Paul Oparaji (Dead) & Anor V. Chief J.n. Obinna & Ors (1999)

LawGlobal-Hub Lead Judgment Report

AKPIROROH, J.C.A.

The appellants were the plaintiffs while the respondents were the defendants in the action which was instituted on 29/11/77 at Owerri High Court in suit No. HCW/165/77 in Owerri and later transferred to Mbaise Judicial Division when it was created and it was registered as suit No. HAM/95/82.

Pleadings were duly filed and delivered before the case was transferred to Mbaise Judicial Division for hearing and determination. The plaintiff’s claim as set out in paragraph 19 of their statement of claim is as follows:-

“(i) Declaration of title to the land in dispute i.e. to all that certain piece and parcel of land known as and called “Okwu” situated along Umuhu Azaraegbelu Road, Umuhu, Enyiogugu, Mbaise.

(ii) N400.00 being damages for trespass to the said land in dispute.

(iii) Perpetual injunction restraining the defendants and their agents from entering the land.”

The case thereafter went before Nsofor J (as he then was) for trial. The plaintiff’s case put in a nutshell was that the land in dispute “Okwu” descended on them through inheritance from Agwu the founder, to Egwu and Mbashi, Onyia, and Nwichi, Dujen Onyema, Chiukwu Omire and Opara, Omire, Nwamadu Okechukwu and John Onyernobi until it devolved on them.

The defendant’s case put in a nutshell was that the land in dispute “Okwu Ishiogwugwu” descended from their ancestor Ama to Kabia who begat Ugo, Maduakolam and Emekwuruibe until it devolved on them by inheritance.

At the conclusion of the trial, the Judge dismissed the appellant’s claim in its entirety.

The plaintiffs were dissatisfied with the judgment. They have brought this appeal against it on three grounds and formulated two issues for determination.

“1. Whether the appellants as plaintiffs in the lower court established on a preponderance of evidence that they are entitled to a declaration of title to the disputed land either by evidence of traditional history or by proof of acts of ownership and possession in line with their pleadings.

2. Whether the appellants proved their claims for damages for trespass and for perpetual injunction against the defendants/respondents.”

The Respondents in their brief formulated four issues for determination:

Issues for Determination

(a) Whether upon the pleadings and evidence led, the learned trial Judge was right in holding that the Appellants failed to prove title by traditional evidence.

(b) Whether or not the Appellants proved title by acts of ownership and possession in line with their pleadings.

(c) Whether the learned trial Judge evaluated the evidence of both parties before making his findings of facts.

(d) Whether upon the pleadings and evidence led, the learned trial Judge was right in dismissing the Appellants’ case.

On the first issue, it was submitted in the Appellant’s brief that they proved their title to the land in dispute by traditional history and reliance was placed on paragraphs 6, 10 and 18 of the statement of claim and the evidence of P.W. 1 and P.W.2.

It was further argued that the learned trial Judge having found that the traditional evidence of P.W.1 and D.W.1 are in conflict, he could have tested the traditional history given by each of them by reference to facts in recent years as established by evidence to see which of the two competing evidence is more probable and therefore acceptable, stressing that if he had referred to the facts in recent years as established by evidence adduced by the plaintiffs/appellants, he could have found that their evidence of traditional history is more probable than that of the Defendants/Respondents. He cited in support the cases of Kojo II v. Bonsie (1957) WLR 1223 at 1226; Adenle v. Oyegbode (1967) NMLR. 136 at 138-139.

It was also contended that only the plaintiffs/appellants who adduced evidence of facts relating to acts done by them in respect of the land in dispute as pleaded in paragraphs 7, 11,12,13 and 13(b) of the statement of claim in reinforcement of their evidence of traditional history. It was argued that the plaintiffs/appellants also proved their title to the land in dispute by acts of ownership and possession extending over a sufficient length of time, numerous and positive enough to warrant the inference that they are the true owners of the land in dispute and reliance was placed on paragraphs 7, 11, 12, 13 and 13(b) of the statement of claim and the evidence of P.W.1 and P.W.2 and P.W.3 led in support which was not challenged. It was further submitted that the learned trial Judge failed to consider the totality of the evidence adduced by the plaintiffs/appellants in respect of acts of ownership and possession before deciding that the Plaintiffs/Appellants cannot obtain declaration of title to the land in dispute and cited Samson Awoyale v. Joshua Olabamiji Ogunbiyi (1986) 2 NWLR (Pt. 24) 626 at 633. It was finally argued that the learned trial Judge based his findings that the defendants were in possession of the land on the inadmissible evidence of D.W.1. D.W.2 and D.W.3 and relied on the cases of Chief Victor Woluchem & Ors. v. Chief Gudi & Ors. (1981) 5 S.C. 291 at 226 and Lion Building Ltd. v. M.M. Shodipe (1976) 12 S.C. at 152- 153.

