The Supreme Court of Nigeria
Friday, the 26th day of January 1990
of the Court
The appellants were plaintiffs at the trial court and having lost their case there appealed to the Court of Appeal, Enugu Division, where their appeal was dismissed. Both parties are from the same locality, Ikenga, but from two different villages of Akpuru or Akpulu - (perhaps due to dialectical preference!) and Amaouko respectively. The appellants in their plan, which was Exhibit A at the trial court, named the land in dispute over which they claimed ownership by praying for declaration of title and injunction, forfeiture and damages resulting from trespass as IKE UGWU AKPURU. The plaintiffs claimed to represent Akpulu family of Ikenga. After several amendments of their claim and statement of claim, following closely on the respondents filing their own statement of defence, the case took off and the evidence offered by the parties lead to the close of the case. Learned trial Judge felt as if the plaintiffs were on a wild goose chase and this is evidenced by the record of proceedings substantially made up of amended pleadings by the appellants, provoked each time by the facts in the statement of defence.
appellants submitted for evidence Exhibit A, which according to them represented
the land in dispute. Against this plan is Exhibit B submitted by the
respondents as defendants at the trial court. The two plans are drawn on the
same scale 1":200', but there is a world of difference in their contents
and scope. Exhibit A tendered by the appellants has very limited scope, showing
the area in dispute as pink verged and inside this pink verge are two areas
verged blue which allegedly provoked the litigation leading to this appeal; and
finally an area verged violet allegedly granted by the appellants to the
respondents. Outside the area verged pink, the portion to the East, West and
Southwest are marked as Akpuru (Akpulu?) land. Against this is the respondents'
plan, Exhibit B which covers a larger area and thus having a wider scope. This
exhibit shows a yellow verged area enclosing a pink verged portion corresponding
to the land in Exhibit A allegedly in dispute. Both the area in dispute and the
land surrounding it verged yellow, come under the name Akpuru or Akpulu used by
the appellants to describe the land is not used in Exhibit B. Scattered inside
the disputed area and immediately outside it in the verged portion are various
settlements and farms e.g. Monghalum, Nwafor Uba Atuegwu, Ezekiel Okonkwo, Aronu,
Joseph Umeh, ancient hut of Ugwuowele and Ahanonu Ezenamuo's compounds, all
belonging to the respondents within the disputed area. Similarly within the
yellow verged portion but outside the portion verged pink are settlements of
David Umeh, Nwankwo Odoeze, and others on the west and settlements occupied by
Ugo Ezenemuo, Charles Dimkafor on the East, and farm of Ezeilo to the North, all
occupied by the defendants/respondents family or their tenants.
these areas are not shown on the appellants' plan, Exhibit A.
The only common features in the two plans apart from identical scale of
drawing and similarity of land in dispute are St. Philips C.M.S. Church, Infant
School and Teachers buildings and teachers quarters. Apart from these missing
features in the appellants' plan, there is no dispute as to identity of the
appellants claimed the whole disputed land belonged to them and that whenever
the respondents show presence therein, it was as a result of their permission by
the appellants or through an act of trespass. In the usual manner of the naming
of the land in dispute, the appellants call the land Ikengwu Akpulu or fully
"Ana Ikengwu Akpulu." This is because their family is called Akpulu
family. This family according to the second plaintiff, Ezeanoikwa Umennaikwe,
P.W.2, originated from the first settler on the land called Dimidiji, who begat
Akpulu from whom the family derived its name. They claimed exclusive ownership
of the land and that they farmed on it, harvested crops and economic trees on it
and gave out portions to tenants. Some of the tenants they claimed, are Nwankwo
Ezeilo, C.M.S. Mission, Ikenga, and one Okoye Ezeilo. This secondplaintiff, P.W.
1, is their spokes-man and their case rested squarely on his evidence. He agreed
that their Akpulu family is made up of three sub-families, to wit Umuezeotakviu,
Umuokeke and Umuonono. He attempted to distance Umuonono as subfamily attached
to Akpulu and as of no consequence. But evidence emerged, which learned trial
Judge believed that indeed Umuonono is the principal branch of Akpulu family and
being dissatisfied with the appellants' claim disassociated themselves from the action
giving rise to this appeal. Apparently, it was the plaintiffs' wish to
distance themselves from the Umuonono as found rightly by the trial Judge when
he said inter alia
the witness stated that Umuonono came dnd attached themselves to Akpulu family but they are all known as members of Akpulu family in Ikenga. This witness who is about fifty years old stated that Umuonono people have been living together with their family before he was born. It was his evidence that Umuonono sub-family does not own the land in dispute with the rest of the family. He further stated that they did not join them in bringing this action. He denied the suggestion that Umuonono sub-family is the head of Akpulu family.
