Gilbert Onwuka & Ors. V. Michael Ediala & Anor (1989)

LawGlobal-Hub Lead Judgment Report

WALI, J.S.C. 

In the trial Court the two actions filed by the opposing parties contesting the ownership of the same piece of land, though ascribing to it different names, were consolidated.

In suit No. HOG/9/85 filed by the plaintiffs for themselves and on behalf of Umuezeafor Kindred of Ohaji/Egbema/Oguta Local Government Area, as per their paragraph 9(a) of their Statement of Claim, the plaintiffs claim the following reliefs against the defendants:-

“(a) Declaration that the piece of land known and called “NWAOKPEKWE” land annual value N20.00 situate at Obile Ohaji in the Oguta Judicial Division and more particularly shown in plan No.ECIS/1162/81 dated 20th of May, 1981 has been in the customary possession of the plaintiffs who are consequently entitled to customary right of occupancy.

(b) N500.00 general damages for trespass to the said land.

(c) Injunction restraining the defendants by themselves, their servants and agents from entering the said land acting in any manner in violation of the plaintiffs’ customary rights of occupancy.”

In the cross-action filed as suit No.HOG/15/81 the defendants as plaintiffs claim for themselves and as representing Umuekwodi Kindred of Umuosu Obile in Ohaji/Egbema/Oguta Local Government Area, the following reliefs against the plaintiffs/defendants, as contained in paragraph 18 of the defendants/plaintiffs’ statement of claim –

“(a) Declaration that the piece or parcel of land known as and called OKWUAGBOSO land situate at Obile in Ohaji/Egbema/Oguta Local Government Area in the Oguta Judicial Division of Imo State with annual value of N30.00 (Thirty Naira) is in the customary possession and ownership of the plaintiffs, and the plaintiffs are entitled to customary right of occupancy to the said piece/parcel of land.

(b) N600.00 (Six Hundred Naira) general damages for trespass to the said land.”

Pleadings were ordered in both, the main action and the cross-action. These were subsequently filed and exchanged and issues joined.

At the end of the hearing the learned trial Judge in a considered judgment and after reviewing the evidence proffered, came to the following conclusions-

“I believe the evidence of the plaintiffs and their witnesses on these and other relevant issues and reject the evidence of the defendants and their witnesses in so far as such evidence tended to contradict the material aspects of the evidence of the plaintiffs and their witnesses. The defendants were ungrateful to the plaintiffs who had allowed some of the members of the defendants’ kindred to live on a part of the land in dispute by turning round to claim the land and in spite of the decisions of the Eze, Chiefs and elders of their community they persisted in their claim and unlawful acts over the land.

I hold that the plaintiffs have proved their case before this Court and they are entitled to their claims. Accordingly, I declare that the land in dispute as shown in Exhibit A has been in the possession of the plaintiffs and that they are entitled to a customary right of occupancy of the said land. The plaintiffs are entitled to damages for the trespass committed by the defendants upon the land in 1981 by clearing part of it for farming purposes and I award the sum of N400.00 against the defendants. The defendants are hereby restrained by themselves, their servants, agents and/or workmen from entering upon any part of the land in dispute except the buildings and adjoining premises on which some members of the Defendants’ kindred live with the permission of the plaintiffs. I dismiss in their entirety the claims of the defendants against the plaintiffs.”

Henceforth both the plaintiffs/defendants and the defendants/plaintiffs will be referred to as the respondents and the appellants respectively.

Dissatisfied with the judgment of the trial Court the appellants appealed to the Court of Appeal, Enugu on 9 grounds and claimed reliefs as follows:-

“To allow the appeal, set aside the judgment and order of Oguta High Court delivered or made on Thursday, 9th June, 1983 and substitute an order dismissing the plaintiffs’ action and ordering a retrial.”

The parties complied with the provisions of Order 6 Rules 2 and 4 of the Court of Appeal Rules, 1981 by filing briefs. On the date the appeal came up for hearing learned Counsel on both sides proffered oral arguments to emphasise and where necessary, to clarify some points raised in their respective briefs.

In a considered judgment of the Court of Appeal delivered by Olatawura, J.C.A., with which both Aseme, J.C.A. and Belgore, J.C.A. (as he then was), concurred, he described the appeal as unmeritorious and dismissed it with N250.00 costs in respondents’ favour.

