Ozo John Nwadiogbu v. Philip Nnadozie & Ors

 This appeal is from a judgment of Uyanna J. (as he then was) sitting at Awka in the Awka Judicial Division of the High Court of Anambra State. In that court, the plaintiff claimed against the defendants jointly and severally the following reliefs:
“1. N60,000.00 special and general damages for trespass; and the plaintiff shall rely on receipts dated 5/1/78, 11/11/78 and 20/2/79 and document dated 2/1/78 in proof thereof.
2. Perpetual injunction to restrain the defendants, their servants or agents from further acts of trespass on the said land.
Particulars of Special Damage Cost of building ….. N20,000.00”

At the trial the plaintiff gave evidence as P.W. 3 and called three witnesses. Briefly the case for the plaintiff is that sometime in 1944 when he came home on leave as a soldier during the second world war he bought the land in question in accordance with the customary law of Enugwu-Ukwu from Umugagwo family of Oji village. He subsequently built a small house on the land. Thereafter he returned to his base as a soldier. On his discharge from the Army in 1947, he returned home. Later that year he went back to those who sold the land to him and demanded a receipt or some evidence in writing of the sale of the land to him. A memorandum of the sale of the land was then made out. The plaintiff at the trial, said he lost the original during the civil war. However that court admitted a photocopy of the memorandum as Exhibit “B”. He also tendered certain receipts in connection with the building allegedly demolished by the defendants. Also tendered in evidence were Exhibits “E” and “E1” being the photograph with negative of the said building before it was demolished. The demolition of the plaintiff’s house was the cause of action.

P.1

For the defendants, their case is that the land in dispute is the communal property of the Enugwu-Ukwu Community Development Union formerly known as Enugwu-Ukwu Progressive Union. It was their case that the land in question formed part of Ajo Ofia land of Oji Village, Enugwu’97Ukwu and it extends to the present compound of St. Anthony’s Parish Enugwu-Ukwu. They claim that in 1930, part of the land in dispute was granted to Mr. Brigid the District Officer by the Oji Community for the building of the Umunri Native Court House. In 1932, at Mr. Brigid’91s request the land was further extended. When the court was phased out in 1945 Mr. Brigid’91s successor sold the buildings and land which formed part of the land in dispute to one Richard Chinwuba Okafor of Enugwu’97Ukwu for the sum of ‘a360 and who in turn sold the land and buildings to the Enugwu-Ukwu Progressive Union for the sum of ‘a360. It is their case that on a part of the land so sold stands the Enugwu-Ukwu Post Office. This was further extended in 1962 for the construction of the Town Hall. The defendants denied that they trespassed on the land in dispute as alleged by the plaintiff.

In a reserved judgment, the trial court held that the plaintiff failed to establish his claim to the land in dispute. He also held that the plaintiff did not establish that the demolished house stood on the land sold to him by the Umugagwo family of Oji village, Enugwu-Ukwu.

The plaintiff’s appeal to the Court of Appeal was allowed. The plaintiff was awarded the sum of N50,000.00 in special damages, and the sum of N50,000.00 in general damages. The defendants, their servants, agents and/or privies were restrained from entering or carrying out any further acts of trespass on the land in question.

P.2

This appeal against the judgment of the Court of Appeal is by the appellants who were granted leave by this court on 20th October, 1997 to appeal as persons having interest in the matter.

The appellants formulated two issues for determination in this appeal. These are:
1. Whether, on the facts and circumstances of this case, the learned Justices of the Court of Appeal were right when they held that the plaintiff/appellant/respondent was entitled to the reliefs sought and awarded judgment to him in respect thereof.
2. Whether the learned Justices of the Court of Appeal rightly interfered with the findings of fact made by the learned trial Judge?

For his part the plaintiff/respondent raised two issues which read as follows:
1. Whether the Court of Appeal was right in holding as it did that the land in dispute was properly identified by plaintiff/respondent in proof of his case in the High Court.
2. Whether the Court of Appeal was right in disagreeing with the conclusion the learned trial Judge finally came to in his judgment based on his evaluation and findings of fact.

