Kenneth Ndukuba & Anor. v. Nwarieji Izundu & Anor. (2006)



Kenneth Ndukuba & Anor. v. Nwarieji Izundu & Anor. (2006) – SC

by PaulPipAr

⦿ TAG(S)

– Ownership;
– Root of title;


1. Kenneth Ndukuba;
2. Silas Ejionye (For themselves and as representing the people of Nkpokwu Village Eziama Obiato)


1. Nwarieji Izundu (For himself and as representing the people of Umueme Awo)
2. Julius Berger (Nig.) Plc.


(2006) LPELR-5786(CA);
[2007] 1 NWLR (Pt.1016);


Court of Appeal





– Ahamba, SAN.


– O. A. Obianwu, Esq.


⦿ FACT (as relating to the issues)

The brief facts of this appeal is that the appellants as plaintiffs brought a suit in a representative capacity against the respondent in suit No. HOW/36/74.
The reliefs sought in the claim read:
(a) A declaration of title to the piece or parcel of land known as and called Ikpa Eziama’ situate at Eziama in Owerri Judicial Division. (b) Two Hundred Naira (N200.00) being general damages for trespass upon the said piece of land. (c) Perpetual injunction permanently restraining the defendants, their agents from further trespass upon the said piece of land.”

The appellants’ case at the lower court as can be deduced from their pleaded further-further amended statement of claim at pages 51 – 56 of the record is that the land in dispute was their land from time immemorial, and that they had been in possession and had performed numerous acts of ownership. That such acts of ownership included dwelling on the land, farming there upon and also granting customary farming rights to strangers including the respondents and their people of Umueme Awo as well as doing free labour work on the road. They further alleged that they had also granted a portion of the land in dispute to the Ministry of Works as then known as Public Works Department. The appellants also pleaded and tendered documents stated in their plea of ownership.

The case of the respondents at the trial court is reflected in their further amended statement of defence as can be ascertained at pages 66 – 74 of the record of appeal. Their defence is that the land in dispute belonged to their forefathers from time immemorial. They denied the appellants’ claim that their people who previously occupied some part of the land in dispute was by the permission of the appellants.

Available:  Okomu Oil Palm Limited v. Mr. O. J. Okpame (2006)

Both parties called their respective witnesses and tendered some previous judgments on which the respondents claimed that those judgments were in their favour, while the appellants denied same and stated that those previous decisions were later set aside on appeal.

The learned trial Judge considered the evidence before the court and delivered his judgment on 16th December, 1996, which was in favour of the respondents.

Dissatisfied with the decision, the Appellants have appealed to this Court.


Whether the appellants discharged the onus placed on them so as to entitle them to the reliefs sought?




i. In my considered opinion, the appellants at the lower court, claimed that the land in dispute is known and referred to as Ikpa Eziama’ which they asserted, was their own land from time immemorial and that the people of Obabi Nkpokwu, inherited same from their ancestors. But it is to be noted that, when a party could not name nor show the particulars and movements of the histories of the so-called ancestors, nor pleaded on same, can it be right to say that the people of Obabi Nkpokwu town inherited the land of their ancestors? I am of the view that the appellants should have named at least one of their ancestors from whom other ascending inheriters, got the land before the people of Obabi Nkpokwu inherited the land in dispute. It is not enough to just make a general statement as the appellants did, that the land in dispute was their own from time immemorial; and that the people of one town inherited it. It is settled law that evidence of inheritance from time immemorial is synonymous with traditional evidence as a way of proving ownership of the land in dispute.

ii. An appellate court has no business to accept acts of ownership in a case where the same party as done by the appellants in the instant appeal, could not establish their root of title as pleaded from time immemorial and act of ownership. The root of title ought to be proved before establishing acts of ownership could be considered by the trial court.

Available:  Paul Adebayo Ogundare & Mrs. Oluwatoyin Owolabi V. Mrs. Sabainah Abosede Ogundare (CA/EK/53/2020, 18 June 2021)

iii. At page 39 of the record, PW1 had clearly admitted that there was a time when the respondents dragged him to court on allegation of murder, though he was discharged. PW1 claimed that he was 107 years as at the material time he testified, yet he knew and recalled that the respondents had complained to the Police that he killed one Victor, a brother of the respondents. The trial court had every reason to suspect PW1 as a false witness. It was not safe to accept his evidence. PW1 claimed that he had a land boundary with the appellants, but as a neighbouring landowner, he was not aware that the appellants surveyed and made the plan of the land in dispute.


i. Consequently, both claimants to the land depend only on a claim to equitable title to the land in dispute. It is therefore desirable in order to determine the party entitled to the award of declaration to place both evidence tendered on an imaginary scale. In evaluation of both parties in the court below, the trial court considered the issue of claim by the respondents’ deforestation of the land in dispute by the ancestors of the respondents. The claim the learned trial court later held to be inadequate to establish the claim. Against this, the testimony of PW1 which remains unchallenged, the respondents that Umueme people of Awo in times of old who are ancestors of the defendants went to the ancestor of the plaintiff to ask for land which was given to the ancestors of the defendants now respondents. The plaintiff witness Nze Akubuo Osuoha aged 107 years old, deposed that “during farming season Umuome people bring to ancestors [of] the plaintiff goats and fowls on the land they were given to farm.” Throughout the hearing in the court below, except for a diversionary cross-examination, the testimony of the witness was not challenged, it is deemed by law of evidence to be admitted. See Omoregb v. Lawani (1980) 3-4 SC 108. The defendant/respondents had no more to say about the land than their ancestors deforested the land in dispute, on which the defendant/respondents claim a right of possession; such a right of possession confers only a rebuttable right of defences not to a claim to ownership. See Mogaji v. Cadbury (Nig.) Ltd. (1985) 7 SC 59, (1985) 2 NWLR (Pt. 7) 393. The testimony presented by the plaintiff in the court below who is now the appellant by its uncontested fact shows evidence of claim to acts of ownership extending over a period of time sufficient to establish that the appellants are the owners of the land; and I so rule. The subsequent acts of ownership shown by both parties of grants to other named place both parties on equal level but the unchallenged testimony of PW1 when placed on an imaginary scale; places the claim of the plaintiff now appellant on a higher pedestal than the averment of possession of the land made by the respondents.

Available:  Archibong Tom Udo v Ibanga Udo Robson (2018) - CA








It is settled law that in a claim for declaration of title to the land in dispute, the claimant has the onerous task of establishing his title on the strength of his case and not on the weakness of the other party. – THOMAS, J.C.A. Ndukuba v. Izundu (2006)

I am of the considered view that there is no need to look for other different basis for the dismissal of the appeal because once the claim of plaintiff(s) for proof of title has collapsed, what has been declared is that the plaintiffs’ had not discharged the onus placed on them as to entitle them to the reliefs sought. – THOMAS, J.C.A. Ndukuba v. Izundu (2006)

To accept the evidence of a star witness, the trial court is not to swallow hook line and sinker and without critical and relevant evidence of other witnesses. The trial court is also bound to consider the assertion of the other party during cross-examination showing that a witness has a hidden motive in disparaging the other party. – THOMAS, J.C.A. Ndukuba v. Izundu (2006)




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