Nnanta Orianwo V. L. O. Okene (2002)

LAWGLOBAL HUB Lead Judgment Report

OGUNDARE, JSC

In Suit No. PHC/119/81 in the Port Harcourt Judicial Division of the High Court of Rivers State, Nnanta Orianwo, Richard Wosu, Franklin Amadi, Thomas Acho and Boniface Elewa, for themselves and on behalf of Rumuorianwo Wogozo Family (hereinafter are referred to as Plaintiffs) sued L. O. Okene, Harrison Okene and Maxwell Okene, for themselves and as representing the Okene Amadi Family (hereinafter are referred to as Defendants), claiming as per paragraph 24 of their amended statement of claim:

“(i) A declaration of the plaintiffs customary right of occupancy to all that piece or parcel of land known as and called ‘Ohia Otuloro’ lying and situate at Rumuokwurusi, Obio, Port Harcourt, which said piece or parcel of land is more particularly delineated and verged red on the survey plan No. FO/1A/82 L.D. annexed to this statement of claim.

(ii) N50,000.00 (fifty thousand Naira) being general damages for trespass committed by the defendants on the portion of the plaintiffs said land outside the area verged brown on the said survey plan;

(iii) A perpetual injunction to restrain the defendants and each of them whether by themselves, their servants, agents or otherwise howsoever from entering the plaintiffs said land or ever interfering with the plaintiffs in their possession, occupation, use and enjoyment of their said land, save and except the said portion of land verged brown.”

Pleadings were filed and exchanged and, with leave of court, amended.

Shortly after the above suit was instituted, Harrison Okene and Emmanuel Okene, on behalf of themselves and other members of Okene Family instituted a cross action in suit No. PHC/126/81 CLAIMING FROM Fyneface Lawa, Cyprian Lawa and James Achor:-

“1. the sum of N20,000.00 as special and general damages for trespass committed on the Plaintiffs’ land known as ‘OTULORO’ situate at Rumuwokerebe Village, Rumuokwurusi within the jurisdiction of this Honourable Court;

2. perpetual injunction restraining the defendants, their privies, agents and servants from further acts of trespass on the said land.”

Following the death of Harrison Okene, Lawrence Okene was by order of court substituted in his place. Pleadings were ordered, filed and exchanged and, by leave of court, amended. The plaintiffs in the action also filed a reply to the statement of defence.

As the two actions related to the same land and were between the same families, the suit No. PHC/126/81 was, on the application of learned counsel for the parties in the case, transferred by order of court to the court handling suit No. PHC/119/81 presided over by Ungbuku, J. as he then was. And on the application of plaintiffs in suit No. PHC/126/81 and defendants in suit, No. PHC/119/81, the two suits were, by order of court made on 31/10/85, consolidated. It was further ordered that-

“By this consolidation the Plaintiffs in Suit PHC/119/81 are the Plaintiffs and the defendants in the said suit who are plaintiffs in Suit No. PHC/126/81 are the defendants”

At the trial, Plaintiffs called 6 witnesses in support of their case. The Defendants called 5 witnesses. At the conclusion of trial and after addresses by learned counsel for the parties, the learned trial judge (Ungbuku, J) in a well considered judgment found for the Plaintiffs and entered judgment in their favour in terms of their claims in Suit No. PHC/119/81; he dismissed the Defendants’ suit No. PHC/126/81.

The Plaintiffs’ case is that one Wokerebe was the original owner of the land known as “Ohia Otuloro” in Rumuokwurisi Village, Obio, Port Harcourt. Wokerebe (or Okerebe) lived many years ago. At his death he left behind 9 sons named (in order of seniority by age) Wosu, Wogozo, Ikeani, Wuche, Chukwuntu, Amadi, Wolu, Ndumati and Okekem. The Plaintiffs descended from Wogozo while the Defendants descended from Amadi. Only Wosu, Wogozo, Ikeani and Wuche were adults at the time of the death of their father Wokerebe and it was only these four sons that performed the burial rites of their father and took part in the sharing of his estate. The other five sons being minors, did not share in the estate of Wokerebe; they were instead given to the older sons as wards. Amadi, Defendants’ ancestor was given as ward to Ikeani who took him in and gave him land to settle upon. It is the case of the Plaintiffs that according to Ikwerre custom only male children who performed the burial rites of their father can inherit his estate. The five sons of Wokerebe, that is, Chukwunta, Amadi, Wolu, Ndumali and Okekem, being minors at the time Wokerebe died, did not take part in his burial rites and, therefore, did not inherit in his estate. Wokerebe’s lands were shared between Wosu, Wogozo, Ikeani and Wuche. The land “Ohia Otuloro” was shared between Wosu and Wogozo; an ancient footpath marked their boundary.

When Amadi was living with Ikeani, he committed adultery with Ikeani’s wife for which Ikeani drove him away from his land. Amadi sought refuge with Wogozo who gave him part of his “Ohia Otuloro” to settle. Amadi soon got into another trouble. Wogozo had died then and had been succeeded by his son Orianwo. Amadi killed the cow of one Chief Okpoko of Maleri village and dumped the carcass in a pit. Chief Okpoko grew annoyed and invoked his “juju” to punish the wrongdoer. The juju killed some of Amadi’s children; only his son Okene escaped death. Amadi, in fear of his life, had to run back to Ikeani’s land with his son Okene. Ikeani had died then. Amadi was taken back and resettled on the old land given him by Ikeani. There he lived and died and was buried. His son Okene also lived there. When Okene’s family grew large and the land became insufficient for them to live on, Okene in 1946 approached the Plaintiffs family for permission for his children to reoccupy part of Plaintiffs’ land that was previously given to his father, Amadi by Wogozo. Onyenweibea was the head of Plaintiffs’ family at that time. Onyenweibea gave permission to Okene who settled thereon his children Harrison Okene, Maxwell Okene and Emmanuel Okene, all of whom built houses on the land. The portion of Ohia Otuloro given to Amadi and on which Okene’s children later settled is demarcated on Plaintiffs’ land Exhibit A in this case. Plaintiffs remained in possession of the rest of Ohia Otuloro belonging to them. Okene and his first son Isiah Okene lived and died in Ikeani’s compound and were buried there.

