In The Supreme Court of Nigeria
On Friday, the 26th day of January 1990
SC 154/1987
Between
Anazodo Nwosu ....... Applicant
And
Chukwumanjo Udeaja ....... Respondent
Judgement of the Court
Delivered by
Abdul Ganiyu Olatunji Agbaje. J.S.C.
The plaintiff, Anazodo Nwosu, sued the defendant, Chukwumanjo Udeaja in the then High Court of East Central State of Nigeria in the Onitsha Judicial holden at Onitsha claiming against him as follows:-
(a) Declaration of Title to all that piece or parcel of land situate at Umu-Umeagbu family Uruagu Nnewi as will be delineated in the plan to be filed with the Statement of Claim. General annual value not more than £5.
(b) £100 damages for trespass.
(c) Injunction to prevent the defendant his agent and/or servants from trespassing into the said plaintiff's land.
Pleadings in the case were ordered by Oputa, J. (as he then was) on 20th November, 1972. After pleadings had been filed and exchanged and after a series of interlocutory applications which have nothing to do with this appeal, actual trial of the case began before Uyanna, J., on 14th May, 1982 in the High Court of Anambra State of Nigeria in the Nnewi Judicial Division holden at Nnewi to which the case was assigned after Anambra State has been carved out of the old East Central State of Nigeria.
The learned trial Judge, Uyanna, J., having heard the parties and their witnesses gave judgment for the plaintiff in the following terms:-
(1) That Exh. A dealt with ''Ana Mbubo" which is part of and within the area verged green on Exh. L, plan No. EC365/72 tendered by plaintiff.
(2) That the whole of the land verged pink on both plans is not the area of land the subject matter of Exh. A.
(3) That Exhs B & D are relevant and refer to the land the subject matter of Exh. A.
(4) That the land mentioned on Exh. A was sold to plaintiff's father and that part of the terms of Exh. A was that if the defendant's father did not pay back the sum borrowed from plaintiff's father, plaintiff's father could take over defendant's father's house which plaintiff had done since 30 years defendant's father died. It follows from the findings that the plaintiff is entitled to declaration of statutory rights of occupancy in respect of the portion of land verged green within Exh. L. plan No. EC 365/72. Plaintiff is also entitled to a decree of an order of perpetual injunction in respect of the area verged green. The plaintiff is not entitled to damages as claimed since the defendant had exclusive possession. Plaintiff's claim is dismissed as regards area of the land not within the area verged green.
The plaintiff was not entirely satisfied with the decision of the learned trial Judge so he appealed against it to the Court of Appeal, Enugu Judicial Division contending there that on the admissible oral and documentary evidence before the trial court, he was entitled to judgment in terms of his claim not only in respect of the area verged "green" on the plan of the land in dispute, Exh. A as ordered by the learned trial Judge but also in respect of the whole of the land put in dispute by him on the said plan that is, the area of land verged "pink" thereon. The Court of Appeal coram Maidama, Akpata and Babalakin, JJ.C.A. rejected the contentions of the plaintiff before it and in its judgment dated 20th May, 1985, dismissed the plaintiff's appeal to it and affirmed the judgment of the trial court.
This is a further appeal by the plaintiff to this court against the decision of the trial court albeit by way of an appeal against the decision of the Court of Appeal in its appellate jurisdiction on the judgment of the trial Court. Leave of the Court of Appeal to appeal against the decision was sought and obtained on the 25th September, 1985.
The plaintiff is now attacking the judgment of the Court of Appeal on the following grounds of appeal, leaving out their particulars:-
GROUND 1
That the Honourable Court of Appeal erred in law and in fact when they upheld the judgment of the Nnewi High Court which was a misdirection to the effect that there were no numerous and positive acts of possession such as building grants which would have existed long before 1972. Thereby ignoring the preponderance of evidence which point to long possession of the land by the plaintiff/appellant.
GROUND 2
The Honourable Court of Appeal erred in Law and in fact in upholding the decision of the Nnewi High Court to the effect that Exhibit G and Exhibit H were rightly rejected, this was because the action was in respect of two pieces of land known as Ana Uno and Ana - Ofia, and further that decisions in cases referred in the Exhibits not pleaded or even seen by the learned trial Judge. Exhibit C was rejected because it was not pleaded, and this particular exhibit C was that which the Court of Appeal said was not even shown to the Judge.
GROUND 3
That the Honourable Court of Appeal erred in law and in fact in holding that having now admitted Exhibits E and F, which were wrongly expunged, by the court below does not alter the fate of plaintiff/appellant's case having regard to the totality of evidence.
GROUND 4
That plaintiff/appellant was in constructive possession of the land in dispute, both the High Court and the Court of Appeal erred in law and in fact by not awarding damages for the trespass committed by the defendant/respondent.
GROUND 5
The judgment is against the weight of evidence.
Briefs of argument were filed and exchanged on both sides. In the plaintiff's brief of argument, the issues arising for determination in this case have 'lot at all been precisely identified. It is perhaps in respect of issues Nos. 9 & 10 in the plaintiff's brief of argument that one can say that any precise issues have been identified as arising for determination in this case. The said Issues 9 and 10 are as follows:-
(9) Whether the appellant had not proved sufficient acts of user over the piece or parcel of land.
(10) Whether the Court of Appeal was right in rejecting Exhibits C, G and H; when the same court admitted Exhibit N from the respondent even though the parties in that case were not parties in the present suit?
The defendant, in his brief of argument, for his part, stated the issues arising for determination in this appeal from the plaintiffs grounds of appeal B as follows:-
It is humbly submitted that the issues for determination in this Appeal are the following:
ISSUE NO. 1
Did the appellant plead and give evidence of acts of possession on the whole of the land in dispute.
If he did, were the acts over a sufficient length of time and numerous and positive enough for a declaration of title to be decreed in favour of the appellant on the authority of Ekpo v Ita 11 N.L.R. 68. Did the Court below err in affirming the decision of the trial court, which awarded title to the appellant only to a portion of the land in dispute? In circumstances of this case, does the equitable principle of long possession apply in the appellant's favour.
(Ground 1 of the Appeal)
ISSUE NO. 2
Did the Court of Appeal err in upholding the decision of the trial Court that Exhibits "G" and "H" were inadmissible in evidence? in this case. If it did, did that lead to a miscarriage of justice. (Ground 2 of the Appeal)
ISSUE NO. 3
The Court of Appeal having held that Exhibits "E" and "F" are admissible in evidence, did the Court of Appeal err in holding that the said admission "does not alter the fate of the plaintiff/appellant's case having regard to the totality of evidence." If it did, did that lead to a miscarriage of justice.
(Ground 3 of the Appeal)
ISSUE NO. 4
Did the appellant plead and give evidence of constructive possession of the land in dispute. If he did, was the Court of Appeal in error in affirming the decision of the trial Court that the respondent was not liable in trespass.
(Ground 4 of the Appeal)
ISSUE NO. 5
Was the decision of the trial Court, affirmed by the court below, against the weight of evidence adduced at the trial.
(Ground 5 of the appeal)
It appears to me that the defendant in his brief of argument has correctly identified the issues arising for determination in this appeal from the plaintiffs grounds of appeal. So, I will stick to the issues arising for determination nation in this appeal as identified by the defendant in his brief. Before I embark on the consideration of these issues, I will like to state the case of the plaintiff in the trial court and the defence of the defendant to it.
The case of the plaintiff is as pleaded in the following paragraphs of his Statement of Claim:
3. The land in dispute which is known as and called Ana Mbubo is situate at Uruagu Village in Nnewi. The area, extent and boundaries of the said land are clearly shown and delineated pink in the plaintiff's plan No. EC 365/72 filed with this Statement of Claim.
4. The land in dispute hereinafter referred to as the "Land" was originally the property of Solomon Udeaja whom the defendant claims to be his father.
5. On the 31st March 1928 the plaintiff's father Nwosu Ezeala bought the land from the said Solomon Udeaja for 17 bags of cowries and one goat in accordance with the Nnewi native laws and custom and the said Solomon Udeaja acknowledged the receipt of the said money and goat in a memorandum dated March 31, 1928.
