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In The Supreme Court
of
On Friday, the 8th day of
February 2008
Before Their
Lordships
S.C. 257/2002
Between
And
Judgement of the Court
Delivered by
Francis
Fedode Tabai. J.S.C
This suit was filed at the
Owerri Judicial Division of the
(a)
Declaration that the plaintiff is entitled to a Statutory Certificate
of Occupancy of the land verged Green in the plaintiffs plan No GIK/IMD
89/92
filed together with the statement
of claim.
(b)
(c)
Perpetual injunction
restraining the defendant, his agents or servants from further interfering
howsoever with the
plaintiffs rights and interests in the land for which the declaration in (a)
above is sought.
Pleadings were filed and
exchanged. The statement of claim was filed along with the writ of summons
on the 21/10/92. The appellant's amended statement of defence was filed on
the 9/1/97.
At the trial both parties
testified and called witnesses. At the close of evidence, learned counsel
for the parties addressed the court. By its judgment on the 7/7/99 the claim
was allowed in its entirety except that
Briefs have been filed and
exchanged. The Appellant's Brief was prepared by Declan
Obioma Madu and same was filed on the
30/12/02. The respondent's brief was settled by Chief
E.T.O. Njoku. It was filed on the 6/3/03.
The appellant proposed four issues for determination in his brief of
argument. On the 12/11/07 when the appeal was argued, on the application of
learned counsel for the appellant, the third issue was withdrawn and struck
out, leaving the following three issues for determination.
1.
Whether the learned justices of the Court of Appeal were right in
affirming the judgment of the court below in favour of the
plaintiff/respondent when he did not plead and prove the root of his title
to the land in dispute.
2.
Whether the provisions of
Section 46
of the
Evidence Act, Laws of the Federation of
3.
Whether the learned justices of the Court of Appeal were right in
affirming the award by the learned trial Judge of reliefs not claimed by the
plaintiff/respondent in his evidence before the trial court.
For the respondent the
following three issues for determination were presented:
1.
Whether the burden of proof of the root of title to the land in
dispute did not shift to the appellant going by his amended statement of
defence.
2.
Whether the lower court was not right in holding that
Section 46 of the Evidence Act
enured in favour of the respondent.
3.
Whether the lower court's confirmation of the grant of the reliefs
sought for in the suit was wrong.
In my consideration, but for
differences in phraseology, the issues formulated by the parties are in
substance the same. But the appellant's issues one and three are couched
with some assumptions of facts to suit his arguments. This should not be so.
I would therefore adopt the issues as formulated by the respondent. They are
clearer to me.
Before I embark upon the
resolution of the issues for determination, let me first dispose of the
preliminary objection raised by the respondent. Chief
Njoku for the respondent argued that all the four grounds of appeal
are grounds of mixed law and facts and submitted, therefore, that by reason
thereof the appeal can only be competent if it was filed with the leave
either of the court below or this court in compliance with
Section 233(3) of the 1999
Constitution of the Federal Republic of Nigeria. It was his submission
that since there was no leave to appeal, the appeal was incompetent. Mr.
Madu for the appellant did not react to the
preliminary point.
It needs to be emphasised that
it is usually difficult to draw a distinction between a ground of law and a
ground of fact, the distinction being always a very tiny one. The
distinction becomes even more difficult when it involves a point of law and
mixed law and fact. A ground of mixed law and facts or facts
simpliciter
does not necessarily become a ground of law simply because such an
appellation has been accorded it by the appellant's counsel. The court has
the task of carefully examining the ground of appeal to ascertain this fine
distinction. See
Amuda
v Adelodun (1994) 8 NWLR (Part 360) 23 at 30;
Ogbechie v Onochie
(1986) 2 NWLR (Part 23) 484; Nwadike v
Ibekwe (1987) 4 NWLR (Part67) 718.