In reply to the first issue, it was argued in the Respondent’s brief that the plaintiffs/appellants failed to prove their title to the disputed land verged pink in Exhibit 1, (the survey plan) by traditional evidence and referred to paragraphs 6, 10 and 18 of the statement of claim in which their traditional evidence was pleaded. Reference was made to the evidence of P.W.1 where he stated that Agwu had one brother Ode and submitted that if Agwu had a brother by name Ode, both of them must have a father and since they failed to name their father, Agwu family is therefore incomplete and as such their traditional history is inconclusive and no declaration of title of the land can be granted to them. It was further contended that failure on the part of the Appellants to tender the judgment of 1930 which they pleaded in paragraph 11(b) of their Statement of Claim rendered their traditional evidence unreliable and that the learned trial Judge was quite right in rejecting their traditional evidence.

It was further argued that the Appellants failed to prove their title to the land in dispute by acts of ownership and possession extending over a sufficient length of time, numerous and positive enough to warrant the inference that they are the true owners of the land in dispute. Reliance was placed on paragraphs 7, 11, 12, 13 and 13(b) of the Statement of Claim in which the appellants pleaded acts of possession but led no evidence in support of them because the 1930 judgment which they relied on was not tendered while the 1937 case was in respect of Uhukwu land in which the claim of the appellants’ people (Umuagwu) was dismissed. It was further argued that there is no explanation by evidence to show who owns the land in dispute as between “Omire family” or “Omire kindred” or “Umuagwu family” or “Umuagwu kindred”. It was finally submitted that no court can order a declaration of title when the claimant fails to give evidence of the land in dispute with a degree of certainty and clarity.

The law is well settled that there are five ways or methods of proving or establishing ownership of land in dispute. See Idundun v. Okumagba (1976) 9 – 10 S.C. 277. Atanda v. Ajani (1989) 3 NWLR (Pt.111) 511, Anyanwu v. Mbata (1992) 1 NWLR (Pt.242) 386 and Onwugbufor v. Okoye (1996) 1 NWLR (Pt.424) 252.

In this case, the parties relied on traditional evidence or history and acts of possession.

The defendants denied the plaintiffs’ claim. They also claimed to be owners in possession of the land in dispute which they call “Okwu Isiogwugwu”.

I consider it pertinent to reproduce the relevant pleadings of the parties on the traditional history of the land in dispute. The traditional history of the land is pleaded by the appellants in paragraphs 6, 10 and 18 of their statement of claim.

They read as follows:-

“6 The land in dispute has been the property of the Omire family of Umuagwu kindred of Umuhu Enyiogugu, Mbaise and their heirs and descendants from time immemorial.

10. The plaintiffs are members of the Umuagwu family. The word ‘Umuagwu’ means, children of Agwu, the founder of the plaintiff family. Agwu had a brother Ode who was the founder of the present Ode na ocham in Umuhu Onyiogugu Mbaise. Both families always share common boundaries. The plaintiffs have a juju known as “Ala Umuagwu”. Similarly, Ode na Ocham have one called Ala Umuade” Ode na Ocham have no blood relationship with the defendants.
11. The land in dispute descended by inheritance thus:-

From the great ancestor of the plaintiffs, Agwu to his sons Egwu and Mboshi, Mboshi begat Nwaihi who begat Dujem and Onyema. Onyema beg at Omire. This Omire begat Chukwu Omire and Opara Omire. This Omire is the great grandfather of the plaintiffs.”

The defendants/respondents on the other hand pleaded their traditional history in paragraphs 6, 7 and 10 of their statement of defence. They read as follows:-

“6. The defendants deny paragraphs 6 and 7 of the statement of claim and state that the plaintiffs have never owned or possessed the land n dispute. The defendants will at the trial produce and tender a letter No. U/ML/63/27/73 dated 27th March, 1973 written to the 1st defendant at the instance of a relation of the plaintiffs stating that the land in dispute is in the possession of the 1st defendant.

