s counsel submitted that the onus lies on the appellant to prove her root of title, her customary purchase of the land in dispute and her grantor’s title while the respondents who counterclaimed against the appellant also have the onus to prove their counterclaim. He referred to DADA vs. DOSUMU (2006) 18 NWLR (PT. 101) 134, ASHIRU V. OLUKOYA (2006) 11 NWLR (PT. 990) AT 29. On the essential ingredients of customary sale, he referred to AKINGBADE V. ELEMOSHO (1964) 1 ALL NLR 154, ODUSOGA V. RICKETTS (2003) 2 NLLC 575 AT 589. He submitted that from the evidence of PW7 and PW8 and exhibit D, there was a valid customary sale of the land in dispute to the appellant. The appellant’s counsel is of the view that both parties relied on traditional history to proof their title to the land in dispute

and there is a clear conflict in the traditional histories narrated by them, therefore, the learned trial judge ought to have tested the traditional histories by reference to recent events. He referred to OKORO v. DAKOLO (2006) 14 NWLR (pt. 1000) AT 423. Counsel referred to the pleadings and the evidence of the witnesses of both parties, he submitted that in view of the material contradictions in the evidence of the respondents and the event on the land in dispute, the traditional history of the respondents collapsed and the learned trial judge ought to have accepted the traditional history of the Orjiakors. He further submitted that all lies, concoctions and fabrications of the respondents’ witnesses did not affect the traditional history of the Orjiakors as established by the appellant as a mere saying that the Orjiakors are land snatchers and armed robbers does not make them so.

?Counsel submitted that one of the ways of establishing title to land is by proof of possession of adjacent or connecting lands 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. He

referred to AJIBOYE V. ISHOLA (2006) 13 NWLR (PT. 998) 628 AT 652, AIGBOBAHI V. AIFUWA (2006) 6 NWLR (PT. 976) AT 286. He further submitted that the evidence of the appellant that her vendors were the true owners of all the lands connected to or adjacent to the land in dispute received no valid challenge.

On the respondents’ counterclaim, the appellant’s counsel submitted that failure of the appellant to prove her title to the land in dispute would not lead to an automatic grant of the respondents’ counter claim. The counter claimant must also establish his claim to the satisfaction of the Court and on the balance of probabilities. He referred to BALOGUN v. YUSUFF (2010) 9 NWLR (pt. 1200) 515 AT 537. It is submitted that the evidence of the traditional history led by the respondents cannot sustain their counter claim as the evidence of their witnesses were discredited under cross examination.

?On the counter claim for special damages, the appellant’s counsel submitted that special damages must be pleaded with particulars and proved strictly and such proof means proof that would readily lend itself to qualification or assessment. He argued that the

respondents failed to prove possession as they admitted that the appellant was in possession of the disputed land as at the time they entered the rand in dispute. He argued further that assuming without conceding that the respondents proved trespass, they did not make any attempt to prove any special damages to warrant the judgment of the trial Court in their favour as regards their claim for special damages. He referred to S. B. N. PLC V. C.B.N (2009) 6 NWLR (pt. 1137) 237 AT 308, A.S.E.A. v. EKWENEM (2009) 13 NWLR (PT. 1159) AT 434.

Finally, the appellant’s counsel submitted that the appellant pleaded and proved ownership of surrounding land and she can rely on same as proof of her title to the land in dispute. He referred to Section 46 of the Evidence Act, 2011, OMONUA V. OKPERE (1991) 5 NWLR (PT. 189) 25, NKADO V. OBIANO (1993) 4 NWLR (PT. 297) 305, NWOKOROBIA V. NWOGU (2009) 10 NWLR (PT. 1150) 553, OMOTAYO V. C. S. A. (2010) 16 NWLR (PT. 1219) 1 AT 31.

