➥ CASE SUMMARY OF:
Ernest Nzekwu & Ors. V. Madam Christiana Nzekwu & Ors. (SC.227/1985, 10 March 1989)
by Branham Chima (LL.B.)
➥ SUBJECT MATTER(S)
Recovery of possession.
➥ CASE FACT/HISTORY
In 1912 the plaintiff married Daniel Ejiogu Nzekwu at Onitsha. According to the Plaintiff, soon after her marriage she lived with her husband in the thatched roof house built by Mr. Johnson at 8. Cole Street, Onitsha. They lived there until they both left for Northern Nigeria. The Plaintiff claimed that while they were in Northern Nigeria, the 1st defendant’s father and another of Nzekwu Ojudo’s sons Dennis had a dispute. This dispute culminated in the Onitsha Native Court Suit No.79/41. She claimed that her husband participated in the suit, and that following the: suit what was left of Nzekwu Ojudo’s lands were partitioned by Native Court Judges and 8 Cole Street fell to her husband. It would appear that in 1943 plaintiff’s husband died in Jos, Plaintiff then returned to Onitsha with her two daughters, the only issues of the marriage. She claimed that on her return to Onitsha, she moved straight to the thatched roof house at 8 Cole Street without any consultation with either 1st defendant’s father or any other member of Nzekwu family. No one, not even 1st defendant’s father gave her the mandate to move in there. She claimed that she lived there unmolested in the lifetime of 1st defendant’s father who died in 1945. When 1st defendant returned to Onitsha in 1945, the plaintiff claimed that she continued to live in 8 Cole Street to the knowledge of 1st defendant. She exercised diverse acts of ownership in the house – collecting rents from tenants in the house, paying all water and general rates to the Onitsha Urban Council in her late husband’s name. In 1950, the plaintiff said that the thatched roof house in 8 Cole Street was razed by fire but she subsequently rebuilt it with zinc roof with the help of her two daughters. She continued to occupy the premises until 1968 when she was forced to abandon it as a result of the Nigerian Civil War. At the end of the war in 1972, she returned to Onitsha to see that the building on 8 Cole Street had been destroyed. She cleared the debris and started farming on the land. She also submitted a building plan in her late husband’s name to the Onitsha Council Office for rebuilding the destroyed building. In 1972, when she went to Cole Street, she found some people on the land preparing to commence building thereon. She challenged them and was told that the 1st defendant had sold the land to the 2nd defendant. 2nd defendant subsequently sold to 3rd defendant. It was agreed that the matter had previously been referred to the Obi of Onitsha and his Chiefs who advised both sides to go home and settle. No settlement was in sight hence this Suit.
In this Suit which started at the Onitsha Judicial Division of the High Court of Anambra State as Suit No.0/128/72, the Plaintiff/Respondent claimed against the Defendants/Appellants as follows:- “1. The Plaintiff claims against the defendants jointly and severally as follows: (i) Recovery of possession of the piece or parcel of land being and situate at Onitsha and known as and called No.8 Cole Street, in the Urban Division of Onitsha, the annual value of which is about 4 Pounds. The Defendants have from about February, 1972, unlawfully ejected the Plaintiff from the said piece of land on which the 3rd Defendant is now erecting a building. (ii) Injunction to restrain the Defendants their servants agents or assigns from interfering with the Plaintiffs enjoyment of the said 8, Cole Street, Onitsha.”
The matter went to trial before F.O. Nwokedi, J. While the plaintiff called 3 witnesses including herself, the defendants called 5 witnesses including the D.W.4 and D.W.5, 1st defendant’s sister and brother respectively. At the end of the trial, Nwokedi, J. gave Judgment to the plaintiff and made an order “restraining all the defendants together with their servants agents or assigns from interfering with the plaintiffs enjoyment of No.8, Cole Street, Onitsha for as long as she lives.” As this appeal has involved an attack on the -findings made by the learned trial Judge which were confirmed by the Court of Appeal, I shall highlight some of them.
➥ ISSUE(S)
I. Whether the plaintiff/respondent sued for possession of land?
II. Whether the title which the defendants put forward in their pleadings and evidence was such as could oust the possession of the plaintiff on the ground that the defendants have a better right to possession?
➥ RESOLUTION(S) OF ISSUES
[APPEAL DISMISSED]
↪️ ISSUE 1: IN RESPONDENT’S FAVOUR.
[THE PLAINTIFF/RESPONDENT DID NOT SUE FOR POSSESSION BUT FOR RECOVERY OF POSSESSION
‘As stated earlier in this judgment, the plaintiff did not sue for declaration of title, nor or trespass and injunction but for recovery of possession. If what she still has to show is a better title of ownership it is my view that she would be hard put to it showing a better title. In her pleadings and evidence, she seemed to have made a double case. In one sense she relied, as pleaded in paragraph 4 of her statement of claim, on the partition of the land in dispute following the Onitsha Native Court Suit 79/41. She claimed that following that case the land in dispute, 8 Cole Street, fell to her husband’s ownership and subsequently passed to her. If that was the only case she put forward, I would have had no difficulty in dismissing her claim for she, in my view, did not establish any title of ownership. I think it is wrong for the Court of Appeal to say that she did not hang her claim for title on the Native Court case. She did. The proceedings of the Native Court Suit 79/41 were not tendered in Court, and neither in her pleadings nor in evidence in Court did she give reasons for failing to tender a judgment she had said she would found on. There was no evidence to Support the finding of the learned trial Judge that the proceedings were lost just like other documents in Onitsha because of the Civil War. Besides, the evidence she led on this was contradictory. While she said it was the native Court that did the partition of Nzekwu Ojudo’s land, P.W.2, who claimed to have been one of the Judges in Suit 79/41, said that the plaintiffs husband got where he lived at Cole Street through his father Nzekwu Ojudo, but that when he (plaintiffs husband) needed more land he had to apply to 1st defendant’s father. To compound it all, the learned trial Judge held that it was 1st defendant’s father, and not the Native Court Judges, who did the partitioning of the lands. The other case which the plaintiff established on the evidence was that she had been in continuous possession of the land in dispute, at least from 1943 to 1972. She exercised various acts of possession on the land without the let or hindrance of the 1st defendant or his father, Nathaniel Odiakosa Nzekwu. She re-roofed the house in 1950, paid rates to the Onitsha Urban Council, and after the civil war in 1970, continued to plant cassava, yams etc on the land. Even on these acts of possession, the 1st defendant sought to show that they were at the permission and concurrence of his father, Nathaniel Nzekwu. In his pleadings and evidence, the 1st defendant claimed that when the plaintiff returned from Jos in 1943 with her 2 daughters, Nathaniel Nzekwu let them into 8 Cole Street which, according to 1st defendant, was his property. He allowed the plaintiff to collect rents from his tenants for her upkeep and generally allowed her to exercise all the acts of possession which the plaintiff relied on in this case. This evidence was not believed by the learned trial Judge. He rejected it and rather held that the plaintiff had through her husband been in possession of the land in dispute since 1941.’]
.
.
↪️ ISSUE 2: IN RESPONDENT’S FAVOUR.
[THE LEARNED TRIAL JUDGE BELIEVED THE PLAINTIFF; THIS COURT CANNOT INTERFERE WITH THE FINDINGS
‘On the pleadings and evidence, the 2nd and 3rd defendants traced their title to the 1st defendant. His claim to title can be gleaned from paragraphs 7, 12, and 20 of the Statement of Defence. In these paragraphs, the 1st defendant averred first, that the land in dispute was among the landed property which Andrew Nzekwu Ojudo in his lifetime allotted to his eldest son, Nathaniel Nzekwu, 1st defendant’s father. Secondly, that, as stated earlier, Nathaniel Nzekwu allowed the plaintiff and her two daughters to live in Scale Street when they returned from Jos in 1943; and thirdly that when in 1971 he discovered that the plaintiff and her two daughters were about to alienate or build on the land in dispute, he, as the Diokpa, with the concurrence of the other members of late Nathaniel Nzekwu’s family sold the land in dispute. As regards the first and second legs of the 1st defendant’s claim to title as stated above, the learned trial Judge disbelieved his story and rejected it. The learned trial Judge instead held that the land in dispute was the property of Nzekwu Ojudo and that it reverted to him, not to Nathaniel Nzekwu, after Mr. Johnson and his paramour, Nnodu vacated it. He did not believe both parties that Nzekwu Ojudo allocated that land to any of his sons in his lifetime. As for the second leg, I had already set down the learned trial Judge’s rejection of 1st defendant’s story about his father allowing plaintiff and her daughters to live in 8 Cole Street in 1943. The learned trial Judge who had the opportunity of seeing the witnesses was in a unique position to assess their credibility and I cannot see how the Court of Appeal could have, or this Court can, interfere with those findings and conclusions. It is trite that in the area of findings based on the demeanour of witnesses and credibility, the trial Court is the master. Frank Ebba v. Ogodo (1984) 4 S.C. 84. As regards the third leg, it is true that the learned trial Judge did not specifically advert to it. He, however, generally disbelieved the 1st defendant. In a situation such as this in which the trial Court has not evaluated or wrongly evaluated the particular piece of evidence, the Court of Appeal is in as good a position as the trial Court. What was the nature of this allegation that the plaintiff attempted to alienate the land in dispute? The evidence which the 1st defendant gave on this matter was not more detailed than what was stated in paragraph 20 of the statement of defence. He said at page 26 of the record, “In 1971 discovered that plaintiff was making arrangement to sell the vacant land in No.8 Cole Street or lease it or ask someone to build the house in her name. I challenged her and she consulted a lawyer claiming that the land belonged to her.” There is nothing here to indicate to whom she was about to sell or lease the land. Besides, it is not clear whether she was trying to sell the land, or trying to get agents to build all this land in her name. I cannot put this allegation beyond an attempt to show misbehaviour on the part of the plaintiff which would in customary law justify the 1st defendant, with the concurrence of his relations to sell the land as indeed he did.’
THE CUSTOM OF THE ONITSHA PEOPLE IS OF NO HELP TO THE APPELLANT
‘But does it help the defendant? I think not. It has been contended that the land in dispute was the property of 1st defendant’s father, Nathaniel Nzekwu. The learned trial Judge disbelieved this and rejected it. The Court of Appeal confirmed this and I have no reason to interfere with this. The finding of the learned trial Judge was that the land in dispute was the property of Nzekwu Ojudo and was not allotted to any son of his in his lifetime. Even after rejecting the plaintiff’s case as to the partition of Nzekwu Ojudo’s land, it is the land in dispute that the plaintiff was in possession of from 1941 to 1972. She was in possession of the family land of Nzekwu Ojudo as the widow of a member of that family. Having rejected the 1st defendant’s pleading and evidence as to plaintiffs alleged misbehaviour, there is no thing, even on Nezianya, that would justify 1st defendant’s interference with the plaintiff’s enjoyment and occupation of that land. Besides, the 1st defendant’s purported alienation of the land to 2nd defendant (and hence 3rd defendant) was defective. The 1st defendant in his pleadings and evidence stated that he sold the land in dispute with the concurrence of his brother, D.W.4, and sister D.W.5. These were all children of Nathaniel Odiakosa Nzekwu. There is no evidence to show that the other members of Nzekwu Ojudo’s family were consulted before this sale. The land was the property of Nzekwu Ojudo. The sale by 1st defendant is therefore, at best voidable. See Ekpendu v. Erika (1959) 4 F.S.C. 79.’]
.
.
.
✓ DECISION:
‘It is clear that this appeal has been considered completely in relation to the deceased plaintiff only. The pleadings were never amended nor was there any fresh evidence which could have brought the parties joined into this appeal. Indeed I can only express surprise that they were joined at all. From the circumstances of this case, it may have been more worth while to examine whatever rights may have accrued to the 1st defendant as the Nzekwu Ojudo family on the death of the plaintiff. Because of the decision I have reached that the plaintiff did not establish any title of ownership to the land in dispute, but a right of possession at least for life, larder that the result of this appeal shall not prejudice the rights of the defendants and Messrs lames Obieze and Emmanuel Achebe to pursue the question of their relative rights to the land in dispute after the death of the plaintiff.
This appeal has failed, and I hereby dismiss it. Costs assessed at ₦500 are awarded in favour of 2nd and 3rd respondents.’