witness, P.W.l, insisted it was the plaintiffs that gave the Church Missionary
Society the land on which their Church, Schools and the teachers' houses are
built but offered no evidence in support. As against this is the evidence of the
respondents, showing not only their being in possession, but also their
unequivocal grants to the C.M.S Mission and other tenants and these grants and
possession dated over a lengthy period of time that it is a certainty they and
not the appellants who have better title to the land in dispute The nearest
evidence to proving any right of the plaintiff over the disputed land according
to the Judge, is that of P.W.2, Okerie Ezeilo, who claimed to be the plaintiffs'
tenant, not on the disputed land but on an adjoining land, "having a common
boundary with the land in dispute." This witness, however, confessed he did
not know the families in Akpulu but knew the families seem to be “separated
from each other" only the previous year before he gave his evidence. The
other witness Okorondo Okeke, P.W.3, an in-law of the plaintiffs, said that he
used to work for the plaintiffs on the land without being challenged; this was
all he knew. For his part, Nwankwo Ezeilo, P.W.4, blandly said he knew the land
in dispute belonged to the appellants without anything more, and that is because
he paid tributes to them. He farmed the land only once and had left the land
twelve years prior to his evidence. It is remarkable that none of these P.W.2,
P.W.3 and PW.4 ever in their lengthy evidence pointed at the very portion of the
disputed land where they occupied, however briefly. The trial Judge had no
reason to prefer their evidence to the cogent evidence of the defendants/respondents,
who not only demonstrated where they occupied on the land in question, but also
the grant to the C.M.S. Church. The evidence of the third defendant, as D. W. 1,
as to how the C.M.S. Church was given part of the disputed land in 1957 is
clear and supported by the evidence of the district pastor, D.W.2. This
witness, D .W. 1, tendered Exhibit C, a 1922 case decided in favour of his
father against the plaintiffs' family. As this was not enough, Okoli Ewerije,
D.W.4, who is a member of Umuonono family, the principal family of Akpulu, and
was the head of that family, testified that the disputed land belonged to the
respondents of Amaokuko village call the land Ana Ugwu Owelle and they claimed
that the land had been theirs from the time of their forefathers and that the
appellants are only trying to divest them of it because they had land on the
West of the disputed land as boundary men.
trial Judge in a well considered evaluation of the evidence before him came to
this strong conclusion:
considering the evidence led by the parties in this case and the submission of
their counsel, I have come to the conclusion G that the plaintiffs case is very
weak. 1 do not believe the plaintiffs and their witnesses that the defendants
who undoubtedly live on a portion of the land in dispute live on the land as a
result of a grant made by their ancestor to the defendants' ancestors. I am
satisfied and find as a fact that the defendants live on the land as of right
and not as a result of any grant made to them by the plaintiffs' ancestor. Each
party claims making the grant to the C.M.S., a very important act of ownership.
I do not believe the plaintiffs that the grant was made by them. 2nd plaintiff
in his evidence stated that the grant was made by his father to the C.M.S. But P.W.5
appears to disagree with this claim for in his evidence he stated that
the grant was made by his father to the C.M.S. Ac-cording to him, 2nd
defendant's father, Umennaike, was merely present when his father made the
grant. I agree with Mr. Anyaduba, the learned counsel for the defendants that
failure on the part of the plaintiffs to call an independent witness to give
evidence for them on this important issue weakens plaintiffs' case.
The witness readily admitted under cross-examination that his brother, Anagbogu, is marrying the daughter of the late 1st defendant. Learned counsel for the plaintiffs has capitalized on this piece of evidence and has relied on it as a ground to discredit the evidence of the witness. According to him the witness is not an independent witness the reason being that he came to give evidence merely to support his in-laws. I do not share this view, Rev. Umeobi comported himself so well in court and was unruffled even when under cross-examination some uncomplimentary remarks were made about him. Rev. Umeobi undoubtedly impressed me as a most truthful witness. I accept his account in full about the establishment of the C.M.S. in Ikenga and the humble role he played in bringing this about. I am satisfied and find as a fact that it was the late 1st defendant and the members of his family who gave the land to the C.M.S.
therefore found no merit in the plaintiffs/appellants' case and dismissed it
in its entirety. In the Court of Appeal, the following grounds of appeal. were
canvassed by the appellants:
learned trial Judge erred in law in relying heavily ('n hearsay evidence of Rev.
Umeobi D.W.2 in giving his judgment for the defendants.
PARTICULARS OF ERROR:
(a) Rev. Umeobi who was then only a student, was not present and never participated in the negotiation of granting land to the C.M.S. and never told the court on the finding of the trial Judge that "it was Ahanonu who told him that he gave the land on which the Church was built to the C.M.S.
C. Oti who was mentioned by the witness to have negotiated with the 1st
defendant was still alive and in Imo State was not called to give detail of land
learned trial Judge misdirected himself on facts when he held as follows:
"Each party claims making the grant to C.M.S. a very important act of
ownership. I do not believe the plaintiffs that the grant was made by them. 2nd
plaintiff in his evidence stated that the grant was made by his father to the
C.M.S. But p.w.5 appears to disagree with this claim for in his evidence he
stated that the grant was made by his father, Umennaike was merely present when
his father made the grant. I agree with Mr. Anyaduba, the learned counsel for
the defendants that failure on the part of the plaintiffs to call an independent
witness to give evidence for them on this important issue weakens plaintiffs A
case. Defendants, on the other hands, called Rev. Umeobi a native of Ezinifite
to give evidence about the grant."
of the land to C.M.S. is one of the acts of ownership and was as important as
other acts of ownership given in evidence by the plaintiffs.
learned trial Judge disbelieved the plaintiffs because the 2nd defendant said
that his father made the grant whereas the p.w.5 said that it was his father who made the grant. The 2nd
defendant Ezeanoikwa Umennaike and the P.W.5 is Richard Umennaike and both are
of the assertion that their respective father was the person who made the grant.
plaintiffs called many independent witnesses on several acts of ownership and,
even if, Rev. Umeobi is not an independent witness where his brother is marrying
the daughter of the 1st defendant.