In response, the respondents’ counsel submitted that in a claim for declaration of title such as the one on appeal where the plaintiff relies on traditional history, the plaintiff must lead

evidence on root of title of not only his vendors but the title of those from whom his vendors derived their own title. He submitted that no serious ground work was made by the appellant at the trial to show how her vendors came to own the land in dispute. He referred to ADETAYO v. SHOGO (2005) VOL. 21 NSCQR 93 AT 99. He referred to the appellant’s averment in paragraph 4 of the Amended statement of claim where it was pleaded that the land in dispute was originally owned by late Nweke Orjiakor and the evidence of PW5 and PW6 that Nweke Orjiakor was not the exclusive owner of the land, he submitted that if Nweke Orjiakor was not the exclusive owner of the entire Obeagu land in Isekwulu village, Ukpo, it means that there are other families which own portions of land at Obeagu and one of those families is respondents’ family. Counsel further submitted that the pivot or plank on which the appellant fought her case lies on the man called John Nwangwu but mere mentioning of John Nwangwu by the appellant is not sufficient as the respondents denied any knowledge of the man. He submitted that the learned trial judge is right in dismissing the appellant’s claim because a

Court faced with different versions of a plaintiff’s traditional history cannot pick and choose which version of the story to believe and dismissal of the appellant?s case was the only option for the learned trial judge.

The respondents’ counsel urged the Court to discountenance the appellant’s reply to the statement of defence on the ground that it ceased to be a live process by the coming into existence of the Amended Statement of Defence and counterclaim. He further submitted that the appellant ought to have filed an Amended Reply in reaction to the respondents’ Amended statement of Defence and counterclaim.

In his reply to the last submission of the respondents’ counsel, the appellant’s counsel submitted that the law is trite that an amended pleading dates back to the date of the filing of the original pleadings, it is therefore not mandatory that an amended reply should be filed whenever an amendment is made to the statement of defence particularly where the extant pleadings has covered all necessary issues.

RESOLUTION

I should start the consideration of this appeal from the last issue raised by the respondents’ counsel. The law

as correctly stated by the appellant’s counsel is settled that an amendment of pleadings made pursuant to an order of the Court at any stage of the proceedings even in an appeal dates back to the date on which the original process amended was filed. If that is so, it is not mandatory for the other party to amend his pleadings unless a new issue or fact is raised by the amended pleadings which requires a defence or a reply. Where no new issue of fact is raised by an amended pleading, the original pleading of the opposing party stands as either the statement of defence or reply to statement of defence as the case may be. Failure to file a consequential amended pleading in reaction to an amended pleading does not render the original pleading of the opposing party ineffective. Therefore failure to file an amended statement of defence to an amended statement of claim or as in this case an amended reply to an amended statement of defence does not render the original statement of defence or reply ineffective.

The law has long been settled that in this country that there are five accepted ways of proving title or ownership of land. Those five ways are:

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.

It is also settled by a plethora of authorities that a plaintiff seeking a declaration of title can plead and rely on one or more of the five accepted ways of proving title but he needs not prove more than one of the ways before his claim succeeds.

I have perused the judgment of the lower Court. The learned judge at page 223 of the record of appeal stated the general principle of law governing prove of a grant of land as follows:

?It is settled that where in a claim for declaration of title to interest in land a party bases its title on a grant according to custom by a particular person, family or community, that party must go further to plead the origin of

the title of that particular person, family or community unless that title has been admitted.”

That is the correct statement of law.

The learned trial judge then proceeded to consider the pleadings of the appellant and the evidence led. He made the following finding at page 228 ? 229 of the record of appeal.

?It is clear from the plaintiff?s pleadings and evidence led in the case that she pleaded and relied on traditional history as a root of title. A plaintiff must plead the names of the founder and those after him upon whom the land devolved to the last successors and lead evidence in support without having gaps or creating mysterious or embarrassing linkages which have been and cannot be explained. See SUNDAY UKWU EZE & ORS V. GILBERT ATASIE & ORS (2000) 10 N.W.L.R PART 676 PAGE 470 AT 492. In the instant case, the plaintiff pleaded the original owners of the land in dispute in her reply to the statement of defence to be Umuawo kindred and led evidence in respect thereof. She pleaded partly those after them upon whom the land devolved to the last successor. She did not plead and lead evidence on how the land in dispute

devolved on Orjiakor from Umuawo kindred thereby leaving gaps and creating mysterious and embarrassing linkages which has not been and cannot be explained from the evidence led in the case by the plaintiff and her witnesses. The plaintiff failed to establish in evidence how Orjiakor came to own the land in dispute whether by inheritance, grant, purchase etc. The question that arose there from is, how did Orjiakor came to own the land in dispute which his son Nweke Orjiakor got as part of his own share of their father’s land when Orjakor died and his two sons Nweke Orjiakor and Nwankwo Orjiakor shared his lands?

