Chief A.O. Uku & Ors .v. D. E. Okumagba & Ors. (1974)

LawGlobal-Hub Lead Judgment Report

UDO UDOMA, J.S.C. 

This appeal raises two fundamental points of law in relation to jurisdiction, practice and procedure. The first point concerns the jurisdiction of the High Court of the Mid-Western State as to the joinder of parties in exercise of its powers under the Civil Procedure Rules. The second relates to the competence of a Court to act on apparently and patently conflicting affidavit evidence without taking oral evidence with a view to testing and evaluating such evidence for the purpose of resolving such conflicts.

In this judgment, the plaintiffs who instituted the substantive suit which has resulted in the present appeal and the Shell BP Petroleum Development Company Limited, the 3rd defendant in the said suit, will throughout be referred to as the plaintiffs and the 3rd defendant respectively. Both played no pan in the application, the subject matter of this appeal, both in the High Court and in this Court. The only parties concerned in this procedural gymnastics are the 1st and 2nd defendants in the suit herein to be referred to as the 1st and 2nd appellants, who defend the suit on behalf of themselves and the Olodi, Oki and Ighogbadu families of Okere, Warri; and the intervener, Omosohwofa Eboh, the 4th defendant, herein to be referred to as the respondent. It is his application which has occasioned this appeal.

The circumstances which gave rise to the appeal are these: On 27th December, 1968 the plaintiffs in suit No. W /63/68 in the High Court, Warri, claimed against the appellants and the 3rd defendant the following:

“(i) An Order directing the 1st defendant to pay over to the plaintiffs all monies paid by the 3rd defendant to him as annual rents and/or compensation in respect of the 3rd defendant’s occupation and user of the Okere (Plaintiffs) Section of the Warri By-Pass.

(ii) An Order directing the 2nd defendant to pay over to the plaintiffs the sum of N388 wrongfully paid to him by the 3rd defendant as compensation for oil palm trees destroyed by the 3rd defendant in the course of constructing the Warri By-Pass over the Okere Section of the said By-Pass.

(iii) An Order directing the 3rd defendant to pay over to the plaintiffs all monies payable as rents and/or compensation in respect of the said Okere Section of the Warri By-Pass.

(iv) An injunction restraining the 3rd defendant their servants and/or their agents from making any payment of money or having any dealing or transaction with the 1st and 2nd defendants and/or their agents or privies and/or with any other person or persons other than the plaintiffs and/or Itsekiri Communal Lands Trust Warri in respect of the Okere Section of the Warri By-Pass.

(v) Any other reliefs.”

From the endorsement on the writ of summons, it should be noted that the 1st appellant was sued for himself and on behalf of Olodi family while the 2nd appellant was therein described as sued for himself and on behalf of Okere Urhobo Community.

On 17th January, 1969, the 1st and 2nd appellants applied to the Court for an order:

(1) to strike out the name “Okere Urhobo Community” from the writ of summons and to add thereto or substitute therefore as defendants the names of “Oki and Ighogbadu families of Okere, Warri”; and

(2) to authorise the 1st and 2nd appellants to defend the suit for them selves and on behalf of the Olodi, Oki and Ighogbadu families by whom they had been selected and authorised to defend the said suit.

The application was ex facie stated to have been brought in pursuance of Order VII Rules 10(2) and 11 of the High Court (Civil Procedure) Rules. It was supponed by Affidavit sworn to by the 1st appellant and certain representatives of the Oki and Ighogbadu families.

In his affidavit, the 1st appellant deposed, inter alia, that he is the Secretary of the Olodi, Oki and Ighogbadu families and had been such a secretary for the past 15 years; that during that period he acted as the “representative and/or agent” of the said three families “in their propriety transaction with outsiders”, and had actually in fact represented the said families as plaintiff in suit No. W/28/65 in the High Court, Warri, in an action for damages for trespass to land, property of the said families in Okere, Warri, which they won; that the money, the subject matter of the claim in the present suit, is the propeny of the three families aforesaid to whom the same had been paid by the 3rd defendant; and that he and the 2nd appellant had the full authority and consent of the three families to defend the suit on behalf of all the other members of the said families.

These statements on oath were materially coroborated not only by the representatives of Oki and Ighogbadu families in their own separate affidavits but, what is perhaps more imponant, also, wherever relevant, by the plaintiffs in their affidavit in support of their own separate and independent application which they instituted on 18th January, 1969 seeking an order of the court to authorise the 1st and 2nd appellants to defend the suit on behalf of Olodi family and the Okere Urhobo Community respectively. In their affidavit the plaintiffs clearly admitted that the 1st appellant is a member of accredited representative of the Olodi family; that on several occasions and, in panicular, in suit No. W /28/65 he represented as plaintiff the said Olodi family; and that he is a fit and proper person to defend the suit on behalf of himself and the olodi family.

Both applications were heard together by Ovie-Whiskey Ag. J. (as he then was). The main issue then contested was as to whether the 1st and 2nd appellants should represent the Olodi ,family and the Okere Urhobo Community or the Olodi, Oki and Ighogbadu families. There was no mention whatsoever of Emakro, Itifo and Ologho families.

In their argument in support of their application, the plaintiffs submitted that the money sought to be recovered was paid to and received by the Olodi family through their representative, the 1st appellant, and the Okere Urhobo Community also through their representative, the 2nd appellant; that the Olodi family and the Okere Urhobo Community were the proper defendants before the court. They therefore pressed that the 1st and 2nd appellants should be authorised by the Court in the exercise of its powers under Order VII Rule 9 to defend the suit for themselves and on behalf of the Olodi family and the Okere Urhobo Community.

These submissions were vigorously resisted by the appellants, who stoutly denied having collected any money at all on behalf of the Okere Urhobo Community about whom they knew nothing. They maintained that the money, the subject matter of the plaintiffs’ claim, was received by them for and on behalf of only the Olodi Oki and Ighogbadu families, to whom they had since paid over the same. They insisted that they had full authority and consent of the three families aforesaid as joint owners of the said money to represent them and defend the suit on their behalf as their accredited representatives.

In a considered and reasoned ruling, the learned acting judge rejected the arguments put forward by the plaintiffs and dismissed their application. He accepted the contention of the appellants and accordingly granted them authority in terms of the provisions of Order VII Rule 9 to defend the cause on behalf of the Olodi, Oki and Ighogbadu families of Okere, Warri. Furthermore, in the exercise of his powers under Order VII Rule 10/2) the learned acting judge struck out the name of “Okere Urhobo Community” from the suit.

In dismissing the plaintiff application, the learned acting judge said in part:

“It is common knowledge that the Urhobo Community in Okere is a fluctuating and indefinite number of people and in no way incorporated. The plaintiffs have not shown anything to the Court that the Urhobo Community in Okere is interested in the case. There is nothing in the affidavit of the plaintiffs to show that the Okere Urhobo Community authorised the defendants to defend this action on their behalf. Indeed the defendants say they would not defend the action on behalf of Urhobo Community of Okere as they did not receive the money on behalf of the Urhobo Community but on behalf of their three families.

It will therefore be most unreasonable for the Court to order the 1st and 2nd defendants to represent the Okere Urhobo Community in this case.”

The application of the 1st and 2nd appellants were granted in these words:

“The application of the 1st and 2nd defendants for an order striking out Okere-Urhobo Community from this suit and adding thereto Oki and Ighogbadu families of Okere as defendants to be represented by the 1st and 2nd defendants is hereby granted.

It is hereby ordered that the 1st and 2nd defendants should defend this action for themselves and on behalf of the Olodi, Oki and Ighogbadu families of Okere, Warri.

The writ of summons and other processes in this case are to be amended to show the proper capacity in which the 1st and 2nd defendants are defending this action by the plaintiffs.”

Thereafter, the learned acting judge ordered pleadings to be filed and delivered by all concerned. That order was made on 11th February, 1969. And we pause here to note that since the order for pleadings was made no pleadings of any kind have been filed. The fact that since 1969 no statement of claim has been filed by the plaintiffs is of material significance and relevance to the present appeal in that in the absence of a statement of claim no new facts beyond the endorsement on the writ of summons have been disclosed which could be calculated to have alened an intervener in the suit; and what is panicularly crucial in relation to the claim by the plaintiffs is that the endorsement on the writ of summons has not in any way disclosed the basis of the plaintiffs’ claim to be entitled to the refund to them of the monies which the appellants clearly admitted having received and which they described as their own.

Then on 21st May, 1969, and 23rd September, 1969 respectively, the plaintiffs filed applications for extension of time within which to comply with the order of court as regards the filing of pleadings. both applications came before Obaseki J. The 1st application was granted, time being extended to 18th September, 1969 while the 2nd application was on 16th October, 1969 struck out for want of appearance.

On 10th November, 1969, the plaintiffs were again granted an extension of time within which to comply with the order of court as to pleadings. This expired on or about 10th February, 1970. The plaintiffs again defaulted and on 30th July, 1970 the appellants filed an application for the suit to be dismissed for want of prosecution. Apparently altered by that application the plaintiffs once again on 8th August, 1970 applied to the court for a further extension of time. Both applications once more came before Ovie Whiskey J. and were dealt with on 10th August, 1970. By consent the appellants’ application was struck out while that of the plaintiffs was again granted, time being extended up to 90 days within which to comply with the order of court as to pleadings.

It seems that this last indulgence of the grant of extension of time served to open the floodgate to the Intervener. For on 16th September, 1970, this is, precisely 22 months after the writ of summons in the suit had been filed followed by a series of steps taken in the suit by the parties concerned, including an application, as already stated, for the suit to be dismissed for want of prosecution, the respondent suddenly as it were, woke up from his slumber. He applied to be joined as co-defendant in the suit. In the application he described himself thus:

“Omosohwofa Eboh (for himself and on behalf of Emakro, Olodi, Itifo and Ologho families of Uduvwun-Urhobo Quarters in Okere, Warri.)”

The application was expressed to have been brought under Order VII Rules 10(2) and 11. At the hearing, however, it was also stated to have been brought under Order VII Rule 9 although in the body of the motion there was nothing to indicate that the court was also to authorise the respondent to defend the action in a representive capacity. The application was supported by affidavits. There was also a counter-affidavit deposed to by the appellants.

We consider the contents of the affidavits and counter-affidavit crucial for a proper decision in this appeal. The relevant paragraphs of the affidavits and counter-affidavit are as hereunder appearing:

In paragraphs 1, 2, 3, 4, 5, 6, 7, 8, 9, 10 and 11 of his affidavit the respondent deposed as follows:

“1. That I am a native of Uduvwun-Urhobo in Okere, Warri and head of the Olodi family of Uduvwun-Urhobo, Okere, Warri.

2. That the Okere portion of the “Effurun-Ogunu By-Pass” construction by the 3rd defendant, belongs to the Emakro, Olodi, Itifo and Ologho families of Uduvwun-Urhobo in Okere, Warri.
3. That these four families constitute the “Uduvwun-Urhobo Quarter of Okere” and have been in possession of the Okere section of the Bye-Pass known as “OTORIGO” land of Uduvwun-Urhobo, from time immemorial.
4. That the 3rd defendant in this case (Shell-BP Petroleum Development Co. of Nigeria Ltd.) constructed the Bye-Pass with our knowledge and have paid compensation fur the Otor-Igo (Okere section) of the Bye-Pass for our said four families.
5. That the 3rd defendant paid to the four families of Emakro, Olodi, ltifo and Ologho, some 1,3354 (one thousand, three hundred and thirty five pounds, ten shillings and four pence) which has since been shared exclusively by the four families.
6. That apart from the above sum, 3rd defendant paid to individual members of the four families’ compensation for their crops destroyed and other personal propenies damaged.
7. That Otor- Igo land is owned by the four families to the exclusion of Oki and Ighogbadu families.
8. That Oki family is in Odele Quarter and no member thereof has any land on, and in fact has never farmed in any part of Otor- Igo land through which the Effurun-Ogunu Bye-Pass runs.
9. That Ighogbadu family is settled in Odion, beyond Cemetery Road, Warri, where they have all their lands and have land in Otor-Igo through which the Bye-Pass runs.
10. That no member either of these two families (Oki and Ighogbadu) share a penny out of the compensation already paid for the use of the land and for the economic trees, by the 3rd defendant.
11. That when it came to my knowledge that the 3rd defendant has been taken to Court in respect of this land, I caused to be summoned, a meeting of the four families to wit: Emakro, Olodi, ltifo and Ologho on 13th September, 1970 and there, I was given the mandate to make this application for leave to join as co-defendant in this case for myself and on behalf of the four families of Emakro, Olodi, Itifo and Ologho.”

Paragraphs 1, 2 and 3 of the affidavit of Ghamijolo Eburu, Samuel Okumagba, Sunday Ukutala and James Ovwi in suppon of the respondent’s application are in the following terms:

“1. That we are respectively members of Emakro, Olodi, Itifo and Ologho families of Okere, Warri which make up the Uduvwun-Urhobo Quarter of Okere, Warri.

2. That on Sunday the 13th day of September, 1970, a representative meeting of the above-named. four families met in the house of Omosohwofa Eboh in Uduvwun-Urhobo Quarter, Okere, Warri and there, the implications of this case (W/63/68-Chief A.O. Uku & 4 others (for themselves and on behalf, of Ogitsi family of Okere, Warri) v. D.Eh. Okumagba and another (for themselves and on behalf of Olodi Oki and Ighogbadu families of Okere, Warri) and Shell-BP Petroleum Development Company of Nigeria Ltd., was fully discussed; and
3. That as a result of the deliberations, the four families of Emakro, Olodi, Itifo and Ologho decided to joint the above case as co-defendants as the subject-matter of the action is connected with land known as “Otor-Igo” which exclusively belongs to our said four families.”

The answer of the appellants to the affidavit in support of the respondent’s application is to be found in paragraphs 1, 2, 3,4,5, 11, 12, 14, 15, 17,18, 19,20,21,22,23 and 24 of their counter affidavit, which read:

COUNTER AFFIDAVIT

“1. I am the 1st defendant in this case and I depose to the facts contained in this counter affidavit with the full knowledge, authority consent and concurrence of the 2nd defendant H.U. Okumagba and on my own behalf and on behalf of the Olodi, Oki and Ighogbadu families of Okere, Warri.

2. I have perused the affidavit sworn to by Omosohwofa Eboh and the one sworn to by Gbamijolo Eburu, Samuel Okumagba, Sunday Okutala and James Ovwi in support of the applicant’s application to be joined as a co-defendant in this case and I fully understand the contents of the said affidavits.
3. The 2nd defendant and I are members of the Olodi family of Okere Warri, as well as the applicant Omosohwofa Eboh.
4. The plaintiffs’ claim originally was against the 1st defendant, D.E. Okumagba (for himself and on behalf of Olodi family) and the 2nd defendant H.U. Okumagba (for himself and on behalf of Okere-Urhobo Community) and Shell-BP Petroleum Development Company of Nigeria Limited as the 3rd defendant. A Photostat copy of the writ of summons and claim is hereto attached and marked as Exhibit “A”.
5. On the 11th February, 1969, on an application by the 1st and 2nd defendants (no counter-affidavit filed) the Court ordered that the 1st and 2nd defendants (Le. D.E. Okumagba and H.U. Okumagba) to defend this action for themselves and on behalf of Olodi, Oki and Igbogbadu families.

Writ of summons to be amended accordingly. A photostat copy of the affidavit and attachments attached to the application by the 1st and 2nd defendants is hereto attached and marked as Exhibit “B”. Plaintiffs’ motion

(i) that the 1st defendant, defend the action for himself and on behalf of Olodi family and

(ii) the 2nd defendant, defend for himself and on behalf of Okere Urhobo Community was dismissed. A photostat copy of the counteraffidavit sworn to by the 2nd defendant (H.U. Okumagba) in opposition to the plaintiffs’ application which was dismissed and which clearly shows in paragraph 6 that he received the said money for and on behalf of the three families, vis:, Olodi, Oki and Ighogbadu is hereto attached and marked as Exhibit “C”.

11. Paragraph 1 of the affidavit of Omosohwofa Eboh is untrue. Omosohwofa Eboh is not head of the Olodi family as the three families of Olodi, Oki and Ighogbadu have one head for the three families. The present head Mr. Amoforitse of Ighogbadu family succeeded the late Chief Okumagba of Olodi family as head of the three families.
12. Paragraphs 2,3,4 and 5 of the affidavit of Omosohwofa Eboh are untrue.
13. Paragraph 7 of the affidavit of Omosohwofa Eboh is untrue. The land is owned by Olodi, Oki and Ighogbadu families of Okere, Warri.
14. Paragraphs 8 and 10 of the affidavit of Omosohwofa Eboh are not true.
15. Paragraph 11 of the affidavit of Omosohwofa Eboh is untrue. No meeting was ever held between Olodi family, Emakro, Itifo and Ologho families. When this action was filed in 1968, a meeting of the three families of Olodi Oki and Ighogbadu was held and 1st and 2nd defendant were authorised to file a motion and pray this Honourable Court to be allowed to represent the three families. The applicant, Omosohwofa Eboh was present at the meeting of these three families which mandated myself and 2nd defendant to represent Olodi, Oki and Ighogbadu families. He did not object to the decision of the said families. No application was made by the applicant or by another member of the Olodi family to this Honourable Coun to oppose our application to defend this action in a representative capacity for and on behalf of the three families.
16. That at no time was a meeting held as alleged in paragraph 12 of the affidavit of Omosohwofa Eboh, and that no meeting was held by Olodi family or by Olodi, Oki and Ighogbadu families as alleged.
17. That the applicant, Omosohwofa Eboh cannot represent Olodi family as the interest of that family is already adequately protected by the Order of this Honourable Court given on 11 th February, 1969 which said order is still binding. No application has up till now been made to this Honourable Court to the best of my knowledge to have the said order discharged.
18. Before the 2nd defendant and I were authorised to defend on our own behalf and on behalf of Olodi, Oki and Ighogbadu families two prominent members of the families present at the meeting swore to an affidavit which accompanied the application to this Honourable Court. The photostat copy of the affidavit is one of the attachments included in Exhibit “B”.
19. 1st and the 2nd defendant have the due authority and consent of the three families of Olodi, Oki and Ighogbadu to oppose this application of Omosohwofa Eboh to defend this action on behalf of Olodi family and I attach hereto and mark as Exhibit “D” the joint affidavit of James Dederu Oki family, Richard Otimeyin Obire of Ighogbadu family and Benjamin Oyeofo Okumagba of Olodi family in suppon of our opposition to this application.
20. That the applicant has no bona fides in making this application as long as Olodi family is already well represented in the action.
21. Paragraphs 2, 3, 4 and 5 of the purponed affidavit of Gbamijolo Eburu, Samuel Okumagba, Sunday Okutala and John Ovwi are not true.
22. That I believe that the application is a deliberate attempt to cause confusion in the just determination of the above case.

On the receipt of the appellants’ counter-affidavit the respondent immediately filed a further affidavit in which he apparently joined issues with the appellants. The relevant parts of the further affidavit are paragraphs 2, 3, 4, 5 and 6 which are as follows:

“2. That the facts sworn to in my affidavit of 17th September, 1970 in suppon of the application for joinder are true to the best of my knowledge and are deposed to in good faith.

3. That I am the head of Olodi family and in that capacity, I preside over all important meetings of the family which are normally held in my place. I also worship the family shrines.
4. That at no time was it brought to my knowledge that an application was being brought to court by 1st and 2nd defendants to defend on behalf of Olodi, Old and Ighogbadu families nor was I present at any meeting at which any such decision was taken.
5. That at no time were the 1st and 2nd defendants mandated by the Olodi family of which I am the head, to defend this action either as representatives of Olodi family or as that of Olodi, Oki and Ighogbadu families or any family at all; and
6. That the interest being represented by the 1st and 2nd defendants in the substantive action is inconsistent with the interest of the real owners and it is necessary to have them properly represented.”

The affidavits and counter affidavit raise most controversial issues of fact which compel investigation or at least some enquiry. They introduce new matters inconsistent with the claims of the plaintiffs. The facts sworn to by the respondent in his affidavits are most violently in conflict with the facts deposed to by the appellants in their counter-affidavit.

On 23rd September, 1970 the application came yet before another Judge. This time it was Atake J. At the hearing two matters stood out from the proceedings as most remarkable and somewhat peculiarly odd. The first is that even though the plaintiffs and the 3rd defendant were represented in court by counsel they took no part in the proceedings. It became a direct tussle between the respondent and the appellants. From the record of proceedings the plaintiffs and the 3rd defendant were never asked by the Court what their attitude was to the application.

The second is the number of questions which the learned judge himself put to the learned counsel who represented the respondent. Indeed, the learned counsel had to undergo a rigorous cross-examination- an indication that the learned judge himself was in doubt as to his jurisdiction as regards the exercise of his power of joinder in the circumstances disclosed by the proceedings and the affidavits. Nonetheless, the learned judge proceeded to deliver his ruling. He ordered that the respondent “do defend the suit on behalf of himself, the Emakro, Olodi, Itifo and Ologho families of Uduvwun-Urhobo Quarters in Okere, Warri”.

The order, which was made by the learned judge and has been the subject of severe attacked by learned counsel for the appellants, is in the following terms:

“It appearing that the members of Emakro, Olodi, ltifo and Ologho families are numerous and that they have a community of interest in the land and that the applicant, Omosohwofa Eboh, is one of them, it is hereby ordered that the said Omosohwofa Eboh do defend this suit on behalf of himself, the Emakro, Olodi, Itifo and Ologho families of Uduvwun-Urhobo Quarter in Okere, Warri except D.E. Okumagba and H.U Okumagba and those members of Olodi family who are in their camp.” .

This appeal is against the ruling and the order of the learned judge. It has been brought by the appellants who have complained of the said ruling and order on a number of grounds, among which we consider those set out hereunder as of particular importance and material relevance. These are:

1. That the learned judge erred in law in allowing Omosohwofa Eboh to represent Olodi family and three other families jointly after D.E. Okumagba and H.U. Okumagba had previously been authorised by the Court to represent the Olodi family and two other families jointly as defendants in the suit.
2. That the learned judge had no jurisdiction under Order VII Rule 9, 10(2) and 11 of the rules of court to make the order as to joinder of the intervener, Omosohwofa Eboh, in the capacity expressed in the order as by so doing the learned judge amended the previous order which had been made by another judge thereby constituting himself a court of appeal against the order of a judge of competent and concurrent jurisdiction.
3. The learned judge erred in law in accepting unquestioningly the averments contained in the affidavits of the respondent which were irreconcilably in conflict with the counter-affidavit sworn to by the appellants without hearing oral evidence from the deponents, having regard, especially to the allegations contained in the appellants’ counter-affidavit as to the lack of bona fides in the respondents’ application and the delay in bringing the same.

In his submissions on the three grounds of appeal which we propose to consider together, Dr. Odje, learned counsel for the appellants drew the attention of the court to the first Order which was made by Ovie-Whiskey Ag. J. (as he then was) on 11th February, 1969 in the exercise of his jurisdiction under order VII Rules 9 and 10(2) of the Rules of the High Court wherein the appellants were authorised to defend the suit for themselves and on behalf of the Olodi, Oki and Ighogbadu families of Okere, Warri; and the name of “Okere Urhobo Community” was struck out.

Learned counsel also pointed out that at that time there was no mention of the name of Omosohwofa Eboh as the head of the Olodi family; that, on the contrary, by their affidavit the plaintiffs had clearly admitted that the 1st appellant was a member and the accredited representative of the Olodi family; that he had represented the family in a previous suit in the High Court; that the application of the respondent was brought 17 months after the order made by Ovie-Whiskey Ag. J., and that that was some evidence of the absence of bona fides on the part of the respondent.

Learned counsel then submitted that Omosohwofa Eboh’s claim to be the Head of Olodi family is completely false; that the claim was challenged by affidavit evidence; and that, in any case, even if he were, he is completely covered by the order of 11 th February, 1969 authorising the appellants to represent the Olodi family. It was also contended by learned counsel that Atake J. was Functus Officio and had no jurisdiction to have granted the application brought by the respondent under Order VII Rules 9, 10(2) and 11 of the High Court Rules. The learned judge, it was submitted, therefore erred in law to have made the Order as the respondent was not a necessary party to the suit.

In support of the submission on the issue of jurisdiction based on the construction and the application of Order VII Rule 9, 10(2) and 11 of the rules of the High Court, learned counsel cited and relied on Miguel Sanchez & Compania SL. v. Result (Owners). Nello Simoni ltd., Third Party usually cited in short as ‘The Result’, (1958) Probate 174; and Chief Ekpere and 3 Ors. v. Chief Odaka Aforije and 4 Ors. (1972) 3 S.C. 117.

It was also submitted that the learned judge was wrong in law to have acted on the untested affidavits which were directly in conflict on crucial and essentially material facts in granting the application brought by the respondent for him to be joined as co-defendant in the suit; that having regard to the conflicting nature of the affidavits and counter-affidavit as to the assertions of the parties, it was the duty of the learned judge to have invited the parties to call oral evidence for the purpose of enabling him to test the affidavit evidence; and that his failure to do so is such a fundamental error of law as to have occasioned a miscarriage of justice Government of Ashanti v. Adjuah Korkor and Others. 4 W.A.C.A. 83; and Akinsete v. Akindutire (1966) 1 All N.L.R. 147 were cited as the authorities in support of this submission.

We turn now to consider these submissions and start off by observing that the order granted by the learned judge would appear to be defective and irregular on the face of it. for, whereas in his application of 16th September, 1970, the respondent had sought in express terms and order of the court allowing him to be joined as a co-defendant in the suit, in his ruling the learned judge, without in express terms adding him as a co-defendant, (he not having been a party to the suit originally) ordered “that the said Omosohwofa Eboh do defend this suit on behalf of himself, Emakro, Olodi,Itifo and Ologho families of Uduvwun-Urhobo Quarters in Okere, Warri”. In this respect the court appears to have been confused between authorising a party to defend an action in a representative capacity-which is regulated by Order 7 Rule 9 of the Rules of the High Court-and joining such party as a defendant-a matter within the purview of Order 7 Rule 10. The application did not expressly seek an order of the court authorising the respondent to defend the suit in a representative capacity.