Umeobi's evidence which the learned trial Judge accepted in disbelieving the
plaintiffs contradicted the evidence of the 1st defendant's son D.W.1 in that
Rev. Umeobi said that 1st defendant agreed that "he and members of his
family will become members of C.M.S. Church" as a condition for helping to establish the Church whereas
D.W.1, the son of 1st defendant agreed that he was a Roman Catholic and his
father (1st defendant) died a juju priest.
judgment is against the weight of evidence.
GROUNDS OF APPEAL:
learned trial Judge erred in law being completely misconceived of the real
issue before him.
PARTICULARS OF ERROR:
plaintiffs pleaded that the land in dispute which they own is in Akpulu village
in Ikenga Town.
defendants on the other hand pleaded that the land in dispute which they also
own is in Amaokuko village also in Ikenga Town.
(c) Yet the learned trial Judge failed to consider and therefore G decide - where in fact is this land in dispute in Akpulu village or in Amaokuko village.
learned trial Judge misdirected himself both in law and in fact when he adjudged
The learned Counsel for the plaintiffs when cross-examining these two witnesses introduced a version nowhere pleaded by the plaintiffs in their Statement of Claim.
learned trial Judge failed to consider the rules that ought to, and should be
observed when pleadings are ordered.
learned Counsel for the plaintiffs never introduce any new version
(c) All that the learned Counsel for the plaintiffs did was to lead evidence to expound what was already pleaded namely that the land in dispute is in Akpulu village in Ikenga Town.
argument on the grounds seemed to have coalesced into two issues of whether
judgment was perverse having regard to the claim for declaration of title as
the Judge failed to make findings on issues seriously contested, and
judgment was perverse as to the claims of both parties on the grant to C.M.S.
Court of Appeal (Aseme, Ogundare, Katsina-Alu, JJ.C.A.) rightly found the only
issue of law was the plea of res judicata concerning Exhibit C, a 1922 Native
Court case. The strong point of the appellants' case in that Court is certainly
that of the court's finding on the grant to C.M.S. Church. The only evidence of
a grant to C.M.S. by the plaintiffs is that of P.W. 1. It is far from being
conclusive, at best it is an allegation. But the onus is on the plaintiff to
prove his case; he wins by the strength of the evidence he proffers and it is
not the duty of the defendant to help him. In this case the defendants, now
respondents, took the trouble of showing clearly through a minister in the C.M.S.
Church that the land was actually granted by the respondents in 1957.
D.W.2, who offered this evidence did not have to go far than this on
behalf of the respondents as the primary duty of the plaintiffs/appellants to
prove their case had not been fulfilled. As for the different naming of the land
in dispute by the parties, Aseme J.C.A. in the lead judgment has this to say:
parties agreed therefore that the land is in Ikenga but as usual in these land
matters they named the land in dispute differently, the plaintiffs called it
"Ikengwu-Akpulu" as shown in their survey plan No. PP/E45~76 while the
defendants on the other hand called the land "Am.ugwu Owelle" as shown
plan No. EIGA/209/72. Whatever the land is, the two survey plans which are on
the same scale and prepared by two surveyors have shown the land in dispute.
Plaintiffs did not call the surveyor who prepared their plan and so did not the
survey plan No. EIGA/209/72. Whatever the land is, the two survey plans which are on the same scale and prepared by two surveyors have shown the land in dispute. Plaintiffs did not call the surveyor who prepared their plan and so did not the defendants.
Court dismissed the appeal, and thus the appeal to this Court. The grounds of
appeal complained that the Court of Appeal never adverted to the cases of Amata
V. Modekwe 14 W.A.C.A. 580 and Worhi
Dumiye V. Stephen Iduozo &
(1978) 2 SC. 1. Further, it was contended that the evidence of D.W.2
ought to be regarded as hearsay and discountenanced. In short, the appellants
are contending that the evidence of D.W.2 Rev. Samuel Urneobi was hearsay. The
Court of Appeal, just as the trial court did, found and to my mind rightly so,
that this witness being the superintendent of the C.M.S. Church on the land in
dispute must know who his landlords are. It should be borne in mind that this
witness was a party to the moves leading to the establishment of the Church on
the land since he was a seminary
student on holidays in 1957, by introducing the respondents to Rev. J.C. Oti,
who was then the superintending pastor of the area.
issues formulated for determination by the appellants in this Court are:
as complained by the Appellants the Defendants/Respondents met their
(Appellants') case or whether as stated by B
the Court of Appeal it was a
question of ascribing different names to the same piece of land."
the oral testimony of one of the Defendants' witnesses namely D.W.2 of what he
was told by the 1st Defendant on record on the issue of who gave land to the
C.M.S. was hearsay or not."
the judgment is perverse."