Put another way, how did the land in dispute devolve on Orjiakor from Umuawo kindred who are said to own it originally. It must be pointed out that from the plaintiff’s pleadings and evidence led in the case by the plaintiff and her witnesses Umuawo is a kindred and not a person. This question, how did the land in dispute devolve on Orjiakor from Umuawo kindred? From the evidence of the plaintiff and her witnesses in the case, was not answered and it remained unanswered.”

The above finding of the learned trial judge is faultless. The law is

firmly settled that it is not sufficient for a party who claim title to land based on ownership from time immemorial to merely or vaguely plead that his ancestor or predecessors in title had owned or possessed the land from time immemorial. Such a claimant must go further to plead and prove (a) who founded the land (b) How the land was founded (c) particulars of intervening owners through who the land has descended up to the present generation or owners without leaving any unexplained gap. See EZEONKONKWO V. OKE (20O2) 11 NWLR (PT. 777) 1, EWO V. ANI (2004) 3 NWLR (PT. 861) 610. Whether the land in dispute was originally owned by Nweke Orjiakor’s father, Orjiakor family as pleaded in paragraph 7 of the Amended Statement of claim or Umu-Awo kindred as pleaded in paragraph 3 of the Reply to Statement of Defence, the appellant failed to plead and prove how the land was founded, who founded it whether by settlement, grant or purchase. The learned trial judge was therefore correct when he held that the appellant did not establish the traditional history which she relied on.

After rejecting the traditional evidence of the appellant, the learned trial judge

at page 230 of the record held as follows:

“In respect of the 2nd method of proving ownership of land, the plaintiff did not tender in evidence any document of title, not to talk of, the same been duly authenticated. Exhibit D tendered in the proceedings by the plaintiff was tendered as a receipt and it was admitted as so. The plaintiff has therefore not proved title to the land in dispute by this method.”

It is clear from the above finding that the learned trial judge knew that the appellant did not rely on traditional history only as her root of title, she pleaded a second root of title which the learned trial judge failed to consider. He did not even state what the 2nd root of title was. If the learned trial judge had properly identified the second root of title relied on by the appellant and properly evaluated the evidence on record in respect of that root of title he would not have come to the conclusion that the appellant has not proved title to the land in dispute.

The appellant pleaded as follows in paragraphs 7 -12 of the Amended Statement of Claim:

“(7) In the life of late Nweke Orjiakor he controlled a lot of land which were

owned by his family and most of which he inherited from his own late father and most parcels of land in the Obeagu land were owned by Orjiakor family.

(8) One John Nwangwu – the husband of the 2nd defendant (now late) had gone to the late Nweke Orjiakor, then alive, and pleaded with him to give him a piece of land to farm upon. The late Orjiakor then gave him the land in dispute now to farm on. The said late Nweke Orjiakor had told his wife and children that he did not sell land to Mr. John Nwangwu but that he just gave it to him to farm on. He told his children that when they needed the land they could take it back from Mr. John Nwangwu because that was what he agreed with Mr Nwangwu.

(9) Since then, Mr. John Nwangwu had cultivated the land to the point of his death. After his death, the sons of the late Nweke Orjiakor allowed his wife the 2nd defendant to continue the cultivation of the land in dispute. And she had cultivated the land in dispute ever since and reaping the economic trees without any harassment or intimidation by the sons of late Nweke Orjiakor, the true owners of the said land. However, in the year 1999 – the sons of the late Nweke

Orjiakor needed the land, and they approached the defendants’ family through the first son of the late John Nwangwu by name Ifeanyi Nwangwu and informed them that they – the bonafide owners of the said land needed their land and urged them to leave it for them.

(10) The plaintiff avers that no threat of violence nor intimidation was adopted in the communication, the family of the late John Nwangwu understood and quietly left the land for the sons of the late Nweke Orjiakor. Consequent upon the release of the land in dispute by the family of the late John Nwangwu, the family of the late Nweke Orjiakor farmed the land in dispute in the year 1999, but finally in the year, 2000 they decided to sell off the land in dispute together with the other parcels of their land in Obeagu land to the plaintiff.

(11) Nobody, including the defendants raised eyebrow when the family of the late Nweke Orjiakor cultivated the land and subsequently when the plaintiff bought same in 2000 and started cultivating same. In the course of cultivation of the land, the plaintiff was seen working on the land in dispute by the defendants. The defendants neither raised eyebrows nor

confronted her but had exchanged greetings and pleasantries with her and went by.

