Chief Daniel Allision Ibuluya & 5 Ors V Chief Kaladikibo Samuel Dikibo & 2 Ors (2010) LLJR-SC

Chief Daniel Allision Ibuluya & 5 Ors V Chief Kaladikibo Samuel Dikibo & 2 Ors (2010)

LAWGLOBAL HUB Lead Judgment Report

FRANCIS FEDODE TABAI, JSC, CON

This action was commenced at the Port Harcourt Judicial Division of the High Court of Rivers State on or about the 23rd of August 1982 when the writ of summons was issued. The Plaintiffs were the Respondents at the Court below and also the Respondents herein and shall hereinafter mainly be referred to simply as the Respondents. The Defendants, on the other hand, were the Appellants at the court of below and also the Appellants herein. I shall hereinafter refer to them mainly as the Appellants. In the writ of summons the Respondents claimed three reliefs. In the statement of claim dated and filed on the 25th of February 1983, the Respondents claimed four reliefs. The statement of claim was however amended on the 28th of April 1988. In Paragraph 15 (fifteen) thereof the Respondents claimed against the Appellants jointly and severally the following four reliefs:

(i) A declaration that the Plaintiffs are entitled to the grant of Customary Right of Occupancy to the foreshore of Okrika Creek forming the waterfront of the land of the plaintiffs in the said creek between the high water and low water mark.

(ii) A further declaration that the Plaintiffs are entitled to so much of the foreshore and premises by alluvial accretion appurtenant thereto and contiguous to the land of the plaintiffs known as Dikibo Kiri situate at Okrika within the jurisdiction

(iii) N20,000.00 (twenty thousand naira only) damages for trespass in that in or about the month of May 1982 the Defendants without the leave or license of the Plaintiffs broke and entered the said land which was in the peaceable possession of the Plaintiffs and created a building thereon.

(iv) A perpetual injunction restraining the Defendants their servants and agents from recommitting further acts of trespass thereon. The case proceeded to trial with three witnesses for the Plaintiffs case and eight for the defence and at the close of which learned counsel for the parties addressed the court. The trial court also visited the locus inquo.

By his judgment on the 2nd day of May 1988 the learned trial Judge B. Gabriel- Whyte J (now late) allowed the claim in the following terms: “I therefore grant to the Plaintiffs the OTELGA Customary Right of Occupancy to that piece or parcel of land in dispute shown and verged Green including the area verged Pink in the Plan No. DCRS/9/85 dated 26th January 1988 which is Exhibit ‘D’ in these proceedings and accepted by the court. I also grant to the Plaintiffs as against the Defendants a perpetual injunction restraining them and other members of Ibuluya family from committing further acts of trespass thereon. ‘

The Appellants were not satisfied with the judgment and proceeded on appeal to the court below. By its unanimous judgment on the 24th of October 