Court of Appeal rightly held, in affirming the trial Court's decision that the
appellants seemed unsure of their case by the numerous amendments of their
statement of claim. It was certainly not an extraordinary sentiment by the lower
Courts; the appellants waited each time for the respondents to file amended
statement of defence provoked by the statements of claim to further amend their
pleadings. It is true a party can amend his pleading up to the close of the case
and before the judgment. But as in this case the appellants amended not only
the pleadings but also the claim (which at any rate was superceded by the
pleadings) amounting to a departure from the original claim. One has to
juxtapose the various statements of claim to know the collosal reconstruction of
the initial claim with the final one. The complaints of the appellants are not
understandable in view of the position taken in their respective plan by the
A, the appellants' plan, called the land in dispute Ugo Akpuru (which I believe
means the same thing as Ugwu Akpulu). Even though this plan is on 200 feet to 1
inch scale as the Exhibit B of the respondents, there is however a world of
difference in what each one indicates. Exhibit A merely F shows the land in
dispute and surrounded it with open space on four sides and except southeast
thereof which is conceded to Ezinnifite people cld
lined the entire surrounding land belonged to Akpuru people. Whereas in
Exhibit B, the respondent enclosed the same land to the North and West of a wall
(defensive wall called Ekpe) touching the Ekpe in the south but floating in
another encirclement to the east before the Ekpe, to the north and substantially
to the west, all verged yellow and claimed that entire yellow
verge as ugwu Owelle. To the east of this yellow verge is the land of
Ezeobu Umuetu, to the south east is the Ezinifite, and to the south west is the
land of Igbo Ukwu. West of this yellow verge is the land of Umuonono and also to
the north. Umuonono is the principal sub-family of Akpuru who refused to join
the appellants in this dispute. To my mind the appellantls have no land within
the yellow verge on Exhibit B, they only wanted to encroach from the H west and
the north but would have no cooperation of their kindred, Umuonono. There is no
confusion, both Amaokuko (where the respondents live) and Akpuru (of the
appellants) are in Ikenga. The inference being drawn by the appellants from the
cases Makanjuo1a V. Balogun
(1989) 3 N;W.L.R. (Pt.1()8) 192, 194; Egonu
V. Egonu (1978)11 and 12
S.C. 134, 135; Emegokwue V. Okadigbo (1973)
4 S.C. 113 is completely inapplicable to this case. There is hardly any averment
that the respondents never traversed, neither were there matters unpleaded that
were relied upon by the respondents. I can hardly find any support or relevance
in the appellants case with the decisions in Amata
V. Modekwe 14 W.A.C.A. 580, 582
or in Nwadike V. Ibekwe
(1987) 4 N.W.L.R. (Pt.67) 718, 741.
the evidence before the trial court in support of the appellants as plaintiffs
was so scanty that their case cannot be supported. In all civil cases, the
person who asserts must prove. In the case of the plaintiff it is he that must
first prove his case and make it strong enough to support his pleading. Should
he fail to do this, his case will remain unproved, however elegant his
pleadings. The failure of the defendant to prove, even his refusal to testify
cannot alleviate the primary burden on the plaintiff to prove his case. In the
instant case, the plaintiffs' case was far from being proved, and in the absence
of admission of their case by pleading and or evidence of the defendants, the
case of the plaintiffs had been doomed from the trial court.
for the alleged hearsay evidence of the evidence of D.W.2, it appears the
appellants are escaping from their primary duty. Can it be said that they proved
their averment that a grant was made to the Church Missionary Society to build
St. Philips Church, School and teachers' houses? The Church is not dead for it
is the Church that will testify who made the grant. The plaintiffs never called
the Church. Rather, the superintending priest of the Church was called by the
respondents as D.W.2. Whether his evidence F was primary or hearsay is not here
relevant, at best, it is a weak link in the case of the defence. But can the
weakness of the defence exonerate the plaintiffs from their primary duty of
proving their case? Their case, they failed abysmally to prove. Mr. C.O. Anah,
of counsel, for the appellants, said the evidence of D.W.2, being that of a
non*member of any of the two families in dispute, should be regarded as hearsay
and therefore inadmissible. Learned counsel went to great pains of supplying
authorities to backup this proposition. Ben Ikpang & Ors. V. Chief Sam Edoho Anor.
(1978)6 and 7 S.C. 221, 247, 248 and 249. He also posited that evidence
of a right must exist for a long time to be of any use in deciding the issue of
title as in this case. He relied on The
Stool of Abjnabina V. Chief Kojo Enyimadu
XII W.A.C.A.171, 172; F.M. Alade V. Lawrence Awo (1975)
4 S.C. 215, 223; Adeyemo V.
Popoola (1987) 3 N.W.L.R. (l,t.66) 578, 589 and 590 These cases, with respect,
have no bearing to the circumstance of the appeal now at hand. They certainly
made remarkable statements of law and are valid, but have no application here.
One concerned chieftaincy dispute and that a member of the family in dispute is
the best witness on happenings in the family or family history; this should
not be extended by analogy to land case in the strict sense.
connected with land whether due to family link with the land as a witness to
what happened to the land or as a party to a transaction on the land is
definitely a competent witness. But in the instant case, the primary duty of the
appellants, as plaintiff in the court of trial was to prove their case and not
to fish for weakness of respondents' case. The appellant failed to discharge this
primary duty; they never proved their case. They are precluded from looking for
faults in the respondents' case. All the evidence of D.W.1 did was to corroborate
the claim of the respondents in defence of plaintiffs' claim. I see
no merit in this submission by the appellants.
find no merit in this appeal and it must be dismissed. I hereby dismiss this
appeal as entirely lacking in merit. I award N500.00 as costs of this appeal
against the appellants.
have had the opportunity of reading in draft the judgment read by my learned
brother Belgore J.S.C. I
entirely agree that the appeal
has no merit and that it has failed. Accordingly, the appeal is hereby dismissed
with N500.00 costs to the respondents.
per their last amended Statement of Claim dated 10/3/79 the plaintiffs,
Ezeokafor Umeojiako & another for themselves and as
representing members of Akpalu family of Ikenga sued the defendants
Ahanonu Ezenamuo & 10 others for the following reliefs:
of title to the plaintiffs piece and parcel of land known as and called "Ikeugwu
Akpulu land" situate at Akpulu Ikenga the annual value of which is about
N10.00 (ten Naira).
of the portion of the said land granted to the father of the 1st and 2nd
defendants by the plaintiffs' family.
(two hundred naira) damages in that the defendants E trespassed
into portions of the said land, not granted to them."
statement of claim supercedes the writ.
the plaintiffs and the defendants filed plans showing the land in dispute, Exh.
A, plaintiffs' plan and Exh. B, defendants' plan. A companion of the two plans
shows, as both the trial court and the lower court have found that the identity
of the land in dispute is not in dispute.
trial Court having heard the parties and their witnesses dismissed F the
plaintiffs' claims because according to that court there was no merit whatsoever
in the plaintiffs case; a decision based on the evidence before him. The
plaintiffs' appeal to the Court of Appeal, Enugu was dismissed, thus confirming
the findings of fact of the trial Court. This is a further appeal to us by the
plaintiffs with leave of the lower court.
this Court we are faced with the concurrent findings of fact in the two 9 lower
courts. The principles to be applied in such a situation are clear.
for the defendants/respondents has called our attention to them in the following
passage in the brief of arguments for the respondents - the defendants:
It is the Policy of the Supreme Court of Nigeria not to disturb concurrent findings of fact of 2 Courts unless there is some miscarriage of justice or a violation of some principle of law or procedure which will justify such interference. See Mogo Chikwendu V. Nwanegbo Mbamali (1980) 3 S.C. Ukpe Ibodo v. Enarofia & Others (1980)5 - 7 S.C. P.42 at 55; Lokoyi V. Olojo (1983)8 S.C. 61 at 68 - 73; Nwobodo Ezendu & Others V. Isaac Obwgwu (1986) 3 S.C. P1 at P21 -22 (1986) 2 N.W.L.R. (Pt. 21) 208.
to the rule as to concurrent findings of fact in two lower courts, the Privy
Council in the Stool of Abinabena V. Chief
Kojo Enyimadu 12 W.A.C.A. 171 at 173 said:-
the rules as to concurrent findings is subject to certain exceptions one of
which is clearly stated by Lord Thankerton at page 259 of the case cited as follows:-
order to obviate the practice there must be some miscarriage of justice or
violation of some principle of law or procedure.
defining miscarriage of justice, Lord Thankerton continues:-
The violation of some principle of law or procedure must be such an erroneous proposition of law that if that proposition be corrected the finding cannot stand; or it may be the neglect of some principle of law or procedure, whose application will have the same effect.
is because of this exception to the rule that I have decided to say a word or
two on issue 2 raised in the plaintiffs/appellants brief namely:-
Whether the oral testimony of one of the Defendants witnesses namely D.W.2 of what he was told by the 1st Defendant on record on the issue of who gave land to the C.M.S. was hearsay or not.
Samuel Umeobi was D.W.2 in the trial court. The evidence which E
the trial Judge accepted and to
which issue 2 relates is as follows:-
the year 1957, I was at Ibadan as Theological student. I returned home on
holidays to my home town Ezinifite. Then the late 1st defendant came to me and
requested me to see that the C.M.S. is brought to lkenga. I told him that I
would do soon the condition that he and the members of his family will become
members of the C.M.S. He agreed. I then sent him to the Pastor at Uga Rev.
Canon, J.C. Oti to take up the matter. I then returned to Ibadan after the
holidays. Rev. Canon Oti is now at Imo. When next I returned home on holidays
the church was already established. It was a thatched house and I worshipped
in the church during one of the evening services. When I saw Ahanonu he was
happy that the C.M.S. church had been established and I also thanked him for
providing the land on which the church was built. It was Ahanonu who told me
that he gave the land on which the church was built." Commenting on his
the learned trial Judge said:-
Umeobi undoubtedly impressed me as a most truthful witness. I accept his
account in full about the establishment of the C.M.S. in Ikenga and the humble
role he played in bringing this about. I am satisfied and find as a fact that it
was the late 1st defendant and the members of his family who gave the land to
is no doubt that the evidence of D.W.2 as to who granted the A church land was
hearsay evidence and consequently inadmissible unless it qualifies as
traditional evidence under section 44 of the Evidence Act. And in the Stool
of Abinabena V. Enyimadu (supra)
at page 172 traditional evidence has been defined as evidence as to rights
alleged to have existed beyond time of living. The right in question now, grant
of land to St. Philips C.M.S. Church in Ikenga said to have occurred not earlier
than 1957 is evidently within time of living. So evidence of D.W.2 in proof
of that grant cannot pass as traditional evidence. So I uphold the contention
of counsel for the plaintiffs/appellants on issue 2 that the evidence of D.W.2
as to what D.W.1 told him as to who granted the land in question to St. Philips
C.M.S. Church in Ikenga was inadmissible and cannot form the basis of a decision
in this case being hearsay evidence see Abowaba
V. Adeshina 12 W.A.C.A. 18 at 20.
this is not the end of the matter on this issue. Later in his evidence after
his evidence-in-chief, most presumably in cross-examination, this witness D.W.2
said as follows:-
Ever since the establishment of the C.M.S. at Ikenga we have recognised Ahanonu as our landlord.
witness was here speaking of his own knowledge and therefore was not giving
hearsay evidence. The clear inference to be drawn from this evidence is that
members of Ahanonu family i.e. 1st defendant's family, granted the land of St.
Philips C.M.S. Church at Ikenga to it. So, besides the hearsay evidence of D.W.2
as to who made the grant, there was evidence from him from which the inference
as to who made the grant can be properly E
drawn. The inference is in line
with the hearsay evidence which must be rejected. So in the circumstance, the
admission of the hearsay evidence has in fact not occasioned a miscarriage of
justice. In this regard section 226(1) of Evidence Act says:
226 (1). The wrongful admission of evidence shall not of itself be a ground for the reversal of any decision in any case where it shall appear to the court on appeal that the evidence so admitted can-not reasonably be held to have affected the decision and that such decision would have been the same if such evidence had not been admitted.
I have said earlier on in this judgment we are concerned with concurrent
findings of fact of the two courts below. I have shown that the violation of the
principle of law which counsel for the plaintiffs/appellants correctly in my
judgment pointed out could not have resulted in any miscarriage of justice.
judgment of the trial court which the lower court confirmed was amply supported
by the evidence before it.
the above reasons and the fuller reasons given in the lead judgment of my
learned brother Belgore, J.S.C., which I have had the benefit of reading in
draft, I too dismiss the plaintiffs/appellants' appeal with N500.00 costs to the
is a further appeal by the plaintiffs against
the judgment of the Court of Appeal, Enugu Division. That Court had
dismissed an appeal by the same plaintiffs against the judgment of Umeunwa, J.,
who had dismissed the plaintiffs case. The claim, as amended in the statement of
claim, was for a declaration of title to "Ike Ugwu Akpulu" land said
to be situate at Ikenga, forfeiture of the land granted to the defendants, £100.00
damages for trespass and perpetual injunction.
full hearing the learned trial Judge came to the following conclusions on the
facts before him namely:
a 1922 Native Court proceeding, Exh. C., on which the defendants relied for
their plea of estoppel per rem judicatam could
not so operate because it was not shown that the parties therein were the same
with those in the instant suit; in any event, that the record was incomplete;
the plaintiffs' case was very weak;
the defendants live on the land in dispute, not as a result of a grant from the
plaintiffs but as of right;
each side claimed to have made a grant to the C.M.S., he believed D.W.2, Rev.
Samuel Umeobi, and so he was not satisfied that it was the plaintiffs who made
the grant; and
he believed D.W.4, Okoli Enwerije, from Umuonono Family of Akpulu Village, that
the land belongs to the defendants and that it was they who made a grant of
part of the land in dispute to his father.
therefore dismissed the plaintiffs' case.
appeal to the Court of Appeal, the Court, coram:
Aseme, Ogundare, and
Katsina-Alu, JJ.C.A., dismissed the appeal. Their Lordships held:
We were satisfied that in this case the learned Judge correctly set out the issues on the pleadings, assembled the evidence of witnesses by both sides and as in Mogaji vs. Odofin (1978)4 S.C. 91,weighed the evidence so adduced on the imaginary scale and came to the right conclusion. I am satisfied that there is no merit in this appeal which I dismiss with N200.00 cost to the respondent.
further appeal to this Court the main thtust of the argument of the learned
counsel for the appellants is duofold. First: that there are ten villages in
Ikenga, including the plaintiffs' (appellants') Akpulu village and the defendants'
(respondents') Amaokuko village which is some three miles away. The land in
dispute is situate inside Akpulu village. So, it was unreasonable to have held
that the respondents could have owned the land deep inside the appellants'
village otherwise than by reason of the customary grant, which appellants have
pleaded and rely upon. Secondly: that, as the learned Judge recognized the fact
that the grant to the C.M.S. was a very vital issue of fact, he was wrong to have proceeded to resolve it upon the
evidence of D.W.2 whose evidence was hearsay in that he merely testified as to
what the 2nd defendant told him.
wish to begin my consideration of the arguments of counsel on both sides
in this appeal by stating that if the appellants had from the beginning and
throughout the case concentrated on the line which their counsel's argument
has taken in this court and called the necessary evidence in support thereof,
they would have had a very strong case indeed. This is because, as
the West African Court of Appeal
stated in Udekwu Amata V. Udogu Modekwe,
etc. (1954)14 W.A.C.A. 580,
at 582, it is improbable that if the respondents' village is so many miles
away, they would have ancestral homes and permanent buildings in the appellants'
own village situate such a distance away. Indeed it is a principle declared by
statute and affirmed in so many decided cases that acts of possession and
enjoyment of land may be evidence of ownership not only of that land over which
the acts are done, but also of other lands so situated or connected with it by
locality or similarity that what is true of that piece or parcel of land is
likely to be true of the other. See section 45 of the Evidence Act; See Okechukwu
& Ors. V. Okafor & Ors. (1961)1
All N.L.R. 685;  2 SCNLR
369 also D.O. Idundun & Ors. V. Daniel
Okumagba (1976) 9-10 S.C.
227, at p.249. So, as a proposition of the dry bones of law, the learned
counsel for the appellants is right.
important question, however, is this: on the actual case which the appellants
brought to court, did they establish the necessary facts for the application of
the law? In my respectful opinion, the answer is in the negative. In saying so,
I have to bear in mind the fact that this being basically a claim for a
declaration of title, the appellants as plaintiffs had to succeed on the
strength of the case and evidence which they brought to court, any weakness in
the defence case notwithstanding: J.M.
Kodilinye V. Mbanefo Odu (1935) 2
W.A.C.A. 336, p.337; Ayitey Cobblah V.
Teney Gbeke (1947) 12 E
W.A.C.A. 294, at p.295.1 am underscoring this principle because learned counsel
for the appellants in his submission stated a few times that the respondents'
did not meet the appellants' case.
the contrary, I thought that if the main plank in the appellants' case was that
the respondents ancestral village, Amaokuko, was far away from the land in
dispute and that the land was situated in the heart of the appellants village,
their first duty was to have filed a plan showing these two important features
namely: the respondents' ancestral village lying far from the land in dispute
and the land in dispute embedded in, and surrounded by appellants' other land
owned and occupied by them. But they did not. All that their plan shows was the
land in dispute with a few other lands of theirs shown beyond the periphery. No
attempt was made to show the relative positions of the two ancestral villages.
Understandably, on this state of the appellants' plan the respondents reproduced
the plan but claimed the surrounding lands as their own. The learned trial
Judge held, and I agree with him that on this state of the plans, there is no
dispute as to the identity of the land in dispute. Above all, what tolled the
death knell of the appellants' case, even as it was, was that they failed to
call evidence of any of their boundary neighbours. In particular, they did not
call any witness from Ezinifitte, which was shown in the plans of both parties
as boardering the land in dispute in the south, to support their case. Rather
it was the respondents who called one of them, Rev. Samuel Umeobi, as D.W.2. He
testified as to how the C.M.S. church was established on the land in dispute and
that when he was the Superintendent of the church they had always recognized one
Ahanonu, a prominent member of the respondents' village, as their landlord.
I believe that the most devastating blow to appellants' case was the evidence of
D.W.4, Okoli Enwerije, the head of Umuonono Family of Akpulu who testified on
oath that the land in dispute was that of the respondents and that the
appellants themselves were strangers on Umuonono land. But it was the
appellants' case that they were prosecuting the case for and on behalf of the
whole of Akpulu. The evidence of D.W.4 was therefore clearly an admission
against interest by a section of the community on whose behalf the case was
being prosecuted. It is therefore a very strong evidence against the appellants'
case. When a person or persons on whose behalf a case is being fought come
forward and swear that they have no case at all, a situation is created which
rather compels a trial court to take a certain course, the fact t lat
an admission is not usually
conclusive notwithstanding. Coupled with this and the evidence of D.W.2, the
only witness from the Ezinifitte neighbours is the fact that from their
pleadings the underpinnings of the appellants' case were brittle and weak, if
not completely in a collapsed state. For in paragraphs 8 and 10 of their amended
statement of claim dated 19th day of January, 1976, they pleaded that their
predecessor-in-title granted the land in dispute to those of the respondents.