(12) The land in dispute is just a small portion of the large expanse of land purchased by the plaintiff from the sons of late Nweke Orjiakor at Obeagu land.

And except the trespass by the defendants on the land in dispute, the plaintiff has had an undisturbed possession of the rest of the entire land. Furthermore, other adjoining lands now owned by some other persons some of whom have erected structures on their own were sold to the said other persons by late Nweke Orjiakor himself who originally owned them. And those purchasers of the other adjoining Obeagu lands from the late Nweke Orjiakor have been exercising acts of ownership ever since any let or inheritance from anybody whatsoever.”

In reaction to the above pleadings, the respondents in paragraphs 3-9 of their Amended Statement of Defence averred as follows:

“(3) In further answer to the said paragraphs, the defendants avers that the land in dispute which is called Obeagu Land by the defendants and their family, originally belonged to the defendant’s great ancestor OKPALA ANAKOR of Isiekwulu Village,

Ukpo in Dunukofia Local government Area of Anambra State.

(4) Okpala Anakor plaintiff’s ancestor had a son called Aruegbue. Aruegbue had two wives. Aruegbue begat ANACHUNA through his first wife, and Nwoye and Nwangwu through his second wife. Anachuna in turn begat MICHAEL AFORCHA ANACHUNA the 1st defendant while the 2nd defendant is the wife of Nwangwu the first son of Aruegbue through his second wife and the 3rd defendant is the first daughter of Aruegbue through his second wife. The 2nd defendant’s husband Nathaniel Nwangwu died in the year 1997.

(5) The land in dispute which is verged red in the defendant’s plan No. GC/AN/D08/2005 filed with this amended statement of defence, is owned in common by Anachuna family, Nwoye family and Nwangwu family who are all off shoots of Okpala Anakor, and is divided into three equal parts and cultivated by the three families aforesaid from time immemorial up to the year 2002 when the plaintiff trespassed on the land, and claimed to have purchased the land from the late sons of late Nweke Orjiakor, who are complete strangers to the defendant’s family.

(6) The defendant’s great ancestor Okpala Anakor

cultivated the land in dispute and exercised maximum acts of ownership over the land without any let or hindrance from anybody within and outside Ukpo community, before he died over 150 years ago. After his death his son Aruegbue, the first defendant’s grandfather, cultivated the land just like his father Okpala Anakor, for over 1000 years before he died and the land passed over to his son Anachuna, who cultivated the land all the days of his life before he died in 1969 at the age of 90 years. The defendants have been cultivating the land without any let or hindrance from anybody including the family of Nweke Orjiakor up to the year 2002 when the plaintiff trespassed on the land.

(7) The defendants shall at the hearing of this suit rely on all the features on the land including the boundary neighbours of the lands and a newly created road which took part of the land.

(8) The defendants and their respective families have been enjoying the land and cultivating the land as well as reaping all the economic trees such as palm trees on the land. The defendants hereby plead and shall rely on all the features contained in their said plan No.

GC/AN/D08/2005 and also all the Ogilisi trees planted on the land as demarcation features by the defendants’ ancestors which are still on the land up to date.

(9) The defendants state that while the plaintiff hails from Adagbe Isiekwulu, they themselves are from Enu Isiekwulu village. The land in dispute is situate at Enu Isiekulu village.”

The learned trial judge considered the evidence of both parties and found as follows:

“DW2, DW3, DW4 and DW5 also testified to the effect that the land in dispute belongs to the defendants’ family. The defendants’ family, from the evidence led in the case by the defendants and their witnesses, is Okpala Anakor family. The defendants have shown that they are members of Okpala Anakor family. The necessary implication is that it is a family property of the defendants’ family as can been seen from the evidence led in the case by the defendants and their witnesses. It is clear that the land in dispute is owned in common by Anachuna family, Nwoye family and Nwangwu family, which constitute Okpala Anakor family. The evidence of PW5 on the point that it is Isekwulu village in general that owns Obeagu lands and that

each kindred that constitutes Isiekwulu village Ukpo owns their own portion of land at Obeagu land supports the defendant’s case.

