Whether a Claimant Who Fails to Prove Good Root of Title Can Rely on Acts of Ownership

CASE TITLE:  NWOCHE & ANOR v. ELUAKA & ORS (2023) LPELR-61496 (CA)

JUDGMENT DATE: 1ST AUGUST, 2023

PRACTICE AREA: LAND LAW

LEAD JUDGMENT: SYBIL NWAKA GBAGI, J.C.A.

SUMMARY OF JUDGMENT:

INTRODUCTION:

This appeal borders on the Declaration of Title to Land.

FACTS:

This appeal is against the judgment of the High Court of Anambra State sitting at Onitsha, delivered on May 18, 2017 in Suit No. O/172/2011.

It is the Plaintiffs/Appellants case that the land in dispute originally belonged to their foremost ancestor, Chimadie who begot ljelekpe and Ijelekpe in turn beget Obiudogwu. Obiudogwu begets three (3) children, namely: Nwajei, Osodi-Modi, and Nzegwu Nwobi. It was through the said sons of Obiudogwu that the land in dispute got to the plaintiffs. The plaintiffs’ forefathers farmed on the land in dispute and usually rested intermittently on a portion thereof, presently known as No. 8 Achukwu Lane, Onitsha, before they returned to their houses at Nos. 3 & 5 Obiozor Onya Street, Inland Town, Onitsha. The need to have intermittent rest while farming on the said land arose due to the hilly nature of the land in dispute. The defendants, without the plaintiffs’ consent or authorization, went into this disputed land, used bulldozers to demolish the hills, constructed roads and water channels, and plotted and placed beacons on the said land. The plaintiffs discovered these acts of trespass on or around the 19th day of December, 2010.

​On their own part, it is the case of the 1st, 3rd & 4th defendants, also in brief, that the land in dispute is part of their larger expanses of land, known as “Ani Omagba” Umuifejiofor. There is no shrine located on the land in dispute, and the land is nowhere around Nkisi Ogboza Stream. The plaintiffs’ ancestors did not own any land anywhere around the land in dispute. That the land in dispute originally belonged to Isagba Ajie and his relation, Iyase Nsu, both of Ogbolieke Village, Onitsha, and that their family (Umuifejiofor family) got the entire “Ani Omagba” Umuifejiofor from the Isagba Ajie family of Ogbolieke Village, Onitsha, the original owners of the said land as dowry on account of a daughter of Isagba Ajie who was married to the ancestor of the defendants many years ago. That neither Obiudogwu nor any of the plaintiffs’ ancestors had ever farmed on the land in dispute. That the plaintiffs have no farm or any ancestral farmhouse either on the land in dispute or at Achukwu Lane. No. 8 Achukwu Lane is a plot of land granted to the 1st plaintiff’s father, Akunwafor Dominic Nwoche, under customary tenancy by the the late Akunne Francis Obiefuna Ogbuli of Umuisagba family, sometimes in the late 1950s. The only time they had a dispute in respect of their land was in 1964, when they had a boundary dispute with the Umuisagba family of Ogboli Eke Village, Onitsha, the owners of the land at the western boundary of the defendants’ “Ani Omagba” land in dispute. That the dispute was at the Onitsha High Court in Suit No. O/92/64: Francis O. Eluaka & Anor. vs. Peter O. Enwezor & Anor. In that suit, Survey Plan No. E/GA/117/55 was used by the Umulaagba family, acknowledging that the defendants owned the land in dispute. The plaintiffs are disturbing the defendants’ workmen on the land, are interfering with their peaceful enjoyment of the land in dispute, and are even purporting to sell part of the land in dispute to an unsuspecting person(s).

​The 2nd defendant’s case is basically the same with that of the other defendants. It is his case, mainly, that he entered the land in dispute along with other members of the Land Committee of his family, used a bulldozer to parcellate the same into a layout, and that he does not need the consent and authorization of the plaintiffs in order to do so. He never, at any time, pleaded with the 2nd plaintiff to the effect that they were not disputing the plaintiffs’ ownership of the land. The plaintiffs were simply asked to go and get their survey plan, if they have any, to support their claim. There was no admission of encroachment and trespass on the land in dispute by him.

Both the plaintiffs and the defendants failed to prove their traditional histories, and the Court had to resort to recent acts of possession in order to determine who among them is entitled to the land in dispute. The Court found the defendants to be entitled to the land in dispute based on their proof of recent acts of possession.

Dissatisfied with the decision of the High Court the Appellant appealed to the Court of Appeal.

ISSUES FOR DETERMINATION:

The Court determined the appeal on a sole issue, thus:

“Which of the parties was able to prove better title to the disputed land?”

DECISION/HELD:

On the whole, the appeal was dismissed.

RATIOS:

• ACTION- COUNTER-CLAIM: Effect of failure of a plaintiff to file a reply/defence to a counter-claim
• APPEAL- GROUND(S) OF APPEAL: Instances where a ground of appeal will be regarded as invalid/incompetent
• APPEAL- GROUND(S) OF APPEAL: How Court will determine the competence of a ground of appeal
• APPEAL- GROUND(S) OF APPEAL: Whether defective particulars would necessarily render a ground of appeal defective
• EVIDENCE- PROOF OF TITLE TO LAND: Ways by which ownership/title to land may be proved; whether a plaintiff/claimant needs to prove all the five ways
• EVIDENCE- PROOF OF TITLE TO LAND: Whether a claimant who fails to prove a method relied upon can rely on acts of ownership
• LAND LAW- POSSESSION OF LAND: Principles guiding possession of land
• PRACTICE AND PROCEDURE- PRELIMINARY OBJECTION: Essence of a preliminary objection; when it should be taken by the court
• PRACTICE AND PROCEDURE- PRELIMINARY OBJECTION: Whether a party who raised a preliminary objection in his brief of argument must seek leave of Court to move same; effect of failure
• PRACTICE AND PROCEDURE- PRELIMINARY OBJECTION: When a preliminary objection should be raised

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