7. The defendants deny paragraphs 8 of the statement of claim. In further answer they state that one Ama was the Chief Priest of “Ngwu Umuhu” (the Common juju of Umuhu) was the father of Kabi and Agwu. Agwu had 2 sons namely Egwu and Mbosi the father of Nwihi who was the father of Dujem. One Onyema, who settled with Dujem migrated from Amuzi Ahiara. He was the father of Omire, the ancestor of the plaintiffs.

Kabi had 3 sons namely Ugo, Manuakolam and Emekwuruibe. The defendants are the descendants of the said 3 children of Kabi who shared the estate of Kabi including the land in dispute according to the custom of Umuhu Enyiogugu.

10. The defendants deny paragraph 11 of the statement of claim and will at the trial put the plaintiffs to the proof of their averments. In further answer, the defendants state that they were not party to the said action if any. Still in further answer the defendants state that in 1937 one John Opara, the father of the 2nd plaintiff sued one Odu Ajaero and 7 others of Odenaocham in Agbaja Native Court for title to “Uhukwu” land. The father of 1st defendant late Chief Obinna and late Chief Aguocha testified for Odenaocham. A plan was prepared by the surveyors for the parties in the said case. In the said plan the Okwu land which was the property of the 1st defendant’s father and his other relations were clearly shown. The judgment of Agbaja Native Court in 1937 will be founded upon at the trial.”

It is the duty of a claimant to title to land to establish and prove his claim by credible evidence. As it was put in the celebrated case of Kodilinye v. Mbanefo Odu W.A.C.A 336 at 337.

“The onus lies on the plaintiff to satisfy the Court that he is entitled on the evidence brought by him to a declaration. The plaintiff in this case must rely on the strength of his case and not on the weakness of the defendant’s case. If this onus is not discharged, the weakness of the defendant’s case will not help him and the proper judgment is for the defendant.”

P.W.1 and P.W.2 gave traditional evidence as to how the land in dispute devolved on them by inheritance from Agwu, their ancestor. At page 45 lines 25-29 of the records, P.W.1 testified as follows:-

“Agwu had one brother. He was Ode. It is this Ode who founded Odunaocham family in Umu Enyiogugu. The members of Umuagwu family have blood relationship with Odu-na-ocham family.”

There was no evidence led by P.W.1 and P.W.2 who gave traditional evidence of the land in dispute how Agwu their ancestor acquired his title to the land in dispute. As pleaded and given in evidence, the plaintiffs are claiming a declaration for and on behalf of Omire family, but there is no evidence to show who owns the land in dispute as between Ornire family or Omire kindred or Urnuagwu family or Umuagwu kindred. P.W.2 testified that Omire had two other brothers namely:- Nze Ahalanwa and Ahumulo. There is no evidence that the expression children of Agwu or Umuagwu does not include the children or the descendants of Omire’s two brothers and their father, Onyeama.

The expression Umuagwu pleaded in paragraph 10 of the statement of claim reproduced above would in my view include Dujem and Nwihi and their children.

P.W.1 testified that the land in dispute descended on them through inheritance from Agwu but there was no evidence led as to when or how the children of Agwu other than (descendants of Omire) surrendered their interest on the land in Omire family which is made up of Chukwu Omire branch and Opara omire branch.

At page 87 of the records P.W.4 testified that Okwu land is a large expanse of land or area and that some families own various portions or parcels within the area called Okwu. In the face of this evidence, the plaintiffs cannot lay claim to the whole of Okwu land in which some families own various portions or parcels within Okwu land. Suffice it therefore to say that the plaintiffs have failed to prove their title to the land by traditional evidence and the learned trial Judge was quite right in my view, in rejecting their traditional evidence. No court can order a declaration of title to land when the claimant fails to give evidence in respect of the land in dispute with a degree of certainty and clarity.

Suffice it to say that the traditional evidence given by the appellants in respect of the land in dispute is not only vague and most unsatisfactory but also inconclusive and not convincing.