A further appeal by the appellants against the dismissal of their appeal by the Court of Appeal has now been lodged in this court. Six grounds of appeal were filed. In compliance with the provisions of Order 6 Rule 5 of the Supreme Court Rules, 1985, parties filed and exchanged briefs. During the hearing of the appeal in open court learned counsel on both sides made oral submissions in further elaboration or clarification of some points raised in the briefs.

In the brief of argument filed by Mr. Ahamba, learned Counsel for the appellants, the following six issues were formulated for determination”

ISSUE I

The respondents’ plan Exhibit ‘A’ having not shown any demarcation between the defendants’ buildings and adjoining premises, and the rest of the land in dispute, was the learned trial Judge right in granting a declaration of title and an injunction in such an imprecise situation considering the decision in the case of Atekwadzo v Robert Adjei 10 W.A.C.A. 274 and the more recent Supreme Court’s decision in Elias v Omo-Bare (1982) 5 S.C.25 at 39, and if not, were the learned Justices of the Court of Appeal not in error by completely overlooking that issue

ISSUE II

Were the learned Justices of the Court of Appeal not in error when they failed to reconsider the question of law raised under section 45 of the Evidence Act, and Section 36(4) of the Land Use Act, all of which were put before the Justices by appellants’ counsel both in the grounds of appeal, and the address, considering the evidence before the court.

ISSUE III

Did the pleading and evidence of Traditional History as presented by the respondents before the High Court meet the required standard as enunciated in the case of Kalio v Woluchem (1985) 1 N.W.L.R. (Pt.4) 610 to warrant the learned Justices to sustain the trial Court’s conclusion on that issue

ISSUE IV

Is the finding that the Egbema pipe-line and a survey beacon were acts of ownership on the land in dispute by the respondents not perverse considering that the plan exhibit ‘A’ filed by the respondents did not feature any of those acts in the land in dispute Can a decision substantially rested on this finding be sustained

ISSUE V

Were the learned Justices of the Court of Appeal not in error when they failed to re-evaluate the evidence before the court considering that the learned trial Judge did not follow the principles as stated in the case of Odofin v Mogaji (1978) 4 S.C.91

ISSUE VI

Can Exhibits C and D, the so called arbitration judgments exhibit D was rejected by both parties, and exhibit C was not signed by either of the parties”

On the respondents’ side Chief Onyeama, the learned Counsel, formulated the following two issues in his brief-

“The issues for determination in this appeal are as follows:

(a) Whether the respondents (as plaintiffs) discharged the onus of proof required of a claimant for a declaratory judgment to entitle them to the declaration of customary right of occupancy granted them by the trial court and affirmed by the Court of Appeal.

(b) Whether the respondents (as plaintiffs) established a case of trespass against the appellants as defendants) to entitle the respondents to an award of damages and a grant of injunction by the trial Court and affirmed by the court below.”

Although the issues for determination were differently formulated by the appellants and the respondents in their respective briefs, the two issues formulated by the Respondents seem in my view, to have encompassed the same areas covered in the appellants’ six issues.

Learned Counsel for the appellants relates issue I to ground 2 of the Grounds of Appeal. It was his submission that in Exhibit A, the survey plan filed by the respondents, the land in dispute and the land adjoined to it, some residential houses of the appellants are demarcated within the disputed area verged pink. He said between the area where the houses featured and the rest of the land, there is no boundary feature, nor did Exhibit A feature any demarcation or the extent of the southern portion of the land the Respondents are claiming to have allowed the appellants to occupy. He therefore submitted that the trial Judge was wrong to have granted the respondents’ prayers when the evidence adduced did not only fail to prove their claim but was at variance with it and that the extent of the land claimed was not proved with the required precision. He cited the case of Kwadzo v Adjei 10 W.A.C.A. 274; Elias v Omo-Bare (1982) 5 S.C.25 at 39; Omoregie v Idugiemwanye (1985) 2 N.W.L.R. (Pt.5) 41 and Oke & ors. v Eke & ors. (1982) 12 S.C.218 at 232 to buttress his submissions.