As regards the submission by learned counsel we must fIrst give consideration to Order VII Rule 10(1)(2) and 11 of the Rules of the High Court, the provisions whereof are as set out hereunder:

“10(1) No cause or matter shall be defeated by reason of the misjoinder or non-joinder of parties, and the parties may in every cause or matter deal with the matter in controversy so far as regards the rights and interests of the parties actually before it.

“(2) The Court or a Judge may, at any stage of the proceedings, either upon or without the application of either party, and on such terms as to the Court or a Judge may seem just, order that the names of any parties improperly joined, whether as plaintiffs or as defendants, be struck out and that the names of any parties, whether plaintiffs or defendants who ought to have been joined or whose presence before the Court may be necessary in order to enable the Court effectually and completely to adjudicate upon and settle all the questions.

11. Any application to add or strike out or substitute a plaintiff or defendant may be made to the Court or a Judge at any stage of the proceedings.”

The rule which deals with authorisation of a party to defend a suit in a representative capacity is Order VII Rule 9, which provides as follows:

“9. Where there are numerous persons having the same interest in one cause or matter, one or more of such persons may sue or be sued, or may be authorised by the Court or a Judge to defend in such cause or matter, on behalf or for the benefit of all persons so interested”.

These rules were promulgated and became effective in 1958. They were adapted from the rules of the Supreme Court of England as they were then. For the proper comprehension and appreciation of the manner in which the rules are to be applied and their effect on the jurisdiction of the High Court, it is necessary, we thin, that reference be made to the manner in which the rules were at the time applied in the Couns in England. In this connection, we would observe that Order VII rules 10 and 11 are practically in pari materia with and appear to have been adopted with slight modification from Order 16 rule 11 of the rules of the Supreme Court of England which dealt at that time with “Misjoinder and nonjoinder: Striking out and adding parties etc.”, that being the manner in which the rules were then headed. (See Annual Practice 1957 p. 255).

We would, however, like to observe that compared with the English Rules there are two obvious printing errors in Order VII Rule 10(1) and (2) of the Rules of the High Court. In the second line of rule 10(1) as printed in Volume 2 at pp. 432 and 44 of the Laws of Western Nigeria, 1958, after the “Comma” the words “and the parties may in every cause or matter,” which we have underlined above, should read “and the Court may in every cause or matter”; and at the end of rule 10(2) there should be insened before the fullstop the words “be added”. Unless these amendments are made the rules do not make sense as they stand. The corrections suggested make them correspond in every material panicular to the English rule from which they obviously derived their existence.

We think on a careful examination of these rules that the submissions addressed by the learned counsel for the appellants to this Court are sound. They are well founded. Indeed, Mr. Ideh, learned counsel for the respondent, gave us the impression that the submissions were unanswerable. He did not, and could not suppon the Order of the learned judge with any enthusiasm.

We are satisfied that the learned judge acted without jurisdiction in ordering the respondent to defend the suit on behalf of Olodi family, having regard to the fact that the order made by Ovie-Whiskey Ag. J. authorising the appellants to defend the same suit on behalf of the Olodi family is still active and subsisting. The respondent is no longer a necessary party in that capacity for the purpose of enabling the court “effectually and completely to adjudicate upon and settle all the questions” in the suit. The words which we have underlined are the key words of the provisions of rule 10(2). Our view in this respect is in accord with the views of the English Courts in their interpretation and application of this panicular rule. That was cenainly the view expressed by Devlin, J. (as he then was) in Amon v. Raphael Tuck & Sons. Ltd. (1956) 1 All E.R. 273 when, after a review of a number of authorities, he said at p. 279:

“Accordingly, this case, in my view, really turns on the true construction of the rule, and, in particular, the meaning of the words

“. . . . . . . . . . whose presence before the coun may be necessary in order to enable the coun effectually and completely to adjudicate upon and settle all the questions involved in the cause or matter. . . . . . . . ”

The beginning and end of the matter is that the court has jurisdiction to join a person whose presence is necessary for the prescribed purpose and has no jurisdiction under the rule to join a person whose presence is not necessary for that purpose.”

The case of the respondent in the appeal under consideration has been made more complicated by the following facts:

(1) The claims of the plaintiffs being founded on debt was directed against the Olodi family and the Okere Urhobo Community on the basis that the money sought to be recovered was paid by the 3rd defendant to the Olodi family and the Okere Urhobo Community.

(2) The appellants in resisting the claim maintained that they had received the money for themselves and on behalf of Olodi, Oki and Ighogbadu families as joint owners of the same. The court accepted the appellants’ deposition and accordingly granted them authority to defend the suit for themselves on behalf of the Olodi, Oki and Ighogbadu families.

(3) The respondent now asserts that it was Olodi Emalcro, Itifo and Ologho families which had received the money from the 3rd defendant who, in this controversy, has not disclosed to whom it had in fact paid the money. This is the most unusual and peculiar feature of the case. For, whereas the appellants have sworn that they had received the money from the defendant for themselves and those they represent, the respondent also swears that he and those whom he seeks to represent had infact received the money for themselves. But those the respondent seeks to represent include complete strangers to the suit. It is therefore impossible for both versions of the admission to be true.

The Emakro, Itifo and Ologho families, being complete strangers, to add them as co-defendants with Olodi family to be represented by the respondent would completely alter the basis of the plaintiffs’ claim. It seems that there is an entirely new dispute which has arisen between the appellants and the respondent as to who in fact had received the money.

In the present suit the respondent is not saying that he is dissatisfied with the appellants’ representation of the Olodi family. Had that been the case, the respondent might have been entitled to have himself added personally as a separate defendant to enable him to put forward his views at the trial but not in substitution for the original representatives of the defendants.

It seems to us quite plain that without the respondent being joined as a co-defendant, the present suit is not liable to be defeated as it is possible for the coun to adjudicate upon the cause or matter without the presence of the respondent as a representative of the Olodi family. The respondent and the families of Emakro, Itifo and Ologho are not claiming in the same right with the appellants. As was observed by Devlin J. in Amon v. Raphael Tuck & Sons, Ltd. (Supra) the only reason which makes it necessary to make a person a party to an action is so that he should be bound by the result of the action and the question to be settled therefore must be a question in the action which cannot be effectually and completely settled unless he is a party. This is purely a question of jurisdiction.

In considering Order 16 rule 11 of the English rules Willmer J., in “The Results” (supra) said at page 179:

“The rule providing for the joinder of additional parties is R.S.C., Ord. 16, r. 11. It is not, I think, disputed that the third parties are entitled to the order sought only if they can bring themselves within the terms of that rule. having regard to the terms of the rule, it appears to me that the questions to be determined on this summons are these. First, is the cause or matter liable to be defeated by the non-joinder of the third parties as defendants This, I think means in effect: is it possible for the court to adjudicate upon the cause of action set up by the plaintiffs, unless the third parties be added as defendants Secondly, are the third parties persons who ought to have been joined as defendants in the first instance Thirdly, and alternatively, are the third parties persons whose presence before the court as defendants will be necessary in order to enable the court effectually and completely to adjudicate upon and settle all the questions involved in the cause or matter”

And finally at p. 184:

“In these circumstances, in my judgment, the third parties’ application to be added as defendants must fail, because it is not shown that the cause or matter, the dispute arising in relation to the plaintiffs’ claim is liable to be defeated by the non-joinder of the third parties as defendants, nor is it shown to my satisfaction that the third parties are persons who ought to have been joined as defendants in the first instance, or that their presence before the court, as defendants, is necessary to enable the court effectually and completely to adjudicate upon and settle all questions involved in the cause or matter, within the meaning of the rule.”

Applying the principles stated above to the facts and circumstances of the matter on appeal, we hold that the learned judge had no jurisdiction to have added the respondent in the suit in the capacity in which he did as a codefendant Furthermore, the learned judge acted without jurisdiction to have purported to set aside though indirectly the previous order made by a court of competent and concurrent jurisdiction. He was functus officio.

There are authorities for the proposition that as a matter of practice an application which is supported by an affidavit against which there is also a counter-affidavit where the facts deposed to in such affidavits are irreconcilably in conflict then in order to resolve such conflicts the judge ought to invite the parties thereto to call oral evidence if they wish. Such oral evidence would enable him to test the affidavit evidence and thereby be enabled to resolve such conflicts before acting on such affidavit evidence. (See Government of Ashanti v. Adjuah Korkor and Others 4 W.A.C.A. 83; and Akinsete v. Akindutire (1966) 1 All N.L.R. 147). In the present case the learned judge failed to act in terms of this old established practice. We accept the submission by learned counsel for the appellants that this failure has occasioned a miscarriage of justice. The order of the learned judge cannot therefore in the circumstances be sustained.

This appeal therefore succeeds on all the grounds argued before us. It is allowed. The order dated 23rd September, 1970 made by Atake J. authorising the Intervener, Omosohwofa Eboh, to defend suit No. W /63/68 in the High Court, Warri on behalf of himself the Emakro, Olodi, Itifo and Ologho families of Uduvwun-Urhobo quarters in Okere, Warri is hereby set aside.

The name of Omosohwofa Eboh purportedly joined as co-defendant is accordingly struck out. The order made by Ovie- Whiskey Ag. J. on 11th February, 1969 is hereby restored and affirmed. The appellants are entitled to the costs of this appeal assessed and fixed at N139 as well as the costs in the High Court assessed and fixed at N42 as they ought to have succeeded in that court.

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Other Citation: (1974) LCN/1813(SC)

Messrs. Misr (Nigeria) Ltd V. Mallam Yusufu Ibrahim (1974)

LawGlobal-Hub Lead Judgment Report

COKER, J.S.C.

The appellants were the plaintiffs in an action instituted by them in the High Court, Kano, against the defendant, now respondent, on a writ endorsed as follows:-

“The plaintiff claims from the defendant the sum of 3,255pounds:11:4d. being the amount due and owing by the defendant to the plaintiff on the defendant’s account with the plaintiff.

The defendant refuses or neglects to settle the amount after repeated demands, whereof the plaintiff claims as per the writ.”

Pleadings were duly filed by the parties and paragraphs 3, 4 and 5 of the statement of claim, which tells the whole story of the plaintiff’s case, are as follows:-

“3. By credit facilities granted to the defendant from October, 1965, at the defendant’s request, the plaintiff supplied various goods comprising of ile materials, ladies bags, perfume, bags of salt etc. for which the defendant was required by the terms of the contract to make payments constantly in order to balance his account.

4. By August 30th, 1967, the value of goods supplied to the defendant amounted to 5pounds,224:7:3d. for which the defendant paid a total of 1pounds,968: 15: 11d. leaving an outstanding debit balance of 3pounds, 255:11:4d. to be paid by the defendant to the plaintiff.
5. A reconciled Statement of Account by the plaintiff’s accountant has been sent to the defendant stating the number and quantity of goods supplied to the defendant and the payment made up to 19th June, 1967, when the defendant stopped further payments on his said account with the plaintiff. The plaintiff will rely on the Statement of Account at the trial of this action. The said Statement of Account is hereby attached and marked Exhibit ‘A’.”

The defendant’s statement of defence denies all averments of liability to the plaintiffs, states that at all times material to the action he was only a storekeeper to one Alhaji Ladan Kura on account of whom he collected the goods described by the plaintiffs, and paragraphs 3, 4 and 5 of his statement of defence read as follows:-

“3. With reference to paragraph 3 of the statement of claim, the defendant denies that he was ever granted credit facilities at his request and would aver that such goods as were received by him were received for and on behalf of Alhaji Ladan Kura who was the real agent of the plaintiff in Bauchi and merely employed the defendant as a store-keeper.

4. The defendant is not in a position to admit paragraphs 4 and 5 of the statement of claim and puts the plaintiff to the strictest proof thereof. The defendant would in particular, aver that he was at the material time employed by Alhaji Ladan Kura, as a storekeeper and whatever transaction the defendant had with the plaintiff was for and on behalf of his employer.
5. With further reference to paragraphs 4 and 5 of the statement of claim the defendant would rely on such documents and statements of account that may be available to him at the trial of this action and would aver that the Statement of Account referred to as Exhibit A, in the statement of claim, is wrong.”

Both parties gave evidence at the trial but before the actual hearing, the defendant had successfully applied for an order to join Alhaji Ladan Kura as a second defendant. Alhaji Ladan Kura did appear in court soon after his joinder but before the court he denied the plaintiffs’case and stated that whilst he admitted owing the 1st defendant an amount of 1pounds,239:14:9d. (or N2,479.49) he had no dealing whatsoever with the plaintiff. Alhaji Kura did not appear again throughout the trial although he filed a statement of defence which confirmed what he had already told the court.

Only one witness gave evidence for the plaintiffs – one Obi Emeaobuba described as an accountant employed by the plaintiffs’ Company. He testified to the claim on the writ and produced a large body of documentary evidence supporting the evidence that goods of the plaintiffs were in fact sent to and received, and indeed receipted, by the 1st defendant. He admitted some of the documents he had tendered by their headings or other parts of them implied that the defendant was either the plaintiffs’ agent at Bauchi or was in charge of the plaintiffs’ agency in that place. The plaintiffs’ counsel then announced the close of the plaintiffs case and learned counsel for the defendant applied to amend his statement of defence by adding thereto a new paragraph 3(a) as follows:-

“Alternatively the defendant avers that such goods were received by the 1st defendant from the plaintiff as merchantile agent of the plaintiff and will contend that the plaintiff’s claim is misconceived as the proper action should be for an account.”

This application was granted by the learned trial Judge even though it was opposed (we do not know why) by learned counsel for the plaintiffs. The defendant thereafter gave evidence. In the course of his evidence he variously described himself as the agent of the plaintiffs or the servant of the 2nd defendant or, indeed, as the agent of both the plaintiffs and the 2nd defendant. He produced some documentary evidence and this seemed to confirm that he received or was collecting the goods of the plaintiffs on which the case was founded. He gave further evidence to the effect that he had sold the goods and that although some of his customers were people from the East-Central State of Nigeria who fled to their home towns during the Civil War, yet not all his customers did not pay him for the goods which they purchased. Learned counsel on both sides then addressed the court at some length. In the course of the address, the learned trial Judge had some qualms about the plaintiffs’ case as presented and the following dialogue then ensued between the learned trial Judge and learned counsel for the plaintiffs:-

“Court: What is the position if I find the 1st defendant was acting as your agent throughout

Balogun: Having regard to that possibility, I now apply to amend my statement of claim as follows: by adding as paragraph 9 the following paragraph –

‘In the alternative the plaintiff claims the sum of 3 pounds,255:11:4d. being the amount due from the 1st defendant to the plaintiff as an agent of the plaintiff.’

Sanyaolu I do not oppose the application; I have no further application of my own.

Court: Very well. Order as prayed.”

In a reserved judgment, the learned trial Judge dismissed the plaintiffs’ case with costs. He found as a fact that the 1st defendant and not the 2nd defendant was the agent of the plaintiffs at Bauchi, observing as follows:-

“Having carefully considered the evidence before me I find that it is more probable than not that the first defendant was acting as an agent of the plaintiffs in operating the business in Bauchi and that he was entitled to deduct the overhead expenses involved from sums due from him to the plaintiffs in that capacity.

Having regard to these findings of fact, in my judgment, the plaintiffs’ claim which is for the specific sum of 3pounds,255:11:4d. under both heads under which it is claimed, must fail. They have failed to prove on the balance of probabilities that the first defendant owes them that sum.”

The plaintiffs have now appealed to this court against that judgment and the main complaint was that on the facts before the learned trial Judge he was wrong to dismiss the plaintiffs’ case. Learned counsel for the defendant of course opposed this contention but he was unable to answer the criticisms of the judgment, firstly, that it was against the weight of evidence and, secondly, that on all the facts found by the learned trial Judge it was wrong to dismiss the plaintiffs’ case.

To deal with the second point first, we observe that the learned trial Judge dismissed the plaintiffs’ case for a specific balance of amount owing on the grounds that the plaintiffs should have sued the defendant for an account; for he indeed observed in his judgment as follows:-

“It is not unlikely on the evidence that the first defendant owes them some money. But the plaintiffs have not claimed an account, although given every time and opportunity to the last to do so, and I refuse therefore to order one.

In these circumstances, although I have considered the matter, I feel I would be wrongly exercising my discretion to non-suit the plaintiffs and give them a further opportunity to proceed against the first defendant.”

If, by this, the learned trial Judge implied that it was not possible under any circumstances for a principal to sue his agent for money had and received or for the balance of the costs of goods entrusted to the agent, we cannot agree with him. An action for account lies in respect of a claim which may be unascertained at the time of the institution of the proceedings and indeed can only be ascertained after the filing of such an account. If the plaintiffs’ claim against a defendant is indeed ascertained, we are at a loss to see why such a plaintiff may not claim from the defendant such an ascertained amount. In Bowstead on Agency 13th Edition at p. 156, the following statement of the law, with which we are in agreement, occurs:-

“The principal cannot make his claim for money had and received until the agent has either received the money or has been credited with it in his own account with the third party. This does not mean that the principal must wait until the agent admits he has received the money; if, for example, the principal employs an agent to sell goods for him and the agent does not account to the principal within a reasonable time, it will be presumed in the absence of evidence to the contrary that the agent has received money for the goods.”

We think it right to point out that where as here there is no dispute as to the receipt of goods, the value of which is ascertained, it is open to the principlals, without going into an action for account, to sue the agent for the ascertained sum which they claim the defendant was owing them.

Furthermore, the learned trial Judge took the view that, on the balance of probabilities, the plaintiffs did not prove their case. The assessment of evidence and the ascription of probative values to such evidence are the duty of a court of trial but a court of appeal would intervene and interfere if it is satisfied that the trial court had failed to draw the correct inferences from proved or accepted facts or has wrongly assessed the probative values of undisputed evidence.

One of the exhibits tendered by the plaintiffs in this case was a letter written by the 1st defendant to the plaintiffs. It was admitted in evidence as Exhibit 26 and reads as follows:-

“Dear Sir,

Thank you very much for your letter of April 8th, 1967, it came to my hand today through Alhaji Ladan Kura, all the contents there were carefully understand, but the balance is 2pounds,903:18:3d. Total goods supply is 4pounds,730:3:5d. Total amounts pay and goods returned is 1pounds,826:5:2d. of course I left Bauchi on 5th April, on my way to Kano, but unfortunately the motor car break down on mile 75 Ningi Kano Road which I have to enter another lorry to Jos because to get mechanic who will repair the car, where I spent 5 days before getting the car to the normal condition. I returned back to Bauchi on 10th April. That is why when you came you did not meet me. The reason why the balance is 2pounds,903:18:3d., if you remember 376pounds:0:0d. was made on reduction on white shirtings. I hope you will soon see my message by the Grace of God.

I look forward to hear from you.”

The defendant did not dispute writing or sending this letter and his evidence concerning the letter is most pertinent. He said concerning Exhibit 26 as follows:-

“I see Exhibit 26. I wrote it to the plaintiff on 11th April, 67. I agree in that letter, I did not mention I was an agent of the plaintiff or acting for Ladan Kura. The money spoken of as owed and due in Exhibit 26 was due from the customer of the Bauchi shop. As a result of the business carried out in Bauchi the plaintiff are not owed 3pounds,255:11:4d. I do not know what they are owed because all the books are with Alhaji Ladan Kura. I agree they are owed something. I agree all the goods in Exhibit 2 were received by me at Bauchi and sold by me.”

Exhibit 2 was the statement of account produced in evidence for the plaintiffs as representing the account of the 1st defendant and the amount he was owing to the plaintiffs. Thus, by Exhibit 26, the 1st defendant admitted receiving all the goods claimed by the plaintiffs to have been sent to him and received by him. If the amount of 376pounds (or N742) referred to by the 1st defendant in Exhibit 26 was added to the amount of 2pounds,903:18:3d. (or N5,806.83) admitted by him in Exhibit 26, the total would just be little over the amount actually claimed by the plaintiffs in this action. In dealing with Exhibit 26, the learned trial Judge observed in the course of his judgment thus:

“I mention here a letter, Exhibit 26 written by the first defendant to the plaintiffs on the 11th April 1967 in which the first defendant disputed the state of an account between them at that date. But the letter, which apparently set out an account, in reply to which Exhibit 26 was written has not been put in evidence by the plaintiffs and without it, it is not possible to see the nature or state of the account which was under discussion. Neither can I read into Exhibit 26 an admission on the first defendant’s part that at that date he owed the plaintiffs the sum indicated.”

It is difficult to read into Exhibit 26 the comments of the learned trial Judge. Just before the comments referred to above, the learned trial Judge had referred to the defendant’s claims as against the plaintiffs’ for the expenses of running the business at Bauchi, etc., but it is clear that the 1st defendant had filed no counter-claim or set-off and under no circumstances is a judge entitled to speculate with respect to matters on which he had no evidence before him. Contrary to the inferences of the learned trial Judge, it is manifest that Exhibit 26 clearly admits indebtedness in the amounts so stated thereon and the learned trial Judge should have given effect to this.

We have come to the conclusion that the plaintiffs’ appeal succeeds on the two grounds on which the appeal is based and argued. The appeal succeeds and it is allowed. The judgment of the High Court, Kano, in Suit No. K/65/70, including the order for costs, is set aside. We enter judgment for the plaintiffs against the 1st defendant, Mallam Yusufu Ibrahim, for the sum of N6,511.14 (or 3pounds,255:11:4d.) as claimed by the plaintiffs and this shall be the judgment of the Court. The 1st defendant shall also pay the costs of the respondents fixed in this Court at N65 and in the court below at N227.

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Other Citation: (1974) LCN/1929(SC)

Agada Okoiko & Anor V. Ozo Esedalue & Anor. (1974)

LawGlobal-Hub Lead Judgment Report

O. ELIAS, C.J.N. 

In Suit No. UHC/38/69, Ogbobine, J., gave judgment in favour of the plaintiff against the 2nd and the 3rd defendants in the Ughelli High Court on September, 25, 1970 as per the plaintiff’s Statement of Claim which reads as follows:

“1. An Order of Court allowing the plaintiffs to redeem Omokpa land from the defendants on payment of 15.

2. Recovery of possession of the said Omokpa land from the defendants.
3. Injunction restraining the defendants, their agents and/or servants from interfering with plaintiffs’ possession of the Omokpa in any form or manner…

The suit was first brought in the Customary Court, Iyede, in the Isoko Division of the Mid-West wherein the plaintiff claimed the redemption of Omokpa land which had been pledged by his grandfather to the defendants’ grandfathers for three pieces of cloths which were equivalent to 15 (N30) in value in modern currency. Between the filing of the suit and the hearing of the case, the 2nd and the 3rd defendants brought an application under section 29(1) of the Customary Court Edict, 1966 praying that the case be transferred from the Customary Court to the High Court, and this was duly granted. The plaintiff, for his part, was, on July 3, 1970, granted leave to amend his original Statement of Claim in the form set out above, while the defendants were also granted leave to defend the action for themselves and on behalf of Eto, Awatoma and Use families respectively. The plaintiff annexed to his Statement of Claim a survey plan of the land in dispute (Exhibit A).

Pleadings were ordered and duly filed by both parties. The plaintiff stated that he had sued for himself and on behalf of his (Omoro) family of OteriIyede and that he was duly authorised by that family to proceed with his claim against the defendants and their respective families. Agboro Akoro (P.W.4) gave evidence confirming this fact. The plaintiff’s case was that one Omoro had a piece of land called Omokpa and also had five children, one of whom called Esegbe pledged the land after Omoro’s death to one Eto, who was the grand-father of the 1st defendant, for three pieces of cloths.

Anatoma, the grandfather of the 2nd defendant, and Use, the grandfather of the 3rd defendant, had each contributed a piece of cloth to Eto’s own piece of cloth to make up the three pieces of cloths required for the pledge of Omokpa land by Esegbe to whom the cloths were given. They all three proceeded to put the land to use and had continued to do so till the present action was brought. The plaintiff further stated that, a few years previously,his family decided to redeem Omokpa land from the defendants who agreed to the proposal on the condition that the plaintiff’s family paid. the sum of 1,000 (N2,000) to the defendants’ families. The plaintiff’s family regarded this amount as being excessive and so refused to pay. A little later, the plaintiff’s family renewed the demand to redeem their land but, this time, the amount asked for by the defendants was reduced to 600 (N1,200), which the plaintiff’s family still considered excessive in view of the fact that Omokpa land was originally pledged for the equivalent of 15 (N30). Thereupon, the defendants changed their tune and put forward the claim that the land was originally an absolute sale by Esegbe to their grandfathers, and not a pledge. Agboro Okoro, last plaintiff’s witness, testified that he was one of the three members of the Omoro family that attempted to negotiate the redemption of the pledged land with the defendants and that it was only on the hird occasion that the defendants for the first time set up the claim that the land was sold, not pledged.

The plaintiff, however, gave evidence that, according to the custom of the Iyede people, the sale of land was unknown, and that land could only be pledged and was redeemable on payment of the exact amount for which it was pledged and no more. This was corroborated by the evidence of Atorhe Orde (P.W.2). He admitted that the father of the 1st defendant had a rubber plantation in Omokpa land and that members of the defendants’ families carried on farming on the land.

