Chief N. T. Okoko V. Mark Dakolo (2006)

LAWGLOBAL HUB Lead Judgment Report

ONU, J.S.C.

This appeal is against the judgment of the Court of Appeal, Port Harcourt Division presided over by Ogebe, JCA. Judgment was entered for the plaintiff, now appellant in the High Court for declaration of title, damages for trespass and injunction on 28th August, 1992. Being dissatisfied, the defendant now respondent, appealed to the Court of Appeal sitting at Port Harcourt before which he filed a total of seven grounds of appeal. In the judgment earlier delivered by the High Court, a lake within the land in dispute was awarded to the defendant who did not counterclaim. On that basis, the plaintiff filed a cross-appeal challenging that part of the judgment. Briefs of argument were later filed and exchanged including a respondent’s cross-appeal. In its considered judgment earlier referred to, the court below, allowed the appeal, set aside the decision of the High Court and dismissed the claim. The cross-appeal was also dismissed with costs assessed at N5,000 to the respondents.

Statement of Facts

The appellant’s claim in the High Court was for:-

(i) a declaration of title to a piece of land known as Opubou land near Obungha, Gbarain Clan Yenagoa Division;

(ii) N4,000.00 damages for trespass; and

(iii) perpetual injunction.

The case of the appellant briefly stated, was that the land in dispute is situate at Obunagha (see paragraph 9 of the re-amended statement of claim); that Obunagha was founded by Obunagha after whom it was named vide paragraph 2 re-amended statement of claim as per the evidence of PW1 who also traced the history of his descent from Obunagha to Tarapa, Umgbou, Olobiriowei, Ekpeku, Okoni to himself. The PW1 was the plaintiff on record who died while the case was on appeal in the court below.

PW1 further testified that as owners in possession, members of his family farm on the land, fish in the ponds and lakes and carve canoe and collect firewood therefrom. They exercised these rights without interruption. These acts of possession and others were also pleaded in paragraph 11(vi) and (vii). Judgments of native courts were also pleaded; two such judgments were tendered and admitted as exhibits ‘A’ and ‘B’ (not copied) while the cases were between Olobiriowei of appellants’ family against Agedai of respondents’ family. One of the judgments over a lake within the land (Egwebara Lake) which was pleaded at paragraph II (v) was said to have been lost during the Nigerian Civil War.

The PW1 said that it was in 1966 and 1967 that members of the respondents’ family were seen carving canoe with kuru tree on the land and fishing in Egwebara lake. They were warned but they did not stop. Boundary witnesses also testified for the appellants. Their Surveyor testified as PW5 and tendered their survey plan (exhibit “C”) which is not copied. In all, five witnesses testified for the appellants apart from the PW1. The PW3 under cross-examination said “it is the Gbarabtoru people that fish on the Egerebara lake”. However, the PW1 had testified that the Egwebara lake belonged to the appellant. He said further that in the olden days, there were wild crocodiles in the lake. A member of the respondent’s family who had a medicine to scare away the crocodiles was called to scare them away and in return, was given the right to declare a day of general fishing. At the close of the case for the appellant the defendant (respondent) applied to further amend his amended statement of defence. This was strenuously opposed albeit that it was eventually granted with the respondent ultimately filing the further amended statement of defence in which they set up an adverse claim to the land in dispute by averting through DW1 that the land was rather known as “Amaran Asa” as disclosed in the pleading in paragraph 2 of the further amended statement of defence. In paragraph 3, the respondent did not specifically deny paragraphs 3 to 7 of the appellant’s pleading. They pleaded inter alia … “the defendants are in no position to admit or deny the averments contained in these paragraphs … ” It was the evidence of the respondents that “Amaran was founder of the land in dispute.” But this was not pleaded. Also not pleaded was the link between Amaran and Ayainbiri and between Ayainbiri and the DW 1, the defendant on record.

It is also the case of the respondents that their ancestors originally settled in a place within the land in dispute. Near the old settlement is the big shrine of Agburuku as pleaded in paragraph 7(f) of their pleadings. DW1 further testified that the juju shrine belonged to the respondent and still exists; concluding that the position of the Angburuku shrine had never shifted.

The respondents’ Surveyor testified as DW4 and agreed under cross-examination that the land of Chief Patani Kemidise is the land having boundary in the North with the land verged yellow which is the “Opubou bush.” DW2, respondents’ boundary witness who said he is from Tunama family of Obunagha, later said under cross-examination that he is also from the appellants’ family. He testified, strengthening appellants’ case, that “the founder of Obunagha was Obunagha.” Tunama family is the family of Chief Patani Kemidise. But DW2 contradicted both the pleadings in paragraph 5(a) of the further amended statement of defence and the evidence of DW4, the Surveyor. Whereas the DW4 who tendered the respondents’ survey plan (exhibit “G”) said, “the northern boundary in exhibit “G” is the Opubou bush” DW2 who said he was a retired Senior Registrar of the Judiciary, contradicted the evidence of DW4 and the respondents’ pleadings by saying “I do not know the Opubou bush … our land is bounded … on the South by the Ayainbiri family of Gbarantoru the descendant’s – we do not share a boundary with the plaintiffs.”

DW3 who was also called by the respondents as a boundary witness further contradicted the case of the respondents when he said: “The land in which Gbarantoru settles, is owned by Kalaigoni family” contrary to paragraph 6(ii) of the further amended statement of defence.

It is the further case of the respondents that they “have been occupying it and making use of it by farming and cutting timbers therefrom.” The DW1 agreed under cross-examination that they have been making money from the lakes and ponds. The respondents tendered native court judgments vide exhibits “D”, “E” and “F”. While exhibit “E” was in respect of the Egwebara lake, these exhibits were shown to have been tampered with, having been painted with tipex in some parts. The evidence of both parties was thoroughly evaluated by the learned trial Judge before he made his findings except that part concerning the Egwebara lake and exhibit “E” in respect of which a cross-appeal was filed.