The following have been held
to be some guidelines in the distinction
between a ground of law on the one hand and a
ground of mixed law and facts or facts on
the other:
(1)
Where a ground of appeal complains of an error involving a
misunderstanding or misconception of the law or a misapplication of the law
to proved or admitted facts, it is a ground of law. See
Amuda
v Adelodun (supra)
(2)
A ground of appeal which complains of the lower court's exercise of
its discretion necessarily involves the appellate court's consideration of
the peculiar facts and circumstances upon which the discretion was exercised
and so one of facts. But where the ground complains of the lower court's use
of wrong principles in the exercise of its discretion, the facts and
circumstances in which the discretion was exercised are no longer in issue.
The only issue in such a case is that of the alleged wrong principle and
therefore one of law alone. See
Metal Construction (W.A.)
Ltd v D.A. Migliore
& Ors.
(1990) 1 NWLR (Part 126) 299 at 315.
(3)
A ground of appeal which complains of the lower court's evaluation of
evidence and alleges sufficiency or insufficiency of evidence is one of fact
or at best one of mixed law and facts. Where however the ground of appeal
does not complain about the evaluation but only about the inference to be
drawn from the established or admitted facts, it is one of law. Similarly
where the ground of appeal alleges that there is no evidence upon which the
lower court could reach its decision it is a ground of law.
See
Anambra
State Housing Development Corporation v J.C.O.
Emekwue (1996) 1 NWLR
(Part 426) 505 at 527-528; Ifediorah v Ume
(1988) 2 NWLR (Part 74) 5; U.B.A. v Stahlbau
(1989) 3 NWLR (Part 110) 374.
In this case the four grounds
of appeal without their particulars are as follows:
(a)
The Court of Appeal erred in law when it held that the appellant did
not prove his root of title to the land and this occasioned a miscarriage of
justice.
(b)
The lower court erred in law when it upheld the decision of the trial
court declaring title by traditional history to the land in dispute in
favour of the respondent who did not establish the root of title of his
grantor Aneme Anukam.
(c)
The lower court erred in law in holding that the provision of
Section 46 of the Evidence Act
availed the respondent.
(d)
The lower court erred in law when it held that the respondent led
evidence in support of the reliefs claimed in the statement of claim and
therefore affirmed the trial court's judgment.
It is clear from the above
that grounds (a) (b) and (d) are grounds of mixed law and facts. The
totality of the aforesaid three grounds is an invitation to this court to
review the evidence to see if it supports the decision of the two lower
courts. Ground (c) of the grounds of appeal is however distinguishable from
the other three grounds. It questions whether, given the evidence
established or admitted, section 46 of the Evidence Act was rightly invoked
in favour of the Respondent which, in my consideration, is a ground of law.
It involves no questions of evaluation of the evidence before the court. I
hold therefore that ground (c) of the grounds of appeal being a ground of
law, the appellant can appeal to this court as of right by virtue of the
provisions of Section 233(2)(a) of
the 1999 Constitution.
In view of the above
considerations it is my respectful view that the appeal is competent. The
preliminary objection fails and is accordingly overruled.
I shall now proceed to
consider the issues raised. With respect to the 1st
issue, learned counsel for the appellant referred to paragraphs 3, 4, 5, 6,
7 and 8 of the statement of claim and submitted that the respondent whose
claim is founded on evidence of tradition was bound to plead and establish
such facts as; the person who founded the land and exercised original acts
of possession, how he founded the land and the particulars of the
intervening owners through whom he claims. For this submission he relied on
Onwugbufor
v Okoye (1996) 1 NWLR (Part 424) 252 at 280-281;
Piaro v Tenalo
(1976) 12 SC 41; Mogaji v Cadbury (Nig) Ltd
(1985) 2 NWLR (Part 7) 393. Having failed to plead and prove these
crucial facts, counsel submitted, the respondent failed to prove that his
father, Anukam Aneme,
had title to the land in dispute, contending that he (Anukam
Aneme) could not therefore have given to him
what he did not have Nemo
dat
gui nun habet.
He relied further on
Macaulay v Omilaye (1997) 4
NWLR (Part 497) 94 at 102; Odubeko v
Fowler (1993) 7 NWLR (Part 208) 637.
