Right of Occupancy

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IHEDIOHA v. AGWALEMERE & ANOR

citation: LGC-1778 (02/07/2018)

In The Court of Appeal of Nigeria

On Monday, the 2nd day of July, 2018

CA/OW/98/2016

Before Their Lordships

MASSOUD ABDULRAHMAN OREDOLA Justice of The Court of Appeal of Nigeria
ITA GEORGE MBABA Justice of The Court of Appeal of Nigeria
TUNDE OYEBANJI AWOTOYE Justice of The Court of Appeal of Nigeria

Between

(3) The defendants shall pay the sum of One Hundred Thousand Naira (N100,000.00) to the Plaintiff being general damages for their trespass to the said land of the Plaintiff. (4) The defendants are hereby restrained by themselves, their heirs, agents, successors in title and servants from further trespass into Iheagu land of the Plaintiff. (5) The defendants shall pay cost of this Suit to the Plaintiff assessed at Twenty Thousand Naira (N20,000.00). (See page 348 349 of the Records of Appeal). Dissatisfied with the above decision, Appellant (who was 2nd Defendant at the trial) filed Notice of Appeal on 12/11/14, as per pages 388 390 of the Records, disclosing 3 grounds of Appeal. Appellant filed Brief of Argument on 4/10/16, which was deemed duly filed on 27/9/17. Appellant distilled two Issues for the determination of the Appeal, as follows: (1) Whether on the state of pleadings and evidence adduced, the trial Court was right in holding that the 1st Respondent (Claimant at the trial Court) proved traditional history of acts of continuous exclusive possession leaving no gap? (Grounds 1 and 2) (2) Whether the trial Court properly evaluated the evidence placed before it during the trial to arrive at a fair and just decision for all the parties. (Ground 3). The 1st Respondent filed his brief on 15/1/18 and the same was deemed duly filed on 1/2/18. He adopted the Issues as distilled by the Appellant for the determination of the appeal. The 2nd Respondent filed no brief. Arguing the Appeal, on 16/5/18, Appellants Counsel, Ngozi K. Uzoma Esq., (who settled the brief), on Issue one, said the 1st Respondent did not prove his case as required by law, to be entitled to the reliefs he sought. He submitted that, in an action for declaration of title to land, the Plaintiff must succeed on the strength of his own case, not on the weakness of the defence. He relied on the case of Ekanem Vs Akpan (1991) 8 NWLR (Pt. 211) 616; Kodilinye Vs Odu (1935) 2 WACA 336 at 337 338; Onwugbufor Vs Okoye (1996) NWLR (Pt. 424) 225; Shittu Vs Fashawe (2005) 14 NWLR (Pt. 946) 671; Eze Vs Atasie (2000) 10 NWLR (Pt. 676) 450. Counsel also relied on the case of Ojoh Vs Kamalu (2005) 18 NWLR (Pt. 958) 523; Nwosu Vs Udeaja (1990) 1 NWLR (Pt. 125) 188; Kyari Vs Alkali (2001) 11 NWLR (Pt. 724), on the five different ways of proving title to land and said that the Plaintiff failed in his bid to establish his claims at the trial by traditional history which he relied on. Counsel further relied onBalogun Vs Akanji (1988) 1 NWLR (Pt. 70) 301, on evidence of ownership by traditional history, and added that, a party is not bound to plead and prove more than one root of title, to succeed, but …………………….B……………………. that where he relies on traditional history and in addition, acts of ownership and long possession, predicated on traditional history, he is not entitled to a declaration of title based on the evidence of acts of ownership and long possession, where evidence of traditional history is unavailable. He added that the evidence adduced must accord with the pleaded facts to be acceptable and relied on Owoeye Vs Oyinola (2012) 15 NWLR (Pt. 322) 84. Counsel said that 1st Respondent, failed to establish his claims at the trial Court via traditional history, as he failed to lead evidence to establish the names and history of his alleged ancestors, from the alleged deforester of the land, to himself, without any missing link. He relied on the case of Wachukwu Vs Owunwanne (2011) 14 