In reply to the above submissions, learned Counsel for the respondents contended that the identity of the land in dispute is no longer in issue since that has either been sufficiently proved or admitted by the appellants. He referred to Exhibits A and J – plans filed by the respondents and the appellants respectively and submitted that the position of the houses built by the appellants’ kindred with the respondents’ permission as shown in Exhibit A was not contested in Exhibit J, nor did Exhibit J indicate any extent of the land allowed to the appellants or members of their kindred. He said the case of Kwadzo v Adjei and a host of others (supra) cited by the appellants did not apply as the identity of the land is no longer in dispute. In support of his own submission, learned Counsel cited and relied on Okparaeke v Ogbuanu W.A.C.A. 53, Kalio v Kalio (1975) 2 S.C.15 at 21 and Ezeudu v Obiagwu (1986) 3 S.C.1 at 27-28.

As regards the order of injunction prayed for by the respondents in paragraph 15(c) of their Statement of Claim, learned Counsel for the respondents urged the court to exercise the powers conferred on it by Section 22 of the Supreme Court Act No. 12 of 1960 to grant the prayer in relation to the open spaces of NWAOKPEKWE land not covered by the appellants’ buildings as no grant was made to them of the adjoining land. He relied in support of this submission on the cases of Gbadamosi v Bello (1985) 2 S.C. 168 at 176-7 and Ketu v Onikoro (1984) 10 S.C.265 at 268-269.

On Issue II which is related to Ground 1 of the Grounds of Appeal, learned Counsel for the appellants attacked the judgment of the Court of Appeal in which the finding by the trial Court vis-a-vis the non-applicability of Section 36(1) and (4) of the Land Use Act 1978, and Section 45 of the Evidence Act was upheld. He submitted that the claims of both the appellants and the respondents were based on the provisions of the Land Use Act, 1978 that is, claim for declaration to a customary right of occupancy and to that effect, specifically referred to section 36(1) and (4) of the Act, supra. He submitted that in Exhibit A, the survey plan filed by the respondents, both the areas in which Michael Ediala, the 1st respondent, has his plantation and the appellants have their houses, have been clearly shown to be within the area of the land in dispute and therefore, whether it was by grant or inheritance, the appellants have been in occupation and undisputed control of that portion of the land, that is the southern part, since there was no demarcation between the said area occupied by the appellants and the rest of the land in dispute. He also submitted that the existence of the appellants’ houses on the land in dispute is further evidence that it is a developed land and referred to section 50 of the Land Use Act, 1978.

On Section 45 of the Evidence Act, learned Counsel referred to Exhibit J which is the appellants’ survey plan and Exhibit A and submitted that the two plans show that on the northern boundary of the disputed land, is a piece of land described in both plans as “Land of Umuckwodi” which is in proximity with the said disputed land, and without evidence of boundary features, is so connected with it in both locality and similarity so that what is true of one is equally true of the other.

As for the eastern boundary of the land in dispute both the appellants and the respondents show in their respective plans a piece of land which the appellants called “land of Umuekwodi not in dispute” while the respondents called it “land of Umuagumagu. It was his submission that the respondents did not call any member of Umuagumagu to support their claim while the appellants adduced evidence of ownership.

As regards the southern boundary, he submitted that, apart from the (appellants’) residences within the land in dispute, they have some other residences on a piece of land not in dispute which is also proximate and connected to the land in dispute. He said on the preponderance of evidence, the balance is clearly in the appellants’ favour since they have proved to be in possession of the three sides of the land in dispute and therefore Section 45 of the Evidence Act should have been applied in their favour.

In reply, learned Counsel for the respondents said it is common ground that the houses belonging to some of the members of the appellants’ kindred are inside the disputed land verged pink in both Exhibits A and J. It is not also in dispute that the respondents’ cocoa and palm plantations are inside the disputed area depicted in Exhibits A and J, and this shows therefore that both the appellants and the respondents are in concurrent possession of some parts of the said land.

It was his contention that the appellants, in treating the effect of section 36(4) of the Land Use Act laid emphasis on the words “held” and “occupied” rather than on the word “vest” and that since both the appellants and the respondents were in possession of parts of the land in dispute, it was proper for the learned trial Judge to make a finding in which of the two contending parties the title of the disputed land was vested.