6. After the customary sale of the said land to the plaintiff the said Solomon Udeaja pledged the same land to Obineke Ezeudefuna and Ezeobi Ikwele.
7. This double deal by Udeaja gave rise to a series of litigations in Court. Thus in Suit No. 127/51 the plaintiff sued Obineke Ezeudefuna and one other to come to Court and accept the sums of £5:l0s and £2 being the equivalent of the money for which the land was pledged. The Court gave judgment for the plaintiff. The Assistant District Officer Mr. Somerset on 19/6152 confirmed the judgment and the plaintiff redeemed the land from the people to whom Udeaja wrongfully pledged the land.
8. Later the very Solomon Anyamene whom as pleaded earlier the defendant claims to be his father sued the plaintiff in Suit No.13/48 claiming in respect of the land as follows:-
(1) Declaration of title.
(2) £5 damages for trespass and
(3) An order of the Court for defendant and his heirs further trespass into the land.
The Court dismissed his claim but made no order as to costs.
9. Udeaja the plaintiff in that case appealed to the Nnewi Area Court in Appeal No.23/48 and contended among other grounds of appeal that the land was never sold outright to the defendant (now the plaintiff) but was a pledge which could be redeemed. The Court after a considered judgment made the following findings of fact:
(1) That the land was sold outright by the plaintiff in that case to the defendant (now the plaintiff.)
(2) That the defendant (now the plaintiff) is the owner of the land. However the Court advised the defendant to allow the plaintiff the area he has walled to live. If he dies defendant should own this very area. "The plaintiff in that case later died and the defendant who is the present plaintiff occupied the area in accordance with the judgment of the Court.
10. The plaintiff in that case appealed to the District Officer and on review the District Officer on 12th August 1948 found as a fact that the land was sold outright, dismissed the appeal and confirmed the judgment of the lower Court.
11. The District Officer in his judgment reviewed the earlier case of 39/42 in which the said Udeaja admitted that he sold the land to plaintiff. This judgment as well as the series of other judgments above mentioned shall be founded upon at the trial.
12. Appeal in Suit No.127/51 as averred in paragraph 7 above went up to the Lieutenant-Governor Sir Clement Please, K.B.E., C.M.G. who affirmed the Resident's judgment and dismissed the defendants/appellants' appeal.
15. In 1959 in Suit No. 90/59 the plaintiff sued Ezeasomba Ezeudefuna "for an order of the Court for the defendant to appear and let us fix cement pillars on the boundary of land which we have got dispute Ana Mbubo" The plaint note No.90/59 of 3rd September, 1959 shall be founded upon. As a result of this action boundary pillars between the plaintiff's land verged pink in plan No. EC22/51 or EC365/72 filed with this Statement of Claim were fixed by the Court and they are still in existence and are clearly shown in the plan EC 365/72 aforementioned.
16. On the 11th November, 1971 the present defendant came as it were from the blues and began to claim the land which the man whom he claims to be his father had in vain fought for. The defendant instructed Mr. B.C. Ogbuli Solicitor to write letter MS/71/71 of 11th November, 1971 to the plaintiff saying that the plaintiff is a tenant of his father and that the plaintiff should accept the redemption money and quit the land.
17. Thereafter on or about the 25th October 1972 the defendant unlawfully broke and entered the land uprooted the plaintiff's cassava and cocoyam, cut some palm trees excavated foundation and began to build thereon."
The defence of the defendant to the case is essentially contained in paragraphs 4 - 8 and 12 of the defendant's amended Statement of Defence G which are as follows:-
4. In answer to paragraph 4 of the Statement of Claim the defendant says that the land in dispute originally belonged to Digboalaeze. On the death of Digboalaeze his son Anyamene inherited the land in dispute. On the death of Anyamene his son Udeaja inherited the land in dispute and on the death of Udeaja, his son, the defendant inherited all his father's property including the land in dispute, in accordance with the native law and custom of Nnewi people.
5. The defendant denies paragraphs of the Statement of Claim and will put the plaintiff to the strictest proof thereof Nwosu Ezeata did not on the 31st March 1928 or any other time purchase the land in present dispute or at all nor did the alleged memorandum dated March 31st, 1928 deal with the land in dispute.
6. In answer to paragraph 6 of the Statement of Claim the defendant denies any customary sale by Solomon Udeaja of the land in dispute to the plaintiff or to the plaintiff's father. The defendant also denies that his father pledged any portion of the land in dispute to Obineke Ezeudefuna and Ezeobi Ikwele.
7. The defendant denies paragraphs 6 and 7 of the Statement of Claim and will put the plaintiff to the strictest proof thereof. The plaintiff surreptitiously used the transaction evidenced by the memorandum of March31, 1929 to lay claim to all lands of Solomon Udeaja. At that time, Solomon Udeaja was not party to the said suit No.127/51, nor could he be since he was already dead then, also at that time Solomon Udeaja's children were minors and because of the molestations and hostility of the plaintiff to the children their mother with the children took refuge at Awka in her father's house. Neither the wife of Solomon Udeaja nor the defendant knew or heard about Suit No.127/51.
8. The defendant denies paragraph 8 of the Statement of Claim and will put the plaintiff to its strictest proof. Agbaja Native Court Suit No.13/48 related to other pieces of land viz "Ana Uno" and "Ana Ofia" not the land in present dispute which the plaintiff himself calls "Ana Mbubo."
12. In answer to paragraph 14 of the Statement of Claim the defendant denies that the construction put on suit 35/55 or suit 127/51 is what is contained in the judgments. In any case, both suits are irrelevant to the present suit as neither the defendant nor his ancestor was party to either of them nor did they relate to the land which is the subject matter of the present dispute.
The plaintiff gave evidence in support of the contentions in his Statement of claim and tendered certified true copies of the various judgments he pleaded. Then he called a licensed surveyor, one Chief Ejike Chidolue who put in evidence a survey plan of the land in dispute in this case Exh. L and a survey plan of the land when he had earlier surveyed it for the plaintiff in September 1951 for a previous land case, Exh. "M." The plaintiff called no other witness.
The learned trial Judge when the plaintiff sought to put in evidence certified true copies of the various judgments he pleaded and counsel for the other side objected to their admissibility ruled as follows:-
As I said earlier, it is too premature to object against admissibility on the ground of irrelevancy. The documents should go in at this stage and the court may hear further addresses later on. Objection overruled: They are tendered as follows. Suit No.39/42 marked Exh. B; Suit No. 58/42 marked Exh. C. Appeal dated 16/ 3/51 marked Exh. D. Appeal No.2/1953 marked Exh. E Suit No.127/51 marked Exh. F
After this ruling, the record of proceedings indicates that the plaintiff A then gave the following evidence:-
After I had sued these people they incited Solomon Udeaja to sue me and I won him in the suit. He appealed against the judgment and I won him. I received certified copies of the judgment and the appeal thereon.
The objection to their admissibility having been overruled, the certified true copies of the judgments in Suits No.13/48 and Appeal No.23/48 were admitted in evidence as Exhibits G and H respectively.
The learned trial Judge in the course of the judgment he gave in the case reviewed the above rulings and held that as regards Exhs. B and D they were properly admitted in evidence by him but as regards the other documents i.e. Exhs. C, G, H, E and L previously admitted in evidence by him, he stated that he was satisfied that they ought not to have been admitted by him in evidence and he then rejected them and expunged them from the proceedings in the case before him.
There is no doubt that the trial Judge properly directed himself as to the case of the plaintiff before him as the following passages from his judgment show:-
The plaintiff seeks a declaration of title to a piece of land shown on plan No. EC.365/72 verged pink thereon and marked Exh. L in this proceeding. He also seeks an order of perpetual injunction against the defendant, his servants, agents or privies to restrain them from further acts of trespass on the said land. In addition he claims a sum of N200.00as damages for the alleged trespass.
Both parties exchanged pleadings. As said earlier plaintiff's plan is marked Exh. L and that of defendant, Exh. O In his pleadings as in his evidence plaintiff averred that his father Nwosu Ezeata bought the portion of land in dispute from defendant's father, Solomon Udeaja. The sale was conducted under Nnewi Native Law and Custom. As a condition under this custom a goat was slaughtered. A sum of 17 bags of cowries then the legal tender was paid to the defendant's father. A receipt was issued for this payment - it also mentioned the terms of sale. This receipt was admitted and marked Exh. A. Despite objection by the defendant, this document was admitted. Further reference will be made to this later in this judgment. The sale according to plaintiffs case was made in 1928. According to plaintiff this action arose because in 1972 "the defendant unlawfully cut some palm trees and excavated foundation and began to build thereon" (paragraph 17 Statement of Claim)
In the course of his evidence, the plaintiff tendered in sup-port of his claim certified copies of judgments which he said took place touching the disputed land which judgments terminated in his favour ..
The defendant is the son of the person whose father, according to plaintiff, sold the disputed land to his (plaintiff's) father."
From the following passages from the judgment of the learned trial Judge it appears clear that the defence of the defendant to the plaintiff's claim was present to the learned Judge's mind:
In his Statement of Defence as well as in his oral testimony defendant denied that his father never (sic) sold the disputed land to plaintiff's father. The land had originally belonged to his great ancestor, Digho Alaeze. After the death of Digho Alaeze his, defendant's father, Solomon Udeaja, inherited the land under Nnewi Native Law and Custom. Upon the death of Digbo Alaeze he, defendant, inherited the whole area in dispute. He said he knows "Mbubo Solomon Udeaja" - he said it has no connection with the disputed land. His father he said did not pledge the disputed land to plaintiff's father. His father died in 1950 and before his death was living on Ana Digho Alaeze land. Before his father's death he, defendant was living on the disputed land with his father and mother. No sooner that his father died than the plaintiff began molesting his mother. As a result, she fled to Awka her parent's home along with him and her other children. He defendant and other children returned to Nnewi at the end of Nigerian Civil War. He consulted Counsel who wrote a letter to plaintiff to accept the redemption money his father borrowed from plaintiff's father when the defendant's father was litigating over other lands - not the one in dispute. Defendant continuing said plaintiff under cover of the loan made by his plaintiff's father to his father was grabbing lands belonging to defendant's father. As a result D.W. 1, his eldest sister lodged a complaint to the Agbaja Native Court in 1953 - that complaint was tendered as Exh. N. in 1972 when the plaintiff would not accept the redemption money he went into the disputed land and began erecting a building. He said he had almost completed the building by the time plaintiff took out this writ. Finally he said that the plaintiff lives on "Mbubo" which is on Digbo Anaeze land. He did not put plaintiff on the land nor did he acquiesce that he continues to live thereon.
It appears clear to me too that the learned trial Judge also appreciated it that the onus was on the plaintiff to prove that the area of land which was the subject matter of the transaction in Exh. A was the same as the area of land in dispute in this case. The learned trial Judge on the evidence before him came to the conclusion that the transaction between the plaintiff's father and the defendant's father Nbubo Solomon Udeaja evidenced in part by the document, Exh. A, related to the transaction of sale in respect of a piece of land known and called Nbuho land. The learned trial Judge appreciated it also that Exh. A, the Memorandum of the transaction of sale of land under Native law and custom was silent as to the name and description of the land to which it referred. He then held that the fact that Exh. A was silent on these points was not fatal to the plaintiff's case. On the totality of the rest of evidence before him including Exhs.B and D, the certified true copies of judgments put in evidence by the plaintiff and the evidence adduced by the defendant, the learned trial Judge came to the following conclusions as regards the identity of the land sold by the defendant's father to the plaintiff's father:-
It follows therefore that as far as the name of the land in dispute is concerned and as regards whether it was sold or pledged - Exh. B is relevant. I am therefore satisfied that Exh. B was properly admitted in this proceeding. Exhibit B was also the subject of appeal in Exh. D - the judgment of the lower court in Exh. B was upheld. The Appeal Court found as long ago as 1942 that plaintiff's father had built on Ana Mbubo - "thereby precluding the possibility of redemption even at double rate." Equally too Exh.D is relevant to this proceeding and was properly admitted in evidence. The combined effects of plaintiff's evidence, evidence of D.W. 1 and judgments in Exhs.B and D is that the land sold to plaintiff's father is Ana Mbubo and that plaintiff built on it more than 40 years ago according to Exh.D which I consider was properly admitted in evidence.
Having so held, the learned trial Judge proceeded as follows:-
Having accepted that Ana Mbubo is the subject matter of Exh. A, it remains to consider whether Ana Mbubo is coextensive with the land in dispute. Although plaintiff claimed the whole area verged pink on his plan Exh. L he, plaintiff, did not refer to the whole land as Ana Mbubo. I am not satisfied that the whole land verged pink on Exh. L is Ana Mbubo. Ana Mbubo is, I think, that area verged green on plaintiff's plan Exh. L. I have come to the view that the land sold to plaintiff's father is the portion verged green on plaintiff's plan because outside that portion there are no "acts of ownership numerous and positive enough to warrant inference that plaintiff's possession is to the exclusion of the defendant" - Aderemi v. Adedire. This view is fortified by the fact that although plaintiff's father bought the land on Exh. A over 54 years ago the only positive acts unequivocal is apparently the grant of one Samuel Ezimuo of a portion of land on which he is yet building an uncompleted house as shown on Exh. L - on the Southeast portion within the land verged pink. If areas outside (he portion verged green were comprised in the transaction recorded on Exh. L there would have been numerous and positive acts of possession such as building, grants to persons which would have existed long before 1972 when this suit was instituted. No doubt, dotted here and there, outside the area verged green, are portions described as "Cassava and yam farms and economic trees by plaintiff." These might equally have been planted by the defendant or his father. They are not conclusive in favour of the plaintiff that he is exclusively in possession. The rule is that a plaintiff cannot get a decree for more than he proved.
It was upon the above findings read as a whole that the learned trial Judge founded his judgment in favour of the plaintiff to which I have refer-red earlier on in this judgment.
As I have said earlier on in this judgment the plaintiff was not satisfied with the judgment and so he appealed against it to the Court of Appeal, Enugu Division contending there that he was entitled to judgment in respect of the whole of the land in dispute in Exh. L, the survey plan.
Arising from the issues put forward for determination in the lower court, the Court of Appeal, as per the lead judgment of Babalakin, J.C.A. in which Maidama and Akpata, JJ.C.A. concurred, held that Exhs. G, H and C, which as I have shown earlier on in this judgment were expunged from the evidence after the learned trial Judge had previously admitted them in evidence, were rightly rejected by the learned trial Judge. However, it was held that Exhs. F and E ought not to have been so treated by the learned trial Judge. So, these two exhibits were, so to say, re-admitted in evidence. Having readmitted Exhs. F and E in evidence, it was further held that they could not have enhanced the case of the plaintiff for the following reasons:-
It will be observed that this case Exhibit F was neither between the plaintiff/appellant and the defendant/respondent nor his father nor was it proved that the defendants in that case were related to the defendant/respondent. Therefore the plaintiff's acts therein could not bind the defendant/respondent, in particular acts of possession shown on Exhibit M later prepared for the case cannot bind the defendant/ respondent
Even if it was held that judgment in Exhibit F will confer the ownership of the whole of the land shown in Exhibit M and thereon edged pink on the plaintiff/appellant (which is not so) there is no evidence on record that the plaintiff/appellant has in fact redeemed the piece or parcel of land which he claimed from the two defendants in the said Exhibit F. In effect Exhibit F did not confer the ownership of land in Exhibit M on the plaintiff/appellant.
As I have said above, the Court of Appeal confirmed the decision of the trial court.
Before considering the issues arising for determination in this appeal, it will be necessary to bear in mind one important feature of this case which is as follows: