Chief Alabide Kei & Ors. V. Ngule Okpose & Ors. (2011)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

EJEMBI EKO, J.C.A. (Delivering the Leading Judgment)

This case has a very chequered history. It was first filed in January 1981 and numbered as AHC/56/81 at the High court of Rivers State sitting at Ahoada in Ahoada Judicial Division. When Yenagoa Judicial Division was created out of Ahoada Judicial division it was transferred to the High court at Yenagoa and renumbered as YHC/11/82.

ON 17TH March, 1988 F. F, Tabai, J. (as he then was) delivered judgment in the suit wherein he found inter alia at page 122:

Thus, in the traditional history as to the founder of the land in dispute the evidence of the plaintiffs is slightly stronger and tends therefore to confer a better title to the land in dispute. But in the light of the other competing evidence from the defendants parts of which I have accepted I conceive that it will be inequitable to confine myself to the evidence of traditional history to ascribe title to the land in dispute on any of the parties. According to Oputa, JSC in AWOYALE v. OGUNBIYI (1986) 2 NWLR 626 at 646 “traditional evidence is but a bit of ancient history. Its weight and value can better be assessed where there exists factual evidence contemporaneous acts and events.”

Thereafter His Lordship invited counsel on both sides to address him on whether he should not enter an order of non-suit. Both counsel addressed His Lordship on 24th March, 1988 and on 29th March, 1988 His Lordship entered Non-suit. He gave reasons for this order at page 127 of the Record as follows:-

I have examined the address of counsel for both sides. I have stated earlier in this judgment prefer (sic) the plaintiffs evidence of traditional history. But I do not like to confine my consideration only to that aspect of the evidence to grant title.

That aspect must be considered along with other pieces of evidence to decide the case. In all other aspects, the evidence of the defendants was clearly better. They impressed me that they are not strangers in Kaiama and that they in fact own lands or at least in exclusive possession of lands. They satisfied me that they are in exclusive possession of the land immediately … in dispute. In view of their overwhelming and uncontradicted evidence of their occupation of the adjacent land their claim to possession and title of the land can not, in my view, be without foundation.

The plaintiffs, the resent appellants (who shall hereinafter be called the Plaintiffs) not satisfied, filed their appeal on 8th June 1988 against the judgment and the order of non-suit. The Notice of Appeal, at pages 129-132, has four grounds of appeal. The appeal was before the Enugu Division of this court and was later remitted to this Division upon the creation of this Division. The appeal carries Enugu number. In the Amended Appellants’ Brief settled by Wilcox Abereton, Esq. three (3) issues have been formulated respectively from grounds 1, 2 and 3 of the Grounds of Appeal. No issue has been formulated from Ground 4 that complains that the “decision is altogether unwarranted, unreasonable and can not be supported having regard to the weight of evidence before the court” the consequence of the plaintiffs, in their appeal, not formulating any issue for determination of their appeal from grounds 4 of the Grounds of appeal is that the appeal has been abandoned, and therefore liable to be discountenanced or struck out. Ground 4 of the Grounds of appeal is accordingly struck out.

The three issues for determination, as formulated by the plaintiffs, are as follows:

1. Was the trial court right to make an order of non-suit in this case on the ground that the traditional evidence of title established by the Plaintiffs/Appellants and which the court accepted was insufficient to entitle the plaintiffs to the declaration of title damages for trespass and injunction sought therein? (Ground one).
2. Whether the learned trial judge was right in holding that section 145 of the Evidence Act (now section 146 of the Evidence Act) availed the 1st set of Respondents who never counter claimed and whose traditional evidence has been rejected? (Ground Two).
3. Was the learned trial judge right to rely on extraneous and unpleaded facts like a bakery, Petrol station and burrow pits as acts of possession upon which he could apply section 145 (now section 145) of the Evidence Act in favour of the defendants? (Ground 3).

The defendants at the suit of the Plaintiffs (now appellants) are the present 1st set of respondents. They shall hereinafter be referred to simply as “the defendants”.

The 2nd set of respondents was not parties to the suit at the trial court. It was only in this court they applied to be joined as respondents to the appeal as parties interested. This Court obliged and they were accordingly joined in the appeal as 2nd set of Respondents. They have not filed any brief of argument in this appeal. On 18th May, 2011 their application filed on 13th May, 2011 for “leave – to file a statement of Defence and give oral testimony in this court” was struck out for want of prosecution.

As it is presently the only active parties in this appeal are the plaintiffs, as the appellants, and the defendants, the 1st set of respondents. They were respectively the plaintiffs and defendants at the trial court.

The defendants, as the 1st set of respondents in this appeal, formulated four (4) issues for determination. They are as follows:-

1. Whether evidence of traditional history which is only slightly stronger than another conflicting evidence of traditional history is sufficient per se to entitle the plaintiffs to a declaration of title or a customary rights of occupancy over a pieces of land without any regard to the issue of long possession by the Defendants, which issue was seriously contested by the parties at the trial? By the parties at the trial? In other words, has a plaintiff who relies on both evidence of traditional history as well as acts of long possession, fully discharged his burden of proof of title by merely giving evidence of traditional history which is only slightly stronger than the conflicting evidence of traditional history adduced by a Defendant who otherwise has proved long acts of possession to the satisfaction of the court?
2. Whether where both parties in a claim for declaration of title to land rely on evidence of traditional history, is it not necessary that their evidence must be further tested by reference to the acts in recent years as established by evidence.
3. Whether the decision of the trial judge was based on evidence of possession in relation to adjacent land which was never pleaded? In otherwords, couldn’t the trial judge have reached the same decision despite the unpleaded evidence of possession in relation to adjacent lane having regard to the weight of pleaded evidence and admissions before the court?
4. Whether it is necessary to plead the presence of a filling station and a bakery on other parts of the Daboulgbangi land by the Defendants, including that portion of it that is in dispute.

Appeals are argued in this court upon issues formulated from the grounds of appeal. As Niki Tobi, JCA (as he then was) stated in ADISA v. THE STATE (1991) 1 NWLR. (Pt. 168) 490 at 504 issues for determination as expected to be “simple, concisely and tersely formulated to enable the adverse party and the court know the trend of the argument expected in the brief” they must therefore be carefully and succinctly formulated. See FAMAKINWA v. T.A. NIG PLC (2007) WRN (VOL. 18) 36 AT 44. I do not think the four issues purportedly formulated from the 3 surviving grounds of appeal by the defendants, as the 1st set of respondents, would pass the test of an issue being a simple, concise and tersely formulated summary of an argument upon a ground of appeal, just enough for the adverse party and the court to know the expected direction or trend of argument on that ground in the brief of argument. I will in the circumstance adopt the issues formulated by the plaintiffs, as the appellants. I will all the same consider all arguments in the brief of the defendants, as the 1st set of respondents.