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Uzowuru Anukanti V. Uwandu Ekwonyeaso (1978) LLJR-SC

Uzowuru Anukanti V. Uwandu Ekwonyeaso (1978)

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In the High Court of the former East Central State holden at Owerri (now Imo State) the appellant herein, as plaintiff, sought reliefs, viz, (a) a declaration of title to a parcel of land called “Ala Ubene”, (b) an order that the defendant should accept a redemption fee of ‘2pounds’ in respect of Ala Ubene and, (c) an order of injunction restraining the defendant, his servants and agents from entering the said land.

The real basis for the appellant’s claim to Ala Ubene in respect of which, according to him, his ancestors have from time immemorial not only been in possession, but also exercised various acts of ownership, is that the father of the defendant, the respondent herein, came on the land, Ala Ubene pursuant to a transaction in consequence of which a portion of the said land was given to him by the appellant’s father as a pledge (i.e. a security) for a loan of -2pounds.

The allegation of a pledge by appellant’s father is denied by the respondent who claims to be on Ala Ubene as a result of a transaction in which one Ajuwana – a member of the Oparanuma family (Owners of the land called Ala Ubene by the appellant but “Ala Mgbaraja” by the respondent) – pledged (i.e. gave as security for a loan) the land in dispute, a portion of Ala Ubene or Ala Mgbaraja, for the sum of – 5pounds and thirty stacks of yams’ jointly to the respondent’s father and his brother (Ukegbu).

From the pleadings and plans filed, and exchanged on both sides, in the trial court it seems clear that parties are agreed that the parcel of land continguous to and adjoining the northern boundary of the area of land in dispute is in possession of the appellant. It is, however, the appellant’s case that he is in possession of that area of land by right of ownership thereof, but the respondent maintains that the appellant came on the land as a result of a pledge of the same by Ajuwana as security for a loan to one Duruezikudu. It is also the case for the respondent that the southern portion of the entire area of land claimed by the appellant belongs not to Ajuwana or the Oparanuma family but to another family (Ehigbomgbo Ekilionyeonwu) who had given the same out on a pledge (i.e as security for another loan) to one Ogwoza Okparake.

We think, however, at this stage that a close reference to the plans filed by the appellant and the respondent, Exhibits A and B respectively, is necessary. The area admittedly in possession of the appellant is shown verged Violet in Exhibit A but Blue in Exhibit B; the appellant claims possession of this area by right of ownership but the respondent claims that the appellant came on that portion which belongs to Ajuwana (not a party in these proceedings) as a result of a pledge by the said Ajuwana to yet another person, Duruezikudu (again, not a party in these proceedings). The land in dispute according to the appellant, part of Ala-Ubene, but which the respondent designates as part of Ala Mgbaraja – is shown verged Pink in Exhibit A. The respondent, however, shows the same as consisting of two portions – (1) a larger area verged Yellow, which he claims to be in his possession by virtue of the pledge from Ajuwana aforesaid to his father and Ukegbu (a brother of the respondent’s father) jointly, but which the appellant claims to have been given on a pledge by his father to the respondent’s father and (2) a smaller area verged Green which, according to the respondent, was given on a pledge by one Ehigbomgbo Ekilionyeanwu (not a party in these proceedings).

It is, we think, also necessary to set out a few relevant portions of the pleadings on both sides. parts of the Statement of Claim read:-

(6) From time immemorial the plaintiff and his ancestors owners and in possession of the said land have been exercising maximum acts of ownership on the said land by farming on it ….. granting farming rights to people (and) pledging some part of it to people.

(7) The plaintiff’s father divided ‘Ala Ubene into two. He with the plaintiff present pledged one portion of the land now in dispute to the defendant’s father ……. The defendant’s father paid the pledged fee “Nnuego Abua” at Ogbaku to plaintiff’s father. This amount now has been calculated to be the equivalent of 2pounds.

(8) Late in 1971 the plaintiff tendered the redemption money to the defendant to redeem the land but the defendant refused.

(9) The plaintiff took Nze title men …… to Ogbaku to redeem the land. On getting there the Ogbaku Nze title holders and councillors were invited where the redemption fee was tendered but the defendant still refused, and said that he would report to the Nzes and councillors what he thought about the matter.

(10) After 4 days the councillors and Nzes………. (sic) brought words to the plaintiff from the defendant saying that the land was actually on pledge but not from plaintiff’s father.

(11) Wherefore the plaintiff claims …….. (Underlining supplied by the court).