➥ FURTHER DICTA:
⦿ ESTABLISHING BETTER POSSESSION IN A LAND DISPUTE
There is no doubt that if the plaintiff had brought an action for declaration of title or an action for trespass and injunction, title would have been immediately in issue. As 3rd defendant was in possession at the time she instituted this suit claiming title through 1st and 2nd defendants, to succeed she would have had to show that she had a better right to possession. The onus of establishing such better right to possession would have been on her. As this court said in Godwin Egwuh v. Duro Ogunkehin S.C. 529 – (1966) delivered on 28/2/69, “If it be alleged that someone in possession of land is a trespasser the person so alleging has the onus of showing that he has a better right to the possession which was disturbed and unless that onus is discharged, the person so alleging cannot defeat the rival party.” — Nnamani JSC.
⦿ DISTINCTION BETWEEN SUIT FOR CLAIM OF POSSESSION AND ONE FOR RECOVERY OF POSSESSION
But here the plaintiff sued for recovery of possession and injunction as in my view she was entitled to do. Both the trial Court and the Court of Appeal held this was neither a case for declaration of title nor for trespass and injunction. It was merely one for recovery of possession of which plaintiff claimed she had been forcibly deprived. She claimed to have been in continuous possession of the land in dispute from 1941 to 1972 and claimed to be put back in possession. It is clear that the plaintiff could not have sued for trespass as she was no more in possession when she instituted her suit. Coker, J.S.C. stated the law correctly in Aromire and 2 Ors. v. Awoyemi (1972) 2 S.C: 1, at 7 when he said, “A claim in trespass presupposes that the plaintiff is in possession of the land at the time of the trespass. A trespasser cannot claim to be in possession by the mere act of entry and clearly a plaintiff in lawful possession at the time still remains in possession despite purported eviction by the trespasser. On the other hand a claim for recovery of possession postulates that the plaintiff is not in possession at the time of the action, that he was once in possession but is at that time seeking to be restored to possession of the land. Hence in the present case the claims for trespass and recovery of possession should not have been put together as one postulates that the plaintiff was not in possession whilst the other suggests that he was.” — Nnamani JSC.
⦿ ACTION FOR RECOVERY OF POSSESSION/LAND
But the law is all the same settled that the plaintiff in an action for the recovery of land or recovery of possession is always a person who is out of possession, but who claims to have a right to the immediate possession of the land. If he desires to recover the whole of the premises mentioned in his writ, he should as a general rule join as a defendant every person who is in possession of any part of them. He will be prima facie entitled to a verdict on proof that the land is his; for the ownership of land involves a right to the possession of it, unless the owner has voluntarily parted with possession to some third person. Where, however, there is no suggestion that the defendant received permission from the plaintiff, or has paid him rent, the onus lies on the plaintiff of strictly proving his title, and he must state his title in full detail in his pleading deducing it step by step through the various mesne assignments. (See Bullen and Leak and Jacobs, 12th Edition at p.67). — Nnamani JSC.
⦿ IF A CUSTOM HAS BEEN JUDICIALLY NOTICED, IT NEED NOT BE PLEADED
It seems that the custom, if it has been well established in a decision of the Superior Courts, need not be pleaded and proved. It would be necessary, however, to plead facts and lead evidence to bring the suit in question within the ambit of the judicially noticed custom. — Nnamani JSC.
⦿ SECONDARY EVIDENCE ADMISSIBLE OF A JUDGEMENT OF COURT IS A CERTIFIED TRUE COPY ONLY
Section 131(1) of the Evidence Act says that when any judgment of any court or any other judicial or official proceedings has been reduced to the form of a document or series of documents no evidence may be given of such judgment or proceedings except the document itself or secondary evidence of its contents in cases in which secondary evidence is admissible under the provisions of the Evidence Act. The provisos to Section 131(1) of the Evidence Act do not apply here. Because a judgment of a court is a public document within the meaning of that expression in Section 108 of the Evidence Act and because of the combined effect of Sections 96(1)(e) and 96(2)(c) of the same Act, the secondary evidence admissible in respect of the original document constituting the proceedings and judgment of a court is a certified true copy of the document but no other kind of secondary evidence. — Agbaje JSC.