He submitted that it was only after making such a finding that the issuance of a certificate of occupancy to the successful party by the Local Government could arise. In support of this he put reliance on Melifonwu v Egbuji (1982) 9 S.C.145 at 155. He also submitted that from the evidence presented before the trial Court, the learned trial Judge was perfectly right to declare title in favour of the respondents and to award damages for trespass. He also contended that the appellants’ assumption of the terms of the grant is speculative since their claim in the trial court was on ownership of the disputed land and not that they were customary tenants. In support of the above contention he referred to and relied on Overseas Construction Co. Ltd. v Creek Enterprises Ltd. (1985) 12 S.C.158 at 179 and Ehimare v Okaka Emhonyon (1985) 2 S.C.49 at 62.

On the application of section 45 of the Evidence Act, learned Counsel referred to the various portions of the evidence accepted by the learned trial Judge as establishing physical possession, control and exercise over a reasonable portion of the land in dispute and submitted that section 45 of the Evidence Act could in no way help the appellants’ claim. He said since the finding of the learned trial Judge that-

“I have mentioned earlier on that parties almost agreed as to the boundaries and extent of the land in dispute except for a part of the Western boundary where the defendants claim more land than the plaintiffs. The plaintiffs at the Western boundary did not show that they have boundary with Egbema people. They indicated on the whole Western boundary that they have boundary on the Southern part with Muoneke and on the Northern part with their land of the same name as the land in dispute which is not in dispute. I find that the land in dispute is as shown in the plaintiffs’ plan”, was not challenged by the appellants, they could not raise the issue of applicability of section 45 of the Evidence Act in their favour.

On Issue III which is related to Ground 4 of the Grounds of Appeal, it was the contention of the learned Counsel for the appellants that since the respondents are relying on inheritance as the root from which they derived title to the disputed land the genealogy to show who succeeds who should have been reflected in their pleadings, and this they failed to do. He submitted that with such insufficient pleadings by the Respondents, the learned trial Judge ought to have dismissed their claim and he quoted and relied on Kalio v Woluchem (1985) 1 N.W.L.R. (Pt.4) 610 particularly at 628 as his authority for making the submission.

In reply, learned Counsel for the respondents submitted that the facts in Woluchem’s case supra, are not the same with the facts in this case and it cannot therefore apply. He referred to paragraph 6 of the respondents’ claim wherein he said the respondents stated their ancestors who had made use of the land in dispute in the past before and relied on the unchallenged evidence of P.W.1 in proof of that. He submitted further that the appellants’ pleadings in HOG/15/81 and HOG/9/81 as regards their traditional history are in conflict and so was the evidence led in proof of that. He cited Akpapuna v Nzeka (1983) 7 S.C.1 at 25 and Kojo v Bonsie (1957) 1 W.L.R. 1223 at 1226 in support.

Issues Nos. IV and V and VI which relate to Grounds 3, 5 and 6 respectively deal with the evaluation and sufficiency of the evidence on which both the trial Court and the Court of Appeal rested their judgments. Learned Counsel for the appellants submitted that the evidence on acts of ownership accepted and relied upon by the trial Court in making a finding in respondents’ favour was neither cogent nor sufficient to justify it and that it was perverse. He relied on the following authorities-

Overseas Construction Ltd. v Creek Enterprises Ltd. (1985) 3 N.W.L.R. (Pt.B) 407; Kate Enterprises Ltd. v Daewoo Nig. Ltd. (1985) 2 N.W.L.R. (Pt.5) 116; Nnajiofor and ors. v Ukonu and ors. (1985) 2 N.W.L.R. (Pt.9) 686 and a host of others. He urged this Court to dismiss the appeal for want of merit.

In an action for a declaration of title to a piece of land the person claiming must prove the boundaries of the land he claims with definitive certainty such that a surveyor, taking the record, could produce a plan showing with accuracy, the land in dispute – See Kwadzo v Adjei 10 W.A.C.A. 274; Ezeokeke and ors. v. Uga and ors. (1962) 1 All N.L.R. 482; Amata v Modekwe 14 W.A.C.A. 580; Okosun Epi v. Johnny Aighedion (1972) 10 S.C. 532; Onotaire and ors v Onokpasa and anor. (1984) 12 S.C.19.

In paragraphs 3 and 4 of the respondents’ Statement of Claim the following facts were pleaded –

“3. The land which is the subject-matter of this action is known and called “NWAOKPEKWE” land and is situate in Obile Ohaji aforesaid within the jurisdiction and is more particularly shown in plaintiffs’ Plan No. ECIS/1162/81 dated 20th of May, 1981 and therein verged Pink. At the hearing the plaintiffs will rely on the features shown on the said plan in proof of their case and will seek by leave of court a consolidation of this action and Suit No.HOG/15/81 Gilbert Onwuka & ors. v. Michael Ediala & ors.

4. The land in dispute called “NW AOKPEKWE” land is made up of the areas verged Yellow and Green in plaintiffs’ plan. In addition to the name “NW AOKPEKWE”, the area verged Green is also called ALA OKWOR ORDA because of its nearness to Aba Nwaeke stream.”

The learned trial judge after a narration of the evidence relating to the issue of the identity of the land in dispute, observed thus-

“The plans tendered by the parties exhibits A and J are on the same scale. The two plans agree as to boundaries of the land F in dispute on the south, where both show the land of Jude Ogbonna as adjoining the land in dispute; on the East, where both show the road from Asaa to Egbema as forming the boundary; on the North, where both show the land of Umuekwodi as having boundary with the land in dispute and part of the western boundary where both plans indicate that the land in Muoneke forms the boundary.

The only difference is that on part of the Western boundary – the area to the North where the plaintiffs in exhibit A show that their land of the same name “Nwaokpekwe” has common boundary with the land in dispute, the defendants’ plan, Exhibit J. shows that the defendants have boundary with the Ihedike Nwauba and Elechi Nwauba of Umuaba – Aga Egbema. One thing is clear from the two plans and that is that the defendants’ plan exhibit J. includes more land to the West than the plan of plaintiffs’ Exhibit A. The cocoa and palm plantations of the 1st plaintiff are shown on the Southern portion of the land. Both in Exhibits A and J some houses of the defendants’ people are very close to the cocoa plantation of the 1st plaintiff.

The land of P.W.3 Robinson’ Muoneke shares common boundary with the land in dispute to the Southwest. The P.W.3 testified that the plaintiffs sold the land to him in 1965. He has palm and rubber plantations on his said land. The defendants agreed that the plaintiffs sold the said land to the P. W.3 and said the land belonged to the plaintiffs before the sale. Apart from the extended area of land on a part of the Western boundary shown in the defendants’ plan, Exhibit J, there is a measure of agreement between the parties as to the extent of the land in dispute. The evidence of the parties before me does not show that any of the parties made the extent of the land an issue in this case.

…………………………………

Learned Counsel for the defendants did refer to the evidence of D.W.1 and D.W.5 – boundary witnesses from Egbema and to the fact that apart from P. W.3 the plaintiffs called no other boundary witness. I have mentioned earlier on that the parties almost agreed as to the boundaries and extent of the land in dispute except for a part of the Western boundary where the defendants claimed more land than the plaintiffs. The plaintiffs at the Western boundary did not show that they have boundary with Egbema people. They indicated on the whole Western boundary that they have boundary on the Southern part with Muoneke and on the Northern part with their land of the same name as the land in dispute which is not in dispute.”,

and then concluded –

“I find that the land in dispute is as shown in the plaintiffs’ plan. I do not therefore, see the relevance of the evidence of D.W.1 and D.W.2”

The plan of the land in dispute filed by both respondents and the appellants were admitted in evidence as Exhibits A and J respectively. The respondents gave evidence in respect of the boundaries of their land and in this regard the following excerpt of the 1st plaintiff/respondent’s evidence is relevant. He said –

“I have boundaries on this land in dispute, which is situate in Umuezeafor Obile, with the following: Jude Ogbonna of Umuogidi, Umuagumagu Obile, Umuosu Umuekwodi the defendants and our other land not in dispute. The road from Asaa to Egbema runs by the Eastern boundary of the land and forms its boundary on that side.”

Both Exhibits A and J correspond on the location, size, number and shape of the residences built by the appellants on the land in dispute. The two plans also demarcated identically the position, size and shape of the cocoa and palm plantations of the respondents on the disputed land. Exhibits A and J were drawn to the same scale. The respondents called the land in dispute “Nwaokpekwe”, whereas the Appellants called it “Ikwuagbaoso.” In Exhibit A, the respondents demarcated on the Northern boundary, the land of the appellants not in dispute and called it “Land of UMUOSU Umuekwodi”, while the appellants called the same piece of land in Exhibit J “AKWUNIWUGWU UMUEKWODI.” On the Southern boundary both Exhibits A and J showed Jude Ogbonna’s land while on the cast, both demarcated a motor road called Asaa-Egbema as the boundary.

On the Southwest boundary, both Exhibits A and J showed the palm plantations of Robinson Muoneke (P.W.3), and on the West boundary. Exhibit A. showed other parts of the respondents’ land not in dispute i.e. “Nwaokpekwe” which the appellants called in Exhibit J “land of Ihedike Nwauba and Elechi Nwauba of Umuaba – Aga Ebema.” I agree with the conclusion of the Court of Appeal on this issue when it said –

“From the Statement of Defence filed in HOG/9/51, the appellants now before the court while seeking a consolidation of Suit HOG/9/81 with HOG/15/81 pleaded that the land in dispute is the same. The two plans are drawn to the same scale 1:250m

……… Chief Ahamba in comparing the boundary position of the land in dispute pointed to the north of the land in dispute and that the respondents had conceded that the appellants own the land in the North of the land in dispute. He (sic) submission in respect of paragraph 6 of the Statement of Defence in HOG/15/81 appears to me misleading in fact it is the opposite of the meaning placed on it by learned counsel. They never admitted the land on both sides of the road to Umuosu Farm land belongs to the appellants. The learned trial Judge gave adequate consideration after a careful comparison of the two plans, to the said plans and his conclusions on Exhibits A and J cannot be faulted.”

The fact that the appellants ascribed different names to some portions of the land within the vicinity of the land in dispute would not and did not help their case having regard to the oral and documentary evidence that had sufficiently identified the land in dispute. See Aromire & ors. v Awoyemi (1972) 1 ALL N.L.R. (Pt.1) 101 at 113 where this court said-

“Finally, we observe that it was sought by learned Counsel for the plaintiff to place reliance on the differences of the names being ascribed to different portions of land in the vicinity such as Obele Oniwala, Obele-Odan and Obele Oniwala Court and so on. We are not impressed by the distinctions which are sought to be thereby introduced for very often among the members of the community concerned the same place bears different names and it is only fair to rest identification on places on plans produced in the case. i.e. exhibit A and exhibit E. We think that in this case different names have been applied to the same areas with an alarming degree of imprecision.”

This ground fails and it is dismissed.

On issue No.2 which is related to Ground 1, learned Counsel for the appellants made heavy weather of the applicability of Section 36(1), (4) and Section 50 of the Land Use Act, /978 and Section 45 of the Evidence Act.

It was the appellants’ contention that the claims of the parties were based on the Land Use Act. 1975. That was not disputed as the suit was filed in the trial High Court in 1981. On that date the Land Use Act had become applicable to all land in Imo State of Nigeria and by virtue of section 1 of the Act, same has been vested in the Governor of that State on that date. This provision takes away the freehold title vested in individuals or communities but not the customary right of use and control of the land. Section 36(1) does not enlarge the right of a customary tenant to any piece of land in non-urban area which was, at the commencement of the Act in his possession and occupation. A customary tenant remains so and is subject to the conditions attached to the customary tenancy. Section 36(1) and (2) provides thus:-

“36. – (1) The following provisions of this section shall have effect in respect of land not in an urban area which was immediately before the commencement of this Decree held or occupied by any person.

(2) Any occupier or holder of such land, whether under customary rights or otherwise howsoever, shall if that land was on the commencement of this decree being used for agricultural purposes continue to be entitled to possession of the land for use for agricultural purposes as if a customary right of occupancy land been granted to the occupier or holder thereof by the appropriate Local Government and the reference in this subsection to land being used for agricultural purposes includes land which is, in accordance with the customary law of the locality concerned, allowed to lie fallow for purposes of recuperation of the soil.”

In my view the words “holder” or “occupier” means the person entitled to a customary right of occupancy, that is the customary land owner other than a customary tenant. The definitions of the expressions “customary right of occupancy” and “holder” in Section 50 of the Act lend support to this view. Mere possession of a land as a customary tenant however so long, cannot mature to confer the rights envisaged in the Act.