The defendants and their witnesses have also shown that the defendants’ ancestor Okpala Anakor who is the owner of the land in dispute exercised various acts of ownership over the land in dispute. The three sub families that make up Okpala Anakor family also after him exercised various acts of ownership over the land in dispute. These various acts of ownership such as farming on the land in dispute, planting and reaping economic trees therein etc are numerous and positive and extending over a length of time as to warrant the inference of ownership.”

It is clear from the pleadings, the evidence of the respondents and the finding of the learned trial judge that the respondents also relied on traditional history as their first root of title. However, the learned trial judge failed to apply the relevant principle of law which he ably applied to the case of the appellant in respect of the respondents. I say so because the respondents clearly pleaded in paragraph 3 of their Amended Statement of Defence reproduced above that the

land in dispute called Obeagu originally belonged to their ancestor Okpala Anakor but the learned trial judge ignored the fact that the respondents neither pleaded nor gave evidence of how Okpala Anakor acquired the land. His lordship came to the conclusion that the land belong to Okpala Anakor without first of all considering whether the respondent fulfilled the mandatory requirement of pleading and proving how the land was founded or acquired. If His lordship had applied the same principle of law to the pleading and the evidence of the respondents, he would have come to the conclusion that the respondents also failed to prove their traditional history. It appears to me that His lordship confused evidence of traditional history with acts of long possession. The two are separate and distinct and ought not to be considered together. The learned trial judge ought to have considered the acts of long possession as an independent root of title and see whether those acts are numerous and positive and extended over sufficient length of time to warrant an inference of ownership separately from the second root of title pleaded by the appellant before coming to his

conclusion.

From the pleadings of the appellant reproduced earlier in this judgment, it is clear that the second root of title pleaded by her is possession of connected or adjacent land in circumstances which make it probable that the owner of such adjacent or connected land is the owner of the land in dispute. That root of title is not only one of the 5 accepted ways of proving ownership of land as laid down by case law, it also has a statutory backing in Section 35 of the Evidence Act which provides that “Acts of possession and enjoyment of land may be evidence of ownership or of a right of occupancy not only of the particular piece or quantity of land with reference to which such acts are done, but also of other land so situated or connected with it by locality or similarity that what is true as to one piece of land is likely to be true of the other piece or land.”

There is overwhelming evidence on record through PW2, PW3, PW4, PW6 (appellant) and PW7 that other pieces of land which shares boundary with the land in dispute were sold by Nweke Orjiakor to PW1’s husband who is deceased. He built a house on the land and his wife PW2 now live in the

house. PW2 also confirmed that the land sold to her husband Chief Joseph Anjekwena in 1970s by Nweke Orjiakor shares boundary with the land in dispute. PW4 said his father told him that he bought his land at Obeagu from Nweke Orjiakor. His father’s land is fenced and the wall fence demarcated the land from the land in dispute . PW7 is one of Nweke Orjiakor’s children who sold the land in dispute to the appellant. He also testified that the land sold to the appellant are located in one spot and are contiguous with the land in dispute. Apart from the land in dispute, no one has disturbed the appellant on the other parcels of land sold to the appellant. DW1 testified as follows on page 184 of the record:

“I know the families of Aniekwena and Ikegwuonu. It is correct that their compound shares common boundaries to the land in dispute. Mr. Aniekwena and Mr. Ikegwuonu are now dead, but their families are still alive. The land I (sic) share a boundary with Mr. Orjiakor was sold to Mr. Aniekwena which he used to marry his wife in 1975. I am aware that the wives of Ikegwuonu and Anaekwena testified in this suit that the lands where they built their respective

houses were sold to them by Mr. Orjiakor, There was a time the wife of Anaekwena and myself were having boundary problems and we called Nweke Orjiakor to show us the boundary and he said that he did not touch my land. I am aware that the large expanse of land including the land in dispute were (sic) sold to the plaintiff by the children of Orjiakor. Nweke Orjiakor sold their land and married his wife which (sic) gave birth to his children.”

On page 184 of the record, DW1 continued his testimony under cross examination :

“I do not know the wives of Anaekwena and Ikegwuonu said that since the land in dispute was sold to the plaintiff nobody has ever interrupted him. I know one Benneth Onwuakpa. He is my age family, I know the Onwuakpa family of Ukpo Betram Onwuakpa has a land at Obeagu. I am aware that Benneth Onwuakpa testified in this suit that their land at Obeagu was sold to them by late Nweke Orjiakor but he lied when he said so because he did not buy that land.”