The first defendant, however, admitted in evidence the claim of the plaintiff against himself and the other defendants. He confirmed that the land was a pledge by Esegbe of Omokpa land to Eto, his grandfather, for three pieces of cloths. The land was then taken possession of by their grandfathers who as well as they (their descendants) had continued to farm on the land, including the planting of cash crops and the maintenance of rubber plantations therein. This witness also stated that, after the pledge, Omokpa land was not partitioned by the three brothers the pledgees, but that they had always used the land in common as one piece. He affirmed that the plaintiff was entitled to redeem his land on payment of the value of the three pieces of cloths which he agreed was 15 (N30), and confirmed plaintiff’s story of the attempts to redeem the pledge and said that they agreed to surrender the pledged land to the plaintiff’s story of the attempts to redeem the pledge and said that they agreed to surrender the pledged land to the plaintiff’s family on payment of 1,000 which amount they again reduced to 600, and “that the reason why they demanded that amount was to make it impossible for the plaintiff to redeem the pledged land”. Finally, he concluded the evidence of custom given by the plaintiff in regard to pledged land among the Iyede people. The learned trial judge summed up the evidence as follows:

“I am satisfied from the evidence of the plaintiff and his witnesses that the transaction between Esegbe and Eto was a pledge and that it was not the intention of those concerned that Esegbe or his family should absolutely relinquish their title to or interest in Omokpa land. I believe the evidence of the plaintiff and that of Agboro Okoro (P.W.A) that the land was pledged and not sold to Eto. In paragraph 5 of the Statement of Claim, the plaintiff averred as follows:

“5. The original owner of the land in dispute was one OMORO, the ancestor of the plaintiffs. It was he who first cleared the land in dispute of its virgin forest and farmed it, hunted wild animals in it and exercised acts of ownership over the land until his death.”

This avernment was unequivocally admitted by the defendants in their respective statements of defence.

The learned trial judge found as a fact that the actual date of the transaction was not established and that the defendants had been in exclusive possession of the land since it was pledged to them by the plaintiff’s family. He nevertheless held that pledged land is redeemable however long it might have been in the pledgee’s possession, and concluded:

“I am satisfied that the plaintiff has proved his case and that he is entitled to redeem Omokpa land on payment of the sum of 15 which is the present value of the three pieces of cloths for which the land was pledged to the defendant’s grandfathers. I also accept the evidence of native law and custom given in support of this claim and hold as a fact that the Iyede (Isoko) customary law, farm land is never sold: it can only be granted on pledge or given out for seasonal farming and at the end of that farming season the grantee vacates the land.

If it is pledged the land is redeemable when the mortgage debt is paid by the mortgagor, and the right of redemption cannot be clogged by the use to which the mortgagee might have put the land or the time taken to refund the mortgage debt. A customary mortgage cannot ripen into absolute ownership and pass the legal title in the mortgaged land to the mortgagee, if the intention to create the customary mortgage can be sufficiently inferred from the conduct of the parties or the nature of the transaction entered into between them.”

With regard to the evidence that the defendants grew rubber plantations on the land, the learned trial judge held that, although a customary pledge pennits the pledgee exclusive possession of the pledged land, it does no confer on him such rights as are exerciseable by an absolute owner of land. The pledgee only enjoys a licence to use the land so long as the mortgage debt remains unpaid, and any accretion to the land during the period of his occupation passes to the pledgor on redemption. After citing Elias “Land Law and Custom”, p. 178, 2nd edition, and the interesting cased based on it of Jimoh Amoo v. Rufai Adigun (1957) W.R.N.L.R. 55, at p. 56, in which. the pledgor was on redemption allowed credit for the improvement made on pledged premises by the pledgee while in possession, the learned trial judge came to the following conclusion on this point:

“I also endorse the view that a mortgagee is not entitled to compensation for any economic trees or improvement he may have made on the pledged land as the inability of the mortgagor to pay such compensation may deprive the mortgagor the right of redemption of the property which native law and custom allows him.”

The learned trial judge then gave the plaintiff judgment for the recovery of possession of Omokpa land which he held to have been pledged and not sold by Esegbe to the grandfathers of the defendants and for a perpetual injunction against the defendants from using the land or interfering with the plaintiff’s occupation and possession of it. It was also held that the plaintiff must pay into the Registry of the Court the sum of 15 (:N30) as refund of the mortgage debt due to the defendants for the pledged land. The learned trial judge also ordered that the defendants must be given an opportunity to harvest their crops on the land and remove their property, structures, farm implements and other articles from the pledged land. Finally, it was held that the plaintiff must pay costs to the 1st defendant who had admitted plaintiff’s claim before the action was instituted against all the defendants.

It is against this judgment that the present appeal has been brought on the following five grounds:

“1. The decision is against the weight of evidence.

2. The learned trial judge erred in law in refusing the 2nd and 3rd defendants/appellants’ adjournment to enable the counsel of their choice to defend them.
3. There was a miscarriage of justice when the learned trial judge refused the 2nd and 3rd defendants/appellants adjournment to enable the counsel of their choice to defend them, despite the application of the 2nd and 3rd defendants/appellants for the case to be adjourned even if they were to pay substantial costs.
4. The costs awarded against the 2nd and 3rd defendants/appellants is, in any case, excessive in the circumstances.
5. Having regard to the circumstances of the case, the learned trial judge had by his refusal to postpone the hearing of the case failed to exercise judicially and/or properly his discretionary power with respect to postponement or adjournment of hearing. .

Particulars

(a) He blew almost out of proportion the absence of the appellants’ counsel who had proceeded on holiday overseas in the interest of his health, temper and efficiency and regarded such absence as not showing ‘any respect for this court.

(b) He refused the adjournment sought by the appellants before the date fixed for hearing and without in any way ascenaining the attitude of the respondents and the counsel on the other side towards the appellants’ application.

(c) The instant postponement was the first ever to be asked for in the case and there was no evidence whatever that the respondents would have been prejudiced by the case being postponed on the usual terms.

(d) He failed to appreciate that his hearing and determination of the case in the circumstances had the effect of defeating and destroying altogether the rights of the appellants.”

Dr. Odje, learned counsel for the appellants, said in arguing his appeal that all his grounds of appeal revolved around two main questions, namely: (1) whether the learned trial judge exercised judicially and/or properly his undoubted discretion to accede to or reject the application of the defendants/appellants for an adjournment of the hearing of the case on the date fixed for it, and (2) whether, on the merits, his decision can be supponed having regard to the grounds of appeal. What had happened as regards the first question was that the case came up before the Ughelli High Court on February 18, 1970 when it was adjourned to April 22, 1970 for mention. On the latter date, the case was in fact mentioned but it was further adjourned to June 19, 1970 for mention, and it was then fixed for hearing on September 8, 9, 10 and 11, 1970. A representative of Dr. Odje was present and he agreed to these dates. Dr. Odje said that he later realised that he would not be able to go on and, on September 1, 1970, applied to the Court through the Registrar for an adjournment.

The learned trial judge directed that the Registrar reply in the negative before the date fixed for hearing. When the case came up for hearing on September 8, 1970 as already fixed, the judge proceeded with the trial. In arguing grounds 3 and 4, Dr. Odje submitted that he should not have done so as, according to Solanke v. Ajibola (1969) 1 N.M.L.R. 253, at pp. 255-8, the reasons given by the judge for proceeding with the case were not good enough. It may be recalled that the learned trial judge offered the following explanation:

“I refused to adjourn the case on the application by Dr. Odje to do so on the ground that when the parties appeared in coun on Friday, 19th June, 1970, Dr. Odje was represented by Chief J.O. Ibini who was a counsel in his Chambers and the dates for hearing which were then fixed for September 8th, 9th, 10th and 11th, 1970, were accepted by both counsel. It was a definite fixture and an adjournment would have meant that there was nothing for me to do on those days. Secondly, the letter by Dr. Odje to the Registrar of this Court asking for an adjournment came at a time when the case was set down to proceed and it was therefore not possible for any alternative ammgement to be made. If in spite of the fact that the fixture in this case was made with his approval, presumably when he had no other cases put down for those dates in other couns, it would in my opinion be improper to refuse to take this one, when it was not shown that those other counsel in his chambers were engaged in the Supreme Court, Lagos. It was for these reasons I decided to go on with the case and the refusal of the 2nd and 3rd defendants to brief other counsel in spite of my explanation to them was unfonunate and utterly unreasonable. ”

It is also imponant to quote here the learned trial judge’s answer to the argument of learned counsel for the appellants under ground 2 that the appellants were entitled to be defended by counsel of their choice:

“They insisted that except Dr. Odje came to Court for them, they would not retain the services of any other counsel and would also not take pan in the proceedings. I explained to 2nd and 3rd defendants in clear terms that it would not be to their advantage to insist on those conditions, but, as they would not be convinced, I decided to proceed with the case and hear evidence from the plaintiff and his witnesses and the 1st defendant as previously arranged.”

It is clear that Dr. Odje’s further reference to Odusote v. Odusote, S.C.318 delivered by this Court on June 7, 1971, still unreponed, as authority for the proposition that the judge should not refuse an adjournment if that would defeat the course of justice making one party lose his rights, would not seem to us to be sound. As to the argument that a defendant was entitled to be defended by a lawyer of his choice, we observe that the learned trial judge did not refuse a particular lawyer from appearing for the defendants, but that Dr. Odje himself as the only lawyer retained by them, made himself unavailable. We also think that the learned trial judge was clearly right in holding that it was only an inevitable appearance before the Supreme Court of Nigeria that should excuse counsel from appearance before any High Court in the Federation and, even then, only on proper application to and approval by the relevant authorities. Dr. Odje again referred to Evans v. Bartlam (1937) 2 All E.R. 646, at pp. 645-5 in suppon of his contention that this Court could and should review the learned trial judge’s exercise of his discretion in disallowing the final adjournment for which he had asked. We drew attention to the following passage attributed to Atkin, L.J., at p. 655 ibid:

“I quite agree the Court of Appeal ought to be very slow indeed to interfere with the discretion of the learned judge on such a question as an adjournment of a trial, and it very seldom does do so; but, on the other hand, if it appears that the result of the order made below is to defeat the rights of the parties altogether, and to do that which the Court of Appeal is satisfied would be an injustice to one or other of the patties, then the court has power to review such an order, and it is, to my mind, its duty to do so.”

We consider that, on a fair and reasonable view of the circumstances of this particular case, we should not interfere with the learned trial judge’s exercise of his discretion in proceeding with the case as he did. We think that learned counsel’s request for an adjournment was as unjustified as it was unreasonable.

Turning to his Ground 1 that the judgment was against the weight of evidence, Dr. Odje contended that the respondents had failed to establish by evidence that the original transaction was a pledge and not a sale. He submitted that the corroborative evidence of the 1st defendant should have been rejected in that he had written a letter in 1961 that it was a sale, but had later changed his mind and said that it was a pledge. The answer seems to lie in the 1st defendant’s explanation that he at first went along with the defendants’ allegation that it was a sale but that when some of his brothers died as a result of having sworn a false oath on their family juju, he decided to return to truth in order to escape the wrath of his ancestors. In any case the 1st defendant testified as follows:

“Some years ago, say about 1961, i wrote to the 2nd defendant stating that Omokpa land was sold and not pledged to our fathers. I wrote the letter when I was at Akure undergoing training. This letter was written on arrangement by our three families; I know what I wrote in that letter to be false, and I do not stand by that letter any longer.”

But, even if we were to hold that the evidence of the 1st defendant should be rejected, we think that the case for the plaintiff would still be sufficient to entitled him to judgment since the defendants failed to cross-examine the plaintiff’s witnesses or to offer any contrary evidence, although the defendants were present in court throughout the proceedings. All the averments of the plaintiff, supported by evidence in court, had remained uncontradicted by the defendants. We are, therefore, of the view that the transaction was a pledge and that all the incidents of customary pledge had been fully established by the plaintiff.

Mr. Tobe Dafe, learned counsel for the respondents, in a brief reply, pointed out that the appellants could not now complain about the refusal of the learned trial judge to grant them an adjournment because, on the last day of the trial (September 11, 1970), the 2nd and the 3rd defendants who had been in court on September 8, 9 and 10, were absent on September 11 and the learned trial judge still held his hand and adjourned further proceedings till September 21, 1970, to afford the defendants a final opportunity, if they so desired, to come and defend the action before the case was closed for judgment.

It was when the defendants still failed to turn up ten days later that the learned trial judge adjourned for judgment which he thereafter delivered on September 25, 1970. Learned counsel submitted that the learned trial judge had exercised his discretion very reasonably and given the defendants every opportunity to defend themselves, and that there was no evidence of bias or any other fault on the part of the judge. He referred us to Maxwell v. Keun (1928) 1 K.B. 645, at pp. 649 and 651, and invited us to hold that this is a case in which we should not interfere with the judge’s exercise of his discretion in refusing an adjournment.

In reply to the argument of learned counsel for the appellants with regard to the merits of the case, Mr. Dafe pointed out that the plaintiff and his witnesses as well as the 1st defendant gave full and uncontradicted evidence that the original transaction was a customary pledge and not a sale. The defendants did not go beyond their mere averment in the Statement of Defence that it was a sale and not a pledge, for they gave no evidence and did not cross-examine the plaintiff and his witnesses on the point. The 2nd and the 3rd defendants led no evidence at all to discharge the onus on them that the original transaction was a sale which gave them absolute title to the land or that, contrary to the evidence of the plaintiff and his witnesses, the sale of land was known to Iyede customary law: Ochonma v. Unosi (1965) N.M.L.R. 321, at p. 323. Similarly, in Leragun & Ors v. Funlayo (1956) W.R.N.L.R. 167 where the plaintiffs claimed recovery of land which the defendant admitted had originally been pledged to her for the sum of 1210s and later sold to hear for an additional sum of 8, but there was no evidence produced by the defendant as to the alleged sale, it was held that the mere planting of economic crops in the pledged land is not by itself conclusive as to the defendant’s ownership, and also that lapse of time (in this case over thirty years) is not a bar to recovery of a pledged land.

Now, this appeal raises in an interesting form an age-old question of customary pledge of land, namely, whether the use to which pledged land has been put by the pledgee in occupation is in any way circumscribed and also whether any improvement carried out by the pledgee while in possession can be compensated for in some way by the pledgor; underlying the two inter-related questions is, of course, the basic issue as to whether the use made by the pledgee of the land should be regarded as interest on the capital originally borrowed by the pledgor. One invariable rule of customary pledge that can be gathered from the reponed cases is that the pledgee always goes into possession and has the right to put the land to some productive use.

To that extent, such use is a kind of interest due on the amount of the loan. They very nature of a customary pledge, which is perpetually redeemable, is that the pledgee has only a temporary occupation licence and that he must yield up the pledged land as far as possible in the form he took it on originally. This means that he must put it to only ordinary use so that its return to the pledgee should be unencumbered in any way. The planting of economic crops like cocoa or rubber can only be undertaken by the pledgee in possession at his own risk, unless of course there is express contract permitting him to do so. If the land pledged is already planted by the pledgor with economic trees, there may be a presumption in favour of the pledgee using the land as such until redemption of the pledge. The whole question was first raised in what is probably the fIrst case on customary pledge heard by our coons which took place in 1889.

In Kuahen v. Avose, where there was a pledge of palm trees, Smalman Smith, C.J., held that the amount of the produce which came to about 12 per annum while the prevailing customary tribute was 9 per annum must be taken into account so that the capital borrowed could be reduced each year by the excess of 3 per year. The learned Chief Justice regarded as “unjust and inequitable and opposed to natural justice” a custom according to which, as alleged by the plaintiff, the pledgee was entitled to “farm the tress and hold them until the original debt be paid, giving and rendering no account of the value of the produce, which in this case amounted to more each year than the amount paid as tribute”. The matter was taken a step further in Jimoh Amoo v. Rufayi Adigun (1957) W.R.N.R. 55 in which the plaintiff’s claim for an account of rents collected by the defendant pledgee while in possession of the plaintiff’s shop in respect of a loan was granted.

It seems to follow from these two cases that the court will in all proper cases take into consideration the nature and character of the use to which the pledgee has put the land while in possession, so that any unjustified benefits thereby derived by the pledgee may be brought into the final account when the pledge is ultimately being redeemed. No longer, it would seem, can the pledgee in possession take all the benefits from his commercial exploitation of the land and still get back his original capital; much less. can he claim against the pledgor any benefit arising from his having planted the land with economic crops like cocoa or rubber, or from his having carried out improvements on the pledged premises.

In the present case, the loan took the form of three pieces of cloths worth 15 (N30) handed over to the grandfather of the pledgor by the grandfather of the pledgee. The debt was, therefore, not incurred by the pledgee lending money to the pledgor but by being given three pieces of cloths. The general incidents of tenure of pledged land, however, attach to it so as to make it perpetually redeemable. We think that the planting of the land with economic crops like rubber must be regarded as necessarily incidental to the use of the land since there is no evidence that it was forbidden under the terms of the original pledge; but it is also clear, nevertheless, that the pledgee has no right to any compensation or credit for the plantations, which accrue to the pledged land on the principle of quicquid plantatur solo, solo cedit. It was, therefore, as an act of grace rather than as a matter of legal right, that the learned trial judge ordered the plaintiff/appellant to permit the respondents to reap the next harvest before returning the pledged land to the appellant. The law is that the pledgee should quit the land as from the date of the judgment in favour of the pledgor.

On other important point is that the pledgor’s right of redemption cannot be clogged in any way by the pledgee, such for instance as by demanding any amount in excess of the sum for which the land was originally pledged, or by planting the pledged land heavily with economic trees, or by using other subterfuges to delay or postpone the pledgor’s or his successor’s right to redeem; nor is lapse of time a bar to the exercise of the right of redemption, for customary pledges of land are perpetually redeemable.

In the result, this appeal fails and it is hereby dismissed. The judgment of Ogbobine, J., in Suit No. UHC/38/66 delivered on September 25, 1970, in the Ughelli High Court is affumed, together with the order as to costs payable to the 1st defendant by the plaintiffs and the cost payable by both the 2nd and the 3rd defendants to the plaintiff. We award costs in this court assessed at N83 to the respondents in this appeal. This shall be the judgment of the Court.

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SC.265/1972

Chief Yakubu Kakarah & Anor V. Chief Okere Imonikhe & Ors (1974)

LawGlobal-Hub Lead Judgment Report

G. B. A. COKER, J.S.C. 

The respondents to this appeal, as plaintiffs in the High Court, Auchi, Mid-Western State, had sued the appellants, as defendants for:

“1. A declaration of title to a piece of land known as OWEMI land in Uzairue Clan, Etsako Division within the Ubiaja Judicial Division and will be more properly defined in a plan to be filed thereafter.

2. The sum of 200 Pounds being general damages for trespass (committed by the defendants between 1964 and 1968 upon the said land).
3. Perpetual injunction restraining the defendants and their agents or servants from further trespass on the said piece of land.”

The parties duly filed their pleadings and hearing in the case commenced on the 20th January, 1971, and ended with the addresses of counsel on the 30th March, 1971 on which date the learned trial judge reserved judgment in the case indefinitely. Judgment was eventually delivered on the 13th April, 1971 on which date and before delivering his judgment the learned trial judge, obviously aware himself of the inordinate delay in giving judgment, made some observations evidently excusing the delay. By that judgment, he gave in favour of the plaintiffs against the defendants with costs and concluded his judgment thus:

“In view of all the foregoing, the judgment of this Court is as follows:

(i) That the plaintiffs are hereby granted a declaration of title to the land delineated and described in Exh. “A” as Iyamo land and that their title of course, extends to and covers the spots edged “Pink” i.e. the burrow pits marked in the Survey Plan i.e. in Exh. “A” as points A, B, C, D and E respectively.

(ii) That the claim as to trespass against the defendants is not proved and is therefore refused and furthermore, the special relief sought as regards perpetual injunction is accordingly refused.

The crux of this case being an action for declaration of title as to land comprised in Exh. “A” and since the plaintiffs have been adjudged owners of the said land, they are entitled to cost of these proceedings.”

The defendants have now appealed to this Court against that judgment on the grounds, firstly, that the learned trial judge had given judgment against them for declaration of title to an area which the plaintiffs never claimed and, secondly, that in view of the long lapse of time between the conclusion of the hearing and the delivery of judgment, the learned trial judge had lost his impressions of the witnesses and the tenor of their evidence and, as such, his judgment is not supported by the weight of evidence.

There were originally two defendants to the action, the present respondents and a Company described as Dumez (Nigeria) Ltd. As stated before, the parties filed their respective pleadings. By their amended statement of claim, the plaintiffs aver that they are Iyamo farmers of Iyamo village in the Uzairue Clan in Etsako Division of the Mid-Western State of Nigeria and that the defendants are also farmers of Ogbido village in the Uzairue Clan, whose ancestors had, some one hundred years ago, settled in that village, which has always been a part of Iyamo land, with the permission of the progenitors of the plaintiff and on condition, inter alia, that they should not under any circumstances alienate any part or portion of Iyamo land. Paragraphs 7, 8, 10, 17 and 21 of the plaintiffs’ statement of claim read as follows:

“7. The parcel or piece of land in dispute is the area marked pink in the plan filed with original statement of which land forms part of the Iyamo land otherwise called OWEMI and marked yellow in the said plan.

8. The people of Iyamo have common boundary with Ukpilla people to the Nonh, Elele and Afowa people to the South and South-East and Iyore Ayoshene to the East and also Ijukwu and Avia people to the West.
9. That the area in dispute is a portion of Iyamo land situate and lying to the East of Jettu-Ukpilla Road.
10. The plaintiffs’ ancestors also restricted the defendants’ ancestors not to let or sublet any of the said parcel of land to strangers.
11. That the defendants between 1964 and 1968 caused a breach of the customary covenant by permitting DUMEZ (Nigeria) Limited, compensation of 200 Pounds for the said land without the consent or authority of the plaintiffs.”

The plaintiffs’ statement of claim also avers that between 1964 and 1968 a Company, Dumez (Nigeria) Ltd., dug burrow pits “on the said land” and that the defendants claimed monetary compensation from the Company for these acts of “waste and alienation”. Both the present respondents and the Company, Dumez (Nigeria) Ltd., filed statements of defence. In its own statement of defence, the Company stated that it duly paid monetary compensation to representatives of both the plaintiffs and the defendants, although, as it averred in paragraph 3 of its statement of defence:

“3. As regards paragraph 3 of the amended statement of claim, the 3rd defendant says it entered and excavated and removed earth from the said parcel of land but did not exceed the authorised limit of the Jattu-Ukpilla Road area and the said earth was excavated and taken for the construction and/or maintenance of the Jattu-Ukpilla Road on behalf of, and with the permission and approval of the authorities responsible for the reconstruction and/or maintenance of the said Road, namely the Mid-Western Nigeria State Ministry of Works, Lands and Transport now Ministry of Works and Housing. ”

The statement of defence of the present respondents denied the substantive averments in the plaintiffs’ statement of claim and states that “Iyamo village is one of the nineteen villages that constitute Uzairue Clan” and that one Udo, the original founder of Ogbido village, was one of the first set of settlers who migrated to Uzairue and founded some of the several villages that now constitute the Uzairue Clan. These defendants aver further, by their statement of defence, that all Owemi land is communal property of all the members of the Uzairue Clan and paragraph 7 of their statement of defence reads thus:

“The 1st and 2nd defendants with reference to paragraph 7 of the amended statement of claim admit that the area verged “PINK” is the piece or parcel of land in dispute but emphatically repudiates the claim of the plaintiffs that it forms part of Iyamo land. The 1st and 2nd defendants agree that the said land in dispute constitutes part of a larger piece of land known and generally referred to as OWEMI land.”

The statement of defence of these defendants further states that Iyamo land is not synonymous with Owemi land, although the former is a part of the latter, and denies that the defendants were ever the customary tenants of the plaintiffs’ people. Paragraph 19 of their statement of defence avers as follows:

“19. With regard to paragraph 24 of the amended statement of claim, the 1st and 2nd defendants admit that there are burrowed pits on Owemi land, but maintain that these burrowed pits belong to the whole of Uzairue Clan. The 1st and 2nd defendants will maintain that they were aware that Dumez (Nigeria) Limited dug some burrowed pits on Owemi land but deny the assertion that they ever got 200 Pounds (two hundred pounds) from Dumez (Nigeria) Limited as compensation for the two burrowed pits. They will maintain that whatever compensation to be paid by the Dumez (Nigeria) Ltd. for burrowed pits on Owemi land will belong to the whole of Uzairue Community and will be disbursed by them in the manner seemed fit.”

For reasons which do not appear from the records, the Company, Dumez (Nigeria) Ltd., settled this case with the plaintiffs out of court before the commencement of hearing and terms of settlement were filed to the effect, inter alia, that the Company “will pay to the plaintiffs the sum of 50 pounds (fifty pounds) only in full and final satisfaction of the claim against” the Company. The learned trial judge was asked by the parties to make the terms of settlement an order of court and he did so and accordingly asked that the case against the Company be struck out with no orders as to costs.

The case between the present parties before us then proceeded to trial and the parties gave evidence calling witnesses in support of the averments in their pleadings. The first plaintiff in the course of his testimony testified thus:

“The land in respect of which I have been speaking in Court is popularly but erroneously called “Ogbiddo” land and that is the land in respect of which we have sued the two defendants to Court for and on behalf of Ogbiddo people. This action is instituted by me and 2nd plaintiff on behalf of Iyamo people in a representative capacity. I want this court to take the land back from Ogbiddo people for me and to give me any amount the court considers good enough to compensate me for the sufferings and troubles that I have been enduring in the past three years at Ubiaja High Court and here by the actions of Ogbiddo people. Each of the 19 villages constituting Uzairue Clan owns its own land separately I do not agree that all the land forming part of Uzairue Clan is called Owemi land; I have never heard of land in Uzairue called “Owemi” land.”

A surveyor, by name Obadiah Omoregie, was called by the plaintiffs and he produced the plan which he was commissioned by the plaintiffs to prepare. The plan was admitted in evidence as Exhibit A and the surveyor testified that he indicated on the plan Exhibit A going northwards along the tarred road, “small squares marked A, B, C, D, and E” and that these are the burrow pits which he was told were “the cause of the dispute between rival claimants” .

