➥ CASE SUMMARY OF:
Moses Okoye Dike & Ors. V. Francis Okoloedo & Ors. (SC.116/1993, 15 Jul 1999)
by Branham Chima.
➥ SUBJECT MATTER
Land ownership via traditional history;
➥ CASE FACT/HISTORY
The appellants who brought the action on behalf of themselves and the Uruezikeokwe family of Umusiodo, Nnewi, claimed that the land in dispute which is called “ORURA MBUBA” and which forms part of a large area of land called “ANA EDO” or “ILO EDO” had been from time immemorial, the exclusive property of the Urueziokeokwe family. The land in dispute was located or situated in front of the “OKWU EDO” shrine and as the Head Servant of Edo goddess, the family or the Respondents were allowed to farm on the land, and to reap the fruits of the economic trees on the land for services rendered in the nature of cleaning, sweeping, and looking after the “EDO SHRINE”. Many years ago, the Urueziokeokwe family allowed one Okoloedo, the father of the 1st respondent, who was then the head servant of the family, to farm on the land in dispute, but not to reap the economic trees thereon. He was to use the land during his life time only without any right to alienate the land or any part thereof or to be inherited by any of his children. But according to the appellants, the father of the 1st respondent, made a grant of part of the land to the 1st respondent who erected a building thereon. This was initially resisted by the appellants’ family but when customary gifts were offered to them, they consented to the grant. Thereafter, the 1st respondent sold parts of the land in dispute to the 2nd and 3rd respondents who started cutting down the economic trees thereon, preparatory to putting up their buildings on the said land. It was this latter action which provoked the filing of the suit in the trial court.
In suit No. HN.18/77 filed in the Nnewi High Court of Anambra State, the appellants who were the plaintiffs claimed against the respondents jointly and severally as per paragraph 26 of their Amended Statement of Claim, the following reliefs:- “1. Declaration that the plaintiffs are entitled to the statutory/Customary rights of Occupancy to that piece or parcel of land known as and called “ORURA MBUBA” land, situated in front of “EDO” SHRINE, at Uruagu village. Nnewi, within the jurisdiction of this Honourable Court and more particularly delineated and verged BROWN in the plaintiffs survey plan No. NLS/AN.563/88 and filed with this amended statement of claim. 2. Declaration that the purported sale of a portion of the said “Orura Mbuba” land by the 1st Defendant or his privy to the 2nd Defendant is void and ineffective by Nnewi law and custom. 3. Declaration that the purported sale of the said “Orura Mbuba” land by the 1st Defendant or his privy to the 3rd Defendant is void and ineffective by Nnewi Native Law and custom. 4. An Order setting aside the purported sales mentioned above. 5. Recovery of possession of the said “Orura Mbuba” land from the 1st, 2nd and 3rd Defendants.
At the trial, the appellants called three witnesses and the respondents called six witnesses in support of their respective pleadings. Counsel for the parties addressed the court and the learned trial judge, Olike J., in his considered judgment delivered on 5th day of February, 1990, granted all the reliefs claimed by the appellants and rejected the defence of the respondents.
The Respondents appealed to the Court of Appeal which allowed their appeal and set aside the decision of the trial court. The is an appeal by the Appellants.
➥ ISSUE(S) & RESOLUTION(S)
[APPEAL DISMISSED]
I. Whether the Appellants proved their case in order to succeed?
RESOLUTION: IN RESPONDENT’S FAVOUR.
A. THE APPELLANTS COULD NOT SHOW HOW THEY CAME IN POSSESSION OF THE LAND
[‘In support of their pleadings the Appellants called 3 witnesses. On the root of title of the Appellants to the land in dispute, this is all what PW1 the 1st Appellant said:- “The land is owned by all members of Uru-Ezike-Okwe family exclusively from time immemorial. There are economic trees on the land. I know one Okoloedo Okeke now deceased. He has a surviving son called Francis Okoloedo the first descendant on record.” PW1 was cross-examined at length by the two counsel for the respondents. Although he said too much about the historical background of the families involved and the nature and extent of the Edo Shrine and the various activities that took place in connection with the land in dispute, he did not explain in any way, how the Uru-Ezike-okwe came to be in possession or exclusive ownership of the land in dispute. He had maintained throughout the cross-examination that the land in dispute belonged to the Uru-ezike-okwe family all the time because they “saw the Edo in its nakedness” PW2, Emmanuel Igwegbe, did not improve the situation either. He only said in his evidence that he knew the land in dispute called Orira-Mbuba and that the land is owned by the Uru-ezike-okwe family. He did not elaborate on how the land came to be owned by the said family. PW3 Cyprian P.C. Nwosu is a licensed Surveyor who was employed by the Appellants to produce a plan which was used at the trial and admitted in evidence as Exhibit C. He knew nothing about how his employers came to own the land in dispute and he did not say so. This is the sum total of the evidence adduced by and on behalf of the Appellants in support of their claims. It is very clear that they have failed to prove how they came to own the land in dispute. It is not enough in my view in this type of action for them to testify only that they own the land for a long time or time immemorial. They must go ahead to show from whom the land started and finally devolved to them. They have awfully failed to do that.’