DW2 testified under cross-examination at pages 190 – 191 as follows:

“The land in dispute is sandwiched by the two lands in possession of the plaintiff. The said two vast expanse

of land are not my lands. I know that it is the children of Orjiakor that sold the two vast expanse of lands in the plaintiff’s possession to the plaintiff.”

She continued her testimony on page 193 of the record as follows:

“It is true the children of Nweke Orjiakor have other lands that share a common boundary with the land in dispute. I am aware that the other lands sold by the children of Nweke Orjiakor to other people including the plaintiff shares a common boundary with the land in dispute.”

DW3 testified as follows on page 196 of the record:

“The lands surrounding the land in dispute are three, namely: our own land, late Nweke Orjiakor and Benneth Onwuakpa the other lands sharing common boundary with the land in dispute are our land, the land of Goddy Okoye Abagana and Eugene Amaku.

Apart from the land in dispute we do not have another land sharing common boundary with the land in dispute. Our other land is situate far off from the land in dispute. Eugene Amaku and Goddy Okoye Abagana are all in Court over their land in dispute. They are in Court but I have not gone to the Courts to observe proceedings.”

She continued her

testimony on page 197 as follows:

“It is the children of late Nweke Orjiakor that sold the land opposite the land in dispute which is separated by a road and the one behind the land in dispute to the plaintiff.”

DW1, DW2 and DW3 are the respondents in this appeal.

DW4 testified as follows on page 203 of the record:

“The compound of Anaekwena and Ikeagwuna shares a common boundary with the land in dispute. I have not seen anybody disputing the ownership of the lands of Aniekwena and Ikegwuonu at Obeagu which shares common boundary with the land in dispute since I was born till date.”

The above pieces of evidence clearly and unequivocally established the fact that the land in dispute is surrounded by other pieces of land sold to other persons by Nweke Orjiakor as far back as 1970s and no one has disturbed any of those persons or lay claim to the lands.

Exhibit A also shows the location of the land in dispute inside the larger portion of Nweke Orjiakor’s land sold to other persons and that plan was not challenged or discredited. The learned trial judge in my humble view committed a grave error by ignoring the above cogent and

credible evidence particularly the evidence of the appellants themselves. If the learned trial judge had properly evaluated the above pieces of evidence, put same on the imaginary scale of justice with the evidence of the respondents that they have been in possession of the land and farming thereon for more than 150 years, he would have discovered that the scale obviously tilts in favour of the appellant.

The learned trial judge held as follows at pages 237 – 238:

“The plaintiff claimed that the land in dispute was given to one John Nwangwu who she claims is the 2nd defendant’s husband for farming purposes only by the late Nweke Orjiakor. The defendants denied this, both in their pleadings and evidence led in the case.

In fact, DW2 stated that she did not know anybody called John Nwangwu and that such a name does not exist in her husband’s family. She gave her husband’s name as Nathaniel Nwangwu who is now dead. I find the evidence of DW2 on the point credible and reliable and I believe her. I find as a fact that there is nobody in the defendant’s family known as John Nwangwu. That she 2nd defendant’s husband’s name is Nathaniel Nwangwu. I also

find as a fact that Nweke Orjiakor did not at anytime give the land in dispute to a non existence person – John Nwangwu for farming purposes or any other purpose at all.

There are also ample evidence on the record that the defendants and their forbears have been in long and peaceable possession of the land in dispute from time immemorial until the year 2000 when the children of Orjiakor trespasses into the land in dispute and illegal placed beacons thereon, scattered and destroyed the tipper load of sand the defendants kept there together with other crops planted therein.”

That finding is not supported by the evidence on record. Though the evidence from both parties show that the 1st and 2nd respondents once farmed on the land but both parties disagreed on how they got there.

While they said it is their family land, PW7 testified that the land was given to one John Nwangwu who is from the respondents’ family to farm but not indefinitely. PW8 testified on page 162 – 163 of the record as follows:

“There was a time when the defendants in this suit were cultivating the land in dispute in this suit. One John Nwangwu who is friendly with my late

husband at a time during the life of my late husband asked him (my late husband) to give him a portion of land for purpose of farming only to enable him cultivate same. My late husband granted his request and gave John Nwangwu a small portion of his share of the said Obeagu land for farming purposes only and that he (Nweke Orjiakor) will collect back the land whenever he wants it back. The land given to John Nwangwu by my late father (sic) for cultivation is at Obeagu land, it is part of the share of Nweke Orjiakor of Obeagu land. The land given to John Nwangwu by my late husband for cultivation purposes only at Obeagu land is the land now in dispute in this suit.

