Ahwedjo Efetiroroje & Ors. V. His Highness Onome Okpalefe II (The Osuivie Of Agbarho) & Ors (1991)

LawGlobal-Hub Lead Judgment Report

G. KARIBI-WHYTE, J.S.C.

This appeal has brought into focus once again the anxieties in the often discussed question of the circumstances enabling an appellate court to set aside the exercise of the discretion by the trial judge to order a non-suit in an action.

On the 23rd August, 1976. Plaintiffs issued a writ of summons claiming from the Defendants (a) A Declaration of title in accordance with Urhobo Customary law to all that piece and parcel of land, lying situate and being at Agbarho within the jurisdiction of the Court, the dimensions of which will be edged/shown on a plan to be filed after pleadings ordered.

Annual value of the land is N10 (ten naira). (b) The sum of N 1,000 (One Thousand naira) being damages for trespass committed by the defendants on the said piece/parcel of land. (c) Injunction restraining the defendants their servants/agents from further entering the said piece/parcel of land or in any way whatsoever dealing in or tampering with/interfering with plaintiffs interests therein.

The claim was tried on the pleadings of the parties and on the evidence of witnesses called by them. Plaintiffs filed a plan which was tendered as “Exhibit “A”. The case was fought on the basis of the traditional evidence of the ownership of the land in dispute given by the parties. They also relied on evidence of acts of possession and ownership.

The learned trial judge after due hearing, considered the evidence on the traditionary history of the ownership of the land in dispute led by both sides and hold that they were of no probative value. Referring to the evidence of traditional history, he held that “it is pointless going into traditional history and Acts of ownership or possession within living memory as there appears to be nothing to choose between the evidence of the warring parties in these regards.”

Again the learned trial judge considered the onus of proof on the plaintiffs with respect to the boundaries of the land in dispute, and held that it was not discharged.

On this issue, he relied on the plan filed, “Exhibit” “A” and the evidence of the 3rd plaintiff. In his evidence before the court, the 3rd plaintiff had testified as follows:-

“I was one of the persons that took the surveyor to the bush to prepare Exhibit A. I showed the Surveyor the features of the land as well as boundaries thereof. I did not show the Surveyor (P.W.1) Agbarho town. I did not show him the traditional Ogwa (Altar of Chiefs) where Chieftaincy title were conferred on people at Agbarho because our land does not extend to that spot or area.”

The learned trial judge commenting on “Exhibit A” ,that is the plan filed, and relied upon by the Plaintiffs, observed that the key for the reading of the plan indicated that the land claimed by the plaintiffs is verged Green, whilst the area trespass upon is verged Pink. The learned judge then found that substantial parts of the northern and north-eastern areas of the land claimed by the plaintiffs as well as the entire area indicated as trespassed upon by the defendants are shown to be outside the land of the plaintiffs. The learned judge was therefore unable to determine the boundary of the Northern part of the land in dispute. He therefore found that the Plan, “Exhibit A “”was to use his expression in violent conflict with the evidence of the 3rd Plaintiff, who was the only plaintiff that testified as to the limit of the land involved in this litigation.

In his evidence in Chief 3rd plaintiff, testified as follows –

“I was one of the persons that took the Surveyor to the bush to prepare Exhibit A. I showed the Surveyor the features of the land as well as boundaries thereof. I did not show the surveyor Agbarho town. I did not show him the traditional Ogwa (Altar of Chiefs )where Chieftaincy title were conferred on people at Agbarho because our land does not extend to that spot or area.”

The learned trial judge evaluated this evidence and came to the following conclusion –

“The bone of contention is that Plaintiffs are saying that part of the land which was indicated in Exhibit A to be in dispute, is no more so, and I am unable to know the extent of the lands of the Plaintiffs, on the northern and north-eastern side of the land shown in “Exhibit A”. In other words, as to actual extent of the land the plaintiffs’ claim, particularly the northern and north-eastern boundaries, I find myself quite unable on the evidence of the 3rd plaintiff, who said he showed the Surveyor the boundaries and features of the land in dispute, to come to the conclusion as to what the boundary is, See the consolidated case of Udofia & anor, v. Afia & ors., Andy etc. v. Akpabio (1940) 6 WACA, 216 where the authority of Baruwa v. Ogunsola & Ors.(I938) 4 WACA, 159 was adopted.”