Ejakpomehwe Akporue & Anor Vs Isicheri Okei & Ors (1973)

LawGlobal-Hub Lead Judgment Report

IBEKWE, J.S.C. 

This is an appeal from the decision of the Ughelli High Court by Ogbobine, J., dismissing the plaintiffs’ claim against the defendants for:-

“1. A Declaration of title to the piece or parcel of land at Imodje and described as “IMEGBO LAND” at Orogun in Eastern Urhobo Division.

2. The sum of 50pounds being general damages for trespass on the said Imegbo land; and
3. Perpetual Injunction restraining the defendants, their servants and/or agents from further going on the said Imegbo land.”

Pleadings were ordered and filed. The plaintiffs, in a somewhat unwieldy Amended Statement of Claim running into 28 paragraphs, averred that they are the owners of the land in dispute, and that this has been so from time immemorial. As is usual in these cases, the plaintiffs traced their traditional history; they also pleaded maximum acts of ownership and possession over a very long period.

On their part, the defendants, in a lengthy Amended Statement of Defence, which runs into 27 paragraphs, traversed the plaintiff’s claim, generally and specifically. They, too, traced their traditional history, and averred that they have exercised numerous acts of ownership over the land in dispute; they also pleaded estoppel, long possession, laches and acquiescence.

At the trial, the 1st plaintiff and 14 witnesses, gave evidence for the plaintiffs; whilst 7 witnesses, together with the 1st and 2nd defendants, testified for the defence, the learned trial Judge then went diligently into the mass of evidence before him and, after weighing the traditional history given by the plaintiffs, rejected it, and recorded the following observation:

“After considering the whole of plaintiffs’ traditional evidence, it does appear to me that while their Statement of Claim alleged that Imegbo land was originally owned by Orogun and that it descended to Idjezue through inheritance the general flavour of the evidence of the plaintiffs’ witnesses was that the land was founded by Umusu and Imodje and that it was partitioned by them before they died. The only evidence which supports the allegation in the Amended Statement of Claim was that of 1st plaintiff, but that evidence was scantily supported by his witnesses. Their evidene at its best presents two versions of the traditional history and it is difficult to accept one as against the other version. A party is bound by his pleading and should not be allowed to set up a case different from his pleading.” (The underlining is ours).

Having done so, the learned trial Judge then examined minutely the evidence of acts of ownership tendered by the plaintiffs, in order to ascertain whether these acts of ownership are sufficient to give them title to the disputed land. After weighing all the circumstances of the case before him, the learned trial Judge found as follows:-

“The sum total of my finding on this point is that the plaintiffs are not enjoying exclusive possession of Imegbo land. For the plaintiffs to succeed in this action they must discharge the onus of proving acts of ownership extending over a sufficient length of time, numerous and positive enough to warrant an inference to exclusive ownership of the whole land; Ededem Archibong v. Ntoe Asim Ita & Ors. 14 WACA 520. The evidence of acts of ownership by the plaintiffs are inconclusive and in my view, I am not satisfied that the plaintiffs have discharged the onus on them. The acts of possession given in evidence by the defendants are by themselves adverse to the continued right of possession of the land by the plaintiffs. The acts of possession by the plaintiffs are not in anyway conclusive and cannot be regarded as positive to warrant the inference that Idjezue was at any time in possession of the entire Imegbo land to the exclusion of Ohoro family.” (The underling is ours).

The learned trial Judge preferred the defendants’ evidence to that of the plaintiffs, reached the decision that the plaintiffs “have not discharged the onus on them to prove their title to Imegbo land,” and dismissed the entire claim.

It is from this decision dismissing their claim that the plaintiffs have appealed to this Court. Learned Counsel for the appellants, Dr. Odje, sought and obtained leave to argue six new grounds, in addition to the two original grounds already filed.

It is pertinent to observe at this stage, that there is only one ground of law among the eight grounds of appeal filed, namely, ground 3. We therefore, propose to treat it separately.

The other 7 grounds of appeal are based purely on facts, and we intend to dispose of them briefly together. We have gone carefully into the evidence adduced by the parties and have also examined in detail all the circumstances surrounding this case. It seems to us that the learned trial Judge has done justice to the plaintiffs’ case. Nothing that we have heard so far from the learned counsel for the appellants has made us change our mind. Indeed, we have no difficulty in arriving at the same conclusion, as did the learned trial Judge, that the plaintiffs have failed to discharge the burden of proof cast upon them in this case.

The rule is that the plaintiff must succeed on the strength of his own case, and not on the weakness of the defendants’ case. But in the case before us, the learned trial Judge found, quite rightly in our view, that the defendants’ case was even much more convincing than that of the plaintiffs. We see no reason to disagree with the learned trial Judge on this point; nor are we prepared to upset the findings of fact made by him in this case.