Okorie Echi & Ors v. Joseph Nnamani & Ors

I have read in draft the judgment of my learned brother A.G. Ejiwunmi. J.S.C. in this appeal. I agree with him that there is no merit in this appeal, and that it ought to be dismissed.
This appeal is against the unanimous judgment of the Court of Appeal dated 30th March. 1993 dismissing the appeal against the judgment of Okadigbo J.. of the High Court of Anambra, sitting al Enugu on the 5th May, 1983.The facts of this case are quite simple and may be dated as follows:
Plaintiffs are families of Isiagu Quarters, Ugwu-Aji Awkunanaw, Defendants are also or Isiagu Quarters of Amechi, Awkunanaw. The contention of the plaintiffs is that following a family meeting in 1943 in which the communal lands of Isiagu was shared among the consistuent families, the lands nearest to them namely the Agbirigba and Ogoye lands fell to them exclusively. At the same meeting it was agreed that defendants should own Achara Ukwu and Owerre Agbai lands exclusively. In pursuit of their claim they filed a suit against the defendants claiming (a) a declaration of title to the Agbirigba and Ogoye lands (b) N200 being general damages for trespass, and (c) order or perpetual injunction to restrain the defendants, their agents and assigns from further trespass into the said land.
In their amended statement of claim plaintiffs pleaded that as owners of the lands, they have been enjoying maximum acts of ownership over the lands in dispute, by fanning on the lands, reaping economic trees thereon, and letting out portions to fanning tenants.
The defendants denied that there was any family meeting in 1943 in which the lands in dispute were shared among the families. The 1st – 3rd defendants claimed that plaintiffs and the 4th – 6th defendants were strangers (Awbias) who according to their tradition could not own land in Awkunanaw. They contended being Amadis they cannot hold lands in common with the plaintiffs and the 4th defendants who are Awbias (strangers). On the claim by plaintiffs to have exercised acts of possession the 1st – 3rd defendants contend was limited to the Ugwuaji settlement granted them in 1929 by the Amadis.
Plaintiffs who are now the appellants in this court called five witnesses in support of their claims. The 4th – 6th defendants called no witness and relied for their defence on the case or the plaintiffs. The 1st-3rd defendants called five witnesses.

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The parties led evidence on the issue of whether or not the Amadis and Awbias can own land in common.
The learned trial Judge dismissed the claims of the plaintiffs in their entirety, In so holding he found –
(i) That plaintiffs relied on traditional evidence and acts of possession in proof of their title.
(ii) That plaintiffs having failed to plead or lead evidence of the founding of the land, the devolution of the land before the alleged sharing of 1943, their traditional evidence of title is defective. These omissions were fatal to the claim.
(iii) It was not the claim of the plaintiffs that the four pieces of land were originally communally owned by both the plaintiffs and the defendants.
(iv) Plaintiffs failed to prove that there was a sharing of the four pieces of land, and that this was done after the alleged family meeting in 1943.
Plaintiffs appealed to the court below. In their judgment, the Court below held that the learned trial judge was in error in presuming that plaintiffs relied on traditional history and acts of possession for the root of their title. It was held that plaintiffs’ rout of title was the alleged sharing of the lands in dispute in 1943.
It was held that a resolution of the issue whether Amadis and Awbias can own lands in common was not necessary in resolving the real issue in controversy in this case, which is, whether plaintiffs became exclusive owners of the land in dispute by virtue of the alleged sharing by the family meeting in 1943.
It was held that the plaintiffs failed to discharge the onus of proof. Because of their failure to prove that they acquired ownership by the alleged sharing by the family meeting of 1943, not because of the failure to adduce proof of act of ownership.
The Court of Appeal went further to hold that on the pleading in paragraph 4 of the amended statement of claim, assumes that the two families are owners originally of the entire land involved in the dispute. This being so, the court held that plaintiffs ought to have pleaded clearly in what way the two families became original owners of the entire land. The plaintiffs should have led evidence in support or their root of title.
Finally, the Court of Appeal held that plaintiffs have not complained against the finding of fact made by the trial Judge on the sharing of the land in dispute. Plaintiffs who were the appellants in the court below, have further appealed to this court, alleging three grounds of error.