NWLR (Pt.1266) 1 SC; Iheanacho Vs Chigere (2004) 17 NWLR (Pt. 901) 130. He also relied on Section 131 of the Evidence Act, that he alleges has the burden of proof. Counsel said that, it was averred in paragraphs 8, 9,10 and 11 of the Amended Statement of claim and paragraphs 3 5 of the Reply filed by 1st Respondent that Achara (the ancestor and founder) gave birth to Ibezim and brothers and that when Achara died, his heirs, which includes Ibezim, inherited the land and farmed on it; that Ibezim had three sons (Agwalemere, Ogbulagu and Ibegbulam) and when Ibezim died, his three sons and their children inherited his portion of the land (while the descendants of his late brothers inherited their portions as was partitioned to them), and that the portion of the land of the claimant, now in dispute, were formerly the land of Ibezim, partitioned for the three families (three sons of ibezim) in accordance with native law and custom of the people of Ezialachara in Amaokwe Amiyi Autonomous Community, Isuikwuato L.G.A. Abia State; but that neither the 1st Respondent nor any of the other 4 witnesses he called, mentioned the name of Ibezim at the trial as descendant of Achara. He referred us to the evidence of 1st Respondent, who testified as PW4 on the Records of Appeal, and said that, having failed to mention the name of Ibezim in the chain of ownership and devolution of the land, the trial Court was wrong to hold for 1st Respondent. Counsel said that where a Plaintiff fails to prove his root of title, as in this case, by traditional history, that marks the end of his case, as any alleged act of possession, erected by him, would not avail him. He relied onWachukwu Vs Owunwanne (2011) 14 NWLR (Pt.1266) 1; Balogun Vs Akanji (1988) 1 NWLR (Pt. 70) 301. He urged us to allow the appeal and dismiss the claim of the 1st Respondent, as that is what the trial Court ought to have done, relying on the case of Osolu Vs Osolu (2003) 11 NWLR (Pt. 832) 608. On Issue 2, whether the trial Court properly evaluated the evidence placed before it to arrive at a fair and just decision, Counsel answered in the negative. He relied on Anyakora Vs Obiakor (2005) 5 NWLR (Pt. 919) 537 and Mogaji Vs Odofin (1978) 3 SC 91 on the issue; that evaluation of evidence on any issue or fact in the circumstances of each case, is to determine whether the totality of evidence supports a finding of facts, which the party adducing the evidence seeks the trial Court to make. He added that PW2, a brother of the 1st Respondent even worked for the 2nd Respondent at the site (disputed land) after the lease by the Appellant; that the trial Court should have considered same, and the evidence of DW1 and DW2 which showed that they made findings about the ownership of the land before the 2nd Respondent took the lease from Appellant. He relied on the case of Udengwu Vs Uzuegbu (2003) 13 NWLR (Pt. 336) 141. Responding, 1st Respondents Counsel, Chinedu I. Obialor Esq., (who settled the brief), on the Issue one, said the 1st Respondent had substantiated his claim at the lower Court and had proved his case by traditional evidence, being one of the five ways of proving title to land, as per the case …………………….C……………………. of Idundun Vs Okumagba (1976) NMLR 200 at 210. He said 1st Respondents fresh averments in the amended Statement of Claim, and the Exhibit D1 was not controverted. He added that the evidence led by the claimant had satisfied the Court as to the root of title; that the land was their family land and he had traced same to his ancestors. On Issue 2, 1st Respondent said the trial Court had properly evaluated the evidence before it, and relied on the evidence of his boundary neighbors. He relied on the case ofOwosho & Ors Vs Dada (1984) 7 SC 149; Akintola & Anor Vs Solano (1986) 4 SC 141; Cameroon Airlines Vs Otutuizu (2011) 45 NSCQR 962. He urged us to dismiss the Appeal. Appellant

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