The 2nd defendant is the wife of John Nwangwu. My late husband did not sell the land in dispute in this suit which he gave to John Nwangwu. The family of Nweke Orjiakor later wanted the land in dispute because my husband died without taking back the land. As at the time we, the family of Nweke Orjiakor wanted to take back the said land John Nwangwu has already died.

My son called Ifeanyi Orjiakor met Ifeanyi Nwangwu who was already a grown up and told him that the land his father Nweke

Orjiakor gave to his father John Nwangwu is required by us (Nweke Orjiakor family) and that we now want the land, Ifeanyi Nwangwu is the son of John Nwangwu. Upon request to take the land in dispute by us, Ifeanyi Nwangwu immediately agreed. They resolved it that same day in the presence of his Auntie, the 3rd defendant in this suit. Ifeanyi Nwangwu did not refuse or resist from my son’s request for us to take back the land. Ifeanyi Nwangwu then released and gave us the land back.”

That evidence was not discredited under cross-examination. While DW1 said he does not know any John Nwangwu and such a name does not exist in her husband’s family, DW5 said he knew late John Nwangwu and late Ifeanyi Nwangwu. DW2 also knew late Ifeanyi Nwangwu and the 2nd defendant is his mother, PW8 said Ifeanyi Nwangwu was the son of John Nwangwu and he was the one that was approached by Ifeanyi Orjiakor for the return of the land granted to his father John Nwangwu and he returned the land without any protest or contest. Considering the entire evidence of both parties and location of the land in dispute right in the middle of Nweke Orjiakor’s land, the story of the appellant

that the land was granted to John Nwangwu by his friend Nweke Orjiakor for cultivation purposes only is more probable than the story of the respondents that their ancestor and they have been farming on the land for over N150 years. DW3 who is a member of the respondent’s family conceded defeat when he finally admitted that he does not know the boundary of the land in dispute on which he said he had been farming before and after the civil war. He is the one who also confirmed that the land in dispute is half plot of land.

?By proof of sale and possession of various pieces of land connected or adjacent to the land in dispute by Nweke Orjiakor which qualifies as a root of title, the appellant discharged the onus on her to establish the title of the person from who she derived her title. Acts of long possession relied on by the respondents merely raises a rebuttable presumption of ownership. Where another person establishes a better title with cogent and credible evidence, acts of possession no matter how long cannot ground a declaration of title. In any case, the cogent and credible evidence of how the respondents got to the land clearly show that they could

not have been in possession of the land in dispute from time immemorial. Where the trial Court fails to properly consider or evaluate the entire evidence as in this case, its findings and conclusion are bound to be faulty. The appellate Court has a duty to intervene in such a case to correct such error and avert a miscarriage of justice. See BALOGUN V. AKANJI (1988) 1 NWLR (PT. 70) 301, F. A. T. B. LTD. V. PARTNERSHIP INV. CO. LTD (2003) 18 NWLR (PT. 851) 35.

The evidence of the appellant that she purchased the land in dispute under customary law, paid the purchase price, performed the customary rite of killing a goat and was put in possession by her vendors was not challenged or controverted by the respondents. PW7 and PW8 confirmed the sale. The appellant clearly pleaded and established all the ingredients of customary sale which are: (1) Payment of purchase price. (2) Handing over possession of the purchase land by the vendor to the vendee in the presence of witnesses. See ODUSOGA vs. RICKETTS (supra), OKONKWO VS. OKOLO (1988) NWLR (PT. 79) 632. The finding of the learned trial judge that the appellant has not proved title to the land in dispute and

that the respondents proved their counter claim is not supported by the evidence on record. The appellant clearly established her title to the land in dispute.

On the appellant’s claim for trespass and injunction, the learned trial judge found as follows:

“I must point out that two of the sons of the late Nweke Orjiakor namely; Ifeanyi and Udoka are said to be dead from the records. These late sons of late Nweke Orjiakor are said to be notorious criminals and they acquire people’s land by force and sell to wealthy Ukpo indigenes, Apart from the defendants themselves, DW4 and DW5 also testified on the point.