Parts of the Statement of Defence, unduly prolix in portions and offending the rules of pleadings in several sections, read:-

(6) The defendant vigorously denies paragraph 6 of the Statement of Claim and further says that the land in dispute has from time out of human memory been in the ownership and possession of one Oparanuma without any interference from anybody. Oparanuma was the father of Oparachazie. Oparachazie was the father of Ajuwana who begat Onwunaku who has been farming on the land in dispute ……. granting customary rights and pledging parts of the land to other people according to customary rites including the plaintiff’s father.

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(7) The defendant denies paragraph 7 of the Statement of Claim whole and entire. The defendant further said that about 70 years ago, Ajuwana after his father’s death wanted to marry one lady called Nwanueze, a daughter of Oparanozie of Ogbaku. Ajuwana who had no money for this purpose approached Ukegbu and his brother Okwaraunaegbu (the father of the defendant) to lend him (Ajuwana) money to (sic) finish the dowry of his new wife. Ajuwana in return of the money lent to him that is to say:-

30 stacks of Yams and Nnuego Ise (five pounds) pledged a portion of the ‘Mgbaraja land’ (verged Yellow) to Ukegbu and Okwaraunaegbu (the father of the defendant) in the local customary rites …….. and since that time, Ukegbu, his father and himself all of (Umukama-Okwu) Ogbaku have been farming on that portion of the Mgbaraja land without interruption either from the father of the plaintiff or the plaintiff or anybody else……

(8) The defendant further says that Ukegbu died about 50 years ago and has an issue called Nwaokeleme, Okwaraunaegbu his father died about 30 years ago, Nwaokeleme died about 18 years ago. The defendant survived all these men, and since after their deaths has continued to farm on the pledged portion of the Mgbaraja land (verged Yellow) now in dispute.

(9) The defendant further says that the portion of Ala Mgbaraja land verged Blue on the defendant’s plan aforesaid is also the land of Ajuwana – Oparachazie who in the exercise of his rights of ownership and possession allowed his brother Oparanochie to be farming on it. Oparanochie due to hardship pledged this portion (verged Blue) to one Nwaka Duruezikudu of Umukama – Okwu Ogbaku. On failure of Oparanochie to redeem it back, Nwaka Duruezikudu pledged this portion to Anukanti (father of the plaintiff) for -1 (one pound). This was the process through which the plaintiff and his brothers entered and have been farming on this portion of Mgbaraja land which portion is (sic) contingent with the portion in dispute (verged Yellow) on the defendant’s plan filed herein.

(11) The defendant admits paragraph 9 of the claim to the extent that plaintiff came to the defendant with Nze titled men …………… and further admits that he refused to accept the redemption fee as it was not the plaintiff nor his father that pledged the said portion of “Mgbaraja land” now in dispute to the defendant nor to defendant’s father and Ukegbu aforesaid.

(14) The defendant further says that about twenty years ago, one Nwaokeleme Ukegbu an uncle of the defendant wanted to marry. Nwaokeleme had no money for the marriage. He went to one Ogbo Akalado of Okwu Ogbaku and pledged a small portion of Mgbaraja land verged Yellow now in dispute to him (Ogbo Akalado) for -6 (six pounds.) Nwaokeleme is dead and is not survived by any male issue. By native law and custom, the defendant inherits the assets and liabilities of the deceased. Ogbo Akalado is not in good terms with the defendant . When the plaintiff could not redeem the land in dispute from the defendant, the plaintiff went to Ogbo Akalado who received the 6pounds (six pounds) from the plaintiff in order to show that the plaintiff owns the land in dispute. Ogbo Akalado entered into this malicious transactions with the plaintiff in September 1972, many months after this action has been taken and pleadings ordered……..’ (Underlining supplied by the court).

At the trial, evidence called in support of the case for the parties include the following:-

(1) the testimony of Patrick Okoroma (P. W. 2) a descendant of Ukegbu the brother of the respondent’s father who testified that the land adjoining the northern boundary of the land in dispute belonged to the appellant by right of ownership; but that although the land in dispute belonged to the father of the appellant the latter stopped farming thereon some 48 years ago. According to this witness (P.W. 2) it was the appellant who pledged the land to respondent although it appeared from his testimony under cross-examination that on this issue, he did not speak from his own knowledge.