On the second issue of
whether, in the light of the evidence before the court,
Section 46 of the Evidence Act
was rightly invoked in favour of the Respondent, learned counsel for the
Appellant., submitted that there was overwhelming evidence of the
Appellant's numerous acts of possession of the land in dispute, and that the
evidence was essentially unchallenged under cross-examination and should be
taken as established. It was his submission therefore that
Section 46 of the Evidence of Act
ought to be invoked in favour of the appellant and not the respondent. For
this submission he relied on
Omoregbe
v Lawani (1980) 3-4 SC 108 at 117;
Osakwe v Governor of
For more acts of possession,
counsel referred further to the evidence of the PW1 under cross-examination
that the appellant started building a house on the land in dispute in 1967,
erected temporary stores thereon after the civil war and that during the
life time of the respondent's father the appellant's father had the DW1 as a
tenant on the land in dispute. Counsel argued that there was no such
evidence of the respondent's possession of the land to avail him of the
provisions of Section 46 of the
Evidence Act. On the prerequisites for the invocation of
Section 46 of the Evidence Act,
learned counsel relied on
Abibu
v Binutu (1988) 1 NWLR (Part 68) 57;
Idiribe v Ogbodu
(1990) 5 NWLR (Part 123) 599.
As regards the third issue the
substance of the arguments of learned counsel for the appellant is that
whereas the relief for declaration of the respondent's entitlement to a
certificate of occupancy and injunction as pleaded in paragraph 26 of the
statement of claim is in respect of the area verged Green, the area verged
Red is the area in dispute and that it is this area in respect of which the
declaration and injunction ought to be granted. It was his submission
therefore that there is no evidence in support of the Green area for which
the declaration and injunction were sought and granted. In this regard,
counsel submitted that the concurrent findings of the two courts below are
not supported by the evidence and therefore perverse.
Learned counsel for the
appellant finally urged that all the issues be resolved in favour of the
appellant and the appeal, is allowed with a dismissal of the respondent's
claim.
On the 1st issue
for determination learned counsel for the respondent made the following
submissions. He referred to the pleadings in paragraph 3 of the statement of
claim which were admitted by the appellant in paragraph 3 (a) of the amended
statement of defence and submitted that by virtue of the provisions of
Section 75 of the Evidence Act
they need no further proof. It was his further submission that the different
and additional aspect of the Appellant's case pleaded in paragraphs 3 - 6 of
the amended statement of defence is that which burden of proof was squarely
on the appellant in accordance with the provisions of
Section 137 of the Evidence Act.
On the specific issue, learned counsel referred to the concurrent findings
of the two courts below about the appellant's failure to prove as alleged
and submitted that the findings are
not perverse and ought not to be disturbed. Reliance was placed in
Ude
v Nwangwu (1995) 8 NWLR (Part 466) 644 at 652,
Chiwendu v Mbamali
(1980) 3-4 SC 42.
With respect to the 2nd
issue for determination, learned counsel for the respondent referred to the
pleadings in paragraph 7(e) of the amended statement of defence that the
appellant's father John Anuka allotted land to
the respondent and argued that
Section 46 of the Evidence Act was rightly invoked particularly having
regard to the established fact that the Respondent's house is adjacent to
the land in dispute.
For the 3rd issue
the substance of the submissions of learned counsel for the respondent is
that since the entire land of the respondent is verged Green including the
area verged Red which is the area in dispute, the trial court was in order
in granting the relief as claimed.
The above represents the
substance of the submissions of counsel in their respective briefs of
argument. I shall now endeavour to resolve the issues starting with the
first issue. It poses the question of where lies the burden of proof having
regard to the pleadings and evidence. It is the contention of the appellant
that the respondent, having failed to plead and prove his root of title by
evidence of tradition, failed to discharge the onus of proof on him. The
argument of the respondent on the other hand is that it is the appellant who
failed to prove the root of his title to the land in dispute.