⦿ PAYMENT OF PURCHASE PRICE WILL ONLY GIVE EQUITABLE INTEREST
In effect on the evidence neither the 2nd nor the 3rd defendants has acquired an absolute title to the land in dispute. At the highest, the payment of the purchase price in respect of the alleged sale of land and entry upon the land pursuant to this will only give the 2nd or 3rd defendants equitable interest in the land. (See Ogunbambi v. Abowab 13 W.A.C.A. 222). That equitable interest cannot be better than the earlier equity of the plaintiff to live on the land. This is all the more so because the 2nd and 3rd defendants acquired their interest with full knowledge of the plaintiffs interest. — Agbaje JSC.
⦿ THE PLEADINGS TOLD A GOOD STORY OF THE POINTS IN ISSUE
The pleadings tell the rest of the story, and in this regard, I must commend both parties for paying great attention to the material points of their case. For instance, the plaintiff pleaded the essential facts on which she intended to rely in proof of her case, and took time to emphasise the important issues in the case. In the same way, the Defendants replied pointedly to the material averments in the Statement of Claim and after the exchange of pleadings, it was not difficult to ascertain the real point in dispute between the parties. — Craig JSC.
➥ LEAD JUDGEMENT DELIVERED BY:
Nnamani, JSC.
➥ APPEARANCES
⦿ FOR THE APPELLANT(S)
Senator N. Anah.
⦿ FOR THE RESPONDENT(S)
Mr. Babayeju.
➥ MISCELLANEOUS POINTS
***DISSENTING
**NNAEMEKA-AGU JSC:
- NO PROOF OF PARTITIONING AS PLEADED BY PLAINTIFF/RESPONDENT
‘It is noteworthy that nobody tried to explain by evidence why the copy of proceedings in the case was not tendered. The learned Judge offered the explanation himself without any evidence. He could, I believe, have taken notice of the fact that there was a civil war in Nigeria from 1967 to 1970. But evidence was certainly necessary to show that the copy of proceedings got lost as a result of the civil war. Equally remarkable is the finding that the partitioning of the landed property of Nzekwu Ojudo was done by Nathaniel Akunnia Nzekwu, the father of the 1st defendant, and not by the Native Court members, as pleaded by the plaintiff. It was neither the case of either party before the court, nor indeed, based on the evidence before the court. In any event, on the first of the alternative main issues which I have set out above, on a proper finding, the learned Judge should have found that the plaintiff did not prove the foundation of her possession which she pleaded in paragraph 4 of her statement of claim. For it is trite that record of proceedings in court are public documents and that once they are admitted to have been recorded, they can only be proved by production of the original records or of duly certified true copies, by the joint effect of sections 92, 94, 96, and 108 of the Evidence Act. Even if it is conceded that, being native court proceedings, oral evidence of the proceedings was admissible in proof, the fact remains that in this, particular case, no reason was given as to why the record could not be produced and no evidence of what was decided was given. Thus it is clear that both in proof of the Native Court proceedings and of the partition in which the plaintiff’s case rested, she failed woefully to prove her case. However, in spite of this position of the facts, the learned trial Judge found for the plaintiff.’ - NO EVIDENCE OF NATIVE COURT PROCEEDINGS WAS TENDERED OR PROVED
‘Now there can be no doubt that, from the pleading in paragraphs 3 and 4 of the statement of claim set out above, the respondent rooted her right to possession of the property in dispute upon the Native Court adjudication in suit No.79/41 and the partition of the property by the members of that Court. Upon the Court of Appeal finding, rightly I hold, that no legal evidence of that suit was called by the respondent and the inability of the two lower courts to find on the evidence any partition of the land by the members of the Native Court as pleaded, it follows that the foundation of the respondent’s possession as advanced by her was not proved. It is obvious, I believe, that, as partition by Nathaniel Akunnia Nzekwu which ‘the learned trial Judge found had no pleading or evidence to support it, it cannot be allowed to stand. In that state of the facts of the case as put forward by the responsdent, as plaintiff, the trial court, on a proper approach would have had no alternative but to accept the version of how she came into possession as given by the appellants, i.e., that the 1st appellant showed her the property to stay in after her husband’s death. After all, civil cases are decided on a preponderance of evidence. See on this Mogaji and Ors. v. Odofin and Ors. (1978) 4 S.C. 91; Bello v. Eweka (1981) 1 S.C. 101. On a proper application of this principle, where it has been shown that the evidence called by the plaintiff is untrue, or without weight, or has been discredited, the court ought to accept that given by the defence unless it has been shown to be of such a quality that no reasonable tribunal should accept it. There is no suggestion that the appellants’ case suffers from that fundamental defect. It follows, therefore, that a proper finding should have been that the property in dispute was that of the 1st appellant as a result of its being alloted to his father as the diokpa of the family – and that it was the 1st appellant who let the respondent into occupation of the house in the property in dispute after her husband’s death in 1943 so that she could live there, collect rents and pay rates and use the proceeds of the rents to look after herself and her two daughters. I shall consider anon whether this letting into occupation could entitle her to sue for possession, as she did next in this judgment. Suffice it to say at the moment that, in view of the pleading in paragraphs 3 and 4 of the statement of claim set out above, the Court of Appeal was in error to have held that the Native Court case was not the peg upon which she hung her case.’