It was only D.W.1 who gave traditional evidence of the land in dispute. At page 91 of the records, he gave traditional evidence of the land in dispute as follows:-

“I know the land in dispute. It is Okwu Ishiogwugwu.”

The Okwu Ishiogwugwu in dispute is situated in Umuku, Enyiogwugwu Abo Mbaise. The land descended on us from our forefathers. The land descended from Ama to Kabia, Kabia had the following sons; Ugo, Maduakolam Emekwuruibe.”

This piece of evidence is in conflict with paragraph 7 of the statement of defence where they pleaded their traditional history. There is nothing in it to show that the land in dispute was founded by Ama let alone descending from Ama to Kabia. The learned trial Judge was quite right in rejecting the traditional evidence of the land in dispute given by both parties.

On the issue of acts of possession, learned counsel for the Appellants submitted that the learned trial Judge was wrong in failing to observe that the Appellants established their exclusive possession of the land in dispute in the light of the ample evidence adduced by them and relied on pages 44,66,68,72 and 85 of the records. It was further argued by learned counsel that the trespass complained of was established by evidence at the trial and relied on the evidence of P.W.1 page 69 lines 5-7.

It was further contended that since the appellants successfully established that they were in exclusive possession of the land in dispute at the time of the trespass by the respondents, they are entitled to maintain and succeed in their claim for damages for trespass and cited many legal authorities including Pius Amakoru v. Benedict (1974) 1 All N.L.R. (Pt. 119) at 126. It was further argued that the evidence of the appellants asking for N400.00 as damages for trespass was neither challenged nor contradicted by the respondents under cross examination and as such the court is entitled to accept the evidence and award damages claimed by the appellants. It was also argued that the appellants are entitled to an order of injunction perpetually restraining the respondents from entering the land in dispute and causing further damages to it because they established by credible evidence that they are in exclusive possession of the land at the time of the trespass and cited a plethora of legal authorities in support including Etowa Enang & Ors. v. Fidelis Ikor Adu (1981) 11-12 S.C.25 at 48.

In reply, learned counsel for the respondents in his brief of argument submitted that the Plaintiffs/Appellants failed to prove their title to the land in dispute by acts of ownership and possession extending over a sufficient length of time, numerous and positive enough to warrant the inference that they are the true owners of the land in dispute because the evidence of the plaintiffs contradicted the evidence of their witnesses in respect of the Agbaja Native Court judgment of 1930 in which the plaintiff’s case was dismissed and the judgment was in respect of Uhukwu land and not the land in dispute and also not three pieces or parcels of land as claimed by the plaintiffs/respondents.

It was further submitted that there is no explanation as to who owns the land in dispute as between Omire family or Omire kindred or Umuagwu family or Umuagwu kindred and referred to the evidence of P.W. 2 at page 72 who said that the land belonged to P.W.2 and at page 87 where P.W.4 said that the Okwu land is a large expanse of land or area and that some families own various portions or parcels within the area called Okwu.

It was further contended that the appellants failed to prove their title to the land in dispute by acts of possession because the particular portion of Okwu land claimed by them was not identified with any degree of certainty.

It was further submitted that failure on the part of the plaintiffs/Applicants to tender any copy of the judgment of 1930 goes to show that there was no such judgment.

Reliance was placed on Section 148(d) of the Evidence Act. It was also the contention of learned counsel that the plaintiffs/Appellants, claim for trespass and injunction must fail in view of the fact that they failed to prove their title to the land by traditional history which they relied on and their failure to identify the portions of Okwu land claimed by them. It was finally submitted that the first duty of any claimant of title to land is to show exactly and precisely a defined and identifiable area to which his claims relate and that the plaintiffs/appellants failed to do and urged on the court to dismiss the appeal.

It is well settled law that finding as to acts of ownership numerous and positive is only relevant where traditional evidence is inconclusive and the case has to be decided on question of facts of possession. See Ekpo v. Ita 11 NLR 68, Onobruchere v. Esegine (1986) 1 NWLR (Pt. 19) 799 at 800.