In the first place, had the
plaintiff/respondent any duty, going by his case as set out in the statement
of claim, to plead and prove the original founder of the land in dispute,
how he founded it and the intervening persons through whom it devolved down
to his father Anukan Aneme
from whom he inherited it? I shall answer this question in the negative. It
is true that in
Idundun v Okumagba
(1976) 9-10 SC (Reprint) 140 at 154-155 this court has laid down the
five modes of proof of title to land. The first of these is that ownership
of land may be proved by traditional evidence. The burden and standard of
proof of each case depends on the nature of the case as pleaded. Where, as
in this case, the plaintiff alleges that he got the land from, his father
and the defendant does not deny or challenge this allegation, then plaintiff
has no duty to prove the father's own source of his title. To drive this
point home, it is necessary to reproduce paragraphs 3-12 of the statement of
claim.
“3.
The land the subject matter of this suit (hereinafter
called the land in dispute) is situate at
No 2
Ekeonunwa
Street, Owerri, and forms part of a family land
traditionally known as and called "Ishionveku
One" where the father of the plaintiff, Anukam
Aneme, lived with his wife and children;
4.
The land in dispute verged Red in the plaintiffs plan is part of the
plaintiffs land verged Green. The entire plaintiffs land is bounded by the
houses of Dick Anukan, Sunday John
Anukan, Patrick and
Hezekiah Ibejiako and by
5.
Many years ago when the
plaintiff was a minor the plaintiffs father made a gift inter
vivos of the land verged Green in the survey
plan No GIKS/IMD
89/92 drawn by G.I. Ikeh,
a registered surveyor and filed together with this statement of claim to the
plaintiff;
6.
The gift was made in the presence of John Anukam
(the father of the defendant), William Anukam
(also called Wilfred Anukam), Dick
Anukam and Godwin Anukam
all being brothers of the plaintiff and sons of the plaintiff’s father.
7.
Also in the presence of the sons, the plaintiff s father
entrusted the said land to the plaintiffs aunt,
Beatrice Okenwa to look after for the plaintiff.
8.
The plaintiff s father had hitherto made gifts of various portions of
land in the compound to his sons who built and lived in the houses as shown
in the survey plan.
9.
The plaintiffs aunt built a mud house on a
portion of the plaintiffs land and lived therein while erecting another mud
house on the portion verged Red in the plan and let same out on rent. The
plaintiffs aunt used the proceeds from the rent
in paying plaintiffs school fees.
10.
When the plaintiff became a major the aunt handed over the two
buildings to the plaintiff. Plaintiff lived in the house formerly occupied
by his aunt while allowing the one on rent to continue to be on rent.
11.
During the Nigerian civil war the two buildings were destroyed. At
the end of hostilities the plaintiff rebuilt the house he lived in using
concrete blocks for the walls and corrugated iron sheets for the roof. He
did not rebuild the house that was let out on rent but let it out to tenants
who used it as open stalls. That portion of the plaintiffs land overlooks
the Owerri main market and is separated from the
market by
12.
In 1977 the defendant, without the consent of the plaintiff broke and
entered the land in dispute and started the construction of a building.”
In paragraph 3(a) of the
amended statement of defence, the appellant pleaded:
“Paragraph 3 of the statement of claim is also admitted.
Further more the defendant avers that the great
grand father of the
defendant and grand father of the plaintiff lived on the land with their
relations Uwaleke Eshika,
Eke Onugha on the land in dispute.
Both begat children on this
land”
It is clear from the above
that the appellant admitted paragraph 3 of the statement of claim in his own
paragraph 3 (a) of the statement of defence without any qualification. It is
surprising therefore that he proceeded to plead in the same paragraph 3(a)
and other paragraphs of the amended statement of defence a different source
of his root of title. The respondent maintained his source of title to be
his father, Anukam Aneme,
and at the trial was at pains to prove just that. And in view of the
appellant's admission of his assertion in paragraph 3 of the statement of
claim, he had no duty to prove the person who founded the land, how he
founded it and the person through whom the land devolved on his father. For
the purpose and proof of his title, the respondent had no duty to plead and
prove more facts than he did. In my view it was sufficient if he established
that the land belong to his father, Anukam
Aneme, who gave same to him and that is what he
did.