As we observed before, the defendants also gave evidence and called witnesses and in the course of his evidence, the first defendant, Chief Okere Imonikho, stated as follows:

“The land where Ogbiddo people now live belongs to the Ogieneni of Uzairue; the land of Ogbiddo belongs to Uzairue; the land on which we the Ogbiddo people now lives does not belong to use the Ogbiddo people. The land on which Iyamo people live belongs to the Ogieneni. There is no village of the 19 villages that owns land in Uzairue Clan to the exclusion of other villages; all the land in the Clan belongs to the Ogieneni. This Company dug these holes between Iyamo and Ikholo and also between Ikholo and Ogbiddo; Ikholo villages is in fact part of Ogbiddo village. The land on which the Company dug holes or pits belongs to Uzairue; the Company dug in all about nine (9) burrow pits. ”

With respect to the payment and acceptance of monetary compensation from the Company, Dumez (Nigeria) Ltd., the 1st defendant testified thus:

“There was a hole dug between Ikholo and Iyamo. The Company paid some money for the burrow pits that they dug; Dumez Coy’s representative met the Ogieneni and discussed with him. At a meeting of the Council of Chiefs of 19 villages of Uzairue I was delegated by the Ogieneni to go and collect money from Dumez Co. for two of the pits, they dug and I went and collected 46 Pounds.

A quarrel broke out over the matter of the payment between Iyamo and Ogbiddo and so no further compensation could be demanded from the Company in respect of the remaining 7 pits.

The Village Head of Elele and I were both sent to collect the money from the Company. I sent the 46 Pounds to the Ogieneni of Jattu. Iyamo people had earlier collected 25 Pounds from Dumez Co. as compensation for one burrow pit.”

On the day that judgment in the case was to be delivered, the learned trial judge, evidently in fairness to the parties and possibly in realisation of the possible effects of the long delay in reading the judgment, addressed the parties thus:-

“This is a long standing matter which had been adjourned (sine die for judgment. Of course, for a number of reasons, it was impossible to give judgment before now and included among these reasons is that I was away on United Kingdom leave for some months. On my return, I was virtually living in Sebe and attending Court in Auchi. I proceeded with dealing with the matters which come before me as both criminal and civil cases were on the cause list from day to day and I had to wait until such a time as I was provided with accommodation with fairly satisfactory conditions in Auchi before I could settle down to write judgment in this matter.

In recent times, the work in the court has been quite heavy and many matters have been disposed of while judgment in those matters had to be written under conditions which cannot be said to be comfortable or satisfactory. Along with such work, this Court has undertaken in recent times the preparation of this judgment and coupled with the fact that I have been indisposed and that the judgment was reserved about a year ago, the process of writing the judgment has been like one of hearing the case afresh as I have to read and re-read the record of proceedings in order to recapitulate the facts of the matter; but for a considerable measure of determination on my part, the judgment would not be ready even now.”

The learned trial judge thereafter read his judgment in which, after paraphrasing step by step the evidence given by the several witnesses in that order and summarising the addresses of learned counsel, he observed concerning the story of the plaintiffs as follows:

“The traditional history that the 1st plaintiff gave as to how Iyamo village was founded was simple and straight-forward; the land-marks he referred to as forming the boundary between Iyamo land of Uzairue Clan and Iddo village of Okpella clan were corroborated by his witnesses and were discernible in the survey map tendered Exh. “A”.

I believe the plaintiff and his witnesses that their ancestors were the first to settle on the wide expanse of land covered by and described as Iyamo land in Exh. “A” when it was virgin bush and an unoccupied territory and that they thus became owners of same and that their ancestors lived, farmed and hunted therein and have with and through their offspring been in possession of the said land ever since then till now.”

With respect to the defendants, he commented as follows:

“The 1st defendant and his witnesses gave very poor impression of themselves as they testified before me during the proceedings; they showed lack of confidence in what they testified to and with particular reference to the 1st defendant himself, they left me in no doubt that they were not witnesses of truth and that they were persons who could not be believed on their oaths, I therefore do not believe the evidence of the 1st defendant and his witnesses that the spot where they (Ogbiddo people) now occupy and live in on the Jattu/Okpilla tarred road has always been their place of origin and abode and their original settlement from time immemorial. I also believe the evidence of the defendants that they are natives of Uzairue because 1st defendant and his witnesses are unreliable witnesses.”

The learned trial judge then proceeded to pass some severe strictures on the defendants, their witnesses and their cases and rejected all. He then observed:

“In view of the foregoing, I am satisfied that the plaintiffs have proved their case sufficiently as to entitle them to a declaration of title to the land delineated and described in survey plan-Exh. “A” and referred to as Iyamo land. I will observe that there is no evidence that this same land is also known as or called Owemi land; but the available evidence shows that it is called Iyamo land and I believe and accept this as proved. I am also satisfied that the area for which declaration is sought is sufficiently clearly demarcated in the said Exh. “A” and that it is known to both parties and is clearly identifiable in its present state.”

The defendants have appealed to this Court against the judgment and before us it was argued that the learned trial judge had granted a declaration of title to the plaintiffs for the entire area of land edged yellow on the east in the plan Exhibit A but not edged at all on that plan on the western boundaries and that in any case the plaintiffs claimed a declaration of title in respect of only apiece of land edged pink on their plan according to paragraph 7 of their amended statement of claim which was replied by paragraph 7 of the amended statement of defence of the defendants. We had earlier on in this judgment set out paragraph 7 of the amended statement of claim. Shown along the new Jattu/Okpilla Road on the west of the area shown in Exhibit A are some five pink areas (i.e. areas marked out in pink) and this was also the evidence of the plaintiffs’ surveyor, Mr. Omoregie, in the course of his testimony before the court. None of the pink areas was delineated with survey pillars or boundary beacons and it is obvious that no-one except those who prepared the plan Exhibit A could identify them or any of them on the surface of the earth. In view of the fact that by paragraph 7 of their statement of claim the plaintiffs only claimed a declaration of title in respect of “the piece or parcel of land, marked pink in the plan filed” we asked learned counsel for the plaintiffs, in the course of his argument, to show and identify to us the particular pink area to which the plaintiffs’ claim relates. He was unable to do this and frankly admitted his inability to do so and he then asked us either to send the case back for re-trial or to enter a non-suit for the plaintiffs. Clearly, the learned trial judge had given judgment for a declaration of title to land completely different to what the plaintiffs claim in their action and the defendants, who always assents that the large expanse of land belongs to the Uzairue Clan of which they form a part, are justifiably aggrieved.

In the same way, it was argued by learned counsel for the defendants that owing to the long delay in preparing his judgment, the learned trial judge had lost his impressions of the case and the evidence given thereat. Learned counsel for the plaintiffs disputed this and countered the argument by some attempts at justifying the findings of the learned trial judge. We are, however, firmly of the view that the submissions of learned counsel for the defendants are well-founded. It is not the duty of a Court of Appeal to disturb findings of fact of a trial judge, especially in a civil action, unless those findings are not supported by the weight of evidence or the trial court or tribunal has not made proper use of its opportunities to appraise the evidence given before it. Undoubtedly, this is an occasion for apply this principle to its full extent. The learned trial judge in his judgment disbelieved the story of the defendants that they were part of the Uzairue Clan, but in fact that was the case of both parties. In the course of his evidence, the 1st plaintiff, Chief Yakubu Iseghore Kakarah, named Ogbido (the defendants’ village) as one of the nineteen villages that make up the Uzairue Clan. The evidence in the case establishes beyond doubt that the several villagers arrived at their several places of abode at different times and perhaps from different places and it is highly improbable that any of them in those circumstances would agree to be subservient to the other as the plaintiffs herein have claimed. Again, the plan Exhibit A, on a closer examination of it, belies the story of the plaintiffs even though it was prepared and produced in evidence by them. Here and there along the main road in the west, from north to south, are shown several villages admittedly members of the Uzairue Clan. The 1st plaintiff spoke of this conglomeration as follows in his evidence:

“Traveling from Jattu towards Okpilla, one comes to the following villages in this order, Elele about two miles; Iyamo about 2 miles further, Ikhoro about a pole off; Ogbido about 1 mile further away; Ayoghona about one pole further off; Uruoke, about one pole again further off, then you get into the area of jurisdiction of Okpilla clan.”

That witness gave no evidence whatsoever explaining away the occurrence of these villages in such juxtaposition to each other, and the area in respect of which the learned trial judge gave the plaintiffs a declaration of title obviously covers the lands of these villages which are not parties to the present action and which, by the pleadings of the parties, could not have anticipated a declaration of title to an area of such immensity.

Nor is this all. The learned trial judge rejected the claim for damages for trespass on the ground that there was no evidence of trespass by the defendants and found, concerning the defendants

“(iv) that Ogbiddo people lived for many years around the stones and caves called “Uddo” given to them to live in by the Iyamo people and that from there, they moved to the present spot, which they now occupy on the Jattu/Okpilla tarred main road in keeping with the coming of civilisation and progress at local level;

(v) that the spot where they now occupy which is shown in Exh. “A”

is also part of Iyamo land and that Iyamo have never objected to Ogbiddo people living and/or farming on any part of their land i.e. as regard the place Iyamo people gave to Ogbiddo people to live in originally and the new spot they moved into as a result of civilisation and social development.”

This finding postulates that apart from their village the defendants occupied other portions of what is described by the plaintiffs as Iyamo land in the plan Exhibit A. Although the learned trial judge decided to prefer and accept the evidence of the plaintiffs that they were the original owners of the entire land, yet a closer and dispassionate examination of the entire case must in our view show that the story of the defendants as to the communal holding of the entire land is the more probable one in the circumstances of the case. The land described as Iyamo land’ in Exhibit A contains a large number of the several villages constituting the Uzairue Clan and this even on the plaintiffs own showing. The parties to the case did not join issue on these areas at all and we cannot understand how the other villages should be treated as having acquiesced in the battle of title to their entire lands.

If we agree with the explanation with which the learned trial judge prefaced his judgment and then read that explanation in the light of the foregoing comments and submissions of learned counsel for the defendants to which learned counsel for the plaintiffs had no complete answer, we are driven to the inescapable conclusion that the learned trial judge, by the time he was able to prepare his judgment, had lost all the impressions which the opportunities of a court of trial could afford him. We are in no difficulty about this and conclude that both grounds of complaint against the judgment are justified.

We are at pains to consider the type of order to make in the circumstances of this case. The learned trial judge himself had rejected the claims of the plaintiffs for damages for trespass and injunction. He took the view that the plaintiffs had given no satisfactory evidence in support of those claims with respect to the large expanse of land which he always, though erroneously, had in mind. The act of trespass complained of was based on the digging of pits by the Company, Dumez (Nigeria) Limited, and the payment and acceptance of monetary compensation from that Company. The Company denied paying a kobo to the defendants and the plaintiffs evidently confronted with this settled their case with the Company out of court. That was the only complaint of the plaintiffs before the court and that is all there was to it. The court has a discretion in granting a declaration of title and the substance of the complaint in this case having been compromised in such a way by the plaintiffs, the learned trial judge had a duty to reconsider the propriety of granting a claim for declaration of title. It does not appear from the records that he did this. But, apart from the errors of the learned trial judge, the plaintiffs’ case is such that in the circumstances they could not have obtained a decree of declaration of title to any of the pink area even if anyone of them is identified with paragraph 7 of their statement of claim.

None of those areas has any boundary pillars to demarcate it. Besides, at the trial, the plaintiffs gave no evidence to identify in particular the real subject-matter of their action as postulated by paragraph 7 of their amended statement of claim. In such a case, neither an order of non-suit nor one sending back the case for a retrial can be just. The plaintiffs have simply failed to prove the case which they had brought to court. We have decided that the appropriate order to make is one dismissing the plaintiffs’ case.

The appeal therefore succeeds and it is allowed. The judgment of the High Court, Auchi Mid-Western State, in Suit No. U/3/68, including the order for costs, is set aside and we order that the plaintiffs’ case should be dismissed. This shall be the judgment of the Court. We also order that the plaintiffs/respondents shall pay the costs of the defendants/appellants fixed in the Court at N136 and in the court below at N105.

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Other Citation: (1974) LCN/1787(SC)

Chief Okere Imonikhe & Ors V. Chief Yakubu Kakarah & Anor (1974)

LawGlobal-Hub Lead Judgment Report

COKER, JSC.

The respondents to this appeal, as plaintiffs in the High Court, Auchi, Mid-Western State, had sued the appellants, as defendants, for:-

“1. A declaration of title to a piece of land known as OWEMI land in Uzairue Clan, Etsako Division within the Ubiaja Judicial Division and will be more properly defined in a plan to be filed thereafter.

2. The sum of £200 being general damages for trespass (committed by the defendants between 1964 and 1968 upon the said land).

3. Perpetual injunction restraining the defendants and their agents or servants from further trespass on the said piece of land.”

The parties duly filed their pleadings and hearing in the case commenced on the 20th January, 1971, and ended with the addresses of counsel on the 30th March, 1971, on which date the learned trial Judge reserved judgment in the case indefinitely. Judgment was eventually delivered on the 13th April, 1972, on which date and before delivering his judgment the learned trial Judge, obviously aware himself of the inordinate delay in giving judgment, made some observations evidently excusing the delay. By that judgment, he gave in favour of the plaintiffs against the defendants with costs and concluded his judgment thus:-

“In view of all the foregoing, the judgment of this court is as follows:

(i) that the plaintiffs are hereby granted a declaration of title to the land delineated and described in Exh. “A” as Iyamo land and that their title of course, extends to and, covers the sports edged “Pink” i.e., the burrow pits marked in the Survey Plan – i.e. in Exh. “A” as points A, B, C,. D and E respectively.

(ii) that the claim as to trespass against the defendants is not proved and is therefore refused and furthermore, the special relief sought as regards perpetual injunction is accordingly refused.

The crux of this case being an action for declaration of title as to land comprised in Exh. “A” and since the plaintiffs have been adjudged owners of the said land, they are entitled to cost of these proceedings.” The defendants have now appealed to this court against that judgment on the grounds, firstly, that the learned trial Judge had given judgment against them for declaration of title to an area which the plaintiffs never claimed and, secondly, that in view of the long lapse of time between the conclusion of the hearing and the delivery of judgment, the learned trial Judge had lost his impressions of the witnesses and the tenor of their evidence and, as such, his judgment is not supported by the weight of evidence.

There were originally two defendants to the action, the present respondents and a company described as Dumez (Nigeria) Ltd. As stated before, the parties filed their respective pleadings. By their amended statement of claim, the plaintiffs aver that they are Iyamo farmers of Iyamo village in the Uzairue Clan in Etsako Division of the Mid-Western State of Nigeria and that the defendants are also farmers of Ogbido village in the Uzairue Clan, whose ancestors had, some one hundred years ago, settled in that village, which has always been a part of Iyamo land, with the permission of the progenitors of the plaintiffs and on condition, inter alia, that they should not under any circumstances alienate any part or portion of Iyamo land. Paragraphs 7, 8, 10, 17 and 21 of the plaintiffs’ statement of claim read as follows:-

“7. The parcel or piece of land in dispute is the area marked pink in the plan filed with original statement of which land forms part of the Iyamo land otherwise called OWEMI and marked yellow in the said plan. 8. The people of Iyamo have common boundary with Ukpilla people to the North, Elele and Afowa people to the South and South-East and Iyere Ayoshene to the East and also Ijukwu and Avia people to the West. XXX XXX XXX XXX XXX XXX 10. That the area in dispute is a portion of Iyamo land situate and lying to the East of Jettu-Ukpilla Road. XXX XXX XXX XXX XXX XXX 17. The plaintiffs’ ancestors also restricted the defendants’ ancestors not to let or sublet any of the said parcel of land to strangers. XXX XXX XXX XXX XXX XXX 21. That the defendants between 1964 and 1968 caused a breach of the customary covenant by permitting DUMEZ (Nigeria) Limited to enter the said Owemi or Iyamo land and excavate and take away laterite to the detriment of the plaintiffs and by collecting from DUMEZ (Nigeria) Limited, compensation of £200 for the said land without the consent or authority of the plaintiffs.” The plaintiffs’ statement of claim also avers that between 1964 and 1968 a company, Dumez (Nigeria) Ltd., dug burrow pits on the said land” and that the defendants claimed monetary compensation from the company for these acts of “waste and alienation”.

Both the present respondents and the company, Dumez (Nigeria) Ltd., filed statements of defence. In its own statement of defence, the company stated that it duly paid monetary compensation to representatives of both the plaintiffs and the defendants, although, as it averred in paragraph 3 of its statement of defence:-

“3. As regards paragraph 3 of the amended statement of claim, the 3rd defendant says it entered and excavated and removed earth from the said parcel of land but did not exceed the authorised limit of the Jattu-Ukpilla Road area and the said earth was excavated and taken for the construction and/or maintenance of the Jattu-Ukpilla Road on behalf of, and with the permission and approval of the authorities responsible for the reconstruction and/or maintenance of the said Road, namely the Mid-Western Nigeria, State Ministry of Works, Lands and Transport now Ministry of Works and Housing.”

The statement of defence of the present respondents denied the substantive averments in the plaintiffs’ statement of claim and states that “Iyamo village is one of the nineteen villages that constitute Uzairue Clan” and that one Udo, the original founder of Ogbido village, was one of the first set of settlers who migrated to Uzairue and founded some of the several villages that now constitute the Uzairue Clan.

These defendants aver further, by their statement of defence, that all Owemi land is communal property of all the members of the Uzairue Clan and paragraph 7 of their statement of defence reads thus:-

“The 1st and 2nd defendants with reference to paragraph 7 of the amended statement of claim admit that the area verged “PINK” is the piece or parcel of land in dispute but emphatically repudiates the claim of the plaintiffs that it forms part of Iyamo land. The 1st and 2nd defendants agree that the said land in dispute constitutes part of a larger piece of land known and generally referred to as OWEMI land.”

The statement of defence of these defendants further states that Iyamo land is not synonymous with Owemi land, although the former is a part of the latter, and denies that the defendants were ever the customary tenants of the plaintiffs’ people. Paragraph 19 of their statement of defence avers as follows:-

“19. With regard to paragraph 24 of the amended statement of claim the 1st and 2nd defendants admit that there are burrowed pits on Owemi land but maintain that these burrowed pits belong to the whole of Uzairue Clan. The 1st and 2nd defendants will maintain that they were aware that Dumez (Nigeria) Limited dug some burrowed pits on Owemi land to deny the assertion that they ever got £200 (two hundred pounds) from Dumez (Nigeria) Limited as compensation for the two burrowed pits. They will maintain that whatever compensation to be paid by the Dumez (Nigeria) Limited for the burrowed pits on Owemi land will belong to the whole of the Uzairue Community and will be disbursed by them in the manner deemed fit.”

For reasons which do not appear from the records, the company, Dumez (Nigeria) Ltd., settled this case with the plaintiffs out of court before the commencement of hearing and terms of settlement were filed to the effect, inter alia, that the company “will pay to the plaintiffs the sum of £50 (fifty pounds) only in full and final satisfaction of the claim against” the company. The learned trial Judge was asked by the parties to make the terms of settlement an order of court and he did so accordingly asked that the case against the company be struck out with no orders as to costs.   

The case between the present parties before us then proceeded to trial and the parties gave evidence calling witnesses in support of the averments in their pleadings. The first plaintiff in the course of his testimony testified thus:- “The land in respect of which I have been speaking in court is popularly but erroneously called “Ogbiddo” land and that is the land in respect of which we have sued the two defendants to court for and on behalf of Ogbiddo people.

This action is instituted by me and 2nd plaintiff on behalf of Iyamo people in a representative capacity. I want this court to take the land back from Ogbiddo people for me and to give me any amount the court considers good enough to compensate me for the suffering and troubles that I have been enduring in the past three years at Ubiaja High Court and there by the actions of Ogbido people. Each of the 19 villages constituting Uzairue Clan owns its own land separately. I do not agree that all the land forming part of Uzaire Clan is called Owemi land; I have never heard of land in Uzairue called “Owemi” land.”

A surveyor, by name Obadiah Omoregie, was called by the plaintiffs and he produced the plan which he was commissioned by the plaintiffs to prepare. The plan was admitted in evidence as Exhibit A and the surveyor testified that he indicated on the plan Exhibit A going northwards along the tarred road, “small squares marked A, B, C, D and E” and that these are the burrow pits which he was told were “the cause of the dispute between rival claimants”.

As we observed before, the defendants also gave evidence and called witnesses and in the course of his evidence, the first defendant, Chief Okere Imonikhe, stated as follows:- “The land where Ogbiddo people now live belongs to the Ogieneni of Uzairue; the land of Ogbiddo belongs to Uzairue; the land on which we the Ogbiddo people now live does not belong to us – the Ogbiddo people.

The land on which Iyamo people live belongs to the Ogieneni. There is no village of the 19 villages that owns land in Uzairue Clan to the exclusion of other villages; all the land in the Clan belongs to the Ogieneni……….. This Company dug these holes between Iyamo and Ikeholo and also between Ikholo and Ogbiddo, Ikholo village is in fact part of Ogbiddo village. The land on which this Company dug holes or pits belongs to Uzairue; the Company dug in all about nine (9) burrow pits.” With respect to the payment and acceptance of monetary compensation from the company, Dumez (Nigeria) Ltd., the 1st defendant testified thus:- “There was a hole dug between Ikholo and Iyamo. The company paid some money for the burrow pits that they dug; Dumez Coy’s representative met the Ogieneni and discussed with him. At a meeting of the Council of Chiefs of 19 villages of Uzairue I was delegated by the Ogieneni to go and collect money from Dumez Co. for two of the pits, they dug and I went and collected £46.

A quarrel broke out over the matter of the payment between Iyamo and Ogbiddo and so no further compensation could be demanded from the Company in respect of the remaining 7 pits. The Village Head of Elele and I were both sent to collect the money from the Company. I sent the £46 to Ogieneni of Jattu. Iyamo people had earlier collected £25 from Dumez Co. as compensation for one burrow pit.” On the day that judgment in the case was to be delivered, the learned trial Judge, evidently in fairness to the parties and possibly in realisation of the possible effects of the long delay in reading the judgment, addressed the parties thus:-

“This is a long standing matter which had been adjourned ‘sine die’ for judgment. Of course, for a number of reasons, it was impossible to give judgment before now and included among these reasons is that I was away in United Kingdom on leave for some months. On my return, I was virtually living in Sebe and attending court in Auchi. I proceeded with dealing with the matters which come before me as both criminal and civil cases were on the cause list from day to day and I had to wait until such a time as I was provided with accommodation with fairly satisfactory conditions in Auchi before I could settle down to write judgment in this matter. In recent times, the work in the court has been quite heavy and many matters have been disposed of while judgment in those matters had to be written under conditions which cannot be said to be comfortable or satisfactory. Along with such work, this court has undertaken in recent times the preparation of this judgment and coupled with the fact that I have been indisposed and that the judgment was reserved about a year ago, the process of writing the judgment has been like one of hearing the case afresh as I have to read and re-read the record of proceedings in order to recapitulate the facts of the matter; but for a considerable measure of determination on my part, the judgment would not be ready even now.”

The learned trial Judge thereafter read his judgment in which, after paraphrasing step by step the evidence given by the several witnesses in that order and summarising the addresses of learned counsel, he observed concerning the story of the plaintiffs as follows:

“The traditional history that the 1st plaintiff gave as to how Iyamo village was founded was simple and straightforward; the landmarks he referred to as forming the boundary between Iyamo land of Uzairue Clan and Iddo village of Okpella Clan were corroborated by his witnesses and were discernible in the survey map tendered – Exh. “A”  I believe the plaintiff and his witnesses that their ancestors were the first to settle on the wide expanse of land covered by and described as Iyamo land in Exh. “A” when it was virgin bush and an unoccupied territory and that they thus became owners of same and that their ancestors lived, farmed and hunted therein and have with and through their offsprings been in possession of the said land ever since then till now.” With respect to the defendants, he commented as follows:- “The 1st defendant and his witnesses gave very poor impression of themselves as they testified before me during the proceedings; they showed lack of confidence in what they testified to and with particular reference to the 1st defendant himself, they left me in no doubt that they were not witnesses of truth and that they were persons who could not be believed on their oaths, I therefore do not believe the evidence of the 1st defendant and his witnesses that the spot where they (Ogbiddo people) now occupy and live in on the Jattu Okpilla tarred road has always been their place of origin and abode and their original settlement from time immemorial. I also believe the evidence of the defendants that they are natives of Uzairue because 1st defendant and his witnesses are unreliable witnesses.” The learned trial Judge then proceeded to pass some severe strictures on the defendants, their witnesses and their case and rejected all. He then observed:- “In view of the foregoing, I am satisfied that the plaintiffs have proved their case sufficiently as to entitle them to a declaration of title to the land delineated and described in survey plan – Exh. “A” and referred to as Iyamo land. I will observe that there is no evidence that this same lands also known as or called Owemi land; but the available evidence shows that it is called Iyamo land and I believe and accept this as proved. I am also satisfied that the area for which declaration is sought is sufficiently clearly demarcated in the said Exh’ “A” and that it is known to both parties and is clearly identifiable in its present state.” The defendants have appealed to this court against that judgment and before us it was argued that the learned trial Judge had granted a declaration of title to the plaintiffs for the entire area of land edged yellow on the east in the plan Exhibit A but not edged at all on that plan on the western boundaries and that in any case the plaintiffs claimed a declaration of title in respect of only a piece of land edged pink on their plan according to paragraph 7 of their amended statement of claim which was replied by paragraph 7 of the amended statement of defence of the defendants. We had earlier on in this judgment set out paragraph 7 of the amended statement of claim. Shown along the new Jattu/Okpila Road on the west of the area shown in Exhibit A are some five pink areas (i.e. areas marked out in pink) and this was also the evidence of the plaintiffs’ surveyor, Mr. Omoregie, in the course of his testimony before the court. None of the pink areas was delineated with survey pillars or boundary beacons and it is obvious that no-one except those who prepared the plan Exhibit A could identify them or any of them on the surface of the earth. PAGE| 8 In view of the fact that by paragraph 7 of their statement of claim the plaintiffs only claimed a declaration of title in respect of “the piece or parcel of land marked pink in the plan filed” we asked learned counsel for the plaintiffs, in the course of his argument, to show and identify to us the particular pink area to which the plaintiffs’ claim relates. He was unable to do this and frankly admitted his inability to do so and he then asked us either to send the case back for re-trial or to enter a non-suit for the plaintiffs. Clearly, the learned trial Judge had given judgment for a declaration of title to land completely different to what the plaintiffs claim in their action and the defendants, who always asset that the large expanse of land belongs to the Uzairue Clan of which they form a part, are justifiably aggrieved. In the same way, it was argued by learned counsel for the defendants that owing to the long delay in preparing his judgment, the learned trial Judge had lost his impressions of the case and the evidence given thereat. Learned counsel for the plaintiffs disputed this and countered the argument by some attempts at justifying the findings of the learned trial Judge. We are, however, firmly of the view that the submissions of learned counsel for the defendants are well-founded.