In 1964 it was discovered that someone had planted some palm tree seedlings on the land. As the plantation did not belong to any member of Plaintiffs’ family, they went on the plantation and cut down the seedlings. Emmanuel Okene who owned the plantation did not complain nor sue the Plaintiff’s. Some of the palm tree seedlings survived and in 1971 Plaintiffs again went on the plantation and destroyed those that survived. Some members of Plaintiffs’ family later built on portions of the land without any disturbance from the Defendants or any one else. One of the houses was occupied by one Dr. Kolade who was running a medical clinic there. People around the area including the Defendants, attended Dr. Kolade’s clinic. In 1981, Charles Okene of the Defendants’ family went outside the area given his family to build on the land in Plaintiffs’ possession. The Plaintiffs protested and subsequently instituted the action leading to this appeal.

The Defendants admitted the history that Wokerebe was the common progenitor of the parties and the original owner of Ohia Otuloro. They also admitted that Wokerebe died and left behind 9 sons. They gave the names of the 9 sons as Wosu, Wogozo, Ikeani, Nwuche, Chukwurutu, Okene, Amadi-Ndukuru, Amadi-Wolu and Ndumati. They admitted that the Plaintiffs descended from Wogozo but claimed that their own ancestor was Okene and not Amadi as claimed by the Plaintiffs. They admitted in evidence that when Wokerebe died only the first four children were married and owned their own houses; the remaining 5 sons, including Amadi their ancestor, were not married then and had no houses of their own because they could not afford it. They claimed, however, that all the 9 sons inherited their father’s estate and that the land Ohia Otuloro was given to Amadi, their ancestor. Okene, Wokerebe’s son begat Amadi who in turn begat Okene, Nwosu, Enwudebe and Enwumelu. They claimed that when Okene died his son Amadi continued to live on the land Ohia Otuloro inherited by Okene. They also claimed that Amadi’s slaves killed a cow belonging to Okpoko and the latter in consequence invoked his juju. The juju killed Amadi and three of his children, leaving only his son Okene. Amadi left Okene in the care of Amadi Ikeani, his relation. On the death of Amadi Okene and for fear of Okpoko, Amadi Ikeani took Okene into his care and gave him land to settle on. Okene grew up, and lived in Ikeani’s compound and raised up his family there. He did not return to Ohia Otuloro. In 1946 when the land given to him in Ikeani’s compound could not contain his family, he took some of his sons to build houses on Ohia Otuloro and to live there. Okene lived, died and was buried in Ikeani’s compound. His children, Harrison Okene, Maxwell Okene and Emmanuel Okene built houses on Ohia Otuloro and in 1963 established a palm plantation on the land. They harvested the plantation until 1981 when Plaintiffs came to set it on fire. James Achor and Nwanele also came on the land and started to erect buildings on it. As a result of these acts they instituted their action PHC/126/81.

The Defendants admitted in evidence that according to Ikwerre custom any male child who does not participate in the burial rites of his father does not inherit in the father’s estate. They also admitted that some members of Plaintiffs’ family built on the land, particularly the one occupied by Dr. Kolade and they did nothing about it.

In his judgment, the learned trial judge after a review and evaluation of the evidence before him, found:

1. “I am convinced from the facts and circumstances of this case that the defendants are of the lineage of that son of Wokerebe called Amadi by the plaintiffs or Okene by the defendants.
2. “It is in evidence that the nine families, descendants of the nine sons of Wokerebe are existing still as separate identities. Corroborative evidence of whether Amadi or Okene was a direct son of Wokerebe can easily be got from any of the other family groups. It is only the plaintiffs who called Chief Abel Nwosu PW4 to corroborate their version. Chief Abel Nwosu is from Rumuwosu family, the first son of Wokerebe. Chief Jonathan Sam Amadi DW5, the defendants called, admitted that Wokerebe had nine children but did not mention their names.

The version of the plaintiffs on this issue is better preferred to that of the defendants.”

3. “I am convinced from the facts and circumstances so far considered, to hold that the traditional history of the plaintiffs, placed side by side with that of the defendants, is more probable to the truth than that of the defendants.”
4. “…….the poultry house, of Emmanuel Okene, the house of Harrison Okene and Maxwell Okene are all built within the residential area of the defendants. The said houses are clearly shown in all the Survey plans, Exhibits A, B, C & D, tendered in evidence. From Exhibits A, B, C and D and the evidence of plaintiffs, the land in dispute excludes the residential area of the defendants. The residential area of the defendants is verged Brown in plaintiffs plan Exh. A, and is to the east of the land in dispute. The land in dispute is verged yellow in Exh. ‘A’ and it is only Charles Okene’s house that is there within. That house is the cause of action in PHC/119/81′
5. “It is true that Emmanuel Okene made a palm plantation on the land in dispute sometime 1963/64 but I do not accept the defendants claim that the said plantation was of 20 acres or as shown in their plans.”
6. “The defendants have not enjoyed uninterrupted acts of ownership and enjoyment over the land in dispute.”
7. “The defendants silence in their pleadings as regards these acts of the plaintiffs, is indicative of admission of the facts the plaintiffs assert.”
8. “The land in dispute as shown in all the survey plans tendered in evidence is almost identical, particularly the boundaries. On the north is the land of the plaintiffs, on the east is the residential area of the defendants, on the south is Rumuwosu family land and on the west is defendants land acquired from Rumucheta family in Mbuesilaru Village.”
9. “On the whole it was plaintiffs alone that called witnesses to prove the boundaries of the land in dispute.”
10. “I am inclined to believe and I do accept that the eastern boundary of the land in dispute is that shown in Exhibits A and B, the plaintiffs Survey plans.”
11. “I have considered the evidence of both parties on traditional history, acts of ownership, possession and enjoyment and of boundaries, over the land in dispute and I am convinced thereby to hold that the plaintiffs have proved their title, and possession over the land in

PAGE| 5

dispute and are therefore entitled to judgment.”

The learned trial Judge observed that, going by the case of the defendants, they appeared to be “a people trying to extend their territorial boundaries as a result of population growth”. It is upon the above findings that the learned trial Judge entered judgment for the Plaintiffs and dismissed the claims of the Defendants in Suit No. PHC/126/81. After entering judgment for the Plaintiffs, the learned Judge added:

“I make no particular order in respect of Charles Okene’s house which was completed during the tendency of this case because the plaintiffs did not ask for a particular relief.”

The Defendants were dissatisfied with the judgment against them and appealed to the Court of Appeal. The Plaintiffs, too, were not happy with the trial Judge’s addendum to his judgment on Charles Okene’s house and appealed against that part of the judgment.

The Court of Appeal allowed the Defendants’ appeal, set aside the judgment of the trial Court and entered judgment for the Defendants in the sum of N1,000.00 as general damages for trespass and injunction as claimed in Suit No PHC/126/81. The Court dismissed Plaintiffs’ claims in Suit PHC/119/81 and their cross appeal. In resolving the appeal before it, the Court of Appeal found, per Nsofor JCA who read the lead judgment of that Court:

1. “The trial Judge stated the issues, narrowly in my view, when he said:-

‘The name of the defendants’ ancestor to my mind is lesser evil than the issue of inheritance. The crucial question is whether or not the defendants’ ancestor by whatever name called, was a minor at the death of his father and inherited nothing from the father’s estate because he did not perform the burial rites of the late father.’

The issue, with due deference to the trial Judge was so narrowly formulated that he appeared to overlook gravamen of the contest, the back of it all on the pleadings and evidence as led. Each party had traced its genealogical history differently. The appellants have consistently maintained that Okene, through whom they claim the land in dispute, was a son of Wokerebe, and, that Amadi, whom the respondents asserted was their (appellants’) ancestor and, son to Wokerebe, was the son of Okene. Therefore, who or what Amadi was became material. So also, who or what Okene was, was material before it would be resolved whether either Amadi or Okene performed the burial rites of Wokere be. Unless and until it be found one way or the other, based on the evidence, who performed any rites and so entitled to participate in the partition of the Wokerebe’s lands would be a subsidiary question, a corollary to the principal question of who was who and, so what.”

2. “….the respondents, qua plaintiffs in the Suits as consolidated, not having proved the Ikwerre native law and custom on which they hoisted their claims in the context I discussed above, and the failure of the trial court to make findings on material and vital facts, it is my judgment, that judgment ought to be entered in favour of the appellants, qua defendants in the Suits as consolidated.”

It would appear that it is upon these two findings that the Court below disturbed the judgment of the trial High Court. This is manifested in the judgments of Nsofor JCA and Katsina-Alu JCA, as he then was. Uwaifo JCA, as he then was, appeared to add another issue, failure to prove the certainty of the land claimed by Plaintiffs, as another factor for finding against the Plaintiffs

The Plaintiffs have now appealed to this Court against the judgment of the Court of Appeal upon 6 grounds of appeal contained in a Notice of Appeal filed with the leave of this Court. The Parties filed and exchanged their respective briefs of argument; the Plaintiffs also filed a Reply Brief. The Plaintiffs formulated 6 questions as arising for determination in this appeal, to wit:

“1. Whether the learned Justices of the Court of Appeal were right in allowing the appeal on the ground that the trial Court had failed to make a finding of fact on the issue of the status of Amadi and Okene, when a finding of fact on that issue was actually made by the trial Court.

2. Whether the failure by the learned Justices of the Court of Appeal to consider the vital issue of ‘on whom the land in dispute vested on the death of Wokerebe’ had not occasioned a great miscarriage of justice.
3. Assuming that the issue as to the status of Amadi and Okene was not resolved by the trial Court, were the learned Justices of the Court of Appeal right in entering judgment for the Defendants/Respondents, having not by themselves resolved the issue in favour of the Defendants/Respondents?
4. Were the learned Justices of the Court of Appeal right in entering judgment for the Defendants/Respondents on the ground of the non-pleading by the Plaintiffs/Appellants of the Ikwerre Native law and custom of burial rites of deceased persons when what were the said burial rites had never been an issue in the case.
5. Were the learned Justices of the Court of Appeal right in not considering the Plaintiffs/Appellants cross-appeal and in making an order striking out the cross-appeal?
6. Were the learned Justices of the Court of Appeal right to have awarded damages to the

PAGE| 6

Defendants/Respondents in trespass and in making an order of injunction against the Plaintiffs/Appellants?”

The Defendants formulated 5 questions in their brief. I have compared their set of questions with that of the Plaintiffs. The two sets of questions raise more or less identical issues. I am, however, satisfied that, having regard to the grounds of appeal and the judgment appealed against, Plaintiffs’ set of questions is to be preferred.

I now come to consider the questions raised in this appeal. And in doing so I shall take Questions 1, 2 and 3 together.

‘Questions 1, 2 and 3:

Nsofor JCA in his lead judgment had criticised a passage in the judgment of the trial court where that Court had indicated that the crucial question in the case before it was whether or not the Defendants’ ancestor inherited nothing from Wokerebe’s estate. I have quoted earlier in this judgment what Nsofor JCA said. But for case of reference I shall quote it here again:

The learned Justice of the Court of Appeal wrote:

“The trial Judge stated the issues, narrowly in my view, when he said:-

‘The name of the defendants’ ancestor to my mind is lesser evil than the issue of inheritance. The crucial question is whether or not the defendants’ ancestor by whatever name called, was a minor at the death of his father and inherited nothing from the father’s estate because he did not perform the burial rites of the late father.

The issue, with due deference to the trial Judge was so narrowly formulated that he appeared to overlook gravamen of the contest, the back of it all on the pleadings and evidence as led. Each party had traced its genealogical history differently. The appellants have consistently maintained that Okene, through whom they claim the land in dispute, was a son of Wokerebe, and, that Amadi, whom the respondents asserted, was their (appellants’) ancestor and, son to Wokerebe, was the son of Okene. Therefore, who or what Amadi was became material. So, also, who or what Okene was, was material before it would be resolved whether either Amadi or Okene performed the burial rites of Wokere be. Unless and until it be found one way or the other, based on the evidence, who performed any rites and so entitled to participate in the partition of the Wokerebe’s lands would be a subsidiary question, a corollary to the principal question of who was who and, so what.”

SC. 116/1998

Oseni Aboyeji Vs Amusa Momoh & 2 Ors (1994)

LawGlobal-Hub Lead Judgment Report

ONU, J.S.C.

In the High Court of Ondo State at Ado-Ekiti, the plaintiff, now appellant claimed as against the three defendants, now respondents, for ownership and possession of a farmland at Imola on Aba Bolorunduro Road, Aisegba-Ekiti; N1,300 general and special damages for trespass and misappropriation of his crops and finally for injunction.

Pleadings were ordered, filed and exchanged with the respondents who filed a joint Statement of Defence, amending same before the case went to trial. The appellant testified and called witnesses to show-

(a) That in 1960 he was given a grant of land by one Aruwa (in his Statement of Claim he however averred that by a tenancy agreement between him and the chiefs of Aishegba-Ekiti he entered into an agreement for the piece of land and his tenancy agreement he would found at the trial). See paragraph 6 of the appellant’s statement of claim at page 22 of the record and compare same with his evidence at pages 57-59 of the record of appeal.

(b) At the trial the tenancy agreement was rejected in evidence when appellant sought to tender it.

(c) Appellant tendered the survey plan made in 1968 following his grant of the land and it was received for identification only

(d) Appellant called no boundary witnesses albeit that he pleaded their existence. One of the boundary men mentioned by him however testified as D.W.3 for the respondents while the second only appeared at the locus and there, contrary to expectation testified for the respondents.

(e) The boundaries he gave evidence of were not contained in his pleading.

(f) He failed to call as witness, his grantor be it Aruwa or any of the Aisegba Chiefs.

(g) At the inspection of the land in dispute, the appellant was found to be encircled by the lands of the respondents rather than as he pleaded that they (respondents) had a common boundary on one side or were adjacent to him, adding that he first sighted the respondents on the land in 1965 whereas his tenancy agreement which was technically rejected at the hearing for non-registration, he purported to have entered into in 1968.

The second respondent testified for the defence (the 1st respondent who was the late Olukare of Ikare, having died during the pendency of the suit) and called witnesses inclusive of:

(a) their grantor who asserted he made the grant of the land in dispute to them.

(b) a brother of the grantor who asserted he went to plot out the parcels for them. He stated the boundaries and added that he personally delivered their portions to them.

(c) their third and fourth boundary men were called and they testified in support of their claim to the land in dispute.

The learned trial Judge (Adeloye, J. as he then was) using the fact of his visit to the locus in quo and ostensibly taking into account other sentimental matters of the appellant being a stranger/settler from Omuaran in Kwara state and was therefore being mistreated as such a stranger element in other people’s land; coupled with an unpleaded fact that the two families of Aisegba and Iluomoba were involved in litigation over the larger piece of land encompassing the one in dispute, proceeded at the close of evidence to give judgment to the appellant for all his claims as hereinbefore set out.

Being dissatisfied with this decision, the respondents appealed to the Court of Appeal sitting in Benin, which upon hearing the parties, reversed the decision of the trial court by a majority of two to one and ordering appellant’s claims to be dismissed with costs.

Being aggrieved, the appellant has appealed to this court, filing a Notice of Appeal containing eight grounds.

Briefs of argument were filed and exchanged by the parties in accordance with the rules of court. Eight issues distilled out of the eight grounds were submitted for our determination. They are:-

1. Where an appeal court finds that the trial court had followed an illegal procedure during the trial and had based its judgment on evidence obtained illegally, and the appeal court sets aside the said judgment, what is the proper order which the appeal court ought to make, order of dismissal or order of retrial
2. Where the tenancy agreement is rejected in evidence because it was not registered, whether or not the tenant can give evidence of the relationship of tenant and landlord to prove the existence of the grant to him
3. Where an appeal court finds that a trial Judge had during the trial based his judgment on his view instead of on evidence whether a proper trial can be said to have taken place, and if not, what order should the appeal court make
4. Whether or not the interest of a plaintiff in possession should be protected until the true owner of the land is known
5. Where the most central and material conflict between the plaintiff and the defendant had not been resolved during the trial in the trial court, and the appeal court sets aside the judgment of the trial court, what is the appropriate order which the appeal court ought to make, order of dismissal or order of retrial
6. Whether or not the non-admission of the survey plan in evidence necessarily means that boundaries of the farm have not been proved
7. Where a tenant farmer is plaintiff in possession and his title is defective or not, namely, it is not yet confirmed whether his landlord or somebody else has legal title to the farmland, can the tenant farmer maintain an action in trespass and has he any interest in the farm or crops which the court of Justice must protect or enforce
8. Where a tenancy agreement is not admissible to prove title because it was registered, is the same tenancy agreement admissible for any other purpose

At the hearing of this appeal on 7th February, 1994 learned counsel for the respondents, Mr. Akanle submitted that he had brought a preliminary objection pursuant to order 2 Rule 9(1) and Order 6 Rule 5(1) (b) of the Supreme Court Rules to have all eight grounds of appeal struck out in that being grounds of mixed law and facts, no leave was sought and obtained from either the court below or of this court to argue them. Learned counsel for the appellant, Chief Adeoye, replied that while it was true that he never asked for leave, the grounds being those of law alone they were without more arguable. He therefore referred us to the Notice of Appeal at pages 162-166 of the records and touched on all grounds of appeal to demonstrate each was a ground of law simpliciter. We agreed with him, overruled the preliminary objection and so held all grounds to be arguable.

Learned counsel on either side thereupon relied on their briefs of argument. In addition, learned counsel for the respondents submitted that the appeal of the appellant be dismissed instead of ordering a retrial. As the respondents ostensibly adopts the issues formulated by the appellant, in my consideration of the appeal I shall proceed to deal with them serially hereunder thus:

ISSUE 1 –

In answering the 1st issue, it is pertinent to point out from the on set that the grouse therein applies mainly to the evidence taken at the locus. As learned counsel for the appellant concedes in the appellant’s Brief, the procedure followed by the trial court to obtain evidence there at was highly irregular. For instance, those who gave evidence thereat neither swore on oath nor by affirmation. Instead of swearing or affirming the witnesses; what the learned trial Judge did was to conduct an interview whereby he took or regarded all the answers he got as evidence in breach of section 76(ii) of the Evidence Act which provides inter alia.

“…In the case of such inspection being ordered or permitted, the court shall either be adjourned to the place where the subject matter of the said inspection may be and the proceedings shall continue at that place until the court further adjourns back to its original place or to some other place of sitting, or the court shall attend and make an inspection of the subject-matter only, evidence if any, of what transpired there being given in court afterwards …”

While I agree with the appellant’s submitted that the learned trial Judge in the instant case failed to comply with the mandatory provisions of the above sections as clearly restated in R. v. Togbe 12 WACA 184 and Awoyegbe & Anor v. Ogbeide (1988) 1 NWLR (Pt.73) 695 at 799 and 710. I would not subscribe to the view that evidence taken at the locus is a nullity and by extension, the entire judgment founded thereon. Rather the law, in my view, is that evidence wrongly obtained as happened at the locus in the instant case, is to be expunged or discountenanced by the appeal court. Such that if what remains of the evidence can still support the judgment, it stays, if not, it is reversed and an order of dismissal or retrial is made as the circumstances demand. See Ajayi v. Fisher (1956) SCNLR 279; (1956) 1 F.S.C. 90 at 92 and Yongo v. O.O.P (1990) 5 NWLR (Pt 148) 104 at 114 Indeed, as was held by this court in Seismograph Services Ltd v. Benedict Etedjere Onokpasa (1972) 1 All NLR (Pt. 1) 343 in which Chief Aaron Nwizuk v. Warribo Eneyok (1953) 14 WACA 354 was distinguished, the trial Judge’s own observations at an inspection of the scene are not facts and proceed to make findings on them, unless evidence thereon has been received at the scene or in court through a witness and the parties have been given an opportunity to hear the additional evidence and cross-examine on it. See Popoola Olubode & 2 Ors v. Alhaji Salami (1985) 2 NWLR (Pt.7) 282.

The fact that in the instant case evidence was no more given by witnesses in court after the visit to the locus and at the locus it considered irrelevant matters unconnected with what was pleaded by the parties, are not fatal to the proceedings in view of this court’s earlier decisions in Musa Maji v. Mallam Shewu Shaft (1965) NMLR 33 at 34 and Nwizuk v. Eneyok (supra). In Awoyegbe v Ogbide (supra), a case involving land allocation under Bini customary law and in which the two cases above were followed, this court held that a mere absence of a record of inspection of a locus in quo by the Judge (which is not what happened in the instant case) is not necessarily fatal to the case and that a statement by a Judge in a solemn judgment should be accepted as a correct account of what occurred. In that case Awoyegbe v. Ogbeide (supra) the statement made by the trial Judge in his “solemn” judgment, as in the instant case, not being a correct account of what occurred as no witness gave that evidence, this court held that he erred in law and that the Court of Appeal was right to have upheld the appeal before it on that ground. As Oputa, J.S.C put it in that case:

“In effect what the trial Judge had done was to treat his view of the locus as ‘findings’ in the case.”

It is perhaps pertinent in the instant case where the learned trial Judge erroneously but not fatally took into account unpleaded facts and evidence not before him, to re-echo Oputa, J.S.C’s timely warning with reference to the West Africa Court of Appeal’s case A. Ejidike & Anor. v. Christopher Obiora (1951) 13 WACA 270 at 274 where Sir John Verity Ag. President of the court said:

“….. in all cases in which a visit is paid by the court to the locus in quo in a civil action (and likewise in a criminal case) the Judge should be careful to avoid placing himself in the position of a witness and arriving at conclusions based upon his personal observations of which there is no evidence upon the record. When there is conflicting evidence as to physical facts, I have no doubt that he may use his own observations to resolve the conflict, but I do not think it is open to him to substitute the result of his observation for the sworn testimony nor to reach conclusions upon something he has observed in the absence of any testimony of oath as to the existence of the facts he has observed. Should he do so he would in my view, be usurping the position of the witnesses………….”

In the instant case, it is enough as observed above to either expunge the things stated at the locus in quo or to discountenance them as irrelevant and proceed to decide the rest of the case according to substantial justice.

In the instant case in hand, were the inadmissible evidence of the visit to locus have been admissible, the hopelessness of the appellant’s case as made, would still not have saved the situation. Hence, to urge that a retrial should be ordered would be unfair if not illegal, as I shall seek to show elsewhere in this judgment. Indeed, rather than appeal against the findings of the trial court and subsequently that of the court below on locus in quo, the appellant conceded to the irregularity thereat.

ISSUE 2:

In relation to issue 2, the law would clearly seem to recongnise the right in a tenant to give oral evidence of a tenancy agreement to prove the existence of the grant albeit that the document itself (tenancy agreement) is not produced or tendered. Be that as it may, the trouble in the instant case is the tenancy agreement or document of grant was rejected on the technical legal ground that it was not registered, while the oral evidence given by the appellant was hollow. That this is so can be gathered from the appellant’s own terse evidence on the point at page 57 lines, 30-33 of the Record of Proceedings. Said he when he was examined in Chief:

“About six years after I had been given the land Aruwa gave me a document of agreement. I signed the agreement. So too did Aruwa; I was given the document. I have kept in (sic) since.”

When it is known that in Paragraph 6 of his Statement of Claim the appellant had pleaded that:

“(6) In the year 1960, the plaintiff was granted the possession of a piece of land at a place called Imola on Aba Bolorunduro Road in Aisegba Ekiti by a tenancy agreement between the plaintiff and the Chiefs of Asegba Ekiti. The tenancy agreement will be tendered and is hereby pleaded.”

this piece of pleading derogates from or is not in consonance with the evidence set out above which he later gave when he testified before the trial court. The appellant therefore clearly deviated from his pleadings when in his testimony, he made a case otherwise than he therein pleaded. For instance, his evidence in chief that Aruwa gave him a document of agreement (not the chief of Aisegba, Ekiti) which both he (appellant) and Aruma signed, he was making a case other than as contained in his Statement of Claim. Such a piece of evidence where adduced goes to no issue. See N.I.P.C. v. Thompson Organisation & Ors. (1969) 1 NMLR 192 at 103-104; Emegokwue v. Okadigbo (1973) 1 NMLR 192 at 195; Maduabuchukwu v. Umunakwe (1990) 2 NWLR (Pt.134) 598 at 608; and Uredi v.Dada (1988) 1 NWLR (Pt.69) 237 at 246.

Besides, the appellant did not say specifically, who Aruwa was whether the head of Aisegba chiefs one of them or what! Hence, the onus that law on the appellant to prove his case by credible evidence in keeping with his pleading was not discharged. Indeed, appellant’s case was so wobbly that he damagingly made the fatal admission as part of his testimony at page 58, lines 25-27 thus:

“…I am claiming the farm not the land I am ready to pay Ishakola to the defendants if it happens that the land does not belong to Aruwa.”

Calling Aruwa’s son to wit: 3rd P.W. (Clement Faloye) to lend support to appellant’s case as submitted by learned counsel for the appellant, would have come to naught and of no avail in the light of his clear manifestation of the appellant’s non-investigation of the root of his purported grantor’s title to the disputed piece of land before entering into possession in 1960. When 3rd P.W. in fact came forward to testify for the appellant in support of the grant, nothing from his testimony left a tell-tale from which to decipher that Aruwa was a chief or one of the chiefs of Aisegba who as head, could dispose of the land. For its brevity and its capacity to do more harm than good to appellant’s case, I quote hereunder 3rd P.W.’s evidence at page 61 of the Record as follows:-

“I am a farmer. I know the plaintiff I know Aruwa he is my father. There was a transaction between plain tiff and Aruwa. Plaintiff was given land by Aruwa. I went with plaintiff to measure the land out to him. I told him the land belonged to Aruwa. Plaintiff cultivated the land and planted cocoa, kola-nut, plantain. I know the defendants …”

(the italics is mine).

The import of the underlined words is to bring out glaringly the fact that this piece of evidence led at appellant’s instance bore no relevance to his pleading in which his grantors are shown to be in the evidence adduced. Here, the submission of the learned counsel for the appellant that by the respondents’. Statement of Defence wherein they pleaded at paragraph 12 that –

“It was about 1965 that the plaintiff the land in dispute and laid claim thereto saying that some Chiefs at Aisegba had granted him possession of the land”

may be likened to an admission giving rise to the legal proposition that what is admitted needs no further proof. See Owosho v. Dada (1984) 7 SC. 149 at 163-164. This is because such a submission is erroneous and baseless. Thus, should one accept learned counsel for appellant’s submission which in essence is nothing but a right-about-turn he is making, his proposition that a customary tenancy needs not be in writing goes solidly against the grain of his pleading which relies for support on a purported written agreement. It is for this reason above anything else, that the trial court’s finding that the appellant’s and 3rd P.W.’s evidence went to no issue and the court below’s affirmation of same, is in my respectful view, unimpeachable.