The respondents are not asking for forfeiture of the areas granted by them to the appellants and which the latter developed with the permission of the former, by building their houses thereon. Their complaint is related to the adjoining land on which the appellants have started trespassing by clearing it in preparation for farming the same. One can only develop what is lawfully given to one but not otherwise.

A person or Community that had title to a parcel of land before the coming into force of the Land Use Act, 1978 is deemed to be a holder of a right of occupancy, statutory right of occupancy or customary right of occupancy, depending on the status of the land – whether it is in urban area or in non-urban area. See Section 34(2), (3) and (6) and Section 36(2), (3) and (4) of the Land Use Act.

On section 45 of the Evidence Act, for it to apply in favour of the party pleading it, there must be proof or admission by the other party that the land in dispute is surrounded by other lands belonging to the party craving its aid. See D.O. Idundun & ors v. Daniel Okumagba (1976) 9-10 S.C.227 at 249 and Ededem Archibong v. Ntoe Asim Ita 14 W.A.C.A. 520.

In the instant case, the respondents had led evidence, both oral and documentary, in proof of their customary title to the land in dispute. There was evidence of repeated acts of ownership by the respondents with respect to other places connected with the land in dispute as to give rise to the inference that they are the owners. In Jones v. Williams 2 M & W 326 at 331, it was held that –

“evidence of acts in another part of one continuous hedge adjoining the plaintiffs land was admissible in evidence on the ground that they are acts as might reasonably lead to the inference that the entire hedge belonged to the plaintiff.”

In my opinion the learned trial Judge, on the evidence evaluated and accepted by him in preference to that of the appellants as regards the numerous lets of user, was right to draw the inference of customary ownership by the respondents of the land in dispute. It is not enough for the appellants in an action like this one, to show possession of some portions within and surrounded by the respondents’ land as shown in Exhibit A and then argue that they have proved their case; and having failed to prove their case the proper judgment should be for the respondents and not an order for a retrial. This ground also fails and same is accordingly dismissed.

In issue No.3 which is related to ground 4, it was the contention of the appellants that having regard to paragraph 6 of the respondents’ Statement of Claim the evidence adduced did not prove averments contained therein. He relied on Kalio v Woluchem (supra).

In paragraph 6 the respondents pleaded thus-

“6. Some of the plaintiffs’ ancestors who made customary use of the land in dispute include Oparaocha Eze, Olunwa Oparaocha, Ediala Olunwa and Ezekwe Oparaocha. During the lifetime of the plaintiffs’ ancestors the ancestors of the defendants did not challenge the rights of the plaintiffs’ ancestors to the diverse use into which they put the land in dispute.”

The accepted methods of proving customary ownership of land are-

(1) Traditional History of ownership;

(2) Where the evidence in (1) above is found to be inconclusive, then proof of acts of occupation and use of the land over a considerable long period without challenge or disturbance from any other claimant and

(3) Where (2) above fails, proof of exclusive possession without permission.

See – Ekpo v. Ita 11 N.L.R. 68; F.M. Alade v. Lawrence Awo (1975) 4 S.C.215. G

Examining the pleadings and the evidence adduced in support of the traditional history. I do not think that it was insufficient. The evidence of 1st plaintiffs witness, as head of the respondents’ family stated how the land descended to them. He said-

I am the head of Umuezeofor Kindred. Before I became head of Umuezeofor, Ezekwe Oparaocha was the head. One Owuru was the kindred head before Ezekwe Oparaoeha. Ediala my father was the head before Owuru. Orunwa was the head before my father. My kindred lands have not been shared.”

There was evidence also of occupation and use of the land over a considerable long period without let or hindrance from the appellants. The learned trial Judge considered the evidence adduced by both parties on this issue and came to the following conclusions:-

“The evidence of the parties before me does not show that any of the parties made the extent of the land an issue in this case.

Each of the parties relied on traditional history and long possession. The plaintiffs gave evidence that they have from time immemorial exercised maximum acts of ownership and possession over the land in dispute, farming thereon, establishing plantations, thereon and exploiting timber from the land. The plaintiffs said the area of the land they sold to P.W.3, Robinson Muoneke, was part of the land in dispute before it was carved out and sold to P.W.3. The P. W.3 himself said since the land was sold to him by the plaintiffs and he took possession of it, he had been seeing the plaintiffs use the land in dispute.

The defendants have with equal vigour testified that they inherited the land in dispute from their ancestors and have exercised maximum acts of ownership and possession over the land, farming thereon, exploiting timber and renting to non-members of their kindred for farming purposes. The defendants said that some members of their kindred have their houses on a part of the land in dispute. The defendants also claimed that in 1949 and again in 1976 they allowed the 1st plaintiff to establish cocoa and palm plantations respectively on parts of the land in dispute. The plaintiffs have denied that the defendants permitted the 1st plaintiff to establish cocoa and palm plantations on the land in dispute. Rather the plaintiffs asserted that they allowed some members of the defendants’ family to erect buildings on part of the land in dispute. The 1st plaintiff’s cocoa plantation is very close to the houses of the Defendants’ people. The plaintiffs are in effect saying that the defendants’ people who live on the land in dispute are their tenants. The defendants have also said that their farm road passes through the land in dispute. According to exhibit J, what is shown as the defendants’ farm road is the road leading from Asaa to Egbema. The P.W.2 testified that during the arbitration he and his chiefs and elders held between the parties over the land in dispute the defendants insisted that since their road runs through the land they should own the land. The 1st plaintiff testified that his cocoa plantation is 15 acres and his palm plantation is 17 acres. If the defendants were broadminded enough to grant 15 acres of land to the 1st plaintiff to plant cocoa would they have granted to him an area of land very close to their home-stead I think not. If indeed they granted him the area on which he planted palm trees in 1976 as the defendants claimed how did they turn round to write to the Small Holder Oil Palm Project that the land was in dispute, a letter the 1st defendant admitted they wrote There is no evidence before me that the negotiation for the grant broke down or that he went beyond the grant. What sounds more understandable to me is the evidence of the 1st plaintiff that when he received exhibit E his people threatened to ask out the defendants’ people who live on part of the land in dispute and as a result of this threat the defendants’ people wrote Exhibit F withdrawing their former complaint. On this claim and counterclaim as to who allowed the other to use part of the land in dispute, I prefer the evidence of the plaintiffs that they allowed some persons from the Defendants’ kindred to build on part of the land in dispute.”

In Kojo II v Bonsie (1957) 1 W.L.R. 1223 it was held that-

“Where there is a conflict of traditional history which had been handed down by words of mouth one side or the other must be mistaken, yet both may be honest in their belief. In such a case, the demeanour of witnesses is of little guide to the truth. The best way is to test the traditional history by reference to facts in recent years as established by evidence and by seeing which of the two competing histories is more probable.”

The respondents had led evidence in proof of their customary title to the land in dispute. This evidence, which was accepted by the learned trial Judge and subsequently affirmed by the Court of Appeal was not so impossible.

Where there are concurrent findings of facts by the lower Courts, this court is always reluctant to interfere with such findings unless they are found to be erroneous or perverse. See Lucy Onowan & anor. v Iserhien In Re Lucy Onowan (1976) 9-10 S.C.95 and Okolo v Uzoka (1978) 4 S.C.77; Fashanu v Adekoya (1974) 1 ALL N.L.R. (Pt.1) 35.

The ground fails and it is dismissed.

Issues Nos. IV, V and VI relate to Grounds 3, 5 and 6 respectively. They are also related to the evaluation and sufficiency of evidence. I find it unnecessary to over burden myself by going through these grounds as the issues raised and canvassed therein have been sufficiently covered in my consideration of the other grounds.

In the course of presenting his oral submissions before this Court in elaboration of his written brief, learned Counsel for the respondents conceded that the injunction granted him by the trial court is contrary to the claim of respondents and to that extent he has urged this court to exercise the powers conferred on it by section 22 of the Supreme Court Act, 1960, to vary it.

Accordingly it is varied as follows:-

That the defendants/appellants, by themselves, their servants or agents are hereby restrained from violating their customary right by farming on the said land in dispute or acting in any manner in violation of the Plaintiffs/Respondents’ customary rights.

Save as varied supra, the judgment and orders of the trial court subsequently affirmed by the Court of Appeal are hereby confirmed.

The appeal fails and is accordingly dismissed with N500.00 costs to the Respondents.

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SC.18/1987