I shall consider first, the appellants issue No. 1. The plaintiff’s claim is for trespass and injunction. It was argued for the appellants, that in a claim for trespass and injunction title is put in issue. The onus is on the plaintiff to plead and prove his title and/or exclusive possession of the land in question. Learned Counsel for the appellants relied on the following cases: Ekennia v. Nkpakara & Ors. (1997) 5 NWLR (Pt.504) 152; Okorie v. Udom (1960) SCNLR 326; Mrs. S.A. Kareem & Ors. v. David Ogunde & Another (1972)1 All NLR 75; Ojo v.Adejobi (1978) 3 SC 65; Talabi v. Adeseye (1973) NMLR 8.

P.3

It was pointed out that the plaintiff in paragraphs 8 and 9 of his further amended statement of claim pleaded that he purchased the land in dispute from Umugagwo family, Oji Village, Enugwu-Ukwu The defendants (2nd and 3rd respondents), it was said, vehemently denied the said averments in paragraphs 9 and 10 of their amended statement of defence and demanded strictest proof of same from the plaintiff.

It was submitted that the root of title pleaded by the plaintiff is defective in that he did not plead and prove the origin of the title of his vendors – that is Umugagwo family. It was submitted that this failure was fatal to the plaintiff’s claim with the result that the case of the plaintiff should have been dismissed summarily without calling upon the defendants to enter a defence as no prima facie case had been made out against them. Reliance was placed on the case of Aromire v. Awoyemi (1972) 7 NSCC 112, (1972) 1 All NLR (Pt. 101) (1972) 2 SC 1. The appellants further pointed out that this issue was raised both in the trial court and in the court below.

For the plaintiff/respondent it was submitted that the trial court effectively dealt with the issue of proof of the origin of the title of his vendors. The trial court held that there was no challenge to the title of Umugagwo family and therefore the contention that the plaintiff did not plead and prove the root of title of Umugagwo family is without legal basis.
It was pointed out that there was no appeal to the Court of Appeal against the finding that there was no challenge to the title of the Umugagwo family.

P.4

The law is now settled that in a claim for trespass to land and injunction, as in the instant case, title is put in issue. See Ekennia v. Nkpakara & Ors. (supra); Kponuglo v. Kodadja (1933) 2 WACA 24; Ajani v. Ladepo (1986) 3 NWLR (Pt. 28) 276. The onus in such a case is on the plaintiff to prove ownership and/or exclusive possession. He can do this in any of the five ways or methods of proving or establishing ownership of land as laid down by this court in Idundun v. Okumagba (1976) 9-10 SC 227. See also Onwugbufor v. Okoye & Ors. (1996) 1 NWLR (Pt. 424) 252 at 279-280.

The case of the plaintiff is that he purchased the land in dispute, from the Umugagwo family, Oji Village, Enugwu-Ukwu. In paragraphs 8 and 9 of his pleadings, the plaintiff averred how and when he purchased the land and his acts of ownership thereon. Paragraphs 8 and 9 read as follows:
“8. The plaintiff had been in undisturbed possession of the land since he bought it in 1944, at ‘a310 and customary incidents and as owner in possession he had exercised various acts of ownership over the same including building thereon, planting economic trees therein and reaping same without any let or hindrance.
9. The plaintiff purchased the said parcel or piece of land in 1944 in accordance with the customary law of Enugwu Ukwu from Umugagwo Family Oji village and this sale was later evidenced by a Memorandum in 1947. A photocopy of the said memorandum will be founded upon at the trial.”
The defendants on the other hand vehemently denied the plaintiff’s said averments in paragraphs 9 and 10 of their amended statement of defence which read as follows:

P.5

“9. The defendants deny paragraph 8 of the statement of claim and will at the trial put the plaintiff to the strictest proof thereof. Further that between 1964/65, some Oji people engineered by disgruntled Enugwu-Ukwu people, including the plaintiff trespassed on the land in dispute but was quickly rebuffed. Further the plaintiff and his group did not trespass on the land in dispute or raise any objection to the community project contemplated on the land in dispute till 1974.
10. The defendants deny paragraph 9 of the statement of claim and will at the trial put the plaintiff to the strictest proof thereof. Further the defendants aver that any memorandum of agreement produced at the trial by the plaintiff will be a forgery and an act done without authority:
(a) In that the said vendors have no authority to alienate land already vested in the Town Union;
(b) the contents of the said memorandum are hardly decipherable;
(c) that a photocopy of the same is not admissible by reason of the inter-lineations, cancellations etc:
(d) made for the purposes of the present action. In further answer to paragraph 9 of the statement of claim, the defendants aver that in 1974 when the foundation of the Town Hall on the land in dispute was laid by Osita Agwuna, Igwe of Enugwu-Ukwu, the plaintiff raised an objection, to the siting of the said Town Hall. The defendants will at the trial put the plaintiff to the strictest proof of the said memorandum in terms of its execution, and compliance with the requirements of the Lands Instruments Registration Law.”