ISSUE 3:

While in answer to this issue, I take the firm view that a decision based on a trial court’s personal view cannot be allowed to stand. See Ejidike v. Obiora 13 WACA 270 at 273-274; The State v. Aibangbee (1988) 3 NWLR (Pt.84) 548; in view of all I have said already under. Issue 1 above. where personal view hereinbefore discussed in relation to the visit to locus is discountenanced and it is acknowledged that the appellant’s case is incurably bad, his case ought to be dismissed. The consequence of all these is that an order for retrial is totally out of the question here. A retrial may be ordered when there has been no just trial and not, as in the instant case, when a party has failed to prove his case and in addition wants another opportunity of proving what he failed to prove in the first instance. See Duru v. Nwosu. (1989) 4 NWLR (Pt.113) 24 at 42; Elias v. Disu (1962) 1 SCNLR 361; (1962) 1 All NLR 214 at 219 and Onifade v. Olayiwola (1990) 7 NWLR (Pt.161) 130 at 161.

ISSUE 4:

This issue is as to whether or not the interest of a plaintiff in possession should be protected until the true owner of the land is known.

Suffice it here to say in answer to it that the appellant in the instant case failed woefully to prove his grant. In the first place, he called no grantor. Indeed, he pleaded one grantor to wit: Aisegba Chiefs but he gave evidence of another, namely, one Aruwa whose role was not known or stated. Secondly, the appellant did not prove the extent of his grant. It is an established principle of law that where a party pleads and relies on grant as his root of title, he is under a duty to prove such grant to the satisfaction of the trial court. So held this court in Chief O. Odojin v. Isaac Ayoola (1984) 11 SC. 72 at 106 and 116. In the case in hand, the appellant did not prove the extent of his grant 2nd P.W. (Yahaya Bello) and 3rd P.W. (Clement Faloye), having contradicted themselves as to its dimension. On the other hand, the respondents proved their grant with certainty and their grantor D.W.1. (Chief Ojo Boisa) testified on their behalf in confirmation thereof. The court below so upheld. Compare the case of Joshua Ogunleye v. Babatunde Oni (1990) 2 NWLR (Pt.135) 745 where there was no confusion on the part of the learned trial Judge as to the distinction between a grant and a title. In the instant case, however, there is an utter failure on the part of the appellant as plaintiff to simply establish who his grantor was and the extent of his grant therefore; a failure to which the learned trial Judge contributed in erroneously finding in his favour. Also in Ogunleye v. Oni (supra) where inter alia one of the issues submitted for the determination of the Supreme Court was what is required to prove by a plaintiff who relies upon a grant for his root of title to land, Nnaemeka-Agu J.S.C at pages 782-783, paragraphs A-H said:

“One significant off-shoot in this case is the apparent confusion by the learned trial Judge as to the difference between a grant and a title. He assumed that a proof of a grant necessarily amounted to proof of title. But in my respectful opinion it is not necessarily always so. No doubt, proof of a grant is one of the five ways of proving a title: See Idundun v. Okumagba (1976)9-10 SC. 227; also Piaro v. Tenalo (1976) 12 SC. 31 at page 37. But it would be wrong to assume, as the learned trial Judge obviously did in this case, that all that a person who resorts to grant as a method of proving his title to land needs to do is to produce the document of grant and rest his case. Rather, whereas, depending upon the issues that emerged on the pleading, it may suffice where the title to the grantor has been admitted, a different situation arises, in a case like this where an issue has been raised as to the title of the grantor. In such a case the origin of the grantor’s title has to be averred on the pleading and proved by evidence. See Mogaji v. Cadbury Nigeria Ltd. (1985) 2 NWLR (Pt.7) 393 at 431 and Elias v. Omo-Bare (1982) 5 SC. 25 at 57-58.”

In the instant case, not only was the grantor’s title denied, the grantor’s name and the extent of the grant as pleaded by the appellant were otherwise than as pleaded. Moreover, the document constituting the grant (the tenancy agreement) having been effectively barred from forming part of the evidence of the grant and for good legal reason, evidence led at the trial constitutes evidence not led in support of the pleading and therefore goes to no issue. See Olanrewaju v. Bamigboye (1987) 3 NWLR (Pt.60) 353 at 359 following Emegokwue v. Okadigbo (1973) 4 SC. 113.

Thus, the respondents proved a better title and as far as they are concerned, the appellant is a trespasser and was so treated. The law is firmly established that a trespasser in possession is not in legal or legitimate possession. See Da Costa v. Ikomi (1968) 1 All NLR 394 at 398; Talabi v. Adeseye (1973) 1 NWLR 8 at 10; Badiru v. Ozoh (1986) 4 NWLR. (Pt.38) 724. The appellant’s interest in the land in dispute, if any, was therefore in trespass and such cannot be protected by law. As a tenant cannot be sued in trespass See Adeleke v. Coke (1961) 1 All NLR 35 and only the person in actual possession can. See Ekwere v. Iyiegbu (1972) 6 SC. 116 at 138 since the appellant has failed to show he was a tenant of any known landlord and so in possession, he cannot maintain an action in trespass. See Joseph Atoyebi Oyebanji v. Bashiru Okunola (1968) NMLR 221.

ISSUE 5:

The poser in this issue is: Where the most central and material conflict between the plaintiff and defendant had not been resolved during the trial in the trial court, and the appeal court sets aside the judgment of the trial court, what is the appropriate order which the appeal court ought to make, order of dismissal or order of retrial

Here too, even though the respondents in their pleadings as well as in the testimony before court conceded that a land dispute existed between Ijan, 1st D.W.’s town and Aisegba, there is however nothing to show that the land in dispute is the instant case is part of or the same land in dispute before the Boundary Commission. The 1st D.W. testified, following strictly the pleading of the defence, that the land in dispute is his family land over which he has over 200 tenants. Nobody from Aisegba whose chiefs the appellant had pleaded (though he led no evidence to prove) were his grantors, came forward to challenge 1st D.W. over his claim. Surely, if the land in dispute here is part of the land in issue before the Boundary Commission, Aisegba people would have come forward to affirm the purported grant made to the appellant and debunked the claim of the respondent’s grantor i.e. 1st D.W. The appellant cannot be heard to approbate and reprobate at same time having filed the action herein himself originally and none of his alleged grantors has come forward to assert any claim to the disputed land. The sum total of the appellant’s case borders on uncertainty, to wit: that he is unsure of the owners of the disputed land; while his alleged grantors either disallowed him or were unhelpful to this cause. That at the end of the day, the appellant stated he was ready to pay ‘ishakole’ to whoever Aruwa might indicate was the owner of the land in dispute, is an admission on his part of the uncertainty of his grant. For that, an order of dismissal of the appellant’s case, is an appropriate order to make.

ISSUE 6:

In answer to this issue, it is pertinent to point out that in the instant case the appellant did not tender survey plan of the land he claimed. Nor did he prove by oral evidence, as he ought to, the boundaries of the said land. This court has laid down the principle for quite some time now, that a party failing to give evidence of boundaries to the land in dispute which he claims, is not entitled to succeed. See A.W. Elias v. Alhaji B. A. Suleimon (1974) NMLR. 193; (1973) 1 All NLR. (Pt.2) 282. For the requirement that the appellant as plaintiff ought to prove by evidence in court the boundaries of his land, he could as well, supplement this by what is observed during inspection at the locus. In the case in hand, the oral evidence of boundaries the at appellant proferred in court was not only unpleaded, the sum total of the evidence given by him did not support his case. The trial court albeit in an attempt to help him out the locus wrongly and unjustifiably found for him on evidence which was neither documentarily nor orally credible as well as convincing. The end result on the question of boundaries in the case in hand therefore is that the appellant failed woefully to discharge the burden that lay on him to establish such boundaries by adducing any credible evidence. See Akinola Baruwa v. Ogunsola & Ors. (1938) 4 WACA 159; Epi v. Aighedion (1972) 10 SC. 53; Udofia v. Afia (1940) 6WACA. 216; and Ezendu v. Obiagwu (1986) 2 NWLR (Pt.21) 208 at 214-215.

ISSUE 7

I adopt my consideration of Issue 4 above. I only to add that whatever, if any, the appellant has on the land he does so in trespass and the law does not and cannot afford him protection.

ISSUE 8:

As demonstrated elsewhere in this judgment the purported tenancy agreement the appellant sought to tender at the hearing of the case herein on appeal was rejected and rightly so in my view. The appellant, as transpired did not cross-appeal against the rejection in the court below. It is therefore not open to him here to re-open the issue. What is more, as earlier shown, the rejected tenancy agreement having been made in 1968, eight years after the alleged grant in 1960 and constituting a nebulous document of ill-defined boundaries which could not withstand the test of veracity; its rejection was appropriate for its hollowness. See Erinosho v. Owokoniran (1965) NMLR 479 at 483; Adenle v. Oyegbade (1967) NMLR 136 at 138 and Eze v. Igiliegbe 14 WACA 61.

The result of all I have been saying is that the issues having been answered against the appellant this appeal fails and it is accordingly dismissed. The appellant is to pay costs assessed at N350 and N1,000 in the court below and in this court respectively to the respondents inclusive of out of pocket expenses.

UWAIS, J.S.C.: This appeal has no merit and ought to be dismissed. The appellant, who was the plaintiff in the High Court of Ondo State (Adeloye J, as he then was), brought an action claiming (1) for a declaration that he was entitled to the possession of the land in dispute; (2) a perpetual injunction to restrain the 1st respondent, his agents or servants from committing further trespass on the land in dispute or harvesting the crops on the said land; and (3) special damages for unlawful harvest from the farm on the land in dispute and general damages for trespass.

Pleadings were settled between the parties. The evidence adduced by the appellant went contrary to his pleadings. He could not establish the boundary of the land in dispute nor could he prove the owner of the land. Although he pleaded that he was granted possession of the land by virtue of a written tenancy agreement between him and the Chiefs of Aisegba Ekiti, he failed to produce the written agreement or call any of the Chiefs to prove the agreement. It is obvious, therefore, that the appellant did not prove his claim. But surprisingly, the learned trial Judge held that the land in dispute was granted to the appellant by Aruwa family of Aisegba. It was not his case on his pleadings that it was Aruwa family that put him in possession but the Chiefs of Aisegba Ekiti. It is appropriate, therefore, that the majority in the Court of Appeal (Ogundare, J.C.A .., as he then was and Ejiwunmi J.C.A .. with Ndoma_Egba J.C.A .. dissenting) set aside the decision of the trial court.

It is elementary that the parties to a case are bound by their pleadings. They cannot depart from the pleadings in their testimony or the evidence they adduce. Doing so renders the evidence they call to no issue and fatal to their case. The majority in the Court of Appeal was, therefore, right in setting aside the decision of the trial court. I see no merit in the appeal.

I agree with my learned brother Onu, J.S.C., whose judgment I read in draft, that the appeal be dismissed with costs to the respondent as assessed by him.

Other Citation: (1994) LCN/2637(SC)

Section 485 Indian Penal Code

Section 485 of the Indian Penal Code 1860 is about Making or possession of any instrument for counterfeiting a property mark. It is under CHAPTER XVIII (OF OFFENCES RELATING TO DOCUMENTS AND TO PROPERTY MARKS) of the Code.

Making or possession of any instrument for counterfeiting a property mark

Whoever makes or has in his possession any die, plate or other instrument for the purpose of counterfeiting a property mark, or has in his possession a property mark for the purpose of denoting that any goods belong to a person to whom they do not belong, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.