It is not the duty of a Court of Appeal to disturb findings of fact of a trial Judge, especially in a civil action, unless those findings are not supported by the weight of evidence or the trial court or tribunal has not made proper use of its opportunities to appraise the evidence given before it. Undoubtedly, this is an occasion for applying this principle to its full extent.

The learned trial Judge in his judgment disbelieved the story of the defendants that they were part of the Uzairue Clan, but in fact that was the case of both parties. In the course of his evidence, the 1st plaintiff, Chief Yakubu Iseghere Kakarah, named Ogbiddo (i.e. the defendants’ village) as one of the nineteen villages that make up the Uzairue Clan. The evidence in the case establishes beyond doubt that the several villagers arrived at their several places of abode at different times and perhaps from different places and it is highly improbable that any of them in those circumstances would agree to be subservient to the other as the plaintiffs herein have claimed.

Again, the plan Exhibit A, on a closer examination of it, belies the story of the plaintiffs even though it was prepared and produced in evidence by them. Here and there along the main road in the west, from north to south, are shown several villages admittedly members of the Uzairue Clan. The 1st plaintiff spoke of this conglomeration as follows in his evidence:-

“Travelling from Jattu towards Okpilla, one comes to the following villages in this order, Elele about 2 miles; Iyamo about 2 miles further, Ikhoror about pole off; Ogbido about 1 mile further away; Ayoghona about one pole further off; Uruoke about one pole again further off; then you get into the area of jurisdiction of Okpilla Clan.” That witness gave no evidence whatsoever explaining away the occurrence of those villages in such juxtaposition to each other, and the area in respect of which the learned trial Judge gave the plaintiffs a declaration of title obviously covers the lands of these villages which are not parties to the present action and which, by the pleadings of the parties, could not have anticipated a declaration of title to an area of such immensity.   Nor is this all.

The learned trial Judge rejected the claim for damages for trespass on the ground that there was no evidence of trespass by the defendants and found, concerning the defendants- “XXX XXX XXX XXX XXX (iv) that Ogbiddo people lived for many years around the stones and caves called “Uddo” given to them to live in by the Iyamo people and that from there, they moved to the present sport which they now occupy on the Jattu/Okpilla tarred main road in keeping with the coming of civilisation and progress at local level; (v) that the sport where they now occupy which is shown in Exh. “A” is also part of Iyamo and that Iyamo have never objected to Ogbiddo people living and/or farming on any part of their land i.e., as regard the place Iyamo people gave to Ogbiddo people to live in originally and the new sport they moved into as a result of civilisation and social development.” This finding postulates that apart from their village the defendants occupied other portions of what is described by the plaintiffs as Iyamo land in the plan Exhibit A.

Although the learned trial Judge decided to prefer and accept the evidence of the plaintiffs that they were the original owners of the entire land, yet a closer and dispassionate examination of the entire case must in our view show that the story of the defendants to the communal holding of the entire land is the more probable one in the circumstances of the case. The land described as Iyamo land in Exhibit A contains a large number of the several villages constituting the Uzairue clan and this even on the plaintiffs own showing. The parties to the case did not join issue on those areas at all and we cannot understand how the other villages should be treated as having acquiesced in the battle of title to their entire lands. If we agree with the explanation with which the learned trial Judge prefaced his judgment and then read that explanation in the light of the foregoing comments and submission of learned counsel for the defendants to which learned counsel for the plaintiffs had no complete answer, we are driven to the inescapable conclusion that the learned trial Judge, by the time he was able to prepare his judgment, had lost all the impressions which the opportunities of a court of trial could afford him. We are in no difficulty about this and conclude that both grounds of complaint against the judgment are justified. We are at pains to consider the type of order to make in the circumstances of this case.

The learned trial Judge himself had rejected the claim of the plaintiffs for damages for trespass and injunction. He took the view that the plaintiffs had given no satisfactory evidence in support of those claims with respect to the large expanse of land which he always, though erroneously, had in mind. The act of trespass complained of was based on the digging of pits by the company, Dumez (Nigeria) Limited, and the payment and acceptance of monetary compensation from that company. The company denied paying a kobo to the defendants and the plaintiffs evidently confronted with this settled their case with the company out of court. That was the only complaint of the plaintiffs before the court and that is all there was to it.  The court has discretion in granting a declaration of title and the substance of the complaint in this case having been compromised in such a way by the plaintiffs, the learned trial Judge had a duty to reconsider the propriety of granting a claim for declaration of title. It does not appear from the records that he did this. But, apart from the errors of the learned trial Judge, the plaintiffs’ case is such that in the circumstances they could not have obtained a decree of declaration of title to any of the pink area even if any one of them is identified with paragraph 7 of their statement of claim.

None of those areas has any boundary pillars to demarcate it. Besides, at the trial, the plaintiffs gave no evidence to identify in particular the real subject-matter of their action as postulated by paragraph 7 of their amended statement to claim. In such a case, neither an order of nonsuit nor one sending back the case for a retrial can be just. The plaintiffs have simply failed to prove the case which they had brought to court. We have decided that the appropriate order to make is one dismissing the plaintiffs’ case.

The appeal therefore succeeds and it is allowed. The judgment of the High Court, Auchi, Mid-Western State, in Suit No. U/3/68, including the order for costs, is set aside and we order that the plaintiffs’ case should be dismissed. This shall be the judgment of the court. We also order that the plaintiffs/respondents shall pay the costs of the defendants/appellants fixed in this court at N136 and in the court below at N105.

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Other Citation: (1974) LCN/1787(SC)

Major Paul Dickson & Anor V. The Solicitor General Benue-plateau State (1974)

LawGlobal-Hub Lead Judgment Report

COKER, J.S.C. 

Although the respondent’s statement of claim in the concluding paragraph spells out a number of claims against the defendants, who are now the appellants, it is clear that the substantive claim against the appellants is for situate their eviction from premises situate at No. 14, Naraguta Avenue, Jos. In the High Court, Jos, the parties filed their pleadings and, by virtue of paragraph 4 of the plaintiff’s statement of claim, which was admitted by paragraph 3 of the defendants’ statement of defence, it is clear that the property concerned was occupied by whoever did so under a “statutory right of occupancy”.

It is stated that the Certificate of Occupancy relevant to the property is No. 9354. At the end of the trial, the learned trial judge gave judgment in favour of the plaintiff, the Solicitor-General of the Benue-Plateau State, now respondent, and made an order of eviction against both defendants who are in physical possession of the premises. The learned trial judge held that the sale or purported sale of the property by S.G. Bonomi Ltd., to the 2nd defendant, through whom the 1st defendant occupied the property, was illegal and ineffective and therefore the occupation of the premises by the defendants or either of them could not be justified.

The defendants have now appealed to this Court against that decision and it was argued for them that the purported revocation of the Certificate of Occupancy No. 9354 granted to S.G. Bonomi Ltd., was invalid and that as the plaintiff’s case throughout was based on that revocation, the learned trial judge should have dismissed the plaintiff’s case and not given judgment against the defendants. The learned Acting Director of Public Prosecutions, Benue-Plateau State, refuted this argument and contended that the defendants had shown no justification for their occupation of land in respect of which the Government of Benue-Plateau State had not only granted a Certificate of Occupancy to the Company. S.G. Bonomi Ltd., but also had both acquired the property back from this Company and also paid the Company compensation for such acquisition.

The arguments before us have been elaborate and perhaps as well interesting but the issue to be decided falls within a small compass. Section 39(3) of the Land Tenure Law, cap. 59, provides that in proceedings brought for the recovery of possession of native lands (which the property in question is by virtue of section 4 of the Land Tenure Law) against any person who is in unlawful possession thereof, the burden of proving a claim by the defendant to any right, title or license shall rest upon him. In the case in hand, the defendants based their claim to the right to be in possession of the premises concerned on:

(i) An agreement by them with S.G. Bonomi Ltd., to sell the property to them or to the 2nd defendant and a payment of an amount of 6,500 Pounds (or N13, 000) to that Company; and

(ii) A power of attorney produced in evidence at the trial as Exhibit 5.

The plaintiff’s case is that the consent of the Commissioner of Lands was not obtained as it should have been obtained to either of these transactions. It is not disputed that the consent of the Commissioner of Lands was not obtained to these transactions and indeed the first defendant in the course of his evidence at the trial stated that to the best of his knowledge no consent of the Commissioner of Lands was obtained to the purported agreement of sale.

The section prescribes as a prerequisite to the legality of any of the transactions contemplated by it that the consent of the Commissioner of Lands should “first be had an obtained”. This means what the section says and unless such consent was first had and obtained before the occurrence of the relevant transactions, the consequences envisaged by the section must follow. We have come to the conclusion clearly in our minds that both transactions offend against the clear provisions of section 28(1) of the Land Tenure Law, Cap. 59. Section 28(1) provides, inter alia, as follows:

“28(1) It shall not be lawful for the holder of a statutory right of occupancy granted by the Military Governor or the Commissioner to alienate his right of occupancy or any part thereof by sale, assignment, mortgage, transfer of possession, sublease, bequest or otherwise howsoever without the consent of the Commissioner first had and obtained.”

The first clause in the power of attorney, which admittedly is unusually exhaustive and elaborate, transfers to the donee of the power of attorney the right to the possession of the premises in question. As this is one of the matters contemplated by section 28(1), it is manifest that the power of attorney itself offends against that section. It is easy to see that the defendants had made out no case at all to entitle them to be in lawful possession or occupation of the property in question and that the learned trial judge was right to conclude that they should be evicted.

A number of other minor points were raised on behalf of the defendants but we do not consider it necessary to deal with all of them. We think it clear that once it is established, as indeed it is in this case, that the defendants have no right to be in possession of the property concerned, it does not matter to them who else occupies it or whether or not the plaintiffs have done or refrained from doing anything of which only the Company, S.G. Bonomi ltd., could complain.

It was argued for instance that the Attorney General of the State should not have instituted by the Solicitor-General but the action by virtue of section 39(1) of the Land Tenure Law. This point was never raised at any stage of the proceedings and we do not think that it could be raised for the first time before us. But besides, this argument overlooks the provisions of section 35 pan 2 of Decree No. 1 of 1966-Constitution (Suspension and Modification) Decree No.1 of 1966 and section 46(4) of the Land Tenure Law, Cap. 59. We have no doubt whatsoever that all the grounds of appeal argued on behalf of the appellants must fail.

The appeals fail and are dismissed. The appellants will jointly and severally pay to the respondent the costs of this appeal fixed at N65.

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Other Citation: (1974) LCN/1931(SC)

Chief M. A. Okupe v. B. O. Ifemembi (1974)

LawGlobal-Hub Lead Judgment Report

G. B. A. COKER, J.S.C.

The appellant before us was the plaintiff in an action he had instituted in the High Court, Lagos, Lagos State (Suit No. LD/206/66) in which he claimed against the respondent who was the defendant as follows:

“(a) A declaration of title that the plaintiff is the owner in fee simple of that piece or parcel of land situate lying and being at Iwaya Road, Onike Village Yaba covered by a Deed of Conveyance registered at No. 41 at Page 41 in Volume 1250 of the Lands Registry at Lagos.

(b) Injunction to restrain the defendant his servants and/or agents from further acts of trespass.

(c) 100 Pounds damages for trespass.

(d) Possession of the said land.”

We observe that although the writ was issued from the Registry of the High Court on the 16th May, 1966 and an order for pleadings was made in the case on the 11th July, 1966, actual hearing of the case did not commence until the 30th November, 1971. As the records show, the rather long delay had taken place because the defendant was stated to be away in the East-Central State and did not return to Lagos until after the Civil War.

Pleadings, as we stated before, were duly ordered and both parties did file their pleadings, the plaintiff alleging his conveyance in respect of the land in question as to his title and his quiet possession thereof ever since. The plaintiff’s statement of claim also avers that some time in 1965 the defendant “unlawfully entered the land in dispute and erected a fence thereon”. The defendant’s statement of defence also alleges his conveyance, the radical title of the Oloto Chieftaincy Family in the land in dispute and a chain of assurances from that Family to himself. The statement of defence also claims that as from the time of the sale of the land in dispute to the defendant he had been in “undisturbed and uninterrupted possession” of the land. Paragraphs 13 and 15 of the statement of defence read as follows:

“13. All successive owners claiming title from Liasu Momoleso have been put in an immediate possession by prior owners and enjoyed being in undisturbed and interrupted possession at different times.

15. The defendant will rely at the trial on all legal and equitable defences opened to him including long possession, laches, stale claim and acquiescence.”

When the case came up for trial, the parties were both present and duly represented. The plaintiff testified to the averments in his statement of claim and produced (and this was admitted as Exhibit A) a Deed of Conveyance which he stated he had obtained from his immediate vendor, one Lawrence Gregorio Da Costa. Exhibit A shows that Da Costa himself had purchased the land from the Oloto Chieftaincy Family and that that Family possessed the radical title to the land in dispute. The plaintiff thereafter gave evidence of acts of entry upon the land by the defendant. The plaintiff’s surveyor gave evidence that the land claimed by the plaintiff was identical to the land purported to be sold to him by Da Costa and that this land was the same as the land being claimed by the defendant. Mr. Da Costa also gave evidence in support of his conveyance from and the title of the Oloto Chieftaincy Family. Learned counsel for the plaintiff then announced the close of the plaintiff’s case.

At this stage of the proceedings when the defendant should have called evidence in support of the averments in his statement of defence, learned counsel appearing for him was recorded as saying:

“Mr. Ogunsiji: I do not intend to call any witness. I am resting my case on the evidence adduced by the plaintiff.”

Both counsel then addressed the court and in a reserved judgment, the learned trial judge dismissed the plaintiff’s case with costs. Hence this appeal by the plaintiff.

Before us it was argued that the judgment of the High Court was against the weight of evidence. In his judgment, the learned trial judge had held that inasmuch as the conveyance produced by the plaintiff (i.e. Exhibit A to himself and Exhibit D to Mr. Da Costa) were less than twenty years old, they would not enjoy the benefit of the presumption created by section 129 of the Evidence Act, cap.62. He eventually concluded his judgment thus:-

“It is evidence that there is no evidence of the execution of the deed.

Mere production of Exhibit “D” is not enough.

The onus of proving the case is on the plaintiff and he cannot expect to win the case on the weakness in the case of the defendant. In view of my observation above, the claim for declaration of title must fail and it is hereby dismissed.

There is no evidence to justify the claim for an injunction. Apart from the fact that the claim for declaration of title has failed there is nothing to warrant the granting of an injunction against the defendant. In the circumstances, this claim is also dismissed.

The claim for 100 damages for trespass has no foundation and it is hereby dismissed.

Finally, the plaintiff is claiming possession of the said land. The 2nd witness for the plaintiff admitted that he took a risk when he bought the land. This is rather unfortunate. The plaintiff speculated in the pursuance of this land he stated that he did not make any investigation in respect of this particular plot before he bought it. There is not enough evidence to justify the claim for possession. In the circumstances this claim is also dismissed. ”

As we observed earlier on in this judgment, the evidence was all one way as the defendant neither gave evidence by himself nor called any witnesses to testify concerning averments in his statement of defence. Manifestly, both parties admit the radical title of the Oloto Chieftaincy Family to the land the plaintiff had bought from Mr. Da Costa and had obtained from him a conveyance dated the 20th December, 1965. This is Exhibit A. Mr. Da Costa himself testifying for the plaintiff stated that he had bought from the Oloto Chieftaincy Family and he produced a conveyance which he had obtained from that Family dated the 24th February, 1964, Exhibit D. Thus the plaintiff at the trial established by evidence a chain of transfer from the Oloto Chieftaincy Family to himself.

On the other hand although the defendant pleaded a similar chain of assurances, he gave no evidence at the trial and the court knew only previous little about the several instruments of transfer described in his statement of defence.

In concluding that the execution of the conveyance to Mr. Da Costa (Exhibit D) by the Oloto Chieftaincy Family was not proved, the learned trial judge referred to the provisions of section 129 of the Evidence Act, cap. 62 and some decisions of the Federal Supreme Court and this Court on that section.

The section provides as follows:

“129. Recitals, statements, and descriptions of facts, matters, and parties contained in deeds, instruments, Acts of Parliament, or statutory declarations, twenty years old at the date of the contract, shall, unless and except so far as they may be proved to be inaccurate, be taken to be sufficient evidence of the truth of such facts, matters and descriptions.”

In his consideration of the implications of the section, the learned trial judge overlooked the decision of this Court in the case of John Kobina Johnson & Ors. v. Irene Ayinke Lawanson & anor. S.C.44/68, decided on the 12th February, 1971 in which this Court observed concerning section 129 of the Evidence Act as follows:

“It is difficult not to feel some remorse at a situation calling for a review of a stand-point which had influenced the law of this country for some twelve years or more and the relish with which that line of decision had been followed must be considered as clear evidence of the piquancy of such feelings. Section 129 of the Evidence Act, cap. 62 seems to have been lucidly worded and seems clearly to imply that recitals, statements, etc. contained in deeds, etc. . . . . . . . . 20 years old at the date of the contract shall be taken to be sufficient evidence of the truth of such facts, etc. We entertain no doubt whatsoever about the real meaning of the section and are equally without any doubt that the deeds, instruments, etc. postulated by the section must be 20 years old “at the date of the contract”. It may of course bewilder the lawyer that in order to secure the benefit conferred by the section he has to relate his Deed or Instrument to a contract, but to construe the section without advertence to a contract or, worse still, to substitute “present legal proceedings” for the word “contract”, which manifestly dominates the section, seems to us perverse. ”

We think therefore that vis-a-vis the parties to this case, section 129 of the Evidence Act has no relevance whatsoever and its invocation could have done no more than becloud the rather straight-forward issues which call for consideration and determination. The plaintiff’s witness to whom Exhibit D was given, testified as to its execution by the Oloto Chieftaincy Family. His evidence was not challenged on that point and indeed the defendant who also claimed through the Oloto Chieftaincy Family gave no evidence whatsoever in support of his own claim through that Family. The position is different if Exhibit D had been produced by the plaintiff and Mr. Da Costa to whom it was executed was not called. The result is that whilst the plaintiff pleaded and gave evidence of his claim through the Oloto Chieftaincy Family, there was no evidence to contradict whatever case the plaintiff might have made out. Civil cases are proved by a preponderance of evidence and there was such evidence from the plaintiff’s witness.

Mr. Da Costa, that it was the Oloto Chieftaincy Family which had sold to him and had put him in possession of the land in dispute.

Both parties have claimed through the Oloto Chieftaincy Family. At the close of the plaintiff’s case to the effect that he possessed a title originating from that Family, the onus clearly shifted to the defendant to demonstrate, where, as in this case, he too has accepted the radical title of the same Family, that the defendant failed to do this and by resting his case “on the evidence adduced by the plaintiff’ he impliedly accepts the evidence given by the plaintiff and which evidence he himself had not in any way contradicted. See Thomas v. Preston Holder (1946) 12 W.A.C.A. 78 where at p. 80 the West African Court of Appeal observed on a point similar to the one at present in issue thus:

“Where the plaintiff is claiming a declaration of ownership based upon long possession then it is incumbent upon him to prove the nature of that possession in such a manner that the inference that he is exclusive owner may be drawn, but where, as in the present case, the plaintiff traces his title directly to one whose title to ownership has been established it is not necessary that he should prove such acts of ownership. If title has been so established, then the onus is upon the defendant to show that his own possession is of such a nature as to oust that of the original owner and in such case the Court by applying the rules of equity rather than those of strict native law and custom will decline to disturb his possession and will refuse a declaration of title in favour of the original owner.”

We are in agreement with the principle as enunciated and only wish to add that although by paragraphs 13 and 15 of his statement of defence (set out supra) the defendant avers those equities he gave no evidence in support of them and indeed he impliedly relied on evidence adduced by plaintiff and/or his witnesses which negatives those equities.

We are in no doubt that the learned trial judge took a completely erroneous view of the facts of the case in coming to the conclusion that “the plaintiff has failed to prove his case”. Indeed, he had proved the case he had brought against the defendant who had proved nothing.

We observe that the learned trial judge has made no assessment in respect of the award of damages, undoubtedly in view of his findings against the plaintiff on the main claim for a declaration of title. We only wish to reiterate the directions of this Court that even if in a claim for damages the trial court or tribunal found against a plaintiff, an assessment of the relevant award should be made by the trial court or tribunal so that if such a plaintiff succeeds on appeal there will be no difficulty in settling the necessary figures of an award and the necessity of sending back the case for such an assessment would be obviated. In this case, however, the plaintiff gave no evidence of any specific damage to his property except the mere intrusion of the defendant on his land and the deposit thereon by the defendant of cement blocks. We think that in those circumstances an award of a nominal amount of N10 will meet the justice of the case.

We have on several occasions condemned the inclusion of a claim for possession with claims involving trespass and perpetual injunction. Where the defendant is a trespasser the remedy of injunction is a complete answer to his act of ouster for by his mere entry on the land the trespasser does not obtain the necessary possession on which to found a claim for recovery. It follows therefore that if the plaintiff succeeds in his claim for trespass and an injunction is ordered, the claim for possession is a negation of the very facts on which that for trespass must be founded. Such a claim ought not therefore to be joined with the other claims.

In the end, we are satisfied that the complaints of the plaintiff on appeal are justified and his appeal must and does succeed. The appeal is allowed and the judgment of the High Court, Lagos, in Suit No. LD/206/66, including the order for costs, is set aside.

We enter judgment for the plaintiff for:

(i) a declaration of title that he is the owner in fee simple of the piece or parcel of land at Iwaya Road, Onike Village in Yaba covered by his Deed of Conveyance, Exhibit A, dated the 20th December, 1965 and registered as No. 41 at page 41 in Volume 1250 of the Registry of Deeds in the Lands Registry of Lagos;

(ii) N10 as damages for trespass;

(iii) Perpetual injunction restraining the defendant, his servants

And/or agents from further trespassing on the land in question or any pan thereof;

(iv) The claim for possession is struck out.

The foregoing shall be the judgment of the Court. We also order that the defendant/respondent shall pay to the plaintiff/appellant the costs of this appeal fixed in this Court at N110 and in the court below at N150.

The foregoing shall be the judgment of the Court. We also order that the defendant/respondent shall pay to the plaintiff/appellant the costs of this appeal fixed in this Court at N110 and in the court below at N150.

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Other Citation: (1974) LCN/1798(SC)

Shell B.P Ltd .v Jacob Abedi & Ors (1974)

LawGlobal-Hub Lead Judgment Report

FATAYI-WILLIAMS, J.S.C 

In his amended writ of summons in suit No. UHC/32/67 filed in the High Court at Ughelli, the plaintiff claimed as follows:

“1. Against the first defendant:12,000 being compensation due to the plaintiff from the first defendant in respect of prospecting for oil and mining operations, carried out by the first defendant on the plaintiff’s piece of land at Abadiama situate between Ovworighala and Abadiama Vlllage in Ughievben Clan within the Judicial Division of this Honourable Court since 1965.

2. Against 2nd and 3rd Defendants: Declaration of title as owners under Urhobo Customary Law of the land lying and situate between Abadiama and Ovworighala Villages of Ughievben Clan, Ughelli Judicial Division, Delta Province of the Mid-Western State of Nigeria.”

Because of the crucial role which pleadings are likely to play in the course of these proceedings, the pleadings will be set out in more detail than usual. Paragraphs 2, 3,4, 5, 6 ,7, 9, 10, 11; 12, 13, 14, 17, 18, 20 and 21 of the plaintiff’s amended statement of claim read:

“2. The 1st defendant is a limited liability company registered in Nigeria under the Companies Act and carrying on within Nigeria the business of prospecting for mineral oil (hereinafter called ‘the Company’).

3. The 2nd and 3rd defendants are Ijaws and have on their own application been joined by order of court as defendants representing the people of Gbekebor who are Ijaws (hereinafter called ‘the Gbekebors ‘).
4. The Abadiamas are owners in possession of the piece of land which is edged yellow on the survey plan attached hereto (hereinafter called ‘the land in dispute ‘).
5. The Abadiamas through their ancestors from time immemorial settled on the land in dispute when it was virgin forest and became owners in possession thereof according to the customary law of the Urhobos. They exercised and are still exercising full rights of ownership thereon.
6. They have on the said land their ancestral jujus worshipped in respective shrines; hamlets; cultivated farmlands; fishing canals; fishing ponds; rubber trees; palm trees and other natural forest products over which they have from time immemorial been exercising absolute and unchallenged right of ownership.
7. They said land is bounded by the lands of the Ovworigbala community, the Owahwa community, the Egbo community and the Forcados River.
8. About the month of June, 1966 the Abadiamas discovered that certain persons, later known to be the Company effected oil prospecting operation on the land in dispute in an area falling within what the Company now calls ‘Engolor Location’.
9. The area of land affected by the Company’s operation is approximately 4.249 acres.
10. Ashofovwi juju shrines, palm trees, raphia palm trees, fishing ponds, fishing canals, rubber trees and other propeny of the Abadiamas were damaged by the Company in the operation referred to in paragraphs 9 and 10 supra.
11. The company during the said operation excavated and removed soil from the land in dispute in an area measuring 60 yards long x 60 yards wide by 6″‘3 yards deep (Le.) 24,000 dubic yards. The excavated area is now submerged in water.
12. Property of the Abadiamas damaged by the Company in the said operation area:

(i) 534 palm trees

(ii) 12 raphia palm trees

(iii) 4 rubber trees

(iv) 36 fishing ponds

(v) 8 large fishing canals

(vi) 12 medium fishing canals

(vii) 15 small fishing canals

(viii) 3 shrines of Arhofovwi juju.

14. The Company did not make enquires from the Abadiamas as to persons entitled to ownership of the area of its operation within the said land before entering thereon. The Company did not payor offer payment of compensation or any fee to the Abadiamas for operation carried out on the land or damages caused as a result of such operation.
15. The Abadiamas are entitled to be paid damages and/or compensation by the Company for the operation carried out on the land as herein averred.
16. The Gbekebors have claimed ownership of the land in dispute or a portion thereof and on the basis of their claim they have disputed the rights of the Abadiamas to claim and received from the Company compensation for the Company’s operation and damages resulting therefrom as alleged herein.
17. The Gbekebors have never exercised any act of ownership on the land of the Abadiamas and are not entitled to ownership or possession thereof.
18. The Abadiamas have made several demands on the Company for payment but the Company has failed to pay compensation in respect of its operation canied out on the land in dispute.

Whereupon the plaintiff claims as per his writ of summons:

(a) against the 1st defendant the sum of 12,000, and

(b) against the 2nd and 3rd defendants declaration of title as owners under Urhobo Customary law of the land in dispute. ‘

In their own statement of defence, the fIrst defendant admitted carrying on oil prospecting operations on the land in dispute in June, 1966, but denied the claim of the Abadiamas to be the owner of the land. They added that the people of Gbekebor claimed ownership and possession of the land and of the crops and economic trees on it and that it was the people of Gbekebor that were in actual possession when they started operations there. After denying the averment in paragraph 11 of the statement of claim, they averred further in paragraph 9 of their own statement of defence as follows:

“9. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . the Defendant denies ever damaging juju shrine, palm trees, raphia palms, fishing ponds, fIshing canals, rubber trees and other property belonging to the plaintiff. The few crops damaged by the 1st Defendant were the property of the Gbekebor people who put the first defendant on the land and for which the first defendant paid adequate compensation on 31/12/65. The fIrst defendant shall found on the receipts given to the 1st defendant by the people of Gbekebor if need be.”

The first defendants also denied the averments in paragraph 17 of the statement of claim that the Abadiamas were those entitled to be paid “damages and/or compensation” for the operation carried out on the land and stated further that they did not pay compensation to the plaintiff because it had already been paid to the Gbekebor people.

For their part, the 2nd and 3rd defendants denied the claim of the plaintiff that the Abadiamas are the owners of the land in dispute. They also denied the averments in paragraphs 4, 5, 11, 13, 17 of the statement of claim but averred in paragraphs 4, 5, 6, 7, 8, 12, 16, and 17 of their statement of defence as follows:

“4. In answer to paragraphs 6, 7 and 8 of the statement of claim, the 2nd and 3rd Defendants aver that they are the owners in possession from time out of human memory of the piece or parcel of land between Abadiama and Ovworigbala and directly opposite Gbekebor and situate in Western Ijaw, within the jurisdiction of this honourable court. The said land is called by the name of PEREKEMESEIGHABOU after a big juju of that name situate in the bush.

5. As owners in possession, the 2nd and 3rd defendants have been exercising maximum acts of ownership over the land. They have therein

rubber, palm and rafia trees, fish ponds and canals of various sizes. The Perekemeseighabou juju has two other shrines near to it, and all three belong to Gbekebor people.

6. The plaintiffs came originally from Jeremi Clan, Eastern Urhobo Division, and settled at the present site of Abadiama with the permission of Gbekebor people. They paid tribute until 1915 when they stopped and one Swe of Gbekebor sued Oweke of Abadiama Gbedigoro of Otitiri and Tuegwe of Ofumgbala for 10 years arrears of rent, and won. This suit No. 1 of 1925 (later No. 17 of 1926) disposed of by His Honour Mr. Justice T.D. Maxwell on 17th day of November 1927 will be founded upon at the trial.
7. In further answer to paragraphs 4 to 8 of the statement of claim the 2nd and 3rd defendants say that the plaintiffs have neither jujus nor ponds or canals and rubber, rafia or palm trees in the area in dispute and that the 1st defendants entered the land with the permission of the people of Gbekebor. By receipt No. DEL. 47A dated 31st December, 1965, the first defendants paid the sum of 6:12s:0d to the people of Gbekebor for use of the land. The receipt will be founded upon at the trial.
8. The 2nd and 3rd defendants admit paragraphs 9 and 10 of the statement of claim and say that the name ‘Engolor’ was given to the location at the suggestion of the people of Gbekebor, the 1 st defendants had earlier called it ‘Obotebe’ East’ location.
9. In further answer to paragraph 13 of the statement of claim, the 2nd and 3rd Defendants say that the plaintiffs have no palm or raphia trees, rubber trees, ponds, canals and juju shrines in the area in dispute. The only trees, ponds and canals in the area belong to the people of Gbekebor and the 1st defendants have paid compensation for same, except for the three juju shrines of the Gbekebor people for which negotiation for the payment of compensation is still going on. The receipts issued by the Gbekebor people for the various payments made to them by the 1st defendants will be founded upon at the trial.
10. The second and third defendants admit paragraphs 18 and 19 of the statement of claim to the extent that they (the Gbekebors) are owners in possession of the entire area of land in dispute and any right enjoyed on the land by the plaintiff (which is denied by the Gbekebors) is with the permission of the Gbekebor people.
11. Paragraphs 20 and 21 of the statement of claim are denied by 2nd and 3rd defendants and they say that the plaintiffs are not entitled to any payments or compensation in respect of the operations of the 1st defendants on the land in dispute, and will at the trial contend that the plaintiff is stopped from bringing this action against the defendants.”

At the trial, Jacob Abedi (plaintiff) testified as follows:

“The land in dispute was virgin forest when my people the Abadiama people founded it. They cleared the land. The founder was one Ogun of Jeremi. Ogun is dead. He died a long time ago. Neither myself nor my father or grand father knew him. Ogun hailed from the Owawa community. Owawa was the son of Jeremi the founder of the Jeremi clan” Jeremi is made up of Sub-Clans, namely Orowhe, Owawha, Okpedi and Oviourhie. They are all Urhobos. In the Urhobo tradition the first to occupy a land is the owner of that land. Ogun was the first occupier of the land in dispute. In the land in dispute, we have cassava farms, rubber plantations, palm trees, palwine trees, fish ponds, streams, economic trees, and other cash crop farms on the land. I am a Christian. We have a school building, a town hall, market place, a church and juju shrines on the land. Ever since I grew up in Abadiama no one has interfered with us on the land. . . I know the people of Gbekebor.

They are Ijaw people. Gbekebor is on the other side of the Forcados river. Tenants have been felling timbers on our land for very many years. The Gbekebor people have never claimed any share of the royalties. In

1966, Shell BP that is the 1st defendant came on our land to explore for oil. The area Shall BP worked is shown on our plan. They fell the trees on the land, destroyed various ponds by digging them into a canal. They destroyed our juju shrines and rubber trees. They dug up the whole land and it now looks like a river. . .

The total value of the things destroyed is 12,000. The 1st defendant did not obtain our permission before they went on our land. They did not pay us any compensation for the things destroyed. We demanded compensation but they refused. We the people of Abadiama have never paid tribute to the Gbekebor people in respect of this land.”

When this witness was cross-examined as to their relationship with the people of Gbekebor vis-a-vis the land in dispute, he replied.

“Abadiama people are not customary tenants of the Gbekebor people.

They have not paid any tribute to Gbekebor people. Oreke has never been sued by the Gbekebor people in respect of the land now in dispute.”

This testimony was corroborated by Avwerhe Dase (3rd P/W) who stated that “the Abadiama people do not pay tribute to the Gbekebor people.” Another witness by name Odiphri Monah-Rowe (6th P/W.) also. testified that:

“The Abadiama people did not come to their land with the consent of the Gbekebor people”

One Chief Charles Eregbulogha Ugen (9th P/W.) the 80 year-old clan head of Jeremi Clan of which the Abadiama people are members stated in his own evidence as follows:

“Abadiama does not belong to the Gbekebor people. It belongs to the Jeremi Clan. Nobody from Abadiama pays any tribute to Gbekebor people. The founder of Abadiama was Owawha’s son.”

For their defence, the 1st defendants called one Ademiluyi who admitted that his company went on the area called Englolor Location on the land in dispute in December 1965, and that they paid the Gbekebor people, who claimed to be the owners of the land, compensation for the use of the land and for the crops, fish canals, fish ponds, structure and rubber trees which they found there. About June, 1966, that is, months after payment of compensation to the Gbekebor people, the Abadiama people wrote to the 1st defendants disputing the ownership of the location and demanded compensation which they refused to pay.

In their own defence, the 2nd and 3rd defendants testified and called seven witnesses. Among the witnesses called was Chief Talbot Edon Carter (1st D/W), the traditional Iyasere of Akugbene in the Mehin Clan, who gave traditional evidence in support of the 2nd and 3rd defendants claim to the land They also called one Otoyare Omoriahovwan (2nd D/W), an Urhobo man who lives at Otitire. This witness said that he is a native of Owhawha from which the plaintiff originated, that the people of Otitire and Abadiama, the plaintiff’s village, were allowed to settle where they now live by the Gbekebor people, his people and the Abadiamas used to pay tributes to the Gbekebors, but that he did not know whether the Abadiamas still paid the tributes. Tikarede Zipamo (2nd defendant) after giving evidence of the traditional history of the land, also testified as follows:

“I know the Shell Company the 1st defendant. The Shell Company came to Gbekebor to ask permission to prospect for oil on our land in Peremekeseya- Bo. One Mr. Opara came as the representative of the Company. We agreed. He then went to the village of Abadiama to see the people. He went back to Warri and later came with a surveyor. They surveyed the place and made their camp. They ten enumerated and assessed what is on the land. They destroyed palm wine trees, palm oil trees, rubber trees, fish ponds, fish canals. and three juju shrines. . .

Later we were invited to Warri and we were paid compensations by the Shell BP. The people of Gbekebor and also Abadiama assisted Shell BP to clear the site. Michael Axonfan the 3rd defendant was the contact man from Gbekebor. The Abadiama people had not contact man. They were very few. The first plaintiff Jacob Abedi was one of the labourers from Abadiama who worked there with Shell Company.”

He then explained how the Abadiama people came to settle on the land as follows:

“I know Abadia village. The people staying there are Urhobos. They are from Owhawha. When they came they went to the Gbekebor people to ask permission to settle on the land. Their leader was a man called Ogun. They were asked to pay tributes. They were asked to pay palm oil, yam, plantain, sugar cane every year. They paid these tributes. After some time they stopped to pay these tributes. Then one Awe of Gbekebor took action against them in court. Awe got judgment. Awe sued one Oweke of Abadiama and one Gbedagoro or Otitiri, and one Tuewe of Ororigbala. These people were heads of their respective community and Awe was the head of the Gbekebor people. Gbekebor won the case. After the case the Abadiama, Oforigbala and Ititiri people resumed payments of tributes to Gbekebor. We had to reference the judgement before they were obliged to pay the tribute. After the case each of the three villages began to pay 15 a year instead of the farm crop tributes they used to pay. The Abadiama and Oforigbala people have stopped paying the tribute. Only Otitiri people still pay their tribute. They stopped paying for three years and we sued them again. The case in non suited. Since that time they have not paid any tributes.”

The above testimony of the 2nd defendant was substantially corroborated by Michael Duketa Ezonfade (3rd defendant).

After considering the totality of the evidence adduced, the learned trial judge found that the traditional evidence given in support of the claim of the 2nd and 3rd defendants is more credible and came to the conclusion that the Gbekebor people are the owners of the land in dispute edged yellow in the plaintiff’s plan (Exp. P3). This area, it must be pointed out, includes the area edged RED in which the 1st defendants carried out the oil exploration and in respect of which compensation is now being claimed by the plaintiff. The learned trial judge also examined the record and considered the effect of the judgement in the 1925 case (Ex. D9), including the writ of summons in the case, and came to the following conclusion:

“On careful examination of same, I am now satisfied that the action was instituted and fought on a representative basis, and that the subject matter of that action included Abadiama land which is now the subject of . that action.”

He then found finally as follows:

“As I have stated in the first part of my judgement I believe it is the plaintiff’s people who are in actual occupation of the land on which the 1 st defendant operated and their possessory rights entitled them as owners of the things damaged to the compensation they claim.

I do not believe however that they are the de jure owners of the land for which they now ask for a declaration of title. I believe the Gbekebor people are their overlords.

The claim for declaration of title against 2nd and 3rd defendants there fore fails and is hereby dismissed.

The claim against the 1st defendant succeeds and there will be judgement for the plaintiff against the 1st defendant for 12,000pounds.”

The plaintiff appealed against the judgement of the learned trial judge dismissing their claim against the 2nd and 3rd defendants for declaration of title. This appeal was, however, abandoned during the course of the argument in the present proceedings.

The 1st defendants were also dissatisfied with the judgement given against them and have also appealed. The five grounds of appeal filed and argued by the learned counsel for the 1st defendants/appellants read:

“1. The learned trial judge erred in law and on facts in giving judgement against the appellants and in favour of the plaintiffs/respondents when on the findings of facts made by him he ought to have held that the appellants were on the land with the authority of the true owners thereof.

2. The learned trial judge erred in law and on the facts in failing to dismiss the plaintiffs/respondents’ claim for compensation when on the facts by him the claim made by the plaintiffs on their pleadings was not established and no claim (in the alternative) to compensation on the basis of customary tenancy was made to him on behalf of the said plaintiffs/ respondents.
3. The learned trial judge erred in law and on the facts in failing to observe that even if (which is denied) the plaintiffs are entitled to compensation as customary tenants the compensation payable to them ought not to be assessed on the same basis as if they were the owners of the radical title to the land.
4. The learned trial judge erred in law and on the facts in failing to dismiss the plaintiffs’ claim when the true cause of action was for trespass and it was clearly not established that the plaintiffs were in exclusive possession of the land over when they were claiming damages or compensation for trespass.
5. Judgement is against the weight of evidence.:”

The arguments adduced by the learned counsel for the 1st defendants/ appellants in support of the ftrst, second, and third grounds of appeal may be summarised as follows. Since there was no proof that the restrictions and conditions in the Oil Mining Lease No. 35 dated 6th March, 1964 (Ex. D4) granted by the Federal Minister of Mines and Power to the 1st defendants/ appellants were complied with by the 1st defendants/appellants, the plaintiff/respondent’s claim against them, although it was not so clearly spelt out, could only be in trespass. As it is a claim in trespass, the plaintiff/respondent, in order to succeed, must claim either that he is the owner of the land in dispute or that he derives title to it from the true owner. Since the plaintiff/respondent was adjudged not to be the owner, it is only a plea that he is a customary tenant of the Gbekebor people (2nd and 3rd defendants) which could defeat the entry of Shell BP (the 1st defendants/appellants) who had undoubtedly entered the land with the authority and consent of the Gbekebor people who have been held by the learned trial judge to be the true owners.

Neither in his pleadings nor in the evidence given in support did the plaintiff/respondent say that the Abadiama people are the customary tenants of the Gbekebor people. His case throughout the proceedings in the court below (and even in the proceedings in this court) is that he is the owner of the land in dispute (the yellow area in the plan Ex. P3) in which the land for which compensation is being claimed (the red area) is situated. The Abadiama people are bound by their pleadings and their case must stand or fall by the averments in those pleadings. The learned trial judge was therefore in error in making out for them a case which they have not made for themselves. If the plaintiff is now allowed to contend that his people are entitled to succeed as customary tenants of the Gbekebor people, this will make pleadings useless and will be contrary to previous decisions of this court on the importance of pleadings.

It may well be that if the plaintiff/respondent had claimed, in the alternative, that his people held the land as customary tenants, they might have been able to maintain an action in trespass against the 1st defendants/respondents; but as he has not done so, and his contention that his people are owners of the land having failed, his claim for damages for trespass must also fail.

Learned counsel further indicated that if the Abadiama people, as such customary tenants of the Gbekebors, had been making use of the ponds, trees, etc. on the land into which the 1st defendant/appellant had entered and destroyed these “hereditaments,” and the Abadiamas had claimed damages for their destruction, they probably would have succeeded. It is, however, different if they claim, as they have done in the case in hand, to be the absolute owners of the land and of the things attached to it, and ask to be paid as such. Having claimed on the basis of ownership and lost, that, in view of the maxim quic quid plantatur solo solo credit, is the end of the matter. Finally, learned counsel pointed out that even in this court, the plaintiff/respondent, in view of his grounds of appeal, is still maintaining that the Abadiamas are the owners of the land. That being the case, the learned trial judge was in error in his finding that the Abadiamas are the customary tenants of the Gbekebors through whom the 1st defendants/appellants have claimed the right to enter the land in the red area.

In support of his arguments, we were referred to two cases, namely. Chief Secretary to the Government v. Musa Apena and Ors. unreported but see WACA 2304 delivered on 6th November, 1946, and Lagos Executive Development Board v. Federal Administrator-General and Ors. (1960) L.L.R. 274. In the first case, which is an appeal in respect of a claim for compensation for land acquired by the Government at Ikeja, the West African Court of Appeal observed at pages 60-61 as follows:

“We will now deal with the competing claims of the 1st defendants and the 2nd defendant, who for some reason or other only claimed in respect of parcel No.9.

The second defendant, although at the commencement of the proceedings he was recognised by the 1st defendants as their customary tenant and therefore entitled to share with them as owners the compensation payable in respect of parcel No.9, in his statement of interest claimed as owner ‘by inheritance and by purchase and by virtue of a deed of conveyance’. He did not claim in his statement of interest as customary tent, nor was his claim ever amended in this sense, although when his counsel realised at the end of the hearing that this claim as owner was likely to fail, he urged that at any rate his client was entitled to compensation as customary tenant.”

After stating that they were unable to support the order of the learned trial judge which decreed forfeiture (against the 2nd defendant) which had not been properly claimed, the court, nevertheless, came to the same conclusal judge after fmding as follows:

“We accept the Judge’s finding that the Deed of the 4th July, 1944, did not confer title not having been made with the consent of the owners of the land. With this finding it seems to use that the 2nd defendant’s claim fell on the ground. As has already been pointed out he did not claim even alternatively as customary tenant, and no such claim was ever before the court below. If after the preposterous claim as owner had been made on his behalf, claim as customary tenant had been added or substituted, it is highly probable that it would have been vigorously resisted by the 1st defendants, and it is not unlikely that the 1st defendants would have responded to pleading forfeiture. The position is that the only claim standing in the 2nd defendant’s name deservedly failed.”

The second case is also a compensation case. It was heard by Coker, J., (as he then was) in the high Court of Lagos and he rejected the claim of the Egbe family, (3rd claimant), who had claimed the land in dispute in that case absolutely after finding at pages 284-285 as follows. . .

“It is manifest from the evidence that both the 1st and 3rd claimants have denied the title of the Oloto family and in a proper case have rightly incurred the consequential penalties. I am satisfied that the evidence to the effect that tributes were paid by or on behalf of the Egbe family until 1957 is connect. I do not believe the false testimony of the 3rd claimant that no such tributes were paid. Nor can I make a declaration in this case to the effect that as the Egbe family are customary tenants of the Olotos they be entitled to a part of the compensation payable since that family by its own case has contended that they do not hold of the Oloto family. . . .

The result therefore is that neither the 1st claimant nor the third claimant for the reasons I have set out above have established their rights to this land and that the 2nd claimants have proved to my satisfaction that they are the owners of the land.”

In reply, the learned counsel for the plaintiff/respondent contended that the plaintiff/respondent’s case against the 1st defendants/appellants is based on possession simpliciter of the area entered by them. He then argued further as follows. The plaintiff/respondent’s people, that is, the Abadiamas, are entitled to rely, and did rely, on their possession of this red area in their claim against the 1st defendants/appellants. While conceding that the initial entry by Shell-BP (the 1st defendants/appellants) was lawful, the claim for damages or compensation was clearly not in respect of the lawful entry, but in respect of all the trees, ponds etc. in the red area which had been destroyed. It was, therefore, a misconception to say that the judgement given in favour of the Abadiamas was based on a case which the plaintiff/respondent had not made out in the court below. Having found that the Abadiamas were in actual occupation of the land on which the 1st defendants/appellants carried out their oil prospecting operation the learned trial judge was right in holding that the possessory right of the Abadiamas entitled them, as the owners of the things damaged thereon, to the compensation which they had claimed.

It is now settled that in action in the High Court the parties are bound by their pleadings. Their case stands or falls by the averments in those pleadings and the evidence adduced in support of those averments. Any evidence not supported by the pleadings should be ignored as it goes to no issue. (See Emegokwe v. Okadigbo (1973) 4 S.C. 113 in which all the cases on the point were reviewed with approval).

The corollary to this principle is that judgement should not be given in favour of a party on facts which were not pleaded; it is the same with facts which are pleaded but not canvassed at the hearing.

If the case in hand, the plaintiff/respondent, in his writ of summons, referred to “mining operations carried out by the 1st defendant on the plaintiff’s piece of land.” In his statement of claim, he referred to his people as the “owners in possession of the piece of land” which includes the red area. His averments therein also show how his ancestors came to own the land. In this connection, reference is again made to paragraphs 18 and 20 of the statement of claim which read:

“18. The Gbekebors have claimed ownership of the land in dispute or a portion thereof and on the basis of the claim they have disputed the right of the Abadiamas to claim and receive from the Company compensation for the Company’s operation and damages resulting therefrom as alleged therein.

20. The Gbekebors have never exercised any act of ownership on the land of the Abadiamas and are not entitled to ownership or possession thereof. ”

Even at the hearing, the plaintiff/respondent’s contention throughout was that his people are the owners of all the land in dispute, including the red area. He and his witnesses denied that they were the customary tenants of the Gbekebors (the 2nd and 3rd defendants) by whose authority the 1st defendant/appellant entered the land.

Now, while it is not clear from the way the claim is worded that this is a claim for damages for trespass, there is no doubt, bearing in mind that there is no proof that the 18t defendants/appellants had complied with the restrictions and conditions in the Mining Lease (Ex. D4), that. the claim is analogus to one in trespass. The law applicable will, therefore, be considered on that basis.

A de facto possession of land gives right to retain the possession and to undisturbed enjoyment of it as against all wrong doers. It is not, however, sufficient against the lawful owner. Thus, in Delaney v. Smith (1946) 2 All E.R. where the owner made an oral agreement to let a house to the plaintiff, but before the tenancy began changed his mind and decided to sell the house, it was held, on appeal, that when the plaintiff clandestinely entered the house and was then forcibly ejected by the owner, he had no right to bring an action for trespass against the owner because, in order to succeed, he had to rely on a titled derived from the true owner which he could not do. The following statement of the law as stated by Tucker, L.J. at page 24 of the judgement, and with which we agree, is particularly relevant:

“I think that the judge came to an erroneous decision. It is clear that the plaintiff was in fact founding his claim on the tenancy agreement pleaded by him. It is no doubt true that a plaintiff in an action of trespass to land need only in the first instance alleged possession. This is sufficient to support his action against a wrong doer, but is not sufficient as against the lawful owner, and in an action against a freeholder the plaintiff must at some stage of the pleadings set up a title derived from the defendant. ”

Again, the following observation of Wynn-Parry, J., at page 26 of the same judgement is particularly apposite:

“Now it is to be observed that the plea of liberum tenementum, and the corresponding modern defence that the land was the freehold of the defendant involve a confession and avoidance. The plea admits the possession of the plaintiff, but asserts a title to the freehold. If issue were joined at that stage of the pleadings, the defendant would have to assume the onus of proving the title set up by the plea.”

After referring to the observation of Cresswell, J., in Roberts v. Taylor 1 C.B. 117 at page 126, along the same lines, Wynn-Parry, J., observed further as follows:

“So where a plaintiff by his reply admits the title of the defendant, but pleads a demise from him, there is a true confession and avoidance. The plaintiff is concluded by his confession and must fail in his action unless he proves the case set up by his reply, namely, a demise from the defendant. The onus is thrown upon him to prove the matter set up by way of and it has become an essential pan of his case to do so . . . . . . . . . . . . .

The question then arises: Does a different result flow if, instead of admitting the defendant’s title, the plaintiff by his reply denies the defendant’s title, but as an alternative pleads a demise from him In my judge- .

ment the result is the same. In such an event the plaintiff sets up an alternative case: In the event of his failing successfully to traverse the title of the defendant at the trial he is, to quote again the words of Cresswell, J., in Roberts v. Taylor 1 C.B. 117 at p. 126: ‘put to show how he has a possession in himself consistent with the free hold being in another. ‘

Thus the proof of the demise or agreement for tenancy becomes, equally in such a case, an essential part of the plaintiff’s case, without which he could not succeed.”

In view of the above, it seems to us that, in order to succeed in the case in hand, where the defence of the 1st defendants/appellants is that they entered the red area with the consent of those whom the learned trial judge had found to be the true owners, the plaintiff/respondent must prove that his people are the customary tenants of the true owners. Unfortunately, that is not his case. Both in his pleadings and in the evidence adduced in support, it is the contention of the plaintiff/respondent that the Abadiamas (that is, the plaintiff/respondents) relied on their ownership of the land for their claim for damages. Having failed to prove such ownership, the evidence adduced as to possession becomes irrelevant, particularly as there was abundant evidence that the Gbekebor people were also in possession of part of the land and made use of it, and the claim for damages or compensation against the 1st defendants/appellants should have been dismissed. It is well settled that in an action for trespass, a defendant may not set up a justertii.