They did not aver that it was a conditional or a revocable grant. Although they
later, in paragraphs 11 and 12, mentioned the payment of some tributes for
sometime - and it had long been stopped - they did not plead that its payment
was a condition for the grant or a continuation of it. In the circumstances
one is bound to ask the question: can the appellants successfully sue for
forfeiture of an outright grant made by their predecessor-in-title? I think that
on their own case alone if they ever had title, they lost it by the grant. I
therefore entirely agree with the courts below that the appellants' case was
palpably very weak.
shall deal with the second major issue, that is the evidence of D.W.2, F rather
briefly. The gist of the appellants' complaint is that his evidence as to the
important issue of the grant to the C.M.S. was as to what the 2nd defendant
told him, which was hearsay. I must state right away that if that were the only
import of his testimony, it would have been inadmissible. See
Abowaba V. Adeshina 12
W.A.C.A. 18, at p.20; also Management
Enterprises Ltd. V. Otusanya (1987)
2 N.W.L.R. (Pt.55) 179, at p.193. But let me say that I do not agree with Mr.
Anyaduba that the evidence in question was admissible G
as evidence of tradition under
section 44 of the Evidence Act. This is because hearsay evidence which is
admissible under section 44 of the Evidence Act should be not only that of a
family tradition but also that which is "earlier than the memory of
living witnesses:" see Commissioner
of Land V. Adigun (1937) 3
W.A.C.A. 206. Not only was the evidence in the way it was given not evidence of
family tradition but also an account being given in 1979 about a 1957
transaction cannot, by any stretch, be referred to as being beyond living
memory. But even if the portion of the evidence of D.W.2 as to what the 2nd
defendant told him is disregarded as hearsay there remain his account as to what
part he played in setting up the C.M.S. Mission on part of the land in dispute
and, importantly, the fact that during his tenure as Superintendent
of the Mission he regarded the respondents as their landlords. So even if I
disregard the part of the evidence of D.W.2 which is hearsay, there are still
parts of his evidence which would combine with the other facts and features of
the case which I have discussed to justify the verdicts of the courts below.
Bearing in mind the fact that this was a claim founded on a declaration of
title, I am of the clear view that the appellants have clearly failed to
discharge the onus on them.
the above state of the facts, what should be my conclusion in this appeal? I
must bear in mind that there have been concurrent findings of fact by the two
lower courts; that those findings have not been faulted by the argument before
us; that those findings confirm that the appellants' case is weak and that they
failed to discharge the onus of proof on them. what is more, the respondents are
admitted to be in possession whereas the appellants failed to prove the grant
with which they sought to explain away the respondents' possession. In this
state of the facts, I must warn myself, as I did in Karimu Olunjile V. Bello Adeagbo
(1988)2 N.W.L.R. (Pt.75) 238, at p.255,
…….this Court does not make it a habit to upset concurrent findings of fact and concurrent judgment by two or three courts.
will only do so when it has been satisfied that there has been a serious error,
such as a wrong approach to the issue of onus of proof, or to the evidence
called by either side or its evaluation, or a violation of an important
principle of law or of procedure, or of the principles of fair hearing, or the
like which has occasioned a miscarriage of justice or the findings are shown to
be perverse. See on these –
(1980) 5 - 7 S.C. 42
Chikwendu & Ors. V. Nwanegbo Mbamali & Anon. (1980) 3)4 S.C. 31.
George Onobruchere & Anor V Ivwromoebe Esegine
(1986)1 N.W.L.R. (Pt. 19)799. On
these principles, I have no alternative but to dismiss the appeal.
the above reasons, I agree with my learned brother, Belgore, J.S.C., that the
appeal fails. It is hereby also dismissed by me with N500.00 costs in favour of
have had the privilege of reading in advance, a copy of the lead judgment of my
learned brother, Belgore, J.S.C., and I agree with his reasoning and the
conclusion that the appeal lacks merit.
evidence proferred by the parties to the dispute has been properly considered
and evaluated by the trial court as a result of which it arrived at the right
decision that the appellants had failed to prove their case. On the other hand,
it found that the Respondents had adduced sufficient and reliable evidence in
proof of their claim and entered judgment in their favour.
appeal to the Court of Appeal the findings by the learned trial Judge on facts
and law were painstakingly examined and affirmed, thus dismissing the appeal.
is concurrent findings of fact reached by the High Court, and the Court of
Appeal that on the totality of the evidence proferred by the appellants. they
did not prove their claim to the land in' dispute. Where there are concurrent
findings of fact of the lower courts, it has been the established policy of this
Court not to interfere with such findings unless there is some miscarriage of
justice or violation of some principles of law or procedure that will
necessitate and justify such interference. See Sule
Oladelo Asariyu V. The State (1987)11-12
SCNJ 125; (1987) 4 N.W.L.R. (Pt.67)709, Sunday
Nwosu v. Board of Customs and Excise (1988)12 SCNJ 313; (1.988) 5
N.W.L.R. (Pt.93) 225, Lokoyi V. Olojo
8 S.C. 61 and Ukpe
Enarofia & Ors. (1980)
these same reasons contained in the lead judgment of my learned brother,
Belgore, J S.C., I shall also dismiss the appeal. I abide by the consequential
order contained therein, including that on costs.