Earlier in paragraphs 6 and 7 of the amended statement of defence, the defendants averred thus:
“6. As early as 1930, and in consonance with villages granting out lands to Divisional Officers or the Town’s Union for development project, Oji village in 1930 granted to Divisional Officer a Mr. A. W. Briggits, Divisional Officer in- charge Awka part of the land in dispute and particularly the present site of Nkwo (Enugwu-Ukwa) motor park where the said Divisional Officer erected thatched houses that housed the Umunri Native Court.

P.6

Further the defendants aver that on or about 1932 in its expansion programme, the said Divisional Officer requested for more land and was granted by Oji village (as represented by its elders) other parts of the land in dispute, wherein more permanent buildings were erected. The said part of the land in dispute was the site of Umunri Native Court, quarters for court clerks etc where the latter notably Nnatuanya Nwabueze (deceased) cultivated lands surrounding lands granted to the said Divisional Officer. Nkwo Motor Park reverted to Oji village which now is the property of Enugwu Ukwu community,”
“7. Around 1945, when the native court members were phased out some of whom included Nwankwo Okwunka (deceased) from Awovu, Okeke Okoye deceased (from Akiyi) Nwaokonkwo Ezeuno (dead) from Enuagu, Ajegbu Mgbaka from Urunnebo and others, and its place a new court popularly known as Okachamma, represented by Isaac Okolo (deceased), then Paul Okeke Mba (deceased) then William Okafor (deceased) with the court now sitting at Abagana. Further on the cessation of court sessions in Enugwu Ukwu, Mr. Briggits’91 successor, sold the buildings standing on part of the land in dispute and the land to late Richard Chinwuba Okafor for ‘a360, Further that the latter in turn sold the land and the buildings thereon to Enugwu Ukwu Progressive Union for ‘a360 under the then Chairmanship of Fredenek Nkenke and G. C. Nwaafia as Secretary. Part of the land given to the Enugwu’97Ukwu Progressive Union stands the present Enugwu Post Office built by communal effort between 1962/63.”

P.7

The question to be resolved is whether the plaintiff should have pleaded the origin of title of his vendors i.e. Umugagwo family. It can be seen clearly on the defendants’ pleadings that there was no admission by them that the said land originally belonged to Umugagwo family, Enugwu-Ukwu. In other words, an issue has been raised as to the title of Umugagwo family. Two situations may arise. Where there has been an admission of the title of the grantor or vendor, as the case may be, it will suffice if the plaintiff pleads the document of grant or sale and produces them at the trial. Where however title is denied, then the onus is on the plaintiff to plead and prove the origin of the title of his grantor/vendor. In the present case, the title of the plaintiff’s vendor was denied. Thus, an issue had been raised as to the title of the Umugagwo family the plaintiff’s vendor. In these circumstances the origin of the Umugagwo family’s title has to be pleaded and proved by evidence. This, the plaintiff failed to do. In my judgment, this failure is fatal to the plaintiff’s claim. In Ogunleye v. Oni (1990) 2 NWLR (Pt. 135) 745 at page 781-783 this court held as follows:-
“But it would be wrong to assume, as the learned trial Judge obviously did in this case that all that a person who resorts to a grant as a method of proving his title to land needs do is to produce the documents of grant and rest his case. Rather, whereas depending upon the issues that emerged on the pleadings, it may suffice where the title of the grantor has been admitted, a different situation arises in a case like this where an issue has been raised as to the title of the grantor. In such a case the origin of the grantor’s title has to be averred on the pleadings and proved by evidence. This is fatal to the plaintiff’s case.” (Italics mine).

