Ground Of Appeal That Complaints Of Evidence Is A Ground Of Law

Between

Godfrey Anukam

And

Felix Anukam

Judgement

Delivered by F.F. TABAI, JSC

On the second issue of whether, in the light of the evidence before the court, section 46 of the Evidence Act was rightly invoked in favour of the Respondent, learned counsel for the Appellant, submitted that there was overwhelming evidence of the Appellant's numerous acts of possession of the land in dispute, and that the evidence was essentially unchallenged under cross-examination and should be taken as established. It was his submission therefore that section 46 of the Evidence Act ought to be invoked in favour of the Appellant and not the Respondent. For this submission he relied on OMOREGBE v LAWANI (1980) 3-4 SC 108 at 117; OSAKWE v GOVERNOR OF IMO STATE (1991) 5 NWLR (Part 191) 318 at 339. He referred, in particular, to the evidence that the Appellant's father, John Anukam built a photographic studio on the land in dispute as far back as 1932 which he gave to one Anuruo Ibekanwa who lived there from 1946 - 1952.
For more acts of possession, counsel referred further to the evidence of the PW1 under cross-examination that the Appellant started building a house on the land in dispute in 1967, erected temporary stores thereon after the civil war and that during the life time of the Respondent's father the Appellant's father had the DW1 as a tenant on the land in dispute. Counsel argued that there was no such evidence of the Respondent's possession of the land to avail him of the provisions of section 46 of the Evidence Act. On the prerequisites for the invocation of section 46 of the Evidence Act, learned counsel relied on ABIBU v BINUTU (1988) 1 NWLR (Part 68) 57; IDIRIBE v OGBODU (1990) 5 NWLR (Part 123) 599.
As regards the third issue the substance of the arguments of learned counsel for the Appellant is that whereas the relief for declaration of the Respondent's entitlement to a Certificate of Occupancy and injunction as pleaded in paragraph 26 of the Statement of Claim is in respect of the area verged GREEN the area verged RED is the area in dispute and that it is this area in respect of which the declaration and injunction ought to be granted. It was his submission therefore that there is no evidence in support of the  Green area for which the declaration and injunction were sought and granted. In this regard, counsel submitted that the concurrent findings of the two courts below are not supported by the evidence and therefore perverse.     "
Learned counsel for the Appellant finally urged that all the issues be resolved in favour of the Appellant and the appeal is allowed with a dismissal of the Respondent's claim.
On the 1st issue for determination learned counsel for the Respondent made the following submissions. He referred to the pleadings in paragraph 3 of the Statement of Claim which were admitted by the Appellant in paragraph 3(a) of the Amended Statement of Defence and submitted that by virtue of the provisions of section 75 of the Evidence Act they need no further proof. It was his further submission that the different and additional aspect of the Appellant's case pleaded in paragraphs 3-6 of the Amended Statement of Defence is that which burden of proof was squarely on the Appellant in accordance with the provisions of section 137 of the Evidence Act. On the specific issue, learned counsel referred to the concurrent findings of the two courts below about the Appellant's failure to prove as alleged and submitted ,that the findings are not perverse and ought not to be disturbed. Reliance was placed in UDE v NWANGWU (1995) 8 NWLR (Part 466) 644 at 652, CHIWENDU v MBAMALI (1980) 3-4 SC 42.
With respect to the 2nd issue for determination, learned counsel for the Respondent referred to the pleadings in paragraph 7(e) of the Amended Statement of Defence that the Appellant's father John Anukam allotted land to the Respondent and argued that section 46 of the Evidence Act was rightly invoked particularly having regard to the established fact that the Respondent's house is adjacent to the land in dispute.
For the 3rd issue the substance of the submissions of learned counsel for the Respondent is that since the entire land of the Respondent is verged GREEN including the area verged RED which is the area in dispute, the trial court was in order in granting the relief as claimed. The above represents the substance of the submissions of counsel in their respective briefs of argument. I shall now endeavour to resolve the issues starting with the first issue. It poses the question of where lies the burden of proof having regard to the pleadings and evidence. It is the contention of the Appellant that the Respondent, having failed to plead and prove his root of title by evidence of tradition, failed to discharge the onus of proof on him. The argument of the Respondent on the other hand is that it is the Appellant who failed to prove the root on his title to the land in dispute.
In the first place, had the Plaintiff/Respondent any duty, going by his case as set out in the Statement of Claim, to plead and prove the original founder of the land in dispute, how he founded it and the intervening persons through whom it devolved down to his father Anukan Aneme from whom he inherited it? I shall answer this question in the negative. It is true that in IDUNDUN v OKUMAGBA (1996) 9-10 SC (Reprint) 140 at 154-155 this court has laid down the five modes of proof of title to land. The first of these is that ownership of land may be proved by traditional evidence. The burden and standard of proof of each case depends on the nature of the case as pleaded. Where, as in this case, the Plaintiff alleges that he got the land from his father and the Defendant does not deny or challenge this allegation, then Plaintiff has no duty to prove the father's own source of his title. To drive this point home it is necessary to reproduce paragraphs 3-12 of the statement of claim.
    1/3.     The land the subject matter of this suit (hereinafter called the land in dispute is situate at No.2 Ekeonunwa Street, Owerri, andforms part of a family land traditionally known as and called 1/ ISHI ONUEKU ONE" where the father of the Plaintiff; ANUKANANEME, lived with his wife and children; The land ih dispute verged RED in the Plaintiffs plan is part of the Plaintiffs land verged GREEN. The entire Plaintiffs land is bounded by the houses of Dick Anukam, Sunday John Anukam, Patrick and Hezekiah Ibejiako and by Ekeonunwa Street
Many years ago when the Plaintiff was a minor the Plaintiff's father made a gjft inter vivos of the land verged GREEN in the survey plan No. GIKS/IMD 89/92 drawn by G.!. Ikeh, a registered surveyor and filed together with this statement of claim to the Plaintiff.
The gift was made in the presence of John Anukam (the father of the Defendant), William Anukam (also called Wilfred Anukam), Dick Anukam and Godwin Anukam all being brothers of the Plaintiff and sons of the Plaintiffs father.
Also in the presence of the sons, the Plaintiffs father entrusted the said land to the Plaintiffs aunt, Beatrice Okenwa to look after for the Plaintiff.
The Plaintiffs father had hitherto made gifts of various portions of land in the compound to his sons who built and lived in the houses as shown in the survey plan.
The Plaintiffs aunt built a mud house on a portion of the Plaintiffs land and lived therein while erecting another mud house on the portion verged RED in the plan and let same out on rent. The Plaintiffs aunt used the proceeds from the rent in paying Plaintiffs school fees.
When the Plaintiff became a major the aunt handed over the two buildings to the Plaintiff. Plaintiff lived in the house formerly occupied by his aunt while allowing the one on rent to continue to be on rent.
During the Nigerian Civil war the two buildings were destroyed. At the end of hostilities the Plaintiff rebuilt the house he lived in using concrete blocks for the walls and corrugated iron sheets for the roof He did not rebuild the house that was let out on rent but  let it out to tenants who used it as open stalls. That portion of the Plaintiffs land overlooks the Owerri main market and is separatep from the market by Ekeonunwa Street. This portion is verged RED and is the land in dispute.
In 1977 the Defendant, without the consent of the Plaintiff broke 5 and entered the land in dispute and started the construction of a building.
In paragraph 3(a) of the Amended Statement of Defence, the Appellant pleaded:
"Paragraph 3 of the Statement of Claim is also admitted.
Furthermore the Defendant avers that the great grand father of
the Defendant and grandfather of the Plaintiff lived on the land 10 with their relations Uwaleke Eshika, Eke Onugha on the land in dispute. Both begat children on this land.
It is clear from the above that the Appellant admitted paragraph 3 of the Statement of Claim in his own paragraph 3(a) of the Statement of Defence without any qualification. It is surprising therefore that he proceeded to plead in the same paragraph 3(a) and other paragraphs of the Amended Statement of Defence a different source of his root of title. The Respondent maintained his source of title to  be his father, Anukam Aneme, and at the trial was at pains to prove 15 just that. And in view of the Appellant's admission of his assertion in paragraph 3 of the Statement of Claim, he had no duty to prove the person who founded the land, how he founded it and the person through whom the land devolved on his father. For the purpose
and proof of his title, the Respondent had no duty to plead and prove more facts than he did. In my view it was sufficient if he established that the land belong to his father, Anukam Aneme, who gave same to him and that is what he did.
On this question of whether the land in dispute belonged to the 20 Respondent's father, Anukam Aneme as claimed by the Respondent
or Onugha Uwaleke as claimed by the Appellant, the testimony of
the DW4 supported the case of the Respondent. At page 61 of the record of proceedings the DW4 Obodi Akuebionwu said: