General

HOW/373/2019 -1. EVARISTUS EDOZIEM 2. NDUBUISI EDOZIEM.V KEVIN EDOZIEM 2. IFEANYI EDOZIEM 3. VICTORIA EDOZIEM -Ruling delivered 10TH DAY OF FEBRUARY 2021- Abuse of Court Process

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IN THE HIGH COURT OF IMO STATE

IN THE OWERRI JUDICIAL DIVISION

HOLDEN AT HIGH COURT OF JUSTICE, OWERRI

ON THE  10TH DAY OF FEBRUARY  2021

BEFORE HIS LORDSHIP: – HON. JUSTICE I. M. NJAKA

SUIT NO: HOW/373/2019

BETWEEN

  1. EVARISTUS EDOZIEM
  2. NDUBUISI EDOZIEM…. ———————————————-PLAINTIFFS/RESPONDENTS

(For themselves and as

Representing other members

of Adiele Edoziem family of

Emegeiheoma Kindred, Umudagu

Mbieri, Mbaitoli L.G.A. of Imo State)

AND

  1. KEVIN EDOZIEM
  2. IFEANYI EDOZIEM
  3. VICTORIA EDOZIEM

(For themselves and as

Representing other members ———————————————DEFENDANIS/APPLICANTS

Of Joseph Edoziem family of

Emegeiheoma Kindred, Umudagu

Mbieri, Mbaitoli L.G.A. of Imo State)

  1. ENGR. INNOCENT AKPATA
  2. GODFREY AYOZIE
  3. NNAWUIHE AYOZIE

RULING

The Plaintiffs by their Writ of summons dated 18th day of April 2019 and filed same day prays for the following:

  1. A Declaration of the Honourable Court that the Plaintiffs are the persons entitled to the grant of statutory right of occupancy over and in respect of all that parcel of land known as and called “Ugwuala”, which parcel of land is lying and situate at Umudagu Mbieri, near Works Layout, Owerri, within the jurisdiction of the Honourable Court.
  2. A Declaration of the Honourable Court that the 1st – 3rd Defendants, who purport to have sold the land subject matter of the suit, to the person erecting the illegal building on the land, subject matter of the suit, and whose name and identity, the Defendants have fraudulently refused to disclose, are not the owners of the land, and in effect, have no interest whatsoever, in the land.
  3. A Declaration of the Honourable Court that the purported sale of the land, subject matter of the suit, to the person whose name and identity, the Defendants have refused to disclose, and/or to any other person(s), is unlawful, null, void and of no effect whatsoever.
  4. An order of the Honourable Court setting aside the purported sale of the land, subject matter of the suit, by the 1st – 3rd Defendants, to whosoever and whatsoever name called, the purported sale being fraudulent, unlawful, null, void and of no effect whatsoever.
  5. An order of Honourable Court perpetually restraining the Defendants, either by themselves, their principals, agents, privies, workmen and/or their servants, from further committing any act(s) of trespass on the land subject matter of the suit, and/or doing anything on the land, inconsistent with the rights/interest of the Plaintiffs.
  6. One Hundred Million Naira (N100, 000,000.00) damages against the Defendants, jointly and severally, in that about the month of November, 2018, the Defendants, forcibly broke and entered the Plaintiffs’ land known as and called Ugwualla, situate and lying at Umudagu Mbeiri, near Works Layout, Owerri, within jurisdiction, and guarded by numerous thugs, unlawfully commenced construction of a building thereon, without the license and/or authorisation of the Plaintiffs.

The defendants on service of the writ of summons on them brought NOTICE OF PRELIMINARY OBJECTION dated and filed 31st day of May, 2019. It was said to be BROUGHT PURSUANT TO ORDER 39 RULE 1(1-) OF THE HIGH COURT OF IMO STATE (CIVIL PROCEDURE) RULE, 2017 AND UNDER THE INHERENT JURISDICTION OF THIS HONOURABLE COURT.

It prays for:

  1. AN ORDER dismissing “In limine” the suit herein above contained on the grounds that this Honourable Court lacks the Jurisdiction to hear and determine same, this suit being an Abuse of Court Process.
  2. And for such further order or orders as the honourable court may deem fit to make in the circumstance.

The GROUNDS upon which the APPLICATION is brought is are as follows:

That the suit of the Plaintiffs/Respondents herein constituted seeking for a declaration of title over a land called “UGWUALA” amounts to an abuse of the process of this Honourable Court in view of the pendency of the suit in Suit NO: HOW/611/2017at High Court 5 Owerri, before Hon. Justice T.N. Nzeukwu, between the same parties and in respect of the same subject matter (UGWUALA).

The Notice of Preliminary Objection is supported by 21 paragraphs affidavit sworn to by GODFREY AYOZIE, the 5th defendant in this matter. He deposed: I have the consent of the other Defendants to depose to this affidavit. The fact to which I have deposed herein came to my personal knowledge due to my personal involvement in this matter. The action in this suit herein, i.e. HOW/373/2019 was instituted at Owerri Division of Imo State High Court, (i.e. this jurisdiction) on the 18th day of April, 2019, by the Plaintiffs/Respondents. The originating processes were accordingly duly served on the Defendants including myself, the 5th Defendant. One ASSUMPTA N. OKECHUKWU, had earlier on the 4th day of August, 2017, filed a suit at the High Court Owerri against the Defendants in this present matter, including the 2nd Plaintiff in Suit NO: HOW/611/2017 and the Originating processes were accordingly served on the Defendants including the 2nd Plaintiff in the present matter who happened to be the 3rd Defendant in that earlier matter. Photocopy of the writ of summons of the originating process in Suit NO: HOW/611/2017, dated 04/08/2017 is annexed and marked as exhibit “A”. The reliefs sought, the subject matter and the parties are the same as in the earlier suit NO: HOW/61112017 and the present suit HOW/373/2019, except the Plaintiff in the earlier suit who is not a party in the present suit. The two suits are now pending simultaneously before the High Court of Imo State.

Sometime in 2014, the Church called Christ Embassy trespassed into this same land called “UGWUALA”, the land which the Plaintiffs are referring to in their application, commenced construction of a big Church therein. I sued them at the Customary Court Nwaorieubi in suit NO: CC/NW/83/2014 where the suit was heard and Judgment was giving in my favour. Photocopy of the Judgment Order of the said Customary Court Nwaorieubi is annexed as Exhibit “B”. Throughout the lifespan of the above mentioned suit at the Customary Court, the Plaintiffs/Respondents were aware of its pendency there and they did nothing, but standby and allow me fight over the land only for them to come up now to claim ownership of same.

I sometime in 2016, reported the 2nd Plaintiff at State C.I.D Owerri, Imo State Police Command when he threatened my life in respect of this land in dispute, and at the Police Station I clearly told him and one Damian Sara Ogu who is known as a land grabber in our place, who accompanied him to the Police. The 2nd Plaintiff at the Police alleged that the land belonged to one Assumpta Nmesoma Okechukwu, whom he alleged that his family sold the land to. At the Police Station, the 2nd Plaintiff and his Lawyer from Messrs. D.C. DENWIGWE, SAN & ASSOCIATES hand over to me a photocopy of the letter which they alleged they wrote to me sometime in October, 2016. The said letter is annexed as exhibit “C”.

We asked the 2nd Plaintiff and the said Assumpta Nmesoma Okechukwu to join themselves in the suit at the Customary Court Nwaorieubi if they actually alleged that the land belongs to them, and they did not do that till judgment was delivered in that matter. The said Assumpta Nmesoma Okechukwu sometime in 2017 started fomenting trouble again over the land and I and the 6th Defendant/Respondent sued her at the Customary Court Nwaorieubi in Suit NO: CC/NW 17 4/2017. The photocopy of the claim before that Court is annexed as exhibit “D”. My suit I filed at the Customary Court – waorieubi in Suit NO: CC/NW174/2017 was even the first in time before both High Court matters in Suit NOs: HOW/611/2017 and HOW/373/2019, respectively. The entire three suits are now pending simultaneously in three different Court in respect of the same “UGWUALA” Land.

I was informed by P.I. Ogwurike Esq., our counsel and I erily believed him that the present suit is an abuse of Court process am, this Court lacks jurisdiction and competence to entertain this suit. I urge the Court to dismiss this suit for being abuse of court process and lack of jurisdiction.

The affidavit is accompanied by a written address. The counsel formulated issue for determination as:

“Whether the present suit, HOW/373/2019, herein does not, constitute an abuse of court process in view of the pendency of an earlier suit in Suit NO: HOW/611/2017”.

It is submitted on behalf of the applicants that commencing or instituting a multiplicity of action on same subject matter against the same opponent on the same issue or multiplicity of actions on the same matter, between the same parties even where exist a right to begin the action as done by the Plaintiffs/Respondents in this present matter amounts to abuse of the process of this Honourable Court. Relied on N.I.W.A. vs. S.T.B. PLC (2008) 2 NWLR (Pt. 1072) 483.

It is submitted that in the instant matter, a suit has been earlier on filed against the Plaintiffs and the Defendants at the High Court 5 Owerri, in Suit NO: HOW/611/2017, and same were served on the Plaintiffs/Respondents two years earlier, before they Plaintiffs institutes this action against the Defendants in Suit NO: HOW/373/2019, which amounts to abuse of court process. The counsel relied on FASAKIN FOODS (NIG.) CO. LTD vs. SHOSANYA (2003) 17 NWLR (Pt.849) 237

Referred the court to paragraphs 2, 3,4,5,6,7,8,9 and 10 of the affidavit in support of this application and submitted that, the above paragraphs constitute sufficient prove that the matter in Suit NO: HOW/611/2017, pending at High Court 5 Owerri was instituted first before the present action in Suit NO: HOW/373/2019.

It is submitted in conclusion that the Defendants/Applicants have made out a case requiring this Honourable Court to grant their application by dismissing this suit for being abuse of court process and for the Honourable Court lacking the Jurisdiction to hear same. The court is urged therefore to grant this application and dismiss this suit for being instituted in mala fide, flagrant abuse of court process and for the Honourable Court lacking· the requisite Jurisdiction to hear and try this matter.

On service of the counter affidavit of the Plaintiffs/Respondents, the Defendants/Applicants filed FURTHER AFFIDAVIT IN SUPPORT OF NOTICE OF PRELIMINARY OBJECTION. It is deposed to by GODFREY AYOZIE, the 5th defendant. He deposed that the action in this suit herein, i.e. HOW/373/2019 was instituted at Owerri division of Imo State High Court, (i.e. this jurisdiction) on the 18th day of April, 2019, by the Plaintiffs/Respondents.

Paragraphs 2’a’ to ‘e’ of the Plaintiffs counter Affidavit in opposition of the preliminary objection are false and I state that the Plaintiffs knew ASSUMPTA N. OKECHUKWU, because she is one of them and they are fighting the same cause.

Paragraph 2b of the Plaintiffs counter Affidavit in opposition of the preliminary objection is false. The Plaintiffs were duly served with the statement of claim and writ of summons filed by ASSUMPTA N. OKE CHUKWU, and the 2nd Plaintiff has been appearing in Court in defence of same since the inception of that matter. The certified true copy of the writ of summons of the matter filed by the said ASSUMPTA N. OKE CHUKWU, wherein the 2nd defendant is a party and wherein the claim is over the same subject matter “U gwuala” is hereby exhibited and marked as exhibit “FA 1”.

That paragraphs 3, 4, 5, 6, 7, 8, 9, 10, and 11 of the Plaintiffs counter Affidavit in opposition of the preliminary objection are false and I state that I am an old man of over 80 years of age and cannot involve myself in any shady thing or business.

The Plaintiffs were aware of the suit that gave birth of the Judgment of the Customary Court Nwaorieubi from the inception of that suit till its determination because both the Plaintiffs and the Christ Embassy people were on the same side, just that the Plaintiffs were using them indirectly to fight us and the Plaintiffs on seeing that I have gotten Judgment against the Christ Embassy Church now want to institute their own action through the backyard. After I got the Judgment against the Christ Embassy Church at the Customary Court Nwaorieubi, the Christ Embassy Church been dissatisfied with the Judgment of the lower Court went of appeal to the Customary Court of Appeal and the Appeal Suit number is CCA/OW/A/611/2018. The Christ Embassy Church did not abandon the suit as the Plaintiff claims in order to misdirect this Honourable Court.

That the appeal at the Customary Court of Appeal on this same subject matter “UGWUALA” has reached judgment stage and was fixed for Judgment on the 18th day of December, 2019. The Certified True Copy of the Appellants Reply Brief is attached as Exhibit “FA 2”.

Paragraphs 12, 13, 14, 15, 16, 17, 18, 19, 20, and 21 of the Plaintiffs counter Affidavit in opposition of the preliminary objection are false and I state that all the documents I exhibited to my affidavit and further affidavit are genuine, verifiable because they are public documents. The land the subject matter of this dispute is my land and not that of the Plaintiffs, and the Plaintiffs have never farm or be in possession of same in their life, as well as their grandfather and direct father.

Before the inception of the matter at the Customary Court Nwaorieubi, that the people of Christ Embassy forcefully took over possession of the “U gwuala”, built their Church on the same land and even sunk a bore hole on the land, and when they defied my warnings to remove their structure from my land, I demolished same and that was what took us to Customary Court Nwaorieubi. All through the time the Church was standing on the land in dispute, the Plaintiffs who are now claiming ownership of same were aware, alive and in the village, but choose to do nothing because they know that the land does not belong to them.

The demolition of that Church Building took us to different Police Stations like State C.LD. Owerri, Zone 9 Umuahia in Abia State, even to Police Force Headquarters, Abuja and the Plaintiffs were aware of all these incidents a did not come out to join in the fight because they are aware that the land did not belong to them. I urge the Court to dismiss this suit for being abuse of court process and lack of jurisdiction.

The further affidavit is accompanied by a written address wherein the counsel further relied on N.I.W.A. vs. S.T.B. PLC (2008) 2 NWLR (Pt. 1072) 483, FASAKIN FOODS (NIG.) CO. LTD vs. SHOSANYA (2003) 17 NWLR (Pt.849) 237

The Plaintiffs/Respondents filed COUNTER AFFIDAVIT IN OPPOSITION TO NOTICE OF PRELIMINARY OBJECTION. It is deposed to by Ndubusi Edoziem, the 2nd Defendant (Plaintiff)/Respondent in this application.

Paragraphs 6, 7 and 8 of the affidavit in support of the application are not true and accordingly denied. I do not know the person called Assumpta N. Okechukwu. I am not aware of any suit instituted by the said Asumpta N. Okechukwu in respect of our land known as and called “Ugwuala”, lying and situate at Umudagu Mbieri, near Works Layout, Owerri, within jurisdiction, neither was I served with any process in respect of the Suit No: HOW/611/2017. Our Suit No: HOW/373/2019, as presently constituted, I did not sue any person called Assumpta N. Okechukwu and he is not a party thereto. Our counsel, Prince IK Udeozor, on the 2nd day of July, 2019, told me in his office, and I verily believe him that, the photocopy of the purported writ of summons exhibited to the affidavit in support of the application as exhibit A, is incompetent, the same being barren/empty and a mere deceit. We duly instituted an action in our Suit No. HOW/373/19, against persons who trespassed unto our land, including the deponent to the affidavit in support of the instant application, wherein we are seeking various reliefs including a declaration of title and injunctive reliefs. our land subject matter of our Suit No. HOW/373/2019, by Godfrey Ayozie who has no interest whatsoever in the said land.

Paragraphs 9, 10 and 11 of the affidavit in support of the application are tissues of lies and are accordingly denied. Godfrey Ayozie (the deponent to the affidavit in support of application) is notoriously known as land agent and speculator, a busybody and mischief maker. There was no action instituted at any Customary Court in respect of our land subject matter of our Suit No. HOW/373/2019, by Godferry Ayozie who has no interest whatsoever in the said land. Godfrey Ayozie, a land agent and speculator did not and could not have taken out a Suit in respect of the land, subject matter of Suit No. HOW/373/2019 without our authorization and consent.

Sometime ago, some persons who were identified as members of Christ Embassy Church, in their bid to acquire land for a church building, trespassed unto our said land, and on noticing such act of trespass, we promptly intercepted them, demanding to know the reason for such brazen act of trespass. We got stunned to learn from them (Christ Embassy members) that it was Godfrey Ayozie who, upon a false claim that the land belonged to him by customary purchase, fraudulently permitted them to go unto the land for their church building. Consequently, we asked Christ Embassy to steer clear of our land and advised them to meet with their false land owner (Godfrey Ayozie) and retrieve whatever money he might have collected from them.

Being confronted with the foregoing revelation, Christ Embassy left and never had anything to do with the land any more. I do not know any Suit No. CC/NW/83/2014, neither was I a party thereto, and neither the purported Plaintiff in the purported Suit No. CC/NW/83/2014, nor the Defendants thereto, has any interest in or any nexus with the land subject matter of our suit. Exhibit B, a photocopy of purported judgment order of a Customary Court, is a concoction by Godfrey Ayozie which has been his stock in trade. Our land, subject matter of Suit No. HOW/373/2019, has been our property by customary inheritance, and has been in our quiet and undisturbed possession since several decades, and there had never been any period of time our said land was a no man’s land and/or property necessitating Godfrey Ayozie to assume any form of ownership in respect thereof.

Paragraphs 12, 13, 14, 15, 16, 17, 18, 19, 20 and 21 of the affidavit are false, misleading and accordingly denied. When I advised the men of Christ Embassy to steer clear of our land and meet with whoever that collected money from them in respect of the land, Godfrey Ayozie (the 5th Defendant) resorted to threatening my life, by reason of which, I lodged a report of threats to my life at the State Police Command, Owerri, Imo State. I did not at any given time ever say that my land belonged to one Assumpta Nmesoma Okechukwu or that my family sold the land to him and/or any other person(s).

I had no knowledge of exhibit C and I was not a party thereto, and did not instruct any person to write the said exhibit C as I had no cause for such instruction. Exhibit D, like its counterparts, A, Band C, are mere concoctions by Godfrey Ayozie and his cohorts, who are land speculators, land agents and busybodies who go about unlawfully scouting for parcels of land to sell for sustenance.

The purported suits, purportedly filed by Godfrey Ayozie (the 5th Defendant) have nothing to do with me and my land, subject matter of Suit No: HOW/373/2019. Suit No: HOW/373/2019 was duly filed against persons who unlawfully trespassed unto our land, which suit is very competent and cannot be said to be an abuse of court process.

It is in the interest of justice that this application be dismissed with punitive cost for being frivolous, speculative, unmeritorious and having been made in bad faith.

It is accompanied by the counsel written address, wherein the counsel submitted issue for determination:

Whether having regard to the affidavit evidence placed before the Honourable Court and the nature of documents exhibited to the Defendants/Applicants’ affidavit in support of the application, this application is not frivolous, baseless, speculative, brought in bad faith, and, a clear abuse of judicial process and liable to be dismissed with heavy costs?

It is submitted that for a Court to arrive at a valid conclusion that a suit, such as Suit No: HOW/373/2019, is an abuse of court process, valid process or processes allegedly abused, must be placed before the Honourable Court, to enable the Honourable Court to decipher sufficient facts from the face of the alleged abused processes in order to determine whether or not its process has been abused. There is no competent and valid process placed before the Honourable Court qualifying as court process, containing relevant facts upon which the Honourable Court can rely to pronounce Suit No: HOW/373/2019 as abuse of court process. Referred to NTUKS VS. N.P.A. (2007) ALL FWLR (Pt. 387) 809,

The concept of abuse denotes a pervasion of the judicial system by the use of a lawful procedure for the attainment of an unlawful result, which manifests itself in the multiplicity of actions on the same subject matter between the parties. Abuse of court process manifests itself in the manner of exercise of the right to sue and the purpose of doing so because the term “abuse of process” is generally applied to a process that is lacking in bona fides or has a tinge of malice in it. In law, it is the last of the several processes that constitutes an abuse of process. See A.R.C. VS. JDP,CONSTRUCTION (NIG) LTD (2003) FWLR (Pt. 153) 251.

It is submitted that where the subsequent action complained of, raises more issues and is before a court that is competent to hear and determine all the issues, while the earlier court is only capable of entertaining some of the issues, the subsequent suit is not an abuse of process. Relied on Registered Trustees, The Living Christ Mission Vs. Aduba (2000) FWLR (Pt. 6) 911,

It is submitted that it is not an abuse of process for a defendant who conceives that he has reliefs that are deferent from those claimed against him by the plaintiff in an existing suit to initiate separate proceedings seeking those reliefs, even though both claims arise from the same facts and subject matter. See FASAKIN FOODS (NIG.) LTD VS. SHOSHANYA (2003) 17 NWLR (Pt. 849) 237; A.N.P.P VS. HARUNA (2003) 14 NWLR (Pt. 841) 546; UNIFAM INDUSTRIES LTD VS. OCEANIC BANK INTERNATIONAL (NIG) LTD (2005) 3 NWLR (Pt. 911) 83, CHRISTIAN OUTREACH MINISTRIES INC. VS. COBHAM (2006) ALL FWLR (PT. 310) 1675 per His lordship, Omokri, J.C.A.

It is submitted that for a party claiming that a process of Court has been abused to succeed on his objection, he must exhibit that previous process to prove to the court that the present action amounts to such an abuse alleged by him. The Applicant’s affidavit in support of such objection must unequivocally prove such abuse. See UBAKA & SONS L T VS. EZEKWEM & CO. (2000) FWLR (Pt. 1) 77.  Counsel relied on I.B.W.A. VS. SASEGBON (2007) ALL FWLR (Pt. 389) 1099, 1114, per Galinje, J.C.A., as follows: An abuse of process is a product of facts. When facts leading to an abuse of process are not disclosed sufficiently, it is difficult for a court or tribunal to hold that an abuse of process has been occasioned. The disclosure of such facts before a court is done through an affidavit evidence. In absence of such disclosure, the lower court was right when it discountenanced the address of counsel on the issue of abuse of court process… For counsel’s address must be predicated on facts before the court.

The counsel relied on paragraph 2 a-e 16, 17, 18 and 19 of the counter affidavit, to the effect that they have nothing to do with the suits, had no knowledge of exhibit C and was not a party thereto neither did he instruct any person to write the said exhibit C as he had no cause for such instruction. He further stated that exhibit D, like its counterparts, A, B and C, are mere concoctions by Godfrey Ayozie and his cohorts, who are land speculators, land agents and busybodies who go about unlawfully scouting for parcels of land to sell for sustenance, and that the purported suits, purportedly filed by Godfrey Ayozie (the 5th Defendant) have nothing to do with him and his land, subject matter of Suit No: HOW/373/2019. In conclusion, he averred that Suit No: HOW/373/2019 was duly filed against persons who unlawfully trespassed unto their land, which suit is very competent and cannot be said to be an abuse of court process.

It is submitted that exhibit A, the purported writ of summons, being the purported court process allegedly abused, is not properly before the court, the same being barren, empty and incapable of assisting the Honourable Court to determine whether or not Suit No. HOW/373/19 is an abuse of court process. The law is that a document exhibited to an affidavit is inextricably part of the affidavit. See EZECHUKWU VS. ONWUKA (2016) LPELR 26055 (SC) 37, C-D; HOWANDE VS. QIEM (2019) LPELR 46868 (CA) 31-32 G-A.

It is submitted that the authorities cited by counsel for the Applicants are not applicable to the instant case. The law is that a decision is authority for what it actually decides and judgments should be read in the light of the facts on which they were decided. See JIBRIL VS. MILITARY ADMINISTRATOR, KWARA STATE (2007) 3 NWLR (Pt. 1021) 357, 376 E. Also, in the case of UNIVERSITY OF IlORIN VS. ADENIRAN (2007) 6 NWLR (Pt. 1031) 498, 529 E, it was held that decision of court is the authority for the law based on the facts it decides. Suit No: HOW/373/2019 is very valid, competent and well founded.

It is submitted that in view of the documents exhibited to the affidavit in support of the preliminary objection as exhibits A, B, C and D, this application is most incompetent, frivolous, unmeritorious and the clear abuse of judicial process, and the court is urged to so hold and dismiss the same with punitive costs.

On 17th November 2020, when this application was heard, the 2nd Plaintiff was present in court. Asika Ilobi for Plaintiff/Applicant/Respondent and Sir P.I.Ogwuruike for the Defendants/Applicants

Ogwuruike informed the court that he has preliminary objection while Asika-Ilobi informed the court that he has a motion for injunction. He prayed the court to consolidate the Preliminary objection and Motion for injunction and hear them together. The court should restrain all the parties pending the determination of the suit.

Ogwuruike Esq., moved his application. Referred to document attached to the affidavit-Exhibit A- writ of summons of a pending suit between same parties. Exhibit B – judgment order of Customary Court Mbaitolu, Exhibit C – a letter written to the 5th Defendant by the counsel of the plaintiff in the matter pending at High Court 5. Exhibit D- a claim at Customary Court Nwaorubi, Exhibit FA1 – certified true copy of writ of summons in the suit pending at High Court 5. And also exhibit FA 2 – which is Appellant’s reply to preliminary objection in appeal pending before the Customary Court of Appeal, Owerri.

He submitted that there is a distinction between jurisdiction and demurer. Both issues are different. Therefore the issue of jurisdiction can be raised at any time. Whether pleaded or not. Issue demurer the plaintiff must plead and it is upon pleading by the plaintiff that the defendant will contend that he accepted all the facts pleaded by the plaintiff as true the plaintiff has no cause of action. The issue that will be raised on demurer where appropriate is no locus standi. The issue of jurisdiction is not a matter of demurer proceedings like in the instant case. He cited

Federal College of Education v, Akinyele (2009) AFWLR (Pt 465 at 1785 at 1806 -1807, NDIC V CBN 2002 18WRN 1 at 18-19. He submitted that where a court was clearly away that another court of coordinate jurisdiction is seized of a case with the same parties and the same subject matter before it, it is an abuse of process for that court to continue with the hearing of the case. And proceed to make orders – Nigeria Intercontinental merchant Bank ltd v UBN & Ors 2004 6MJAC 158 at 177. We urge the court to grant the application. The court should strike out this matter.

Asika-Ilobi Esq., relied on the Plaintiff Counter Affidavit on 11-9-2019. It is a 21 paragraphs counter affidavit deposed to be 2nd Plaintiff. The parties are not the same. Our client, the plaintiffs have never and did not authorize anybody to sue on their behalf in respect of this matter. The exhibits show clearly the desperation to pull wool over the eyes of this court. The court should refuse the subterfuge and order the defendants to file their Statement of defence and the matter proceeds and be determined on the merit.

The nature and constitutive ingredient of their argument in support of the purported preliminary objection are such that the courts can only determine upon hearing of the parties and not before the hearing of evidence. Referred to Saraki V Kotoye (1992) 9 NMLR part 264 15 at 189; Adesokan V Adegorolu (1997) 3 SCNLR 1. Relied on National Inland Water way Authority V Standard Trust Bank Plc (2008) 2NWLR (Pt1072) 483 at 500 the law is that whether or not a suit constitute an abuse process is a matter of fact which must be established by credible evidence. According to him Order 22 Rules 1(2) of the High Court Rules forbids this kind of application by the defendant. It is demurrer and demurer ash been abolished. The court should dismiss the application.

The matter was adjourned to 10-2-2021 ruling.

RESOLUTION OF MATTER

I have carefully considered the preliminary objection raised by the Defendants and the response of the Plaintiffs to the objection. The Defendants are saying that this present action by the Plaintiffs constitutes an abuse of court process being a duplication of the suits over the same subject matter. In effect there are suits pending either against or on behalf of the plaintiffs in respect of the subject matter of this suit. In my view the issue for determination is whether this action as constituted and considering the circumstances is an abuse of court process on the ground of multiplicity of action.

In SILHOUETTE-TRAVELS & TOURS LTD v. LEADERS & CO. LTD PUBLISHERS OF THIS DAY NEWSPAPER (2017) LPELR-42982(CA) it is stated:

“Usually, the category of what amounts to an abuse of process is not closed. An abuse can manifest in a variety of ways one of which is the multiplicity of actions between the same parties on same issue, seeking the same reliefs. A Court of law frowns at such multiplicity of actions for the following reasons;

(1) This may result in the ridicule of the judicial system.

(2) This issue of ridicule may stem from the fact that there may be the possibility of conflicting judgments and orders emanating from the multiple actions.

(3) It amounts to a waste of judicial resources.

The multiple actions constitute an abuse of process and once a Court is satisfied that any proceeding before it is an abuse of process, it has the power, and indeed the duty to dismiss it. The Court, being the architect of its own integrity and dignity, must be ready and willing to protect all of its processes from being abused. In one breadth what the Appellant seemed to be saying by the filing of the instant Appeal, is that the Appellant does not agree with the ruling of the Court below, which struck out its Petition for the wound-up of the Respondent, hence the need to have the ruling up-turned and to have its Petition reinstated. In another breadth, what the Appellant had done by agreeing and also by obeying the ruling of the Court below by taking out a writ of summons at the Lagos State High Court to pursue its claims against the Respondent is what has led to the filing of this objection. The abuse in the instant case is in the filing of fresh proceedings in the Lagos State High Court in compliance with the order of the Court below and then during the pendency of that suit pursuing simultaneously the instant Appeal against the said decision of the Federal High Court. What actually amounts to an abuse of process is the improper use of the judicial process to the irritation and annoyance of a party or his opponent and the effective administration of justice. The institution of a multiplicity of actions with the same subject matter and against the same opponent is no doubt an abuse of process. See the cases of NWEKE vs. UDOBI (2001) 5 NWLR (PT.706), 449; OLUTINRIN vs. AGAKA (1998) 6 NWLR (PT.554) 366 AT 376. In the case of AGWASIM vs. OJICHIE (2004) 10 NWLR (PT. 882) 613 AT 624, PARAS C-E, the Supreme Court per NIKI TOBI, JSC had this to say on the subject;

“A litigant has no right to pursue pari passu two processes which will have the same effect in two Courts at the same time with a view to obtaining victory in one of the processes or in both. The two processes are in law not available to the litigants simultaneously. Only one is available and the choice of which of the two is exclusively that of the litigant. Litigation is not a game of chess where players outsmart themselves by dexterity of purpose and traps. On the contrary, litigation is a contest by judicial process where the parties place on the table of justice their different positions clearly, plainly and without tricks”.

In WANZAMI & ANOR v. SALISU & ORS (2014) LPELR-22337(CA), it is stated:

“What these cases require a Court to do when faced with an issue of multiple actions constituting an abuse of process is to look at the processes filed in the two actions and see whether they are between the same parties on the same subject matter and on same or very similar issues…” These principles were reiterated by the Supreme Court in Igbeke v. Okadigbo (2013) 12 NWLR (Pt. 1368) 225. Applying these principles and looking at the processes filed in two suits, Suit No. KDH/KAD/80/97 and KDH/KAD/520/2003 part of the contents of which have been earlier reproduced in this judgment, it is obvious that the parties in the two suits are not the same. The two Appellants, who are the two plaintiffs in Suit No. KDH/KAD/520/2003 and the third Respondent, who is the third defendant in the same suit, were not parties to Suit No. KDH/KAD/80/97 and there was nothing in all the processes filed showing or implying that they were privies, servants and/or agents of the parties in that suit. All the parties were agreed that the first Appellant was not the same person sued as Alhaji Tanko Wanzamiin Suit No. KDH/KAD/80/97 and that the Person so sued is dead; the points were emphatically made by the second Respondent in the affidavit in support of his motion to strike out the suit as an abuse of process.

In Suit No: How/611/2017 the parties are:

Assumpta N. Okechukwu                     Plaintiff

And

  1. Kelvin Edoziem
  2. Victoria Edoziem Defendants
  3. Ndubuisi Edoziem
  4. Goddy Ayozie

The Plaintiff claims against the defendants jointly and severally as follows:

  1. A declaration court that the Plaintiff is the holder of title, and consequently the person entitled to the grant of certificate of occupancy over that portion of Ugwuala land subject of this suit
  2. An order of perpetual injunction restraining the defendant whether by themselves, assigns, agents, privies or any person however described, claiming under or through them from trespassing into the Plaintiff’s Ugwuala Land

The parties in SUIT NO CC/NW/74/2017 are:

  1. Nnawuihe Ayozie
  2. Godfrey Amah Ayozie Plaintiffs

And

Assumpta Nmesoma Okechukwu          Defendant

 

The Plaintiffs claim against the defendant as follows:

  1. A declaration of the Honourable Court that the Plaintiff are entitled to the grant of the Customay Right of Occupancy over the piece and parcel of land known as nad called “Ugwu Ala” situate and lying along Orji Mechanic Village Road and Umudagu layput, Mbieri in Mbaitplu Local Governmnet Area, Imo State
  2. N5,000,000.00 (Five Million Naira) only being special and general damages for trespass
  3. An order of perpetual injunction restraining the defendant by herself, servants, agents, assigns or privies from further acts of trespass on the said properties having not been partitioned.

Parties in SUIT NO: CC/NW/83/2014 are:

Between

Godfrey Amah Ayozie                                    Plaintiff

And

  1. The Incorp. Trustees of Christ Embassy
  2. Pastor Emmanuel Sucker Defendants

The plaintiff claimed against the defendants jointly and severally as follows:

  1. A declaration that the Plaintiff is entitled to the customary right of occupancy of piece or parcel of land known as and called Ugwu Ala Umudagu layout lying and situate along Orji Mecahnic Village Road at Umudagu Mbieri in Mbaitolu LGA Imo State
  2. N8million general damages for trespass
  3. Perpetual injunction

In the present suit- HOW/373/2019 the parties are

  1. EVARISTUS EDOZIEM
  2. NDUBUISI EDOZIEM…. ———-PLAINTIFFS/RESPONDENTS

(For themselves and as

Representing other members

of Adiele Edoziem family of

Emegeiheoma Kindred, Umudagu

Mbieri, Mbaitoli L.G.A. of Imo State)

AND

  1. KEVIN EDOZIEM
  2. IFEANYI EDOZIEM
  3. VICTORIA EDOZIEM

(For themselves and as

Representing other members ———-DEFENDANIS/APPLICANTS

Of Joseph Edoziem family of

Emegeiheoma Kindred, Umudagu

Mbieri, Mbaitoli L.G.A. of Imo State)

  1. ENGR. INNOCENT AKPATA
  2. GODFREY AYOZIE
  3. NNAWUIHE AYOZIE

The Plaintiffs among other things claim as follows:

  • A Declaration of the Honourable Court that the Plaintiffs are the persons entitled to the grant of statutory right of occupancy over and in respect of all that parcel of land known as and called “Ugwuala”, which parcel of land is lying and situate at Umudagu Mbieri, near Works Layout, Owerri, within the jurisdiction of the Honourable Court.
  • A Declaration of the Honourable Court that the 1st – 3rd Defendants, who purport to have sold the land subject matter of the suit, to the person erecting the illegal building on the land, subject matter of the suit, and whose name and identity, the Defendants have fraudulently refused to disclose, are not the owners of the land, and in effect, have no interest whatsoever, in the land.
  • A Declaration of the Honourable Court that the purported sale of the land, subject matter of the suit, to the person whose name and identity, the Defendants have refused to disclose, and-lor to any other person(s), is unlawful, null, void and of no effect whatsoever.
  • An order of the Honourable Court setting aside the purported sale of the land, subject matter of the suit, by the 1st – 3rd Defendants, to whosoever and whatsoever name called, the purported sale being fraudulent, unlawful, null, void and of no effect whatsoever.

One thing that stands out from the above x-ray of parties and reliefs is that this present suit is only one that is brought in a representative capacity.

While the subject matter in all these suits remained as constant as the northern star, unshakeable and undeniable- Ugwuala, the parties have become as wavering as Hamlet. A bride pestered by so many suitors. Are the suitors in the know of each other’s moves? Is there a multiplicity of action and therefore abuse of court process. It was also held by the Court of Appeal in N.I.W.A. VS. S.T.B. PLC (2008) 2 NWLR Pt. 1072 Pg. 483 at P. 500 PARA. B per Uwa JCA that whether or not a suit constitutes an abuse of court process is a matter of fact, which must be established by credible and admissible evidence. Same view is expressed in I.B.W.A. VS. SASEGBON (2007) 16 NWLR PT. 1059 P. 195 AT P. 214 PARAS. B-D the Court of Appeal per Galinje JCA held as follows:

“An abuse of court process is a product of facts. When the facts leading to an abuse of court process are not disclosed sufficiently, it is difficult for a court or tribunal to hold that an abuse of court process has been occasioned. The disclosure of such facts before a court is done through an affidavit evidence. In absence of such disclosure, the lower court was right when it discountenanced the address of counsel on the issue of abuse of court process on the ground that the facts constituting the abuse of court process were not deposed to in an affidavit. For counsel’s address must be predicated on facts before the court. See FATOBA VS. OGUNDAHUNSI (2003) 14 NWLR (Pt. 840) 323.”

Still on the need for the supply of facts, the Court of Appeal per Jega JCA in the case of USMAN VS. BABA (2005) 5 NWLR PT. 917 P. 113 AT PP. 125–126 PARAS. H-B that it is the duty of the defendant to raise the issue of abuse of court process and show materials by way of affidavit and documentary evidence in form of exhibits to convince the court that there are multiple suits over the same issue instituted by the plaintiff involving the same parties

In NGIGE V. ACHUKWU [2004] 8 NWLR (PT.875)383 it is stated that

“Before applying the principle, this court must ensure that the parties are the same, issues and subject matter are the same. See Okorodudu v. Okorodudu (1977) 3 SC 21 and Kotoye v. Saraki (1992) 9 NWLR (Pt. 264) 156 at 188-189. In the present matter, we observed that in the proceedings before the Awka High Court in the proceedings herein, Senior Counsel to the objection concedes that the parties are not the same as the 1st respondent in the application before this court is not a party in that proceeding. We also observed that the order made by the High Court at Awka was made pending the determination of the substantive suit before it which order was therefore not made pending the determination of any appeal in terms of the present motion before this court. Even then, commencement of similar proceedings in different courts would not constitute such an abuse of court process that can lead to a dismissal. One can be stayed for the other to proceed in desirable cases. See Toriola v. Williams (1982) (Pt. 1) Vol. 1 All NLR 177.” Per.MOHAMMED, J.C.A (P.6,Paras A-G)

According to the Defendants, sometime in 2014, the Church called Christ Embassy trespassed into this same land called “UGWUALA”, the land which the Plaintiffs are referring to in their application, commenced construction of a big Church therein. I sued them at the Customary Court Nwaorieubi in suit NO: CC/NW/83/2014 where the suit was heard and Judgment was giving in my favour. Photocopy of the Judgment Order of the said Customary Court Nwaorieubi is annexed as Exhibit “B”. He went further to state that throughout the lifespan of the above mentioned suit at the Customary Court, the Plaintiffs/Respondents were aware of its pendency there and they did nothing, but standby and allow me fight over the land only for them to come up now to claim ownership of same.

Now the plaintiffs here are not parties to the suit at the Customary Court. There is no evidence that they were aware of the suit. The defendants/Applicants have not shown how the Plaintiff became aware of the suit and decided to stand by. What is the link between the Plaintiffs herein and the defendant – Christ Embassy in CC/NW/83/2014. Unless it shown that any advantage could have accrued to the plaintiff had the Christ Embassy won at the Customary Court that is only way in my view it would be said to stand by and allow another fight the battle for them.

As long as cases CC/NW/74/2017 and CC/NW/83/2014 are concerned there is need to for the Defendants to show that the present plaintiffs are aware of the suits or privies to the parties in the suits. In IDAKWO (RTD) V. IBRAHIM & ANOR. (2011) LPELR-8936(CA) it was stated:

“In the case of Coker V. Sanyaolu (1976) 10 NSCC 566 at 573, Idigbe, JSC classified privies in the manner following:

“Privies are of three classes and they are:

(1) Privies in blood (as ancestor and heirs);

(2) Privies in law (as testator and executor; intestate and administrator) and

(3) Privies in estate (which we think is germane to the case in hand) as vendor and purchaser, lessor and lessee”.

See, also Adone v. Ikebudu (supra); Balogun v. Adeiobi (supra); Abuhukar V. B.O. & A.P. Ltd. (2007) 18 NWLR (Pt.1066) 319.” Per OBANDE OGBUINYA, J.C.A. (Pp. 41-42, paras. F-B

In both the CC/NW/83/214 and CC/NW/74/2017 the 5th and 6th Defendants were plaintiffs. They did not join the Plaintiffs as defendants and did no incorporate them as co-plaintiffs. The knowledge of the existence of those cases and what was decided on them cannot be imputed to them.

Again in this present case, the Incorp Trustees of Christ Embassy and Pastor Emmanuel Sucker defendants in CC/NW/83/2014 are not party and so also Assumpta Nmesoma Okechukwu defendant in CC/NW/74/2017 is not a party here.

Now in respect of HOW/611/2017, it is in my view clear that the parties and the capacity in which they sued or are sued are different. It is my view that what is applicable to in a plea of resjudicata is also applicable in the plea of multiplicity of action in relation to the parties. In this regard permit to quote in exteso the decision of the court in BASSEY V. EKANEM (2001) 1 NWLR (PT. 694) PG. 373-374 , PARA. A-B. the court stated:

With due deference to the learned Judge, I do not share the views expressed above. Exhibit 1 shows that the plaintiffs in that case brought the action in representative capacity of the Nkoro family against named defendants in their personal capacity. Even though the said defendants belonged to Bukong, the appellant’s family in the present case, the latter who are sued in a representative capacity cannot be bound by Exh. 1. It is settled law that a decision against a person in one capacity cannot be pleaded against him where he sues or is sued in another capacity. This is the decision in the case of Paul Cardoso v. Daniels & Ors. (1986)2SC 496. At P.560 of the report the Supreme Court opined thus:-

“A decision against a person in one capacity cannot be pleaded against his suing in another capacity; see Coker v. Sanyaolu (1976) 9-11 SC 203. The plea of res judicata will fail immediately if the pre-conditions for its application is absent.” If a defendant sued in a personal capacity in a previous action is not bound in a subsequent action brought against him in a representative capacity, a fortiorari, if the named defendant in subsequent action is different from the defendant in the previous action. I am not unaware of the principle of law restated by the Supreme Court in the case of Faleye v. Otapo (1995) 3 NWLR (Pt. 381) 1 at 31 to the following effect:-

“It is equally well established that the styling, re-styling or mis-styling of parties in actions will not prevent a court from examining the proceedings in issue and determining whether the parties in the present suit are the same as or privies in an earlier suit and thus caught by the doctrine of issue estoppel or res judicata: See Abiodun v. Fasanya (1974) 11 SC 61 at 78. This is because it is not uncommon for parties who have lost in a land suit to employ all manner of devices to resurrect the land case under various names and guises in a bid to becloud the issue of estoppel or res judicata:

See too Iyayi v. Eyigebe (1987) 3 NWLR(Pt. 61) 523 at 533.” The instant case is not one in which any of the parties who lost in a previous land suit is trying to resurrect the land case under any guise. It is simply a case in which the plaintiffs in Exh. 1 in a representative capacity sued the defendants therein in their personal capacity and have in the present case sued other members of defendants family in the present suit in a representative capacity. On the authority of Cardoso v. Daniel (supra), the parties in both suits are not the same for the purposes of the applicability of a plea of res judicata. Per Edozie, J.C.A

In PAUL CARDOSO V JOHN BANKOLA DANIEL & ORS (1986) LPELR-830(SC) (1986) 2 NWLR (PT.20)1, (1986) ALL N.L.R 317, (1986) 2 S.C. 491 the court stated:

“A decision against a person in one capacity, cannot be pleaded against him suing in another distinct capacity-See Coker v. Sanyaolu (1976) 9-10 S.C. 203.The plea of res judicata will fail immediately any of the preconditions for its application is absent. The judgment relied upon for the purposes of estoppel must be subsisting. See Lateje v. Iyanda & Anor. (1959) 4 F.S.C. 257.” Per KARIBI-WHYTE, J.S.C (P. 71, paras. B-D) –

Again in ABU & ANOR v. KURA & ORS (2017) LPELR-42489(CA) it is stated:

“But, it is well settled that a suit fought in a personal capacity cannot transmute into a suit fought in a representative capacity upon a substitution. The capacity of the plaintiff cannot be changed by substitution upon his demise. The deceased plaintiff commenced a personal action which cannot be transmuted into a representative action by substitution; Osagunna v Military Governor, Ekiti State & Ors (supra); In Re Adeosun (supra).” Per OTISI, J.C.A. (Pp. 23-24, Paras. D-A)

The abuse lies in the multiplicity of actions on same issues, and not multiplicity of actions regarding varying issues, even though the parties are the same. It is not the law that once a party files another suit before another court on the same subject matter, there is an abuse of court process. This is because an act can give rise to different suits. A subject matter may very well give rise to different rights. In other word, different suits can emanate from the subject matter but with different rights and reliefs. SEE: N.D.I.C. V. U.B.N. PLC (2015) 12 NWLR (PT 1473) 246.

It is important to understand that simply because the other party has a weak case does not mean that there was abuse of process, even if that party eventually loses the case. The issue of multiplicity of suits by the same person against another on the same subject matter does not arise. As a matter of fact, whether a case constitutes abuse of Court process will depend on the facts and circumstances of that case. This position is not prejudice to the fact it is not the law that once a party files another suit before another court on the same subject matter, there is an abuse if court process. This is because an act can give rise to different suits. A subject matter may very well give rise to different rights. In other word, different suits can emanate from the subject matter but with different rights and reliefs. SEE: N.D.I.C. V. U.B.N. PLC (2015) 12 NWLR (PT 1473) 246. In CHRISTIAN OUTREACH MINISTRIES INC. & ORS V. MRS. EKANEM OKU COBHAM & ANOR (2005) LPELR-11406(CA) it is stated:

“It is not the law that once a party files another suit before another court on the subject matter, there is an abuse of court process. An act can give rise to different suits. A subject matter may very well give rise to different rights. See Unifarm Ind. Ltd. vs. Oceanic Bank Int’l (Nig.) Ltd. (supra) at page 100. In Fasakin Foods (Nig.) Co. Ltd. vs. Shosanya (2003) 17 NWLR (Pt. 849) 237, this Court held that: “It is not an abuse of court process for a defendant who conceives that he has reliefs which are different from those claimed against him by the plaintiff to initiate separate proceedings in court seeking those reliefs even though his claims and those of the plaintiff arise from the same facts and the same subject matter. In the instant case, the respondents’ suit is not an abuse of the process of court because the reliefs sought therein are distinct from that sought in the appellants’ suit”. What transpired in the above case is similar to the facts of the instant case on appeal. The appellants’ suit is best described as a cross-action in a different court. It is not a case of two actions which one party has sued the same defendant.” Per OMOKRI, J.C.A. (Pp. 24-25, paras. D-B)

See R-BENKAY NIGERIA LIMITED v. CADBURY NIGERIA PLC. (2012) 3 S.C. (Pt. III) 169; (2012) 9 NWLR (1306) 600; A. I. C. LIMITED & ANOR v. FEDERAL AIRPORTS AUTHORITY (2015) LPELR-24537(CA). In WANZAMI & ANOR v. SALISU & ORS (2014) LPELR-22337(CA) it is stated:

“It is trite that where the subject matter in the earlier suit was a smaller area of land and the subject matter in the later suit was a much larger parcel of land, the subject matter of the two suits cannot be said to be the same – Okukuje v. Akwido (2001) 3 NWLR Pt. 700) 261, Anwoyi v. Shodeke (2001) 6 NWLR (Pt. 709) 321, Biariko v. Edeh-Ogwuile (2001) 12 NWLR (Pt. 726) 235

The Defendants/Applicants deposed that the appeal at the Customary Court of Appeal on this same subject matter “UGWUALA” has reached judgment stage and was fixed for Judgment on the 18th day of December, 2019. The Certified True Copy of the Appellants Reply Brief is attached as Exhibit “FA 2”.

This application was heard on December 2020 at least a year later, the outcome of the Appeal or judgment of the Court is not brought to the attention of this court.

From what I have stated so far, the preliminary objection fails and same is dismissed.

 

I so hold.

 

I.M.Njaka

Judge

10-2-2021

 

 

 

 

 

Previous post HOW/3CA/2017- NGOKA GODWIN ELEKWACHI V COMMISSIONER OF POLICE – CRIMINAL APPEAL- Delivered on 13th January 2021- By Hon. Justice I.M.Njaka- POINTS: – the powers of the Attorney General is donated by the Constitution of the Federal Republic of Nigeria, 1999 ( as amended) any law that seeks to curtail or impede this powers will be declared unconstitutional null, void and of no effect whatsoever- Fiat has been accepted as one of the means through which the Attorney General can perform his constitutional duty- presumption of regularity of fiat where and when issued- fiat must not be in writing- Power of Attorney General of the State to issue a fiat irrespective of the offence- Power to challenge a fiat- The power of the court both at the trial level and appellate level to amend a process-signature-purpose of signature- charge sheet is originating process in a criminal trial before a magistrate Court- Charge sheet is also in the category of Notice of Appeal as an originating process -A defective charge sheet is void ab initio
Next post SUIT NO HAM/34/2003- PAUL ANYANWU & ORS V SAMUEL ELUWA & ORS – delivered on 1ST DAY OF MARCH 2021 by HON. JUSTICE I.M.NJAKA- valid Customary Arbitration- five ingredients that must be pleaded and proved- oath taking under customary arbitration- Parties to a customary arbitration may resile from arbitration- refusal to provide a juju and or swear to a juju- The party claiming title to land is not bound to plead and prove more than one root of title to succeed- customary ownership of land- traditional evidence- contradictions in the evidence of a defendant- no burden of proof on the Defendant- pledge transaction- Burial of a relative in a portion of land may be evidence of ownership- boundary evidence
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