On this question of whether
the land in dispute belonged to the respondent's father,
Anukam Aneme as
claimed by the respondent or Onugha
Uwaleke as claimed by the appellant, the
testimony of the DW4 supported the case of the respondent. At page 61 of the
record of proceedings the DW4
Obodi Akuebionwu
said:-
"I
know the land in dispute. I know
that the land belongs to Anukam since I was a
boy. The Anukam I am talking about is the father
of John. I know late John Anukam. The late John
Anukam was a steward. Apart from being a
steward, he was also a photographer."
This was the testimony of the
DW4 in chief. It supports the case of the respondent that the land belonged
to Anukam Aneme and
not Onugha Uwaleke
who is the Appellant's source of title. The well settled principle of law is
that in a claim for declaration of title to land, the plaintiff has to
succeed on the strength of his own case and not on the weakness of the
defence. Where however evidence from the defendant supports the case of the
plaintiff he is entitled to rely on it. This was the principle in
Akinola
v Oluwo (1962) 1 SCNLR
352; Kodilinye v Udu
(1935) 2 WACA 336; Omoni
v Tom (1991) 6 NWLR (Part 195) 93; Obiaso v
Okoye (1989) 2 NWLR (Part 119) 80.
In this case, having regard to
the strong evidence of the Respondent supported by the evidence of the DW4
highlighted above, it is futile for the Appellant to contend that the burden
of proof still remained with the Respondent. I have no doubt in my mind that
there was sufficient evidence to sustain the claim of the Respondent.
On the other hand it was not
unreasonable to expect that the appellant who is a grandson of
Anukan Aneme would
also trace his title to him. He did not do that. Rather he traced it to
Onugha Uwaleke. I am
persuaded by the argument of the respondent that it was the appellant who
had the duty to plead and prove the person through whom
Uwaleke derived his title. On this issue of burden of proof the
learned trial judge at page 95 of the record said:
"It
is settled law that once a party
pleads and traces the root of title to a particular person or family, he
must establish how that person came to have title vested in him. He cannot
ignore the proof of his overlord's title and rely on long possession.
Mogaji
v Cadbury (Nig) Ltd (1985) 2 NWLR (Part 7) 393
at 395. Did the defendant who pleaded tradition evidence fulfil
this requirement of the law? In my view he had not. The defendant merely
pleaded and traced the persons upon whom he alleged the land in dispute
devolved upon and finally came to Onugha without
any trace of how Onugha became the owner. Again
the introduction of Onugha into the lineage of
Anukam seems to portray a doubtful nexus."
The above represents the
correct position of the legal burden of proof on the appellant going by the
state of the pleadings. And I have no conceivable reason to fault the above
finding by the trial court that the appellant failed to discharge this
burden. It is not surprising therefore that court below adopted the above
reasoning and conclusion of the trial court in its entirety and concluded
thus:
"From all
what I have said, suffice it
therefore to say that the appellant failed woefully to prove his title to
the land in dispute."
(See pages 157-158 of the e record)
I agree with the concurrent
findings of the two courts below that the appellant failed to establish his
alleged title to the land in dispute through the traditional evidence on
which he relied.
Still on this question of
proof of the respective cases of the parties, it is necessary to examine
other aspects of the case contained in the pleadings and evidence. The case
of the respondent is substantially as pleaded in paragraphs 3-12 which I
have reproduced above. The evidence in support thereof came from two
witnesses only, the PW1 and the respondent himself PW2. They are both sons
of Anukam Aneme. The
only discrepancy identified by the trial court was as to the year the
Appellant started erecting a building on the land in dispute. While the PW1
said it was in 1967 the respondent said it was in 1977. The trial court
reasoned that it was a mere discrepancy not fatal to the case of the
respondent. I agree with that assessment. Besides this discrepancy the
evidence from the two witnesses is consistent with the case of the
respondent as pleaded. The PW1 besides being a son of
Anukan Aneme was one of those in whose
presence Anukan Aneme
made the gift of the land verged Green in plaintiffs plan including the land
in dispute. The learned trial judge accorded credence to his evidence and I
have no doubt that he had good cause so to do.
With respect to the case of
the appellant, apart from the finding that he failed to establish the
traditional history pleaded, the trial court identified some material
contradictions. In paragraph 8 of the amended statement of defence the
appellant pleaded as follows:
"8.
Anukam Aneme
died in 1955. He never shared land to anybody in the family and never
encroached on John Onuegbu
Anukam property which he inherited from Onugha.
The plaintiff had all along been in Owerri
and all through the life time of John Anukam he
never disputed this land in dispute.
The purported gift is a mere ruse. No gift was ever made to the
plaintiff."
Yet in his evidence under
cross-examination a page 58 of the record the appellant said:
"Anukam
Aneme gave the plaintiff and the mother where
they were living in the compound. Anukam
Aneme was my grandfather."
No explanation was offered for
this contradiction between the pleading in paragraph 8 of the amended
statement of defence and the evidence of the appellant himself. Again the
learned trial judge pointed out another contradiction in the evidence of the
appellant himself and the DW4. At page 97 of the record the learned trial
judge said:-
"Again it has to be noted, and I agree with the learned counsel for the
plaintiff, that of the four witnesses called by the defendant only the DW3
and DW4 gave evidence as to the ownership of the land.
While the DW4 testified that the land belonged to the grandfather of the
defendant, i.e. Anukam
Aneme, the DW3 i.e. the defendant said
that the land in dispute was his father's inheritance from
Onugha. This again is a material
contradiction in the evidence of the two witnesses."
In view of the foregoing
contradictions highlighted the learned trial judge accorded no credibility
to the traditional evidence of the appellant. At page 98 of the record the
trial court also pointed out inconsistencies in the evidence of the DW2 and
rejected his evidence as being unreliable. The court below reproduced the
reasoning and findings of the trial court which it wholly endorsed. I have
no reason to disturb the concurrent findings of the two courts below. They
are amply supported by the evidence on record. The result is that I resolve
the 1st issue for determination against the appellant.
The 2nd issue
pertains to the propriety or otherwise in the invocation of
Section 46 of the Evidence Act in
favour of the respondent. It was the contention of the appellant that there
was evidence of his numerous acts of possession and ownership on and around
the land in dispute to warrant the inference that he has title to it. It was
his submission there from that
Section 46 of the Evidence Act was wrongly invoked in favour of the
respondent.
The case of the respondent and
accepted by the court below is that the land verged Green in Exhibit "B" and
which includes the land verged Red was given to him by his father and
grandfather of the appellant, Anukam
Aneme in the presence of his other children
namely John Anukam (appellant's father), William
Anukam, Godwin Anukam
and Dick Anukam and his maternal aunt Beatrice
Okenwa that he gave it on trust to Beatrice
Okenwa for him. Beatrice
Okenwa split the land into two and built thatched houses on them. She
lived in one and rented out the other to tenants which proceeds she used in
paying his school fees. When the land was surrendered to him he continued to
live on the part where she lived and collected rents on the other part.
During the civil war they fled. On their return after the civil war the
buildings had been damaged. He rebuilt the part where he now lives and
rented out the empty portion to traders who paid him rent. It is this empty
portion on which the appellant encroached and which is
the land in dispute. The appellant does not deny the respondent's
title to the area verged Green except the portion verged Red which is the
land in dispute. The land in dispute is contiguous to the area not in
dispute. And in view of the respondent's acts of ownership cover the
undisputed portion the learned trial judge at page 103 of the record found:
"It seems to me that all these and all the other acts of the plaintiff in
asserting his right over the land in dispute coupled with the contiguous
nature of the land in dispute to the undisputed property of the plaintiff
are sufficient to raise the probability that the plaintiff is in addition to
his house the owner of the land in dispute. See the case of
Okechukwu v Okafor (supra) and
Section 46 of the Evidence Act 1990."
The above clearly shows the
respondent's user of the undisputed portion of the land verged Green and its
contiguity to the land in dispute. These facts are uncontroverted and
therefore established. The fact of contiguity is even clearly borne out in
Exhibit "B". In the face of these established facts, I do not fancy any
error in the trial court's invocation of
Section 46 of the Evidence Act.
It is not surprising therefore that the court below also fully endorsed the
conclusion of the trial at page 162 of the record. The result is that I also
resolve this issue in favour of the respondent.
The third and last issue is
whether the lower court was right in affirming the reliefs granted by the
trial court. I have earlier in this judgment reproduced the reliefs claimed
by the respondent. Relief one thereof seeks a declaration that the
respondent is entitled to a Statutory
Certificate of Occupancy to the land verged Green
in the Respondent plan Exhibit "B". With
respect to the relief claimed the respondent testifying as PW2 said:
" I
want the
court to declare that I am
entitled to the Statutory Certificate of Occupancy of the land in dispute"
The substance of the argument
of learned counsel for the appellant is that the land in dispute is the area
verged Red in plaintiffs plan Exhibit "B" which is not the same thing as the
land verged Green. It was his submission therefore that the court granted a
relief not claimed by the respondent.
Technically, the argument
sounds reasonable. In practical terms however, the argument is neither here
nor there. The area verged Red which is the land in dispute forms part of
the same parcel of land verged Green. The area to which the appellant made
adverse claim was restricted to the area verge Red within the larger area
verged Green. Although the judgment has given title of the land verged Green
to the respondent, the appellant's loss is nevertheless confined to the area
verged Red since he made no claim to any area outside the area
verged Red. Therefore the
declaration in respect of the Green area notwithstanding, the appellant has
suffered no greater loss than the area verged Red and cannot be heard or
complain. The result is that this issue is also resolved in favour of
the respondent.
On the whole I am satisfied
that the appeal is without substance and is liable to be dismissed and is
accordingly dismissed. I assess the cost of this appeal at
Judgment delivered by
Aloysius
Iyorgyer
Katsina-Alu,
J.S.C.
I have had the advantage of
reading in draft the judgment delivered by my learned brother Tabai.
J.S.C. I agree with
him that the appeal has no merit. I also dismiss it with costs as assessed.
Judgment delivered by
Aloma
Mariam Mukhtar.
J.S.C.
In the High Court of Justice,
Imo State, holden at Owerri,
the
respondent who was then the plaintiff, as per his statement of claim sought
the following reliefs:-
"(a)
declaration that the plaintiff is entitled to a statutory Certificate
of Occupancy of the land verged green in the plaintiffs plan No
GIKS/IMO 89/92 filed together with this statement of claim.
(b)
(c)
Perpetual injunction restraining the defendant his agents or servants
from further interfering however with the plaintiffs rights and interests in
the land for which the declaration in (a) above is sought."
The learned trial judge found
in favour of the plaintiff and granted the above reliefs, but
less damages in respect of (b) above. The
defendant was dissatisfied and appealed to the Court of Appeal which
dismissed the appeal. Again, he has appealed to this court on four grounds
of appeal. Briefs of argument were exchanged and adopted by learned counsel
at the hearing of the appeal. The three issues raised in the appellant's
brief of argument are:-
"(a)
Whether the learned Justices of the Court of Appeal were right in
affirming the judgment of the court below in favour of the
plaintiff/respondent when he did not plead and prove the root of his title
to the land in dispute?
(b)
Whether the provisions of
Section 46 of the Evidence Act,
Laws of the Federation of
(c)
Whether the respondent was not estopped from claiming the entire land
contrary to the alleged decision of the Native Arbitrators to share the land
into two which decision he accepted and also relied upon in proof of this
case?
(d)
Whether the learned Justices of the Court of Appeal were right in
affirming the award by the learned Trial Judge of reliefs not claimed by the
plaintiff/respondent in his evidence before the trial court?"
On the other hand the issues
raised by the respondent in his brief of argument are as follows:-
"(a)
Whether the burden of proof of the root of his title to the land in
dispute did not shift to the appellant going by his amended statement of
defence.
(b)
Whether the lower court was not right in
holding that section 46
enured in favour of the respondent.
(c)
Whether the lower court's confirmation of the grant of the reliefs
sought for in the suit was wrong.