The question that readily comes to my mind is whether the plaintiffs/appellants proved their title to the land in dispute by acts of possession extending over a sufficient length of time numerous and positive enough, to warrant the inference that they are the true owners of the land in dispute. Such acts of ownership were pleaded in paragraphs 7, 7(b), 11 11b), 12(a), 12(b), 12(c) 13,& 13(b) and the plaintiffs/appellants and their witnesses testified in support of them. They gave evidence of previous disputes in respect of the land now in dispute between the Odenocham and Umuagwu in the Native Court, Agbaja before Bartholomew (P.W.3) and elders of Enyiogugu in 1973 and (1937) of which the defendants were not parties in the said suit in the Agbaja native court. They were not also parties in the boundary dispute of 1973.

The learned trial Judge rightly in my view put the relevance of the previous suit at page 129 of the records:-

“Those previous suits were therefore res inter alias acta so far as the defendants are concerned. But what is the relevance of such previous disputes with third parties and not with the defendant? The relevance is this. A party may raise and rely on the evidence of such previous disputes or cases as evidence of his acts of possession and ownership of the land being disputed – things done in assertion or in defence of his title to possession of land being presently disputed with the defendants.”

The evidence of Celestine Obi (P.W.1) and his witnesses showed clearly, that the two previous land disputes were not in respect of the land in dispute while the evidence of Joseph Nze Obinna (D.W.1) showed clearly that Okwu land now in dispute has never been a subject matter of a previous suit with any persons or in a court.

It was pleaded in paragraph II of the statement of claim (supra) that the suit in Agbaja Court was in 1930 and Celestine Obi (P.W.1) and Boniface megwa (P.W.2) testified to that effect while (P.W.4) and (P.W.5) testified that the Native Court, Agbaja’s case was in 1937. All the witnesses agreed that the father of D.W.1 testified in that case in favour of Odunacham. Celestine Obi (P.W.1) failed to produce certified true copies of the judgment of the Native Court, Agbaja of “1930” and 1937 and no satisfactory evidence was given for not tendering them.

The learned trial Judge was right, in my view when he held at page 132 of the records as follows:-

From the evidence adduced, I do not believe Celestine Obi (P. W. 1) and his witnesses that the land now in dispute was the subject matter of the previous disputes either in the Native Court Agbaja. or in 1973. I believed Chief Nze Obinna when he testified that the land in dispute had never been disputed previously with any persons. Based on my above finding, the plaintiffs cannot now seek to raise or rely on the evidence of the previous disputes with third parties in proof of an act of possession or ownership of the land being now disputed in this court.”

This finding is amply supported by the evidence led before the learned trial Judge and it cannot be faulted.

On other acts of possession, the learned trial Judge considered the evidence led before him and held as follows at pages 132-133:-

Lazarus Nwamadu (D.W.2) and Nwaneri Ekeji (D.W.3) each stated that his own land shares a common boundary with the land in dispute. They see the defendants on the land in dispute farming for the past fifty years. They deny the plaintiffs ever farmed on the land. Both Lazarus Nnamdi and Nwaneri Ekeji impressed me whilst in the witness box. I have duly considered and weighed the two versions of the evidence adduced on this point. And I watched the witnesses as each testified. I preferred the version of the evidence by Chief Joseph Nze Obinna (D.W.1) and his other witnesses, the D.W.2 and D.W.3 I believed them. I rejected the version of the evidence by Celestine Obi (P.W.1) and his other witness (P.W.2). They did not impress me as reliable witnesses. I disbelieved them.

It is well settled that unless a finding is perverse and cannot be supported by evidence, a Court of Appeal will not interfere with it. See Akibu v. Opaleye (1974) 11 S.C. 189, Woluchem v. Gudi (1981) 5 S.C. 29 and Omwube v. Nduba (1972) 3 S.C. 106. In the instant case, I do not find any such short-coming that would warrant the interference of the findings of the learned trial Judge who saw the witnesses and watched their demeanour in the witness box when they testified before him. This issue is also resolved in favour of the respondents against the Appellants.

In view of the fact that the plaintiffs/respondents failed to prove their title to land in dispute, by traditional evidence and acts of possession and ownership, their claims for damages for trespass and injunction must also fail. On the submission of learned counsel for the appellants that the learned trial Judge failed to evaluate the evidence led before him by the parties the learned trial Judge in my view, meticulously evaluated the evidence led by both parties before making his findings of facts.

In the end result, this appeal fails in all the grounds on which it was argued and it is hereby dismissed with costs assessed at N3,000.00 in favour of the respondents.

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Other Citations: (1999)LCN/0614(CA)