‘Her case was based on exclusive ownership as a result of the 1941 case and partition. So, I must pause to observe that on the premises that the respondent proved neither the Native Court suit No. 79/41 nor the partition upon which her late husband’s exclusive ownership of the property is rooted, that conclusion falls to the ground. I can only consider Nezianya’s Case on Theoretical basis. I must rest the position on the earlier finding by the learned Judge that the property in dispute was family property of the Nzekwu Ojudo family and the express finding by the learned trial Judge that the 1st appellant is the head of the family. If the broad principles in Nezianya’s Case applied to the situation in this case, I am of the clear view that the respondent has a type of usufruct, not right of ownership, of the property in dispute, for her life, but subject to good behaviour. I do not share the diatribes which the learned counsel for the respondent has poured down on Nezianya decision. But that was not her case.’
- RESPONDENT FAILED TO PLEAD ABSOLUTE OWNERSHIP
‘On a true view of the above pleading, therefore, what the respondent asserted was that, because of the partition, No.8. Cole Street in dispute became her husband’s absolute property, to which she had now succeeded. This is fundamentally different from the 1st appellant’s assertion that the property in dispute was not partitioned but merely alloted to his father and remained co-owned family property, of which he is the head of the family. Can the respondent who has failed to prove the absolute ownership which she pleaded be granted possession as of right on the ground of the permissive occupation which the appellants pleaded? I think not. For, to do so will be tantamount to granting her relief on a case fundamentally different from the case she brought to court. She cannot claim possession as of right as an absolute owner and fail to prove it and be granted possession by courtesy of the 1st appellant or by reason of her right as a widow under Onitsha customary law. The finding is that she has been in possession since 1941. Considering the fact that possession of 8 Cole Street by the respondent and her husband prior to 1941, which the learned Judge found, was not pleaded and is, in fact, in conflict with the pleading in paragraph 5 of the statement of claim, how then did she explain the origin of that possession save by the Native Court judgment and the partition? If they are removed, as they must be, her case falls to the ground.’
‘The appellants, as defendants, did not counter-claim. All they needed to do was to raise a valid defence. It was for the plaintiff to prove her case. On the above conclusions, she failed to do so and her case ought to have been dismissed.’
- THE RESPONDENT IS GUILTY OF MISBEHAVIOUR UNDER CUSTOMARY LAW
‘This brings me to the issue of misbehaviour by the respondent. One serious complaint of the appellants against the Court of Appeal judgment is that the Court was wrong to have held that the respondent has not been alleged to have misbehaved; and that she was trying to sell the property, although pleaded, was not in evidence before the learned trial Judge. The submission of the learned counsel for the respondent that that ground went to no issue because no native law and custom of Onitsha was pleaded, in my view, loses sight of the fact that, as I have held, the principles in Nezianya’s Case could be judicially noticed. It follows then that the question of misbehaviour by the respondent (widow) becomes a life issue. There is evidence which was not challenged or disbelieved that the respondent tried to sell the property in dispute in 1971 without the consent of the head of the family; that when she was challenged she claimed the land to be her own. There is also evidence that the respondent herself took the matter to the Obi of Onitsha and the Ndichie who instructed her not to do anything on the land without the concurrence of the 1st appellant; and that the parties should go home to reconcile, but that the respondent ignored all these. There can be no doubt that on decided cases a denial of the family title is a misbehaviour which could result in forfeiture: See Bongay v. Macauley (1932) 1 W.A.C.A. 225; Ometa v. Numa (1929) 9 N.L.R. 46; Okuojeror v. Sagay (1958) W.R.N.L.R. 70. Similarly, it is a misbehaviour on Nezianya’s decision for her to alienate the property without the consent of the head of the family. It was also not challenged that she claimed the land as her own. Coupled with the respondent’s refusal to accede to the decision of the Obi and Ndichie which evidence was accepted by the learned trial Judge; I am of the view that upon a careful consideration. it would have been found that she was guilty of misbehaviour.’
**CRAIG JSC:
- NO EVIDENCE OF PARTITION WAS EVIDENCED
‘I pause here for a moment to say that none of the parties or their witnesses gave evidence that Nathaniel had partitioned their father’s estate, and it is difficult to know from where the learned Judge had imported this bit of evidence into the case. Furthermore, neither the plaintiff nor her counsel nor even the court member (2 P.W.) had given any reason why the Native Court judgment in Suit No. 79/41 could not be tendered, and it would appear that the learned Judge had conjured a reason for the non-production. In my view this is wrong. A Judge should regard himself as an impartial arbiter and has no right to prop up the weak case of one party or to assist that party to make out a case different from that which has been set up by the litigant.’ - THE BURDEN WAS ON THE PLAINTIFF/RESPONDENT – SHE FAILED IN PROVING HER CLAIMS
‘There is one more point that need be made, and this relates to the onus which rests on a plaintiff in a civil case. By a long line of decided cases, it has been held that the onus is on a plaintiff to prove his claims, and if he fails in this respect, judgment must be for the defendant. The well known principle of law is that the plaintiff must succeed on the strength of his case and not on the weakness of his adversary, except that he is entitled to make use of any points in the defence case which support the plaintiffs case. See Kodilinye v. Mbanefo Odu 2 W.A.C.A. 336; Fabunmi v. Agbe (1985) 1 N.W.L.R. (Part 2) 299. In the instant case, the 1st Defendant claimed that he succeeded to the property through his father, Nathaniel, and that as Diokpa and first son, he was entitled to the property, under Native Law and Custom. The trial Court disbelieved him and said that he had no right to sell Family property without the concurrence of other members of the Family. The case of Ekpendu v. Erika (1959) 4 F.S.C. 79 was cited. Now, the 1st Defendant might have set up a weak defence; or his story might be totally untrue or he could even have refrained from giving oral evidence, yet, the onus was still on the plaintiff to prove the claims which she had brought to the Court. For the sake of emphasis, that claim was that her husband was the sole owner of the land in dispute and she, as widow of her husband, was entitled to the possession of the said property. The two lower Courts held, and rightly in my view, that she had failed to prove the partition pleaded, and that should have been the end of her case.’
➥ REFERENCED (LEGISLATION)
➥ REFERENCED (CASE)
⦿ ON DEATH OF FATHER, LAND BECOMES FAMILY PROPERTY
Lewis v. Bankole (1909) 1 N.L.R.81 at 90 as follows:- “At Mabinuori’s death the piece of land which he owned became family property. The defendants as his daughters or their fathers or mothers as his children were entitled to reside on the land in dispute subject to and in accordance with native law and custom”.
⦿ TRANSFERRING LAND PROPERTY UNDER ENGLISH LAW VERSUS CUSTOMARY LAW
In Erinosho v. Owokoniran and Anor. (1965) N.M.L.R. 479 Idigbe J.S.C. delivering the judgment of this court said on the point as to how to prove sale of land at page 483 as follows:- “We observe that there is not sufficient evidence on the exact nature of the transaction between Morinatu Oladiran and the Fafunwa branch of the Ojomo Eyisha family. Was it a sale under native law and custom or under “English law”? In order to transfer an absolute title under native law and custom it is necessary that such a sale should be concluded in the presence of witnesses who saw the actual “handing over” of the property from the Fafunwa branch of the family to Oladiran (See Cole v. Falami F.S.C. 66; [1956] SCNLR 180).In order to transfer the legal title under “English Law” a deed of conveyance in respect of the same should have been executed in favour of Oladiran by the Fafunwa branch of the Ojomo Eyisha family;”
➥ REFERENCED (OTHERS)