(2) the testimony of (P.W. 3) Christopher Ubani who said that Ajuwana pledged some portion of land to the appellant, and that he did not know if that land in dispute belonged to Ajuwana;

(3) the testimony of Amaogaranya Nwako who gave evidence as the 5th defence witness and said that the land which was originally pledged to his father by Oparanochie was subsequently pledged to the father of the appellant. Obviously this piece of evidence refers to the land contiguous to and adjoining the northern boundary of the land in dispute.

(4) the testimony of the 4th defence witness Eghigbomgbo Ekilio Onyeonwu who (a) claimed ownership of the land verged Green in Exhibit B and (b) testified that the land verged Yellow in that same Exhibit belongs to Ajuwana who gave it on a pledge to the respondent’s father.

At the conclusion of the trial the lower court after a review of the evidence before it dismissed the appellant’s claims. In his judgment the learned trial Judge observed, in parts, as follows:

“….. I now have to examine the evidence before me fully to arrive at my judgment. In doing so, I have to bear in mind the decision in Ekpo v. Chief Ita XI NLR 68 where it was decided that where there is no evidence of traditional history, the plaintiff, to succeed in a case of declaration of title must produce evidence of acts of ownership over a long period of time, numerous and positive enough to warrant the inference that he is the exclusive owner. I have also to bear in mind the well established principle namely that the onus is on the plaintiff to satisfy the court that he is entitled on the evidence brought by him to a declaration of title and that he must rely on the strength of his own case not on the weakness of the defendant’s case and further that if the whole evidence in the case be conflicting and confused and there is little to choose between the rival stories, the plaintiff fails ……. With regards to acts of ownership the plaintiff pleaded that his ancestors had been in possession and exercised maximum acts of ownership on the land in dispute by farming ……….. granting farming rights and pledging. Besides saying so in his evidence no witness was called to support any of the alleged acts of ownership except P.W. 2. But what did this witness say He merely said that he had been seeing the plaintiff and his father farming on the land in dispute until some 48 years ago when they stopped farming on the land in dispute and he started seeing the defendant and his people farming on the land in dispute…….. The case for the defendant was equally very unsatisfactory. There are material conflicts between the evidence of the defendant and his witnesses. That notwithstanding it is my view that for the plaintiff to succeed, he can only rely on the strength of his case and not on the weakness of the defendant’s case. Refer to Kodilinye v. Mbanefo Odu 2 WACA 336 at 337 ……… it is my view therefore that where the court is satisfied that the defendant in filing his pleadings has joined issues as to the whole land claimed by the plaintiff, the plaintiff to succeed must have to establish his title. ……… I am satisfied that the defendant joined issues as to the land claimed by the plaintiff and that it was for the plaintiff to discharge the onus of proving his title to the land claimed……”

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As earlier on stated, the learned trial Judge dismissed the claims of the plaintiff mainly for the reasons set out above. This appeal is from the said judgment of the High Court (Okadigbo, J.)

The principal argument before us and the submissions urged upon us in support of this appeal by learned counsel for the appellant, is to this effect: The learned trial Judge failed to appreciate the real basis of the appellant’s claims and therefore failed to make the necessary findings on the principal issues joined by parties on their pleadings. Consequently, the trial court decided the case not on the issues before it. Accordingly, it was urged upon us that the appeal should be allowed. We think that there is, indeed, considerable merit in the submissions of learned counsel for the appellant. The reason for setting out in detail the pleadings in this case and for dwelling a little more on the plans put in evidence (Exhibits A & B) is to make it clear and readily appreciated that this is not the usual type of claim for declaration of title to land in respect of which considerations for decisions by the court of trial should merely be limited to the principles of law stated in the well known cases of Ekpo v. Ita XI NLR 8 and Kodilinye v. Mbanefo Odu 2 WACA 336. In the case in hand, the appellant’s claim- the preamble in his pleadings relating to the alleged exercise, from time immemorial, of acts of ownership by his ancestors before him on the land “Ala Ubene” notwithstanding- is, indeed, founded on an alleged pledge of the land in dispute to the respondent; possession thereof is undoubtedly conceded to the respondent. On the other hand, the respondent who admittedly is on the land says that he is there by the grace of another (not a party in these proceedings) ’97 one Ajuwana from whom his (the respondents) ancestors obtained possession of the same pursuant to a pledge in return for a loan. The principal issues before the court for decision (as they emerge both from the pleadings and evidence) are: (1) is the respondent on the land in dispute pursuant to a pledge (2) was the pledge made, as alleged by the appellant, by his ancestors or, as alleged by the respondent, by a third party, Ajuwana and (3), a very important issue which the trial court completely failed to advert to but which was posed by paragraph (14) of the Statement of Defence, is whether or not the appellant now has an immediate right to re’97possess the land a matter which ought considerably to enhance his claim of title to the same, even if only to a portion thereof, in view of the allegation by the respondent that the pledge of ‘E2’80’9ca small portion of the land in dispute by Nwokeleme Ukegbue (a descendant of the respondent’s father’s co-pledgee of the land from Ajuwana to Ogbo Akalado has been redeemed by the appellant, albeit after these proceedings had commenced At common law ………………. there is no such concept as an “absolute title”. Where questions of title to land arise in litigation the court is concerned only with the relative strength, of the title proved by the rival claimants. If party A can prove a better title than party B he is entitled to succeed notwithstanding that C may have a better title than A, if C is neither a party to the action nor a person by whose authority B is in possession or occupation of the land- per Lord Diplock in Oceana Estates Ltd. v. Norman Pinder (1969) 2 AC 19 at 24-25. In the instant case, the respondent who admittedly is in possession of the land in dispute while denying the appellant’s assertion that he (the respondent) is on the land by permission of the appellant’s ancestors maintains that he is in possession by authority of Ajuwana who, although not a party to these proceedings, duly gave evidence in support of his (the respondent’s) case.

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While on the other hand Patrick Okoroma a descendant of Ukegbu, who according to the respondent was a co-pledgee of the land in dispute from Ajuwana testified in support of the appellant’s case and, not only confirmed the appellant’s claim to ownership of the land but, said in addition that it was the appellant (not Ajuwana) who pledged the land to the respondent although he soon admitted under cross-examination that the pledge incident did not take place in his presence. Be that as it may there was, therefore, evidence before the trial court on which to make a categorical finding on the issue whether or not as between A (the appellant) and B (the respondent), B was on the land in dispute by the grace of C i.e. Ajuwana (who although not a party in these proceedings was, however,) a person through whom A (the respondent) claimed. Equally, he had inter-alia the evidence of Patrick Okoroma on which he could also have resolved the issue whether B (the respondent) was on the land by the grace of A (the appellant). The trial court apparently did not realise it had a duty in the circumstances to make express findings on these vital issues, and not merely to rely, in the peculiar circumstances of these proceedings, on the general principles of law enshrined in the Ekpo v. Ita and Kodinliye v. Mbanefo Odu cases (supra). It is, however, not open to this court which has not had the opportunity of observing the witnesses in this case give evidence to make these important specific findings.

Again, it is the law that where one party obtains possession of land by permission of another he cannot, in law, use that possession to support a plea of jus tertii against that other. Adverting, therefore, to the evidence before the learned trial Judge we are of the view that he had a duty, in the circumstances of this case, to make express finding on the issue whether, as claimed by the appellant, the respondent obtained possession of the land in dispute by the grace of his ancestors (i.e. the appellant’s ancestors); and had he made any express finding on this issue he would have been in a position to apply the above principle of law which prevents a party who is in possession of land (in this case, the respondent) from using such possession to support a plea of jus tertii against the party from whom he obtained such possession (i.e. as alleged, the appellant and his ancestors).

As already stated, the learned trial Judge had abundant evidence on which to resolve these vital issues; he however, failed to do so because, in our view he did not appreciate that he had a duty in the circumstances of these proceedings to go beyond the general principles of law enshrined in the Ekpo v. Ita and Kodilinye v. Mbanefo Odu cases (supra) and make specific findings on the said issues. Had he done so, his conclusions on the claims, based on the evidence before him, might or might not have been the same as stated in his judgment; the fact, however, remains that the judgment from which the appellant appeals neither took into considerations nor resolved the vital issues in this case. In the circumstances, we find ourselves unable to support the judgment of the court below. It is our view that this is a proper case for an order for re-trial in the High Court of Imo State before another Judge.

Accordingly, this appeal succeeds. It is ordered that the judgment of the High Court in Suit HOW/29/72 dated the 12th day of February, 1975 together with the order for payment of N300 costs by plaintiff (appellant herein) to the defendant (respondent herein) be and is hereby set aside.

In substitution, therefor, it is ordered that this case be heard in the High Court of Imo State before another Judge and that parties be at liberty (if they so desire) to amend their pleadings. The respondent will pay to the appellant costs which we fix at N220.

Other Citation: (1978) LCN/2133(SC)

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