P.8

The learned Judge was clearly in grave error when he held that:
” …. since there was no challenge to the title of PW1’s family and there could have been now the contention that the plaintiff did not plead and prove the root of title of P. W. 1’s family is without legal basis.”
I have already shown that the defendants denied paragraphs 8 and 9 of the plaintiff’s statement of claim wherein he averred that he purchased the land from Umugagwo family. The defendants also pleaded their root of title in paragraphs 6 and 7 of their statement of defence. They were therefore two parallel roots of title pleaded by the parties. An issue was therefore joined. Issues are said to be joined on the pleadings when an avermnent in opponent’s pleading has been denied or traversed. See Akaose & Ors. v. Nwosu & Ors. (1997) 1 NWLR (Pt. 482) 478; Lewis & Peat (N.R.I.) Ltd. v. Akhimien (1976) 7 SC 757. The learned Judge was in error when he held that this issue did not arise for determination.

The court below did not fare better in this regard. It made passing remarks in its judgment acknowledging the fact that the plaintiff’s title was rooted in purchase. It should have found from the pleadings and evidence before it that the plaintiff did not establish his claim to the land as required by law.

I now turn to the evidence of PW 1 Ugochukwu Okafor, a member of Umugagwo family that allegedly sold the land to the plaintiff. In his evidence under cross-examination this witness testified thus:
“It was not on the land sold to the plaintiff that Enugwu-Ukwu patriotic Union demolished a structure put on it. Our land is large; we sold portion of it to the plaintiff .…(Italics mine).
This piece of evidence is crucial to the claim of the plaintiff especially when it came from a member of the vendor family. It must not be forgotten that the cause of action in this case was the demolition of the plaintiff’s building.

P.9

In paragraph 5 of the statement of claim the plaintiff averred thus:
“5. On or about the 31st day of March 1979, on Nkwo market day the defendants acting in concert unlawfully broke and entered a piece of land situate at Oji Village which is in possession of the plaintiff and damaged a house under construction verged yellow in plaintiff’s Plan No. MEC/175179 and also bulldozed many economic trees planted by the plaintiff. The said Plan No. MEC/175179 is filed with this statement of claim. The said land in dispute is clearly delineated and verged pink in the said plan.”
The evidence of PW 1 was to prove the alleged acts of trespass pleaded in paragraph 5 of the statement of claim reproduced above. This witness, as I have already shown, testified that:
“It was not on the land sold to the plaintiff that Enugwu-Ukwu Patriotic Union demolished a structure put on it….”
This witness knew what he was talking about. He is a member of the Umugagwo family that allegedly sold the land to the plaintiff. The proper order at that stage should have been one of dismissal of the plaintiff’s claim. In this regard, the trial court was justified when it held:
“It is strange but true that the PW 1 said that it was not on the land that his family sold to the plaintiff that the demolished building stood. Clearly this knocks bottom off the plaintiff’s case as regards his claim to the demolished structure he put on the land. The evidence of PW 1 is quite crucial on this point. … PW 1’s evidence is final on the point as to where the demolished structure stood. If this is so, then the plaintiff cannot succeed in his claim for damages for house demolished by the defendants.”

P.10

As I earlier indicated, the proper order after the evidence of PW 1 should have been one of dismissal of the plaintiffs’ claim. In a claim of this nature the onus lies on the plaintiff to satisfy the court that he is entitled on the evidence brought by him to a declaration of title. The plaintiff must rely on the strength of his own case and not on the weakness of the defendant’s case. If this onus is not discharged, the weakness of the defence will not help him, and proper judgment is for the defendant: see Mogaji v. Odofin (1978) 4 SC 91; Akunyili v. Ejidike (1996) 5 NWLR (Pt. 449) 381; Kodilinye v. Odu (1935) 2 WACA 336; Eboade v. Atomesin (1997) 5 NWLR (Pt. 506) 490. The plaintiff herein has clearly not discharged the onus placed on him. His claim must therefore fail.
ISSUE NO.2
In view of the conclusion I have reached on issue No.1 a consideration of the second issue becomes unnecessary. Suffice it to say that the findings of the learned trial Judge were amply supported by the evidence before him. The position of the law is this, that an appellate court should not interfere with the findings of the trial court unless the findings are not supported by the pleadings and/or evidence are perverse. See Olorunfemi v. Asho (1999) 1 NWLR (Pt. 585) 1; Lengbe v.Imale (1959) WRN 325; (1959) SCNLR 640. The court below was clearly in error when it disturbed the findings of fact by the trial Judge which were borne out by the evidence on record.
In the result this appeal succeeds. I allow it and set aside the judgment of the Court of Appeal, Enugu Division, dated 11th day of December, 1995. I award N10,000.00 costs to the appellants against the plaintiff/respondent.