At this juncture I will advert
my mind to the respondent's attack of issue (c) supra in the appellant's
brief of argument, which learned counsel contended did not relate to any of
the grounds of appeal. Ideally, a notice of preliminary objection and its
ground should have been filed by learned counsel for the respondent, and
then the argument in respect of the objection could be incorporated in the
brief of argument. See
Abioye
v Afolabi (1998) 4 NWLR part 545 page 296.
As it is, he merely made his contention and argued that the said issue (c)
did not stem from any of the grounds of appeal and placed reliance on the
cases of
Akinbinu v
Oseni (1992) 1 NWLR part 215 page 97, Ugo v
Obiekwe (1989) 1 NWLR
part 89 page 89, and Module v
State (1988) 4 NWLR part 87 page 130. Be that as it may, even if the
learned counsel has not raised the issue of competence of the issue the
court can suo
moto consider the competence of an issue or
ground of appeal and make whatever consequential orders it deems fit in the
circumstance. However, at the hearing of the appeal learned counsel for the
appellant saw some wisdom in withdrawing the said issue (c) above, and it is
accordingly been struck out.
Then later in the respondent's
brief of argument the learned counsel raised a preliminary objection in
which he argued that the appeal was not competent in that leave to appeal
should have been sought in compliance with
Section 233 (3) of the Constitution
of the Federal Republic of Nigeria 1999, the grounds of appeal not being
grounds of law
simplicter but at best of mixed law and facts.
I will now reproduce and
examine the grounds of appeal. The grounds are :-
Ground one - Error in Law:
"(a)
The Court of Appeal erred in law when it held that the appellant did
not prove his root of title to the land in dispute and this occasioned a
miscarriage of justice.
Particulars of Error
(i)
The appellant
pleaded at paragraph
3 (a) and
(b) of the amended
statement of defence that the great grandfather of the defendant and the
grandfather to the plaintiff/respondent lived on the land in dispute with
their relations Uwaleke
Eshika and Eke Onugha.
(i)
There was pleading and evidence that the Appellant inherited the land
in dispute from his father, John Owuegbu
Anukam. The land was the property of
Onugha who was buried by John
Anukam and therefore inherited it from its
original owner, Onugha, in accordance with
Owerri custom.
(ii)
.................................................
(iii)
................................................
(iv)
................................................
(b)
Ground two: Error in Law
The lower court erred in law
when it upheld the decisions of the trial
court declaring title by traditional history to
the land in dispute in favour of the
respondent who did not establish the root of title of his
purported grantor, Aneme
Anukam.
Particulars of Error
(i)
The respondent's case was essentially founded on traditional
history.
(ii)
The respondent pleaded and gave evidence
that the land in dispute was given to him
by his father Anukam Aneme.
(iii)
.............................................
(iv)
.............................................
(v)
...................,..........................
(vi)
.............................................
(vii)
The respondent did not prove
his root of title and none was admitted
by the appellant.
(c)
Ground three
Error in Law
The lower court erred in
holding that the provision of Section
46 of the
Evidence Act
availed the respondent.
Particulars of error:
(i)
...........................
(ii)
..........................
(iii)
There was no record of evidence showing that the land in dispute was
surrounded by the respondent's land.
(iv)
Having
failed to plead and prove the root of title of his alleged grantor,
Anukam Aneme, the
respondent cannot call in aid the provision of
Section 46 of the Evidence Act
nor any claim for possession of a parcel of land from the grant or adjoining
the disputed land.
(d)
Ground four
The lower court erred in law
when it held that the respondent led evidence in support of the reliefs
claimed in the statement of claim and therefore affirmed the trial court's
judgment.
Particulars of error
(i)
At paragraph 4 of the statement of claim the respondent pleaded
inter alia; "4. The land in
dispute verged red in the plaintiffs plan is part of the plaintiffs land
verged' green.,..." The same fact is pleaded at
paragraph 12 of the statement of claim.
(Underlining is mine),
(ii) In his evidence before the trial court the respondent stated inter alia, (a) I want the court to declare that I am entitled to the statutory |