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The grounds of appeal are as follows:-
“Grounds of Appeal
Error-in-Law: The learned Justices of the Court or Appeal erred in law when they held as follows:-
This seems to assume that the two families previously owned the entire land involved. How they carne to own the land was in no way pleaded. They ought to have pleaded clearly in what way the two families became exclusive owners or the land originally, that is to say, their root of title and led evidence in support.
Particulars of Error:
(i) The complaint of the plaintiffs/appellants in the court below is that they never relied on traditional history in proof of their case and that the learned trial Judge relied on same to enter judgment against them without giving the parties opportunity to address him on that issue.
(ii) The court below found that the learned trial Judge was in error to have presumed at all that the plaintiffs/appellants relied on traditional history but railed to enter judgment for the plaintiffs/appellants.
(iii) Despite the finding above, the court below like the learned trial judge derailed by holding that the plaintiffs/appellants failed to plead how they came to own the land originally. The Court of Appeal did not invite Counsel to address it on this point.
(iv) The plaintiffs/appellants relied on acts of possession and nor on traditional history.
Ground 2
Misdirection in Law
The learned Justices of the Court of Appeal misdirected themselves in law when they held:-
“…He was also, in my view, wrong to have gone on the basis that they relied on acts or ownership. From the way they pleaded in paragraph 4 and 6 of their amended statement of claim, the alleged acts of enjoyment and ownership Followed and flowed from the alleged sharing done in 1943.”
Particulars of Misdirection:
(i) Both parties relied on various acts of ownership and possession in proof or their respective cases.
(ii) The plaintiffs pleaded specifically that they farm the land in dispute, reap economic trees thereon.

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Particulars of Misdirection:
(1) Both parties relied on various acts of ownership and possession in proof of their respective cases.

(ii) The plaintiffs, pleaded specifically that they farm the land in dispute, reap economic trees thereon and allow farming tenants to farm thereon.
(iii) The acts of ownership and possession pleaded by plaintiffs were denied by the defendants who themselves claimed that they me the people exercising acts of ownership and possession on the land in dispute.
(iv) Evidence or both parties on acts of ownership and possession were divergent as both claimed to be enjoying the land to the exclusion of the others.
(v) Apart from holding that the plaintiffs did not call any farming tenants to testify for them, the learned trial judge failed to evaluate the evidence of the parties on the said various acts of ownership and to make findings of fact in respect of same. this was the complaint of the plaintiffs/appellants in the court below.
(vi) The court below instead of pronouncing on this issue as raised before it, went on a frolic of its own to hold that the learned trial judge was wrong to have gone on the basis that the plaintiffs/appellants relied on acts of ownership which finding has occasioned a miscarriage of justice against the plaintiffs/appellants.
Ground 3
Error in Law:
The learned Justices of the Court of Appeal erred in law when they held as follows:-
The irony, however, of this appeal is that in whatever way the there issues raised by the appellants are answered, it does not help them….issue 2 would be answered either in the negative if an exercise in such evaluation and finding on the point would be material and necessary for resolving the real controversy or in the positive if it would be uncalled for. In the particular circumstance of this case it was uncalled for.” and thereby failed to pronounce on issue No.2 raised before them.
Particulars of Error:
(i) Issue No.2 raised by the plaintiffs/appellants in the court below was that the learned trial Judge failed to evaluate the evidence and make findings on whether or not the plaintiffs/appellants and 4th-6th defendants/respondents are strangers which disentitled them to own land and share land including the land in dispute with the 1st – 3rd defendants/respondents who call themselves free borns (Amadis).

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(ii) Finding one way or the other all this issue would have resolved the following:-
(a) the relationship between the plaintiffs and the defendants (i.e.) whether they are blood relations or not).
(b) who owns the land in dispute.
(iii) The court below failed to pronounce on issue No, 2.
(iv) failure of the court below to pronounce on issue No.2 occasioned a miscarriage of justice on the plaintiffs/appellants.
(v) The issues raised in the court below were sufficient for the appeal to be allowed.”
Learned counsel to the appellants has formulated three issues for determination. These issues have been adopted by learned counsel to the 1st- 3rd respondents, These issues are:
“Issues for Determination
3.01 Were the learned justices of the Court of Appeal right when they held that the failure of the plaintiffs to lead evidence on how the two families (plaintiffs and defendants) acquired title to the lands in dispute was fatal to their claim when the plaintiffs did not rely on traditional evidence in proof of their title?
3.02 Were the learned justices of the Court of Appeal right when they held that the plaintiffs did not rely on acts of possession in proof or their title but rather on the alleged sharing of the land in dispute in 1943? If answered in the negative, were the learned justices of the Court of Appeal right when they failed to investigate the plaintiffs’ complaint that they have proved the ownership of the land in dispute by adducing acts of possession sufficient and numerous to warrant the inference that they were the exclusive owners of the lands in dispute.
3.03 Were the learned justices of the Court of Appeal right when they failed to pronounce on issue No, 2 raised by the plaintiffs before them on the ground that a resolution of the said issue is not material for determining the live issue in controversy in this case?”
On the other hand, learned Counsel to the 4th – 6th respondents has formulated the following two issues.
“Issues for Determination
1. Were the learned justices of the Court of Appeal right in dismissing the plaintiffs’ case as did by the trial judge because the plaintiffs/appellants have failed to prove their case.

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2. Was the issue No.2 raised by the plaintiffs/appellants effective enough to warrant the reversal of the judgment of the court below by the learned justices of the Court of Appeal.”
   I regard the issues formulated by learned Counsel to the 4th -6th respondents as covering the three grounds of appeal filed and relied upon by the appellants in this appeal. I have come to this view because grounds 1 and 2 of the grounds of appeal which relate to the root of the and proof thereof, are adequately covered by the formulation in issue 1. Issue 2 which concerns the effect of the resolution of issue 2 is sufficient for the purpose of ground 3.
   It is convenient to begin with the first issue, the determination of which in my opinion, determines this appeal. Learned Counsel to the appellant has in his brief of argument submitted that the court below was wrong to have held that the failure of plaintiffs to prove how they had title originally vested in them was fatal to their claim. After setting out the five methods prescribed in Idundun v. Okumagba (1976) 1 NMLR. 200,for establishing title to land, submitted that a party claiming a declaration of title to a statutory or customary right or occupancy to land need not plead more than one of the five prescribed methods to succeed. Proof of one root of title is sufficient to sustain the claim – Onwugbufor & Ors. v. Okoye ors, (1996) 1 NWLR (Pt. 424) 252; (1996) 1 SCNJ. 1, 20-21.
   It was argued relying of S.146 of the Evidence Act, that a person in possession is presumed to be the owner, and the onus of proving that he is not the owner is on the person who affirms that he is not the owner. .Balogun & 2Ors. v. Akanji & ors. (1988) 1 NWLR (Pt.70) 301; (1988) 2 SC.199. Learned Counsel submitted that the Court of Appeal agreed with appellants that the trial Judge was in error to have held that plaintiffs relied on traditional history in proof of their title. It was conceded that the Court of Appeal also held that plaintiffs failed to prove how they came to own the land and how the two families became exclusive owners of the land originally. Learned Counsel to the appellant submitted that only a party who relied on traditional evidence in proof of his title is required to plead and lead evidence relating to the founding or the land in dispute and the person on whom the land devolves thereafter. It was submitted that the principle in Mogaji & Ors. v. Cadbury Nig. Ltd. & ors. (1985) 2 NWLR (Pt.7) at p. 393 is not applicable to the facts of this case.

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On their part, the 1st – 3rd respondents and the 4th – 6th respondents in their separate briefs of argument, relying on the pleadings in paragraphs 4 and 6 of the amended statement of claim, and paragraphs 4, 5, 6, 10 and 11 of the statement of defence of the 1st – 3rd defendants, and paragraphs 4, 7 and 8 of the 4th – 6th defendants, that appellants ought to have pleaded and led evidence on how the two families jointly acquired and held the four lands prior to the alleged sharing.
It is the contention of the respondents that the case of the appellants is predicated on a prior common ownership of the four lands constituting the lands in dispute and a subsequent sharing in 1943 by three constituent families of the communal lands. These have been denied by the respondents. The plaintiffs did not plead nor lead any evidence to establish the joint ownership with the defendants prior to the alleged sharing of the four pieces of land, allegedly communally owned prior to the sharing. The claim to exclusive ownership of the lands in dispute is rounded on this disputed sharing.
Respondents contend that the view of the Court of Appeal that the trial court was in error to have considered traditional history as one of the ways appellants relied upon to establish their root of title on the 1943 sharing of the communal lands. Respondents contend, and I agree that there is no contradiction between that view and the subsequent observation by the Court of Appeal that plaintiffs ought to have pleaded and proved how the two families originally acquired the lands in dispute to establish a joint ownership which would be the basis for the sharing of lands between the parties.
It is clear from the pleadings of the parties that issues were joined on the fundamental and critical issues whether there was exclusive ownership by the plaintiffs or the land in dispute, and whether there was a sharing of the communal land. Indeed issue was joined as between the plaintiffs and 1st- 3rd defendants whether they can own land jointly.
It is an elementary and fundamental principle of proof that where issues are joined, the onus of proof rests on the person who would fail if no evidence was adduced. See Odiete v. Okotie (1972) 6 SC.83, also S.135 of the Evidence Act. Are v. Adisa (1967) 1 All NLR.148. The plaintiff/ appellant who asserts that there is a common ownership of the land between the parties and that there was sharing of the land in 1943 has the burden of establishing these facts which have been vigorously denied by the defendants.
Appellants have predicated their sharing of the land on a communal ownership of the land by all the parties. There is no pleading in the statement of claim tracing the title to any of the families in the community or how the land became communal land.

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It is well accepted that where the traditional history of a particular piece of land is given in support of the family, it is usually traced to an individual founder who first acquired the land. SeeNgwo v. Onyejena (1964) 1 All NLR.352. Similarly where a community as a whole claims a piece of land, it is usually through inheritance or descent from a common ancestor, acknowledged as the founder or the community or by conquest. – See Mora v. Nwolusi (1962) 2 SCNLR 73; (1962) 1 All NLR 681. Plaintiff has not pleaded how the land in dispute became communal land.
There is no evidence that appellants satisfied any of the five ways prescribed in Idundun v. Okumagba (1976) 1 NMLR 200, for proving ownership of land in dispute. Appellant has submitted quite correctly that a party claiming declaration of title to a statutory or customary right of occupancy to land does not need to plead more than one of the prescribed methods to succeed. Proof of a single root of title being sufficient to sustain a claim for declaration of title to land.
In this case appellants are relying on acts of possession as their root of title. It seems to me the acts relied upon are predicated on the alleged sharing of the communal lands out of which the lands in dispute is claimed. In view of the concurrent findings of facts in the courts below that there was no sharing of the communal land in any family meeting in 1943, against which finding there is no appeal there can be no basis for the claim. Appellants cannot therefore rely on the acts of possession claimed. This court has not been given reasons why it should disturb the concurrent findings of facts of the two courts below, which have not been shown to be perverse. – See Omoborinola II v. Military Gov., Ondo State (1998) 14 NWLR (Pt.584) 89 SC. Adimora v. Ajufo (1988) 3 NWLR (Pt.80) 1.
Appellants have not satisfied any of the five methods stated in Idundun v. Okumagba (supra) They cannot therefore be entitled to the declaration sought.
The second issue is whether the issue No.2 of the plaintiffs/appellants is effective enough to warrant a reversal of the judgment of the court below by the learned Justices of the Court of Appeal The issue No.2 complained of raises the question of the failure of the court below to decide the issue whether plaintiffs/appellants were Awbias or Amadis, i.e. Strangers or freeborns which I refer to as indigenes.
Learned counsel to the appellants submitted that a court is bound to consider all the issues properly raised before it.

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The issue of the failure of the trial judge to make a finding whether or not plaintiffs who are awbias and the 1st – 3rd defendants who claim to be Amadis or indigenes, can ever own lands in common. Appellants claim the a resolution of the issue in favour of the plaintiffs would have knocked the bottom off the case of the 1st – 3rd defendants, by lending evidence to the case of the plaintiffs that the land in dispute was communally owned until it was shared in 1943. Learned Counsel relied on the evidence of DW5 under cross-examination who admitted that Achara Ukwu land is owned jointly by the 1st – 3rd defendants (who claim to be Amadis). This admission they contend would have been sufficient to resolve the issue in favour of the plaintiffs. The failure to resolve this issue raised before the Court of Appeal, is denial of fair hearing. Counsel cited Okonji & ors. v. Njokanmu & 2ors. (1991)7 NWLR (Pt.202) 131 and Ezeoke v. Nwagbo (1988) 1 NWLR (Pt.72) 616.
    It is important to appreciate the claim or the plaintiffs. They are seeking a declaration of title to the two pieces of land in dispute. Their claim is based on the fact that the two pieces of land are their own share from the division of the communal lands. Furthermore, they have exercised several acts of possession with respect to the lands in dispute. These being the bases of the claim of the appellants, they have the onus to prove by credible evidence that they are entitled to the declaration of title sought. They must succeed on the strength of their case.
The submission by the respondents that any specific finding whether plaintiffs and 4th-6th defendants are Awbias (Strangers) and the 1st -3rd defendants are Amadis (free born) (indigenes) would not have made any difference to the claim of the plaintiffs who are asserting that they are exclusive owners of the lands in dispute by virtue of the sharing exercise of 1943 and acts of possession by farming and putting farming tenants on payment of annual rents on the land is quite sound. This is because the resolution whether or not the plaintiffs and the 1st – 3rd defendants can own land in common will not answer the question whether there was sharing of the communal lands in 1943 which is still denied. The resolution of the issue cannot in my opinion decide the exclusively of possession and acts of possession necessary for the declaration sought. The plaintiffs have not appealed against the finding rejecting the claim of sharing of the lands in dispute, and cannot not raise the issue all appeal- See Obioha & ors. v. Duru (1994) 8 NWLR (Pt.165) 631; (1994) 10 SCNJ 48.

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I agree entirely with the court below that non-resolution of the issue is immaterial and unnecessary for a just determination of the real issue in controversy, namely the declaration of title to the lands in dispute.
For the reasons given above in addition to the fuller reasons in the leading judgment of my learned brother A.O. Ejiwunmi. J.S.C. I also will and hereby dismiss the appeal of the appellants. Appellants shall pay N10.000.00 as costs to the two sets of respondents.

I have had the privilege of reading in advance a draft copy of the lead judgment of my learned brother Ejiwunmi, J.S.C. and I agree with his reasoning and conclusion for dismissing the appeal.
For the same reasons ably advanced in me lead judgment, I also hereby dismiss the appeal and adopt the order of costs made in the said judgment.

This appeal is from concurrent findings of the High Court and the Court of Appeal. The appellants have failed to establish any convincing reason warranting the interference with the decisions of the two courts below. I agree with my learned brother, Ejiwunmi J.S.C., that this appeal is without any merit. I therefore dismiss it. I award N 10,000.00 to each set of the respondents.

I agree that this appeal lacks substance and should be dismissed. From the outset the case of the plaintiffs was bound to fail. Let me explain. First, the plaintiffs should haw pleaded and led evidence as to how the two families i.e. the plaintiffs and defendants originally owned the lands in dispute. That in fact is the starting point. This I should imagine is elementary having regard to the nature of the claim. This is a pertinent starting point in the light or the denial by the defendants that both families owned land in common and further that the plaintiffs were strangers in Awkunanaw. It is only after the plaintiffs established the joint ownership that they would proceed to rely on sharing of the land. Clearly, in my view, the plaintiffs took off on a wrong footing by not pleading and leading evidence in proof thereof to first establish joint ownership with the defendants prior to the alleged sharing of the land.
On the issue of sharing which is the plaintiffs’ root of title, the learned trial judge disbelieved the plaintiffs and their witnesses on that issue. He held that the issue was not proved. There was no appeal against this finding of fact by the plaintiffs. At that point the plaintiff’s entire claim failed. It was not necessary to go into the issue of acts of ownership since the acts were tied to the sharing of the land.

I am therefore in complete agreement with my learned brother Ejiwunmi J.S.C. that this appeal be dismissed. I also would dismiss it with costs of N5,000.00 to each set of defendants.

Appeal dismissed.

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