It is settled law that trespass is actionable at the suit of the person in possession of the land. See I.M.S ATUNRASE & ANOR V. ALHAJI ABDUL MOJID SUNMOLA & ANOR (1985) 1 N.W.L.R PART 1 PAGE 105. See too ECHEBE V. EZURIKE (2006) 5 S.C. PART 65 AT 72.

From the evidence led in the case I find as a fact that the defendants and their family are the persons in the possession of the land in dispute up to the point of the trespass and I also hold accordingly.

They also have a better title to the sort (sic) claimed.

They are therefore entitled to maintain a suit in trespass against the plaintiff. The defendant’ claim for damages for trespass accordingly succeed.”

It is obvious that the allegation that the children of late Nweke Orjiakor are notorious criminals who snatch other peoples’ lands and sell to wealthy people in Ukpo weighed heavily in the mind of the learned trial judge. With due deference to the learned trial judge, no Court of law ought to believe such wild allegations. The appellants talked about snatching of land as if land is a piece of paper or something that can be put in the pocket. There was no scintilla of evidence to prove that those children were ever arrested by the police. There is no scintilla of evidence even to prove that any of them was ever reported to the police for commission of any crime. DW2 admitted under cross-examination that Ifeanyi Orjiakor was abducted by Bakassi boys. More importantly, she admitted that the first set of people killed by Bakassi boys were innocent people. The cock and bull story of the respondents as regards the children of late Nweke Orjiakor ought not to have been believed by the learned trial judge. The

evidence does not support the allegation of trespass made against the Orjiakor family. The settled principle of law on rival claims of possession is that where two parties claim to be in possession of land, the law ascribes possession to the one with better title. See TANKO V. ECHENDU (2010) 18 NWLR (Pt. 1224) 253 S.C., OMOYALE V MACAULAY (2009) 7 NWLR (PT. 1141) 597. In this case, the appellant has proved a better title to the land in dispute and she is in law deemed to be in possession. DW1 and DW2 (1st and 2nd respondents) admitted that they entered the land in dispute after the appellant had planted her crops on the land and planted their own crops too. DW2 admitted dumping sand on the land. The actions of the respondents were clearly acts of trespass. The slightest disturbance or interference with possession of land by a person who cannot show a better right to possession is trespass and the person in possession is entitled to damages without proof of actual damage. See FAGUNWA V. ADIBI (2004) 17 NWLR (PT. 903) 544, OKOKO VS. DAKOLO (2006) 14 NWLR (PT. 1000) 401, UMUNNA V. OKWURAIWE & 3 ORS (1978) 6-7 SC (REPRTNT) 1, (1978) LPELR – 3378 (SC).

?For

the reasons set out above, the lone issue identified for determination is resolved in favour of the appellant. I find that this appeal has merit and it is hereby allowed. The judgment of the High Court of Anambra State delivered on 12th December, 2011 in suit No. A/128/2002 is hereby set aside. The appellant’s claim succeeds. I hereby enter judgment in favour of the appellant as follows:

“(a) N50, 000 damages for trespass.

(b) The respondents, their servants and agents are hereby restrained perpetually from entering the appellant’s Obeagu land (farming and planting economic crops inclusive) or remaining on the said land verged pink in the Plan No. EZ/AN/D01/2003 or doing anything thereon or from in any manner continuing in their acts of trespass in the same portion verged pink or doing anything whatsoever in the entire land of the appellant verged blue in survey plan No. EZ/AN/D01/2003.

(c) It is hereby declared that the appellant is entitled to a grant of a statutory right of occupancy over her Obeagu land situate at Isiekwulu village Ukpo, Dunukofia Local Government Area within the jurisdiction of this Honourable Court.<br< p=””

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(d) The counterclaim is hereby dismissed.

There shall be N50, 000.00 (Fifty Thousand Naira) costs in favour of the appellant and against the respondents.

Other Citation: (2016)LCN/9333(CA)

Patricia Ifeoma Ezeaku V. Michael Aforcha Anachuna & Ors (2016) LLJR-CA

Patricia Ifeoma Ezeaku V. Michael Aforcha Anachuna & Ors (2016)

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