CORAM
PARTIES
JOHN I. OGBU
APPELLANTS
BEST WOKOMA
RESPONDENTS
AREA(S) OF LAW
SUMMARY OF FACTS
The action was instituted by the Plaintiff/Appellant against the Defendant/Respondent through his attorney, Nnanna Oji Ogbu, the administrator of the estate of Oji Ogbu (deceased) in 1982 in respect of a dispute arising over the ownership of a house at 185 Ikwerre Road, Port Harcourt. The Plaintiff’s case at the trial was that the land in dispute originally belonged to Charles Nyeowa, Micheal Oguogbo and Clinton Nmereni. These original owners sold the plot to one John Emeafor and a deed of conveyance executed in favour of this purchaser dated 18th March, 1958 was registered as No. 58 at page 58 in volume 103 at Enugu Land Registry, but now at the Land Registry Port Harcourt. The Purchaser, John Emeafor, in turn, sold to the late Oji Ogbu and a deed of conveyance dated 9th May, 1958 was registered as No. 79 at page 79 in volume 103 at the Land Registry, Enugu but now also at the Land Registry, Port Harcourt. The portion of the land sold to the late Oji Ogbu is shown in the survey plan attached to the conveyance and admitted. Oji Ogbu, after purchasing the land, cleared it and built three houses on the land. But he had to abandon the property during the Nigerian civil war and the property was then treated as one of the properties abandoned in Rivers State. The property was later known as No. 185 Ikwerre Road, Port Harcourt. After the civil war, Oji Ogbu, returned to Port Harcourt and the property was released to him. The release was published in the Rivers State Official Gazette No. 43, Vol. 6 of 17th October, 1974 and an instrument of transfer dated 5th November, 1974 was executed in his favour. Oji Ogbu thereafter continued to exercise all acts of possession and ownership over the property until he died on 3rd April, 1971. He rented the property to tenants and collected rents from the tenants, while he was alive. The administrators of his estate continued to collect rents from the tenants after his death. In September 1982, the Defendant forcefully entered the said property and forced the tenants to start paying rents to him. He claimed to be the owner of the property. He also claimed that the land on which the houses in dispute were built was his father’s share out of a large parcel of his family land inherited from his said father. He contended that the vendors who sold to the Plaintiff had no authority to sell the land. The trial court accepted the Defendant’s story and dismissed the Plaintiff’s claim. The Court of Appeal also dismissed an appeal filed against the trial court’s judgment. The present appeal is against the decision of the Court of Appeal.
HELD
Appeal Allowed
ISSUES
Whether the court below was justified in affirming the trial court’s finding and conclusion that the plaintiff/appellant did not show any nexus between exhibit 3 and No.185 Ikwerre Road in dispute and did not prove the identity, ownership and possession of same to warrant the dismissal of his appeal. Was the court below right to affirm the trial court’s decision/findings that the appellant failed to convincingly establish by evidence that his principal had any buildings on No. 185 Ikwerre Road, Port Harcourt? Whether the court below was right to affirm the trial court’s decision/finding that the appellant did not show where the property was advertised before it was released to him and that the said release, was surrounded in uncertainty? Whether the failure of the court below to adjudicate and make pronouncement on the appellant’s issues Nos. 1 and 5 for determination occasioned miscarriage of justice against the appellant? Was the court below right to affirm the trial court’s decision that the defendant did not trespass into the plaintiff/appellant’s property in dispute? Whether from the totality of admissible evidence before the court below, the pleadings and peculiarities of the property in dispute as an abandoned property, the plaintiff/appellant failed into, to prove his case.”
RATIONES DECIDENDI
ONUS OF PROOF – ON WHO LIES THE ONUS OF PROOF IN CIVIL CASES
“It is settled law that in civil cases, the onus of proof is not as fixed on a plaintiff as it is on the prosecution in criminal cases. Thus, in civil cases, where the general burden of proof in the sense of establishing his case lies on the plaintiff, such burden is not as static as in criminal cases. Therefore, there will be instances in which on the state of the pleadings, the burden of proof will be on the defendant also as the case progresses. Such a situation will arise when it may become the duty of the defendant to call evidence in proof or rebuttal of some particular points which may arise in the case. See Osawaru v. Ezeiruka (1978) 6-7 SC 135 at 145; Adejoke v. Adibi (1992) 5 NWLR (Pt. 242) 410 at 423; and Oyude v. Ogedegbe (1984) 1 SC 360 at 363.”
IDENTITY OF LAND – WHETHER THE FACT THAT DIFFERENT NAMES ARE GIVEN IN EVIDENCE TO A LAND IN DISPUTE IS FATAL
“The law is also settled that where the parties, by the evidence adduced both oral and documentary, are ad idem on the identity of the land in dispute, the fact that different names, are given to the land or the area where the land is located is called different names is not fatal to the party claiming such land. See Makanjuola v. Balogun (1989) 3 NWLR (Pt. 108) 192, (1989) 2 N.S.C.C. 294.”
POSSESSION OF LAND – PROPER PARTY IN POSSESSION OF LAND WHERE THERE ARE TWO COMPETING PARTIES CLAIMING POSSESSION OF LAND
“It is also settled law that where two competing parties claim to be in possession of land in dispute in a case, the law ascribes possession to the one with the better title: See Mogaji v. Odofin (1978) 4 S.C. 91 at 96; and Aromire v. Awoyemi (1972) 1 All NLR (Pt. 1) 101 at 112.”
CONCURRENT FINDINGS OF FACTS BY LOWER COURTS – POSITION OF THE LAW ON CONCURRENT FINDINGS OF FACTS BY LOWER COURTS
“There is no doubt that this appeal is against the concurred findings of fact by the trial court and the Court of Appeal. The position of the law is that such findings of fact should not be disturbed by this court unless there are cogent and compelling reasons shown to justify disturbing those findings of fact. See Okeke v. Agbodike (1999) 14 NWLR (Pt. 638) 215 at 222; Ibenye v. Agwu (1998) 11 NWLR (Pt. 574) 372; Alakija v. Abdulai (1998) 6 NWLR (Pt. 552) 1; and Chukwu v. Nneji (1990) 6 NWLR (Pt. 156) 363.”
CONCURRENT FINDINGS OF FACTS BY LOWER COURTS – INSTANCES WHEN THE SUPREME COURT WILL INTERFERE WITH CONCURRENT FINDINGS OF FACTS BY LOWER COURTS
“When there are concurrent findings of fact by the lower courts this court will not disturb such findings. The exceptions to this rule are many, but suffice to say if such findings of fact are made on inadmissible evidence, or they cannot be related to any evidence before the court, or are on matters un-pleaded or on the whole facts before the trial court and Court of Appeal are manifestly perverse. In such cases this court will intervene and do what the lower courts ought to have done (S. 66 Supreme Court Act.) It is on basis that the decision of trial court upheld by Court of Appeal is defective and perverse that this appeal succeeds. (See Ibenye v. Agwu (1998) 11 NWLR (Pt. 374) 372; Alakija v. Abdullai (1998) 6 NWLR (Pt. 552) 1; Okeke v. Agbodike (1999) 14 NWLR (Pt. 638) 215 at 222.
CASES CITED
Not Available
STATUTES REFERRED TO
Nil|