‘Therefore in this case, it is not sufficient for the appellants to say that the land in dispute belonged exclusively to the Uruezikeokwe family from time immemorial and stop there. They must show how that family got it either from some other persons or authority in succession or that they found it a virgin land and deforested it. They did not do either and to that extent, they have in my view, failed to establish their root of title as required by law. I agree entirely with the Court of Appeal when, after reviewing the evidence adduced by the Appellants at the trial held:- “The plain truth is that no facts of traditional history were pleaded and no evidence led. It is amazing therefore that the learned trial judge found traditional evidence which he so much commended.”’
PER ONU JSC: ‘I am of the firm view that implicit in this averment is the Appellants’ claim of ownership of the Shrine along with the Headship thereof and not settlement by ownership tied down to the priesthood. If that was the case, it should have been expressly and clearly pleaded as such. It ought at this juncture to be pointed out that the evidence of PW1 relied on at page 8 of the Appellants’ Brief did not fare better for it simply claimed ownership of Orura Mbuba which is also worshipped by Oraifite and other communities commonly called Agbaja people. Of note too, is the fact that when PW1 was cross-examined and specifically asked how the Edo came to be owned by them, he was unable to answer the question. Indeed, there was no evidence of settlement by anybody, not even the Goddess reputed by PW1 was once a human being before transforming into a spirit. Nor was it the Appellants’ case that whosoever is the Chief Priest of the Edo Goddess becomes the owner of the land on which it is. Indeed, no such tradition or custom was pleaded by the Appellants and no such evidence was given. When such a situation arises as indeed it did in this case, the Appellants’ root of title can be said to hang in the air. See Alade v. Awo (1975) 12 SC. 21, (1974) 9 NSCC 141 at 148. See also Piaro v. Tenalo (1976) 12 SC. 31, Kalio v. Woluchem (1985) 1 NWLR (Pt. 4) 610 and Mogaji v. Cadbury (Nig.) Ltd. (1985) 2 NWLR (Pt. 7) 393. In the instant case, the evidence of tradition accepted by the learned trial judge did not exist either in the pleadings or evidence led. The court below was therefore justified to so find for reasons proffered in its judgment.’]
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.
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✓ DECISION:
‘For the reasons stated above, this appeal therefore fails and it is dismissed. The decision of the Court of Appeal given on 14th January, 1992 in this case is hereby affirmed. I award ₦10,000.00 costs in favour of the respondents.’
➥ FURTHER DICTA:
⦿ HOW TO PROVE LAND BY TRADITIONAL HISTORY
It is well settled that one of the five ways of establishing a claim for declaration of title to land is by traditional evidence. See Idundun v. Okumagba (1976) 9-10 SC, 227. It is also settled that once the traditional evidence is found to be conclusive and cogent, there would be no need whatsoever to require further proof. See Akinyili v. Ejidike (1996) 5 NWLR (Pt. 449) 181 at 417; Balogun v. Akanji (1988) 1 NWLR (Pt. 70) 301; Amajideogu v. Ononaku (1988) 2 NWLR (Pt. 78) 614. But the traditional evidence must be such as to be consistent and properly link the plaintiff with the traditional history relied upon. See Owoade v. Omitola (1988) 2 NWLR (Pt. 77) 413. Also a plaintiff who seeks declaration of title to land must prove his root of title to the land. If he traces his title to a particular person, it is not enough to stop there. He must go further to prove how that person got his own title or came to have the title vested in him including where necessary the family that originally owned the land. See Thomas v. Preston Holder 12 WACA 78; Ajibona v. Kolawole (1996) 10 NWLR (Pt. 476) 22. — U.A. Kalgo, JSC.
⦿ IN A CLAIM FOR DECLARATION TO TITLE TO LAND, THE PLAINTIFF MUST SUCCEED ON THE STRENGTH OF HIS CASE
It is now well settled that in a claim for declaration of title to land, a plaintiff has the burden of proving his case on his own evidence and cannot rely on the weakness of the defendant’s case. If that burden is not discharged, the weakness of the defendant’s case will not help him and proper judgment will be for the defendant. See Kodilinye v. Odu (1935) 2 WACA 336 at 337; Odusanya v. Ewedemi (1962) 2 SCNLR 23, 1 All NLR 320; Atuanya v. Onyejekwe (1975) 3 SC. 161; Bashua v. Maja 11 SC. 143. However a plaintiff can take advantage of and rely upon evidence By the defence which supports his case. See Akinola v. Oluwa 1 SCNLR 352, (1962) WNLR 133. Realizing this principle of law, the learned counsel for the Appellants submitted in his brief that since both parties to the case agreed that the land in dispute was intimately connected with the Edo goddess, and the Chief Priest of Edo goddess had always come from the Appellant’s family, it necessarily followed that there had been a succession of Chief Priests who held the land in trust for the Appellants’ family which proved the root of their title. I do not think that this submission holds any water here. In the first place, the Appellants, apart from mentioning the names of Chief Priests who held that office in their family over the years, did not prove their ownership of the land or that they lived there without any interference, and in the second place, except the admission in the pleadings that the family of the Appellants produced the Chief Priests, no other evidence was given proving any title or ownership by the respondents at the trial. It is an after thought to bring it at this stage and cannot in my view be accepted to prove any root of title by the Appellants. Therefore the Akintola v. Oluwo case (supra) is not relevant here. — U.A. Kalgo, JSC.
⦿ WHERE THE SCALES ARE EVENLY WEIGHTED, BURDEN IS NOT DISCHARGED
It is also the established law that in a declaration of title, the burden or proof on the plaintiff is not discharged even where the scales are evenly weighted between the parties. See Odiete and Ors. v. Okotie and Ors. (1975) 1 NMLR 178 applied in Saka Owoade and Anor. v. John Abodunrin Onitola and Ors. (1988) 2 NWLR (Pt. 77) 413. — S.U. Onu, JSC.
⦿ CANNOT SET UP A ROOT OF TITLE DIFFERENT FROM VENDOR
The court below was therefore right, in my view, in holding that this could not be so in that 2nd Respondent who derived his title from the Respondent cannot set up a root of title different from that of his Vendor. He must either sink or swim with him, it being that a Vendor can only pass to the purchasers whatever title he has. See Fasoro v. Beyioku (1988) 2 NWLR (Pt. 76) 263. — S.U. Onu, JSC.
⦿ FACTS TO BE PROVED WHERE RELIANCE ON TRADITIONAL HISTORY
A plaintiff, in an action for declaration of title to land, must succeed on the strength of his own case and not on the weakness of the defendant’s case, See Kodilinye v. Odu 2 WACA 336; Nkado v. Obiano (1997) 5 NWLR (Pt. 503) 31. A plaintiff, whose claim is founded on traditional history in proof of a claim for declaration of title to land, must plead and establish such facts as:- 1. who founded the land; 2. how he founded the land; and 3. the particulars of the intervening owners through whom he claims. Where therefore the line of succession is not satisfactorily traced and that line of succession has gaps and mysterious linkage or nexus which are not established, then such line of succession would be rejected. See Mogaji v. Cadbury Nig. Ltd. (1985) 2 NWLR (Pt. 7) 393. — Katsina-Alu, JSC.
➥ PARTIES:
⦿ FOR THE APPELLANT
Moses Okoye Dike & Ors.
⦿ FOR THE RESPONDENT
Francis Okoloedo & Ors.
➥ LEAD JUDGEMENT DELIVERED BY:
U.A. Kalgo, JSC.
➥ APPEARANCES
⦿ FOR THE APPELLANT
⦿ FOR THE RESPONDENT
➥ MISCELLANEOUS POINTS
➥ REFERENCED (LEGISLATION)
➥ REFERENCED (CASE)
➥ REFERENCED (OTHERS)