He may set up a title in himself, or show that he acted on the authority of the real owner. That is precisely what the 1st defendants/appellants have done in the present case.

There is one other point. Learned counsel for the plaintiff/respondent said that the claim was based on possession and in this respect he tried to make heavy weather of the phrase “owners in possession” used in the statement of claim. Unless words have lost their meaning, an owner in possession, to our mind, can only mean, and does mean, an owner who is in possession of the property concerned. Therefore if the possession of the Abadiamas is not that of an owner as claimed by them, that; possession, unless they are customary tenants, cannot be consistent with the occupation of the true owner or of somebody duly authorised or permitted to occupy the land by the true owner.

There is one final word about the two Nigerian cases to which we have been referred by the learned counsel for the 1st defendant/appellant, (that is,the WACA case and the case decided by Coker, J. (as he then was) in the High Court of Lagos). Although. these two cases dealt with claims for compensation in respect of land acquired by the Government, the principle of law stated therein applied with equal force to the facts of the case in hand. Therefore, as the Abadiamas neither pleaded nor testified that they are customary tenants of the Gbekebors, they cannot maintain a claim for trespass against the 1st defendants/appellants who, as we have said earlier, admittedly entered the land in dispute with the permission of the Gbekebors who have been adjudged to be the true owners.

In these circumstances, we are of the view that the decision awarding the sum of 12,000 as damages against the 1st defendants/appellants should not be allowed to stand. Having so found, it is unnecessary to consider the arguments adduced in support of ground 4 of the grounds of appeal which was filed and argued as an alternative to grounds 1,2 and 3. It is also unnecessary to deal with those adduced in support of the fifth ground of appeal which delt with the findings of fact of the learned trial judge with respect to the possession and identity of the portion of the land in dispute in respect of which compensation was awarded.

We therefore allow the appeal, set aside the judgement of the learned trial judge (including the order as to costs) which he gave against the 1st defendants/appellants in the Ughelli High Court in suit No. UHC/32/67 on 25th November, 1969, and substitute therefore an order that the claim against them be dismissed.

The appeal filed by the plaintiff/appellant against the finding of “the learned trial judge that the Gbekebor people are the de jure owners of the land in dispute, verged yellow in the plan No. AR.728 of (Ex. P3), having been withdrawn, is also dismissed.

Costs to the 1st defendants/appellants are assessed at N123.00 and to the 2nd and 3rd defendants/respondents at N63.00.

---

Other Citation: (1974) LCN/1974(SC)

Edward Egonu & Ors. V. Madam Eziamaka Egonu & Ors. (1974)

LawGlobal-Hub Lead Judgment Report

OBASEKI, J.S.C.

This appeal raises the very important question of proof of sale of land and transfer of title to land by a father to a son under customary law in Onitsha. The question assumes greater importance and attracts more attention when the purchaser is the person on whom in the event of the father’s death, the father’s title to the land would devolve.

The appeal deals in the main, with a claim founded on a testamentary disposition of interest in land allegedly acquired by purchase under customary law by the eldest son of a prosperous man from his father in the early twenties, 1924 to be more exact. The parties were of Ibo origin whose personal law was Osomari customary law i.e. native law and custom although the land is situate in Onitsha and the parties lived and died on the land. The parties to the alleged sale are dead and the devisees, the plaintiffs/appellants herein, conscious of the devise and the need to assert their rights under the will which were being wantonly infringed by the respondents ad nauseam instituted an action by writ of summons filed in the High Court, Onitsha then in Onitsha Judicial Division of the High Court of Eastern Nigeria but now Onitsha Judicial Division of the High Court of Anambra State for, in terms appearing on the amended statement of claim:

“1. Declaration of title to the landed property now known and called 40, New Market Road, Onitsha, and more particularly delineated and verged pink in the plan No. PO/E.30/65.

2. 5 Pounds damages against the 1st and 2nd defendants for trespass on the said landed property.
3. Injunction restraining the 1st defendant her servants or agents from doing anything on the said landed property inconsistent with the plaintiffs’ ownership and possession thereof.
4. Injunction restraining the 2nd defendant, his servants or agents from erecting any building on the said landed property and or entering on the said landed property and or entering or remaining thereon or in anyway doing anything thereon inconsistent with the plaintiffs’ ownership and possession thereof.”

Pleadings were ordered, filed and served and the matter ultimately came up for trial before Oputa, J. (as he then was). After a protracted trial wherein the issues raised were vigorously contested and moves for amicable settlement out of court flopped, the learned trial Judge delivered a considered judgment, dismissing all the items of claim as unproved. Putting it more poignantly, the learned trial Judge in the concluding paragraphs of his judgment said:

“My impression is that the plaintiffs tried to build up a case round the will (Exhibit e). There was an attempt to reconstruct the facts starting from Exhibit 4 and the various acts of possession of their late father on the land in dispute. But reconstruction is one thing and proof of the facts and events reconstructed is an entirely different thing. In the absence of satisfactory proof of sale of the land in dispute to their father and predecessor-in-title and with the finding of the court on Osomari customary of inheritance, it cannot be said that the will Exhibit 4, transferred radical title to the land in dispute to the plaintiffs. I do not so find that is, if it is a question of fact as such rather than a conclusion of law to be drawn from the facts proved and those not proved in this case.

Having thus considered all the issues in dispute I arrive at the conclusion that the plaintiffs have not proved their case to the satisfaction of the court. I have no other option but to dismiss the plaintiffs’ case.”

Aggrieved by this decision, the plaintiffs/appellants lodged this appeal to this court on 7 grounds. At the hearing of this appeal, only grounds 2, 3b, 3c, 3d, 5a, 6a and ground 7 (the others having been abandoned) were argued and these grounds read as follows:

“2. That the judgment is against the weight of evidence.

Particulars

(1) That the learned trial Judge gave a wrong construction or interpretation to the evidence of the plaintiffs/appellants’ witness, Mr. Gregory Osuma, and in consequence thereof, the learned trial Judge wrongly disbelieved the evidence of the said witness.

(2) That it was wrong for the learned trial Judge to hold that because Mr. Gregory Osuma was the maternal uncle of the 1st and 3rd plaintiffs he could not be completely impartial and uninterested as nothing was established to make the learned trial Judge to hold the opinion and that that affected his mind in considering the evidence of Mr. Gregory Osuma.

(3) That the allegation of the defendants that they published a public warning in the Nigerian Spokesman was denied and yet the learned trial Judge accepted the defence evidence in toto without the said publication being tendered in evidence.

(4) That the question of the area occupied by one Nweke, a mechanic, on the land in dispute and the circumstances leading to his quitting from the land were contested at the trial and yet the learned trial Judge accepted the defence evidence in toto without the defence calling Nweke to testify on their behalf.

(5) That the allegation of the defendants that the 2nd defendant erected the mud building marked 5 on the plaintiff’s plan was vigorously denied by the plaintiffs and yet the learned trial Judge accepted the evidence of the defendants in toto without that allegation being duly established.

(6) That the evidence of the 1st defendant was mainly hear-say and part of the evidence was based on matters not pleaded. It was therefore wrong for the learned trial Judge to have accepted her evidence in toto and to rely on the same in coming to his decision.

(7) The defendants’ plea that the plaintiffs’ father paid all the outgoings in respect of the land in dispute as Head of the Egonu family was not established; and the defendants neither pleaded nor established by evidence that the various other acts of ownership and possession exercised by the plaintiffs’ father on the land in dispute was in his capacity as okpala. The learned trial Judge was therefore wrong to hold “that the various acts of possession undertaken by Victor Obiora Samuel Egonu were undertaken in his capacity as okpala.

(8) That the few acts of interference on the land in dispute by the 1st and 2nd defendants were promptly challenged by the plaintiffs and it was wrong for the learned trial Judge to hold that such acts were acts of common ownership on the part of 1st and 2nd defendants of the land in dispute.

3(b) The learned trial Judge misdirected himself both in law and in fact in holding that the only evidence about the sale of land to the plaintiffs’ father by Samuel Aniche Egonu was that of Mr.Gregory Osuma whereas there was other evidence in proof of that fact.

Particulars of Misdirection

(1) The learned trial Judge wrongfully disregarded the admission of the defendants in their pleadings and in evidence that Samuel Aniche Egonu sold land to the plaintiffs’ father.

(2) There was a declaration in the will of Victor Obiora, Samuel Egonu in proof of the sale.

(3) The numerous acts of possession of the plaintiffs’ father over the land in dispute including his erecting buildings all over the land to the knowledge of his own father and the control and management of the land by the executor and the executrix of his will and thereafter of the plaintiffs go in proof of the said sale.

(4) There was also the evidence of the 4th plaintiff in proof of the said sale.

3(c) That after wrongly rejecting the evidence of Mr. Gregory Osuma on the sale of the land verged yellow in Exhibit 1 to the plaintiffs’ father, the learned trial Judge held that “the net result is that the plaintiffs have failed to establish that there was a sale of the land in dispute to their father the predecessor-in-title”. Having so held the learned trial Judge has shut himself out from considering the other evidence adduced by the plaintiffs in proof of the said sale and that the later purported attempt in considering the other evidence on the question was futile and a foregone conclusion.

3(d) That the learned trial Judge failed to give a fair, full and proper consideration to the case of the plaintiffs.

5(a) That the native law and custom of any particular area is, unless judicially noticed, a matter of evidence. That there are no known decided cases on the native law and custom of Osomari on inheritance or on the position of an okpala. That it was wrong for the learned trial Judge to hold that there is anything common among the Ibos (which Osomari people of course do not admit to be) as regards the position of an okpala in the various Ibo towns, villages etc. as there are in fact no decided cases to support that view.”

6(a) That the learned trial Judge was wrong to have dismissed the plaintiffs’ case when he himself had held that the plaintiffs were at least co-owners of the land in dispute and when it was admitted in the defendants’ pleadings and testified to in evidence that the plaintiffs’ father to the knowledge of Samuel Aniche Egonu erected a number of buildings on the land in dispute.

7. That the costs awarded by the learned trial Judge against the plaintiffs/ appellants were wholly, arbitrary, punitive and manifestly excessive.”

At the commencement of the hearing, there was a spirited attempt by the 4th plaintiff/appellant to raise the issue of bias contained in ground 1 (a) (later struck out) which reads:

“That the learned trial Judge who himself formerly lived on the land in dispute as a tenant of the Executor and Executrix of the will of the late Victor Obiora Samuel Egonu was biased or most likely biased against the plaintiffs/appellants as is borne out by the learned trial Judge’s utterances and remarks in the course of the hearing of the suit and this affected his decision in the case.

Particulars

The utterances and remarks of the learned trial Judge complained against include:

“(i) Does the 4th plaintiff know that I lived on the land in dispute in the very bungalow where he now lives. I lived in the bungalow with Mr. Tunde Savage, Mr. Macaulay and one Madam Janet. The storey building in the premises was known as Perseverance Villa or Multum in Parvo.”

(ii) You will remember the passage in Julius Caesar, it ran thus:

“O masters, if I were disposed to stir your hearts and minds to mutiny and rage……. But here a parchment with the seal of Caesar. I found it in his closet; it is his will; let but the commons hear this testament which, pardon me, I do not mean to read ………. Unto their issue.

Plebeian

We’ll hear the will; read it, Mark Anthony

All

The will, the will; we will hear caesar’s will.

Anthony

Have patience, gentle friends; I must not read it. It is not meet you know how Caesar loved you ……For if you should, O; what would come of it

Caesar’s will was of course not read, it was for a purpose.”

(iii) “Mr. Agbu, will you be satisfied if I grant the plaintiffs’ declaration of title to the land in dispute but with an order that the 1st and 2nd defendants should continue to live on the land”

To this end, a motion was filed by the appellants and moved by the 4th plaintiff/appellant for an order

“admitting in evidence the affidavit sworn to by the 3rd plaintiff/appellant on 10th day of May, 1975 in support of grounds 1(a), 1(b) and 1(c)”

As the affidavit contained the particulars of allegation of bias stated in ground 1(a) above, the learned trial Judge, having been given the opportunity to do so by this court, filed a counter-affidavit denying the allegations in paragraphs 13 and 14 while contending in paragraph 16

“that before my trial of the case, I did not have fore-knowledge of the parties (except the 4th appellant) or the facts. My only connection with the case was the remote connection, that 30 years earlier, I lived for a couple of months in a bungalow in the premises.”

This point was further explained in paragraph 11 of his counter-affidavit which reads:

“That during the cross-examination of the 4th plaintiff/appellant who was called as 6th witness to the plaintiffs’ case, Mr. Agbu, solicitor for the defendants was belabouring a point namely: that 2nd defendant lived in the bungalow in the premises. Thereupon, I interjected that mere living in a premises is neither here nor there and noted that I too lived in the bungalow in the premises in dispute.”

On receipt of the counter-affidavit, the 4th plaintiff/appellant did not press his application for additional evidence any more and applied for leave to withdraw it. Without the facts deposed to in the affidavit, there was nothing on which ground 1(a), 1(b) and 1(c) could be argued. The ground was accordingly abandoned by counsel and struck out by this court.

It would appear that that was the ground on which the appellants had intended to rely most heavily in this appeal. However, the loss of this ground did not deter the appellants, and the 4th plaintiff/appellant, who argued the appeal and whose arguments were adopted by counsel for the other 3 plaintiffs/appellants, dealt with them as fully as circumstances of the case dictated.

Before proceeding to consider the submissions, a resume of the facts highlighted by the pleadings, the evidence led and the findings of the learned trial Judge appears to be desirable and will be of immense value.

It was common ground that the plaintiffs/appellants are the sons and heirs of the late Victor Obiora Samuel Egonu and that they are Osomari people.

It was also common ground that the late Victor Obiora Samuel Egonu was the eldest surviving son or okpala of the late Samuel Aniche Egonu of Osomari.

It was also common ground that the 3rd and 4th defendants are children of Michael Egonu who was one of the sons of late Samuel Aniche Egonu. It was also common ground that the 1st defendant/respondent was the mother of 2nd defendant/respondent and was married to Samuel Aniche Egonu in accordance with the Osomari native law and custom. More particularly, paragraphs 4, 5, 6, 7, 8, 9, 11, 12, 13, 16 and 19, of the Statement of Claim read:

“4. In 1924, the late Samuel Aniche Egonu sold to the plaintiffs’ father, the landed property verged yellow in the accompanying plan No. PO/E. 30/65.

5. The late Victor Obiora Samuel Egonu in exercise of his right of ownership over the land verged yellow in the plan No. PO/E./30/65 erected a number of buildings thereon, and these buildings included a storey building, a bungalow house and a bookshop. He also exercised maximum acts of ownership and possession over the said land.
6. After the death of Samuel Aniche Egonu, the plaintiffs’ father in accordance with the Osomari native law and custom allowed the wives of his late father including the 1st defendant and the mother of Job Okechukwu Chukwura (alias Egonu) to remain and live on the land verged yellow in the plan No. PO/E./30/65.
7. The 2nd defendant is living with his mother and John Okechukwu Chukwura (alias Egonu) from his birth lived with his mother until 1956 when he left. The mother of John Okechukwu Chukwura (alias Egonu) died in 1962; in 1964 John Okechukwu Chukwura (alias Egonu) came to Onitsha and the plaintiffs allowed him to lodge in the premises where his mother lived.
8. By his will made on the 8th day of February, 1936, the late Victor Obiora Samuel Egonu devised the land verged yellow in the plan No. PO/E.30/65 to the plaintiffs.
9. The late Victor Obiora Samuel Egonu died on the 21st August, 1937 and probate of his will was granted by the Supreme Court of Nigeria on the 15th day of May, 1938.
10. From the death of Victor Obiora Samuel Egonu, the plaintiffs have, through the executor and executrix of their father’s will, and by themselves exercised maximum acts of ownership and possession over the land devised to them by their father.
11. And in 1956, the plaintiffs in exercise of their rights of ownership over the land verged yellow in the plan No. PO/E.30/65 sold the portion verged green in the said portion verged yellow to one J. Obi.
12. The land now in dispute is the area verged PINK in the plan No. PO/E.30/65 and is now known as and called 40 New Market Road, Onitsha. The whole of the land verged yellow in the plan No. PO/E.30/65 was formerly known and called 46 New Market Road, Onitsha.
13. Despite the protests and warnings of the plaintiffs, the 1st and 2nd defendants dug and laid part of foundation of the building they are erecting on the land in dispute.
14. Since this action was brought the defendants have continued and threatened to continue with their acts of trespass on the land in dispute.”

A close study of the above pleadings must reveal to the discerning mind that the facts pleaded in paragraph 4 are in sharp conflict with the facts pleaded in paragraph 6 of the Statement of Claim. It appears to us that paragraph 2 of the Statement of Claim which reads “the said late Victor Obiora Samuel Egonu was the Okpala of the late Samuel Aniche Egonu of Osomari” is more in tune with paragraph 6 of the Statement of Claim than paragraph 4 of the Statement of Claim. If he were an owner by purchase and not as okpala of his late father, Victor Obiora Samuel Egonu would have no customary duty to allow his father’s widows to remain and live on the land in dispute.

However, the 1st and 2nd defendants/respondents together filed and delivered one Statement of Defence in reply which the 3rd and 4th defendants/respondents together filed and delivered a separate one though almost in identical wordings.

They traversed all the facts pleaded in claim of ownership and exclusive possession by the plaintiffs/appellants to the exclusion of the defendants/respondents. They denied the trespass alleged and pleaded lawful possession. The 2nd defendant assorted and claimed that he is a son of late Samuel Aniche Egonu born of lawful marriage under Osomari native law and custom. More importantly, the 1st and 2nd defendants pleaded in paragraph 4 of their Statement of Defence (and repeated by the 3rd and 4th defendants in paragraph 5 of their Statement of Defence) as follows:

“The 1st and 2nd defendants emphatically deny paragraph 4 of the Statement of Claim and will put the plaintiffs to a very strict proof of the allegation thereon contained. Apart from the area verged green in the plaintiffs’ plan which originally belonged to the late David Egonu a brother of the late Samuel Egonu, the late Samuel Egonu did not sell any portion of the land verged yellow in the plan.”

They then went on to plead in paragraphs 5, 8 and 9 as follows:

“5. The 1st and 2nd defendants deny paragraph 5 of the Statement of Claim. Any building erected on the land by the late Victor Egonu was in exercise of his right as one of the sons of the late Samuel Egonu and with his permission.

8. The 1st and 2nd defendants deny paragraph 8 of the Statement of Claim. They further say that the late Victor Egonu could not devise the whole land verged yellow in the plan No. PO/E.30/65 to anybody because on the death of Samuel Aniche Egonu, the land verged pink devolved to (i.e. on) all his male issues including the 2nd defendant.
9. If the late Victor Egonu paid all the out-goings, in respect of the land in dispute he did so as the head of Egonu family, but this could not confer on his absolute right to the land or to any part of it.
10. The 1st and 2nd defendants deny paragraph 11 of the Statement of Claim.” (Underlining ours)

The 3rd and 4th defendants who were added by order of court claimed their interest through Michael Egonu their late father and projected this in paragraph 3 of their Statement of Defence which reads:

“3. The 3rd and 4th defendants say that their late father Michael Egonu was also one of the sons of the late Samuel Aniche Egonu and that their father survived his father and inherited the land in dispute with the other sons of the said Samuel Aniche Egonu.”

The main issue raised in the pleadings therefore, and on which the fate of the plaintiffs’ claim rested was as to the sale of the land verged pink to the plaintiffs’ father, Victor Obiora Samuel Egonu, by their grandfather Samuel Aniche Egonu. The plaintiffs have not claimed a declaration of title by virtue of devolution on death intestate either under or by operation of customary law (i.e. native law and custom) or otherwise. Surprisingly, the reference to customary law (i.e. native law and custom) throughout the whole of plaintiffs’ pleading was to highlight their father’s concern for the welfare of the widows of their late grandfather Samuel Aniche Egonu. (See paragraph 6 of the Statement of Claim). It was the customary duty of the plaintiffs’ father to allow the widows of his late father including the 1st defendant and the mother of John Okechukwu Chukuma (alias Egonu) to remain and live on the land verged yellow.

There was, however, a very determined effort by the plaintiffs/appellants to prove the sale pleaded in paragraph 4. To this end, they produced Gregory Osuma to testify. His testimony-in-chief was bare of details normally accompanying sale of land under customary law. It reads:

“I know late Samuel Aniche Egonu as well as late David Egonu. I also know late Victor Samuel Obiora Egonu who was the son of Samuel Aniche Egonu. I also know Jacob Ekubeze Egonu. Samuel Aniche Egonu and David Egonu, and Jacob Ekubeze Egonu were full brothers. I have known the three Egonu brothers since 1904. …….. In 1917, David Egonu moved from his house at Egerton Street to No. 40 New Market Road and lived with his brother Samuel Aniche Egonu. ……….

Q. In 1904 when you knew the Egonus who owned the property now known as No. 40 New Market Road

Ans. It was owned by Samuel Aniche Egonu

Q. What happened to this property to your knowledge

Ans. In 1924 late Samuel Aniche Egonu sold the property at No. 40 New Market Road to his son Victor Egonu for 50pounds. Victor Egonu is now dead. …….

XXED by Egbu for the defendants : …..

It is correct that where the multi-storey building now stands formed part of the premises owned by Samuel Aniche Egonu. It is also correct that it was on the site of the present multi-storey building that late Victor Egonu built that house and lived. Late Victor Egonu built that house on or about the year 1925. It is correct that in 1925 David Egonu was already dead. Samuel Aniche Egonu was a title man in Osomari. He was quite well to do and was not in want. About 1924 Samuel Aniche Egonu had no other lands in Onitsha except his premises now known as Nos. 38 & 40 New Market Road. ………

Q. You learnt that Samuel Egonu sold his land to his son through Victor.

Ans. It is correct that it was Victor Egonu who told me of the sale by his father to him. But in addition, he, Victor invited me and other friends of his to witness the ceremony of this sale of land to him. I was present and I saw Victor bring 50Pounds and hand over to his father as purchase money. ……

The area sold by Samuel Aniche Egonu to his Victor was the entire premises now known as No. 38 and No.40 New Market Road. After the sale, the father, Samuel Aniche Egonu continued to live on the premises …. I was not taken round the premises during the ceremony but I know the premises well. ……It is correct that in 1924 where Victor Egonu built (Now No. 38 New Market Road) was an empty plot of land.”

On this issue of sale, the other evidence available on record which in our opinion, is of no probative value came from the 4th appellant (P.W. 6) and the will itself. In his testimony, the 4th appellant stated:

“Our family tradition is that my late father purchased the area verged yellow otherwise known as No. 46 New Market Road, Onitsha from his own father, Samuel Aniche Egonu. This was in 1924.”

The will Exhibit 4, contained the declaration of purchase in the 9th clause which reads:

“Let it be known that the compound and houses on the New Market Road, Onitsha belong to me exclusively and entirely. The old zinc house which has since been demolished together with the compound were given to me by my father for a payment of fifty pounds (50 Pounds) which he required for building a house at Osomari.

I bequeath unto all my male children the compound and houses on the said New Market Road including PERSEVERANCE VILLA the new bungalow, the shop and all furniture, Edward or the oldest surviving son always remaining in charge, provided also that Edward or the eldest surviving son undertakes the care and education of the rest of my children male and female and until the latter are married, and the said property to be regarded as belonging to my sons jointly, the oldest surviving son remaining in charge.”

That clause, particularly the first two sentences, in our view, constituted the basis on which the plaintiffs rested their case.

A mere declaration of ownership or transfer of title in a will does not prove ownership of the land or transfer of title to the land.

Despite his earlier testimony and without considering the fatal consequence of such testimony to the case put forward, the 4th plaintiff/appellant went on to testify as follows:

“I knew Samuel Aniche Egonu. He was my grandfather. He died in 1934. He was survived by three male children, namely, Victor Obiora, Samuel Egonu, (my father), Michael Egonu (the father of 3rd and 4th defendants) and Louis Egonu the Iyasele Onowu of Osomari. ………

Q. What is Osomari custom relating to inheritance of property

Ans. On the death of a father, his property whether land or personal devolves exclusively to his first son who is the okpala. My late father Victor Egonu was the first son of Samuel Aniche Egonu. He survived his father and should inherit him. My late grandfather died intestate. In that event his eldest son looks after his wives, provides accommodation for them during good behaviour.”

His testimony under cross-examination was even more damaging to the basis of their claim. It reads in parts:

“It is correct that my grandfather Samuel Aniche Egonu was survived by five wives including 1st defendant and my own paternal grandmother. All these five wives were living with my grandfather on the land in dispute”

On the issue of customary law of inheritance of Osomari people, the 5th PW., James Ijomah testified that

“On death of a father the eldest son inherits him”

More interesting is his evidence under cross-examination. It reads :

“Q. What happens when a father left 4 sons What will happen to the other three sons not okpala

Ans. The eldest brother may offer them help out of the inheritance.

Q. Under your custom, can the eldest brother drive away his younger brothers from the land

Ans. No, he cannot do that.”

This witness was a native of Osomari and a farmer by occupation. He was 70 years old and titled and a member of Igbu society. The respondents produced Gabriel Emejom (D.W.1) who testified that the eldest son or okpala takes over the charge of all the property left behind by his late father and that his other brothers have equal right to the property of their late father and that the property does not belong to the eldest son exclusively. He was an Ndiche in Osomari.

In his judgment to which we have already referred, the learned trial Judge rejected the evidence of sale, accepted the defence evidence of the law of inheritance under Osomari customary law, upheld the case put forth by the defence and dismissed the claim.

Before us, appellants’ complaint put forward by the 4th appellant and counsel for the other 3 appellants centres mainly around the evaluation and assessment of the evidence adduced. The 4th appellant (himself a legal practitioner), canvassing ground 1, submitted that the “plaintiffs claimed by the fact of sale from their grandfather to their father and by their father’s devise to them.” He further submitted that the sale was under customary law.

He conceded quite rightly, in our view, that a sale under customary law involves payment of money by the purchaser and delivery of possession by the vendor. Above all, these transactions must be in the presence of witnesses.

The 4th appellant contended that there were witnesses to the transactions and that P.W.3, Gregory Osuma was one of them. He laid emphasis on the various constructions the appellants’ father put up on the land as evidence of exercise of the right of ownership acquired through purchase and referred to the declaration in clause 9 of the will, Exhibit 4, as evidence of ownership.

He attacked with utmost ferocity the reasons given by the learned trial Judge for rejecting the evidence of sale or the story of sales and dubbed the reasons as untenable.

He further contended that even if sale was not proved the activity of the 1st and 2nd defendants constituted trespass.

He attacked the judge’s acceptance of the evidence of the defence on the various issues raised and submitted that the defendants were not truthful in their evidence.

He quite rightly contended that David Egonu’s descendants were not parties before the court but failed to appreciate the impossibility of avoiding any reference to evidence touching David Egonu and his interests in the land in dispute in view of the pleadings and the evidence both from the plaintiffs’ witnesses and the defence witnesses.

However, it was common ground that David Egonu did not occupy any part of the land in dispute i.e. the land edged PINK in Exhibit 1. That being so, it served no useful purpose dealing at such length as was done with the evidence which featured him and his interests in the area of land outside the land in dispute.

The 4th appellant also attacked the learned trial Judge’s opinion on the customary rights, interests and duties of okpala in Iboland in general, before proceeding to examine, evaluate and assess the evidence on the issue. He contended that his opinion coming as it did before the evaluation of the evidence in this particular case, foreshadowed and made the finding he arrived at a foregone conclusion.

On ground 6(a), he submitted that having been found to be co-owners, the plaintiffs/appellants were only liable to be non-suited in respect of the claims against and 2nd, 3rd and 4th defendants and entitled to succeed against the 1st defendant in respect of all the claims.

Finally, he submitted that the costs awarded were excessive.

Dr. Ume, learned counsel for the respondents was called on to reply only on the issue of whether a non-suit instead of an order of dismissal of the entire claim would have met the justice of the case in view of the finding of the learned trial Judge that the plaintiffs’ rights and interests in the land in dispute cannot be founded on the transaction of sale to their father by their grandfather but only on devolution under customary law of the rights and interests on death intestate of Samuel Aniche Egonu. He submitted that on the pleadings and evidence an order of dismissal was the only appropriate order.

On the issue of facts, it is settled law that the appeal court cannot ordinarily descend into the arena of contest and usurp the functions of the trial judge and jury in the evaluation and assessment of evidence and arriving at findings of facts. It is only when in the discharge of these functions proper use has not been made of the opportunity of seeing and hearing the witnesses or wrong conclusions have been drawn from accepted credible evidence or an erroneous view of the evidence adduced before the court has been taken or the findings of fact do not flow from the evidence accepted by the court that the appeal court can interfere with the findings of fact.

See Chief Shogbo Fabumiyi & Anor. v. Fatumo Temitoyin Obaje & Anor. (1968) NMLR 242

See Omoregbe v. Edo (1971) 1 All NLR. 282 at 289

See Alhaji Elias v. Suleimon & Ors. (1973) 12 S.C. 113

See Fashanu v. Adekoya (1974) 1 All NLR 35 at 41.

The 4th appellant and learned counsel for the 1st, 2nd and 3rd appellants have been unable to satisfy us that the condition precedent to the assumption of jurisdiction to disturb the findings of facts exists.

The 4th appellant who argued the appeal at length and who had every sentimental cause to be displeased at the learned trial Judge’s rejection of the evidence of sale adduced by Mr. Gregory Osuma (P1/W.3) was unable to satisfy us that the evidence given by Gregory Osuma if accepted, proved a sale of land and transfer of title to land under customary law. The sum total of his evidence was that he witnessed the payment of 50Pounds by Victor Obiora Samuel Egonu to Samuel Aniche Egonu. He did not witness the demarcation and delivery of possession of the land sold.

Over the years, it is one of the oft repeated catch phrases but a well settled principle of law that in a claim for a declaration of title the plaintiff must succeed on the strength of his own case (evidence) and not on the weakness of the defence (evidence) although any evidence adduced by the defence which is favourable to the plaintiff’s case will go to strengthen the case for the plaintiff.

See Kodinlinye v. Mbanefo Odu, 2 WACA 336 at 337

See Josiah Akinola & Anor. v. Fatoyinbo Oluwo and 2 ors. (1962) 1 All NLR. 224 at 225

See Idundun & ors. v. Daniel Okumagba (1976) 9 and 10 S.C. 227.

We observe that there are no facts in the plaintiffs’ pleadings or evidence tending to show the law governing the transaction, whether it was a sale under native law and custom or under English law. But before us here the 4th appellant submitted that it was a sale under native law and custom. We also observe that the nature of title Samuel Aniche Egonu had which he was alleged to have transferred to Victor Obiora Samuel Egonu was not pleaded or given in evidence. However, before us here, the 4th appellant has conceded that to constitute a valid sale and transfer of land, there must be payment of money and delivery of possession of the parcel of land sold in the presence of witnesses. The universality of this custom among Nigerians is not in doubt. Two cases readily come to mind where this court had occasion to accept the statement of the elements of a valid sale of land under customary law.

In the first case of Cole v. Folami (1956) 1 FSC 66 at page 68, Jibowu Ag. F.J. (as he then was) delivering the judgment of the court said:

“appellants’ counsel further argued that by native law and custom a valid sale of land could be conducted without the necessity for a conveyance under English law by mere handing over of the purchase money by the purchaser and by the delivery up of possession on the other hand by the vendor. There is no question about this but the transaction must be before witnesses.”

This statement was also adopted with approval by this court in the case of Erinosho v. Owokoniran & anor. (1965) NMLR 479 at 483 when Idigbe, JSC., delivering the judgment of the court said:

“We observe that there is not sufficient evidence on the exact nature of the transaction between Morinatu Oladiran and the Fafunwa branch of Ojomo Eyisha family. Was it a sale under native law and custom or under English law In order to transfer an absolute title under native law and custom it is necessary that such a sale be concluded in the presence of witnesses, who saw the actual handing over of the property from the Fafunwa branch of the family to Oladiran (see Cole v. Folami (1956) 1 FSC. 66). In order to transfer title under “English law” a deed of conveyance in respect of the same should have been executed in favour of Oladiran by the Fafunwa branch of the Ojomo Eyisha family; if the sale under English law was imperfect then on the evidence that Oladiran bought the land and went into possession, she acquired merely an equitable interest in the land.”

when therefore Gregory Osuma testified that

“after the sale the father Samuel Aniche Egonu continued to live on the premises ….. I was not taken round the premises during the ceremony.”

and the 4th appellant himself testified that

“It is correct that my grandfather Samuel Aniche Egonu was survived by five wives including 1st defendant and my own paternal grandmother. All these five wives were living with my grandfather on the land in dispute.”

they were in effect saying that Samuel Aniche Egonu did not deliver possession of the land in dispute to his son, Victor Obiora Samuel Egonu despite the improvement he was alleged to have made to some portions of the land. If, as alleged, the sale took place in 1924, and Samuel Aniche Egonu died in 1934, without delivering possession to Victor Obiora Samuel Egonu, it was logical to assume that the sale was cancelled or abandoned, and as the learned trial Judge rightly did, to reject the evidence of Gregory Osuma about the sale and find that no sale had been proved. (see M.E.P.C Ltd. v. Christian-Edwards (1978) 3 WLR 230)

We are ourselves in entire agreement with the learned trial Judge’s finding that the plaintiffs failed to discharge the onus of proof placed on them by their claim and pleadings.

Parties are bound by their pleadings. [Per Lord Radcliff in Esso Petroleum Co. Ltd. v. Southport Corporation (1956) Ac 218 at 238 and 241]. We find no circumstances to justify a departure from the rule the plaintiffs must be held to the case put forward in their writ of summons and pleadings. [per Brett, JSC., in African Continental Bank Ltd v. Attorney-General of Northern Nigeria (1969) NMLR 231].

A court is without power to award to a claimant that which he did not claim. [Etim Ekpenyong & 3 ors. v. Inyang Effiong Nyong & 6 Ors.(1975) 2 S.C. 71 at 80]. The plaintiffs claimed (declaration of) title not by devolution on death of their grandfather but by purchase founded on clause 9 of Exhibit 4 already set out above but which is for emphasis again repeated hereunder and reads:

“Let it be known that the compound and houses on the New Market Road Onitsha belong to me exclusively and entirely. The old zinc house which has since been demolished together with the compound were given to me by my father for a payment of fifty pounds which he required for building a house at Osomari.”

We observe on a closer study that throughout his evidence, the star witness Gregory Osuma (P.W.3) and indeed the only witness to testify on the issue never said the old zinc house and the compound were given to Victor obiora Samuel Egonu by his father. According to him, he only witnessed the payment of money which the vendor placed on the “Ikenga.”

The very many questions raised by this clause 9 of the will were never answered and the projection of Mr. Gregory Osuma into the whole transaction as a witness gave a slant to the transaction which the clause did not convey. The declaratory sentence in the clause, underlined above, in our view, conveys an impression of kindness for kindness rather than an impression of a business transaction of buying and selling. Does a father in such circumstances make a gift of the only valuable asset to his okpala We think not and there is no proof of such a gift.

We can therefore find no substance in ground 2 of the grounds of appeal.

Grounds 3(b), 3(c) and 3(d) are complaints about the learned trial Judge’s finding on the issue of sale. They only tend to emphasise the point that the plaintiffs/appellants claimed title by purchase and not by inheritance. We also find no substance in these grounds.

Turning to ground 5(a), we agree with the 4th appellant’s submission that the issue of native law and custom of any particular area in Nigeria is, unless judicially noticed, a matter of evidence. We also agree with his contention that the better approach is to consider evidence on the issue and arrive at a finding before making any comments on its similarity or otherwise with other areas with ethnic affinity. The general comments of the learned trial Judge notwithstanding, he did consider the evidence of native law and custom adduced before him in this case by the plaintiffs’ only witness and two witnesses called by the defendants before arriving at a finding of what the native law and custom of Osomari on the issue of inheritance on death intestate is. We can therefore find no real substance in the complaint. A trial Judge has no duty to consider any material that is not evidence before him in arriving at a decision and it is the duty of parties and counsel to bring before the court all relevant and useful material that can prove to the satisfaction of the court the native law and custom they are setting up. Even at that, the issue of native law and custom in relation to intestate succession is not of real moment in this case as it was not the foundation of plaintiffs’/appellants’ claim. The defendants/respondents filed no counter-claim and could not have had any declaration in their favour.

Dealing with ground 6(a), the 4th appellant submitted that in view of the finding of the learned trial Judge that the plaintiffs/appellants and 2nd, 3rd and 4th defendants/respondents are co-owners under native law and custom, he should have entered a non-suit against the plaintiffs in respect of their claims against the 2nd, 3rd and 4th defendants and allowed their claims against the 1st plaintiff in respect of all the claims.

It is settled law that a plaintiff cannot make a case contrary to his pleadings [Cardozo v. Doherty 4 WACA 78 at 80]. The appellants having alleged and pleaded that Samuel Aniche Egonu devested himself of the ownership of the land in dispute by sale and transfer of it to Victor Obiora Samuel Egonu (his son) they cannot turn round to assert their father’s title by inheritance in support of their claim in these proceedings. The appellants did cast upon themselves the onus of establishing by evidence that very fact which they pleaded. Thomas v. Holder (1946) 12 WACA 78. Ochoma v. Unosi (1965) NMLR 321. Eze v. Igiliegbe 14 WACA 61 at 63. Having failed to establish the case put forward in their pleadings as a result of contrary credible evidence, the plaintiffs’ case was properly dismissed. The order of dismissal was the only order that the justice of the case in that event demanded. The facts proved and accepted by the learned trial Judge do not therefore justify, in respect of the claim against the 2nd, 3rd and 4th defendants/respondents, an order of non-suit which would leave the door open to the plaintiffs/appellants to relitigate the issue of purchase of the land by their father which they have tried to establish without success.

The rights and interests in the land in dispute which devolved on their father on the death intestate of Samuel Aniche Egonu, under native law and custom and which on their father’s death passed on to them were not put in issue by them to invite an exhaustive examination and determination of their nature and extent and we would point out here that since the claims against the respondents were not based on rights acquired by their late father by intestate succession under customary law, we see no justification for the fears expressed by the appellants that the order of dismissal of their claims necessarily deprives them of those rights and interests or their future protection by legal process. For the avoidance of doubt, we would like to make it abundantly clear that it is the case put forward by the defendants in their pleadings which acknowledged the plaintiffs’ late father, Victor Obiora Samuel Egonu as the okpala and attributed all the powers he exercised in respect of the land in dispute to his status as okpala under native law and custom.

Similarly, the facts established by the evidence accepted by the learned trial Judge do not entitle the plaintiffs/appellants to judgment in their favour against the 1st defendant/respondent. As said earlier, none of the defendants filed a counter-claim. None sought a declaration of title and as such the dismissal of plaintiffs’ claim does not amount to a declaration in favour of 1st defendant/respondent. Indeed the plaintiffs loudly professed that their father was under a customary duty to accommodate her and did provide her with accommodation on the land in dispute. plaintiffs’ father is dead, and the 1st defendant lives with her son on the land in dispute. plaintiffs, according to their evidence, cannot eject the 2nd defendant/respondent. There is no evidence of any breach of customary tenancy that could lead to the expulsion of the 1st defendant. Further, there is no evidence as regards the devolution of the powers of the okpala or the person whom the powers have devolved.

We think that the learned trial Judge was, in the light of the plaintiffs’ pleadings, perfectly right in not entering a non-suit against the plaintiffs and justified in dismissing the claims against all the defendants/respondents. (See Sir Adesoji Aderemi v. Joshua Adedire (1966) NMLR 398 at 403; Chief Odum & Ors. v. Chief Chinwo & Ors. S.C. 305/1976 delivered by G.S. Sowemimo, JSC., on 21st July, 1978 (yet to be reported).

Ground 6(a) therefore fails.

Turning to ground 7 of the grounds of appeal, we see no justification in reducing the costs ordered. This ground is totally without any merit.

The appeal fails and is hereby dismissed.

The judgment of Oputa, J., in suit No. 0/64/1965 dated 17th March, 1975, together with the orders as to costs, is hereby affirmed.

And the appellants shall pay costs in this appeal in this court assessed at N381.00 (three hundred and eighty-one Naira).

---

Other Citation: (1978) LCN/1969(SC)

Jackie Phillips Photos Ltd. v. Far East Mercantile Co. Ltd (1974)

LawGlobal-Hub Lead Judgment Report

D. O. IBEKWE, J.S.C 

This is an appeal from the decision of the Lagos High Court, Lambo J., as he then was, allowing the plaintiffs’ claim for damages for wrongful execution against the defendants.

The facts of this case are interesting. As is sometimes the case in the business world, one Jackie Phillips, who is the principal actor in this case, is reputed to be the founder of the following inter-locking companies:- (1) J.P. Investment Ltd., (2) Jackie Ltd., (3) Viewcards Ltd., and (4) Jackie Phillips Photos Ltd. As a matter of fact, the last-named company, Jackie Phillips Photos Ltd., is virtually owned by him. In the words of Jackie Phillips himself:

“In the Plaintiff/Company I hold 99%, the remaining share is owned by my sister-Lydia Oyedele.”

It happened that Jackie Phillips was a defendant in Suit L.D. 123/67 in which the Far East Mercantile Co. Ltd., the present defendants were the plaintiffs. Judgment was given in favour of the plaintiffs in that case against Jackie Phillips personally. When however, the judgment debtor (Jackie Phillips) failed to satisfy the judgment debt, the present defendants in their capacity as the judgment creditors in the former suit, took out a writ of fieri facias against him.

It is relevant to observe here that at the time the writ of execution was issued, Jackie Phillips, the judgment debtor-was also the Managing Director of Jackie Phillips Photos Ltd., a limited liability company who are the plaintiffs in the present case. Incidentally, the plaintiffs’ principal witness at the trial of the present action was ‘this same Jackie Phillips. Part of the evidence given by him, and which was accepted by the learned trial Judge, was to the effect that nearly all the goods in the premises which he then occupied belonged to the plaintiffs, Jackie Phillips Photos Ltd., and not to him personally.

On the 26th September, 1967, the bailiff, acting on behalf of the Far East Mercantile Co. Ltd., the present Defendants, who as we have already remarked, were the judgment creditors in the former case (suit No. L.D. 123/67) levied execution on, and places under seizure, several articles found at the premises of Jackie Phillips, the Managing Director of Jackie Phillips Photos Ltd., (the plaintiffs in the present case). It was stated in evidence by the plaintiffs that, throughout the operation, both the bailiff and the defendants were repeatedly warned that the properties upon which they were levying execution belonged not to Jackie Phillips personally, but to the company; but that the defendants were adamant. The plaintiffs’ story on this point was accepted by the learned trial judge.

On the 24th day of January, 1968 the plaintiffs, Jackie Phillips Photos Ltd., commenced this action against the defendants, the Far East Mercantile Co. Ltd., claiming “fifteen thousand pounds (15,000) being special and general damages for wrongful and malicious execution levied on attachment of, or trespass to, the plaintiffs’ goods on the 26th September, 1967.” The plaintiffs also set out the particulars of special damages suffered by them as follows:

“1. Special Damages:

(i)Loss of Commission 6,000…d

(ii) Repairs to boat 212:15…d

(iii) Repairs to trailer 35…….d

(iv) Cost of Three chairs and one divan damaged 298….d

Cost of repairingdamaged T.V. Set

(vi) Cost of radiogramCompletely damaged 220: : d

General Damages 8,209: 9:5d

TOTAL 15,000: : d”

Pleadings were ordered and filed, and the case then proceeded to trial. Suffice it to say that it was in respect of the ownership of the goods seized by the bailiff that the decision in this case was given. In a reserved judgment, the learned trial judge, Lambo J., decided the issue of liability in favour of the plaintiffs, and after a careful review of the evidence before him, stated as follows:

“I am clearly of the opinion that the goods itemised under the claim for special damages are the property of the Plaintiff Company against which the Defendants had committed acts of trespass by reason of their unlawful attachment of those goods.”

Finally, the learned trial judge then dealt with the items of special damages as pleaded and, after a careful consideration, awarded damages against the defendants as follows:

SPECIAL DAMAGES

(a) Loss of Commission 6,000:…:…d

(b) Repairs to Boat 212:15: d

(c) Cost of Radiogram

completely damaged 220: : d

It is from this decision of Lambo J., in the Lagos High Court that the defendants have now appealed to this court.

Arguing the appeal before us, Mr. Fola Sasegbon launched a formidable attack on the judgment of the learned trial judge. Learned Counsel first drew our attention to a certain passage of the judgment, and then submitted that the trial judge erred in law in applying the provisions of section 145 of the Evidence Act Cap. 62 as he did, without in any way adverting his mind to the peculiar circumstances of the case before him. The portion of the judgment complained of reads as follows:

“It is clear to me that at the material time the Plaintiffs were in possession of the attached goods and this raised in their favour the presumption of ownership; the attitude of the Defendants and their agents on the other hand, was that they were not the owners and so must prove that the goods did not belong to them. However, under section 145 of the Evidence Act Cap. 62, the burden of proving this fact is on the Defendants, and not on the Plaintiffs. Section145 reads as follows:

“When the question is whether any person is owner of anything of which he is shown to be in possession, the burden of proving that he is not the owner is on the person who affirms that he is not the owner.”

In my opinion the Defendants have failed to prove that the Plaintiffs are not the owners of those goods unlawfully attached by them.”

Mr. Sasegbon’s main contention is that, there are extenuating circumstances, surrounding the present case, whereby Jackie Phillips appears, so to say, to enjoy dual personality,” it would be unreasonable to base the determination of ownership of the attached goods on a presumption rather than on positive evidence. According to learned counsel, it is almost impossible to draw any hard and fast line between the identity of Jackie Phillips as the Managing Director of Jackie Phillips Photos Ltd., and Jackie Phillips the judgment debtor simpliciter; for, there seems to be two persons in one.

We agree with learned counsel for the appellants that, in so far as ownership of the attached goods is concerned the unique nature of this case does not seem to warrant a mere presumption in favour of either party, because of the ‘dual personality’ of Jackie Phillips to which, we have already refeited. We think that the question of ownership of the goods attached in the present case calls for proof and not presumption. It seems to us that there is substance in the complaint made by Mr. Sasegbon in this regard.

We have therefore, come to the conclusion that the learned trial judge erred when he presumed that the onus was on the defendants to prove that the plaintiffs are not the owners of the attached goods. In our view, the burden lay squarely on the plaintiffs to prove that they are the owners of the goods, which they claim were unlawfully attached by the defendants, since ostensibly they were in the possession of Jackie Phillips.

Be that as it may, we are satisfied that no mis-carriage of justice has thereby been occasioned as a result of this particular error into which the learned trial judge has fallen. Clearly, the course adopted by him in this regard was uncalled for, more especially as there was before him ample evidence adduced by the plaintiffs in support of their claim to ownership of the attached goods were the properties of the plaintiffs/respondents.

We see no reason, therefore, to disturb the decision of the learned trial judge on this ground of appeal. As we have stated, counsel for the appellants placed great reliance upon this error committed by the trial judge, and it seems to us only fair that we should deal with it at some length, although we think that it does not at all stand in the way of our decision. On the whole, we are satisfied that the issue of liability was properly decided by the court below.

It is good law to say that under a writ of fieri facias, the bailiff or any other officer of the court is permitted only to seize the goods of the judgment debtor, and that if he seizes any goods of a third party, he does so at his peril. Under the common law rule, a Sheriff who seizes and sells goods not belonging to the judgment debtor makes himself liable in conversion to the true owner. The Sheriff’s liability under the common law seems to be absolute; it operates, unless and until it is modified by statute. We are not aware that such statute has yet been made in this country.

We observe however, that under our law, by reason of Order II, rule 29(2) of the Judgment (Enforcement) Rules made under section 94 of the Sheriffs and Civil Process Act.Cap. 189, p.2309, Laws of the Federation of Nigeria and Lagos, the judgment creditor is liable for damage arising from any irregular or illegal proceedings taken at his instance. But that does not relieve the Sheriff and Bailiffs of any liability, which they would otherwise incur. For ease of reference Order II, rule 29(2), referred to above, is set out as follows:

“The party prosecuting the judgment shall be liable for any damage arising from any illegal or irregular proceeding taken at his instance.

It is evident that all that the above-mentioned rule does is to make the judgment creditor vicariously liable for any illegal or irregular proceeding taken on his behalf by the bailiff or any officer of the court. But the tortious liability of the Sheriff, Bailiff, or any other officer of the court at common law for wrongful execution still remains unchanged..

In the case before us, there is uncontradicted evidence that the [defendants] and their solicitor were, indeed, present at the scene of execution, and that they not only defied, but even prevailed upon the Bailiff to ignore the repeated warnings issued by the first plaintiff witness, Jackie Phillips, that the attached goods were not his personal property; and that they belonged to the plaintiffs. In the circumstances, we think that it was open to the learned trial judge to find as he did that the defendants/appellants were liable for wrongful and malicious execution.

It now remains for us to deal with the issue of special damages as awarded by the trial judge. For the purpose of accuracy, the special damages awarded by the lower court are, once again, set out as follows:

SPECIAL DAMAGES

(a) Loss of Commission 6,000: …:…d

(b) Repairs to boat 212:15:…d

(c) Cost of Radiogram

(completely damaged) 220: …:…d

Total 6,432: 15:…d

We shall now review them item by item:

As to item (a): loss of commission. We disallow this sub-head without hesitation. It is our view that this claim sounds too remote; in any case, it lacks strict proof which is what the law demands. According to the evidence led at the trial, the plaintiffs were to sell the view-cards to the Viewcards Ltd. And as we have stated earlier on in this judgment, Viewcards Ltd. is one of the inter-locking companies founded and registered by Jackie Phillips. The Viewcards Ltd., in turn, were to sell the cards to the A.G. Leventis Company on a speculative commission basis. It is important to stress here that there is no privity of contract between A.G. Leventis Company and Jackie Phillips Photos Ltd., the plaintiffs in this case. And as the Viewcards Ltd. are not parties to the present action, the claim by the plaintiffs under this sub-head does not seem to us to be tenable.

Now as to item (b): There is ample evidence in the record of appeal in support of this particular claim. The learned trial judge accepted that piece of evidence and, therefore, awarded the plaintiffs that amount. We consider the award just and equitable.

Finally, as to item (c): We doubt, without reaching a conclusion, whether the plaintiffs could recover the sum 0220:d, which represents the full value of the radiogram that was damaged. Curiously enough, no evidence was led in the court below as to the age of the radiogram at the material time; consequently, no account was ever taken of depreciation. Furthermore, the defendants never raised this issue at the time of trial; rather, they attacked this particular item of claim on an altogether different ground. And as the learned trial judge rejected the defence on this point, we, too, have reluctantly decided to allow the award under the sub-head to stand.

In consequence of the views which we have expressed the plaintiffs are entitled to 6,432: 15:0d less 6,000, the balance of which is 432: 15:0d. We accordingly award 432: 15:Od to the plaintiffs.

The appeal therefore fails on the substantive issue and it is dismissed. We however, amend the figure awarded from 6,432: 15:0d to 432:15:0d (N65.50). And this shall be the judgment of the court. In view of the turn, which the appeal has taken, we will make no order as to costs in this Court.

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Other Citation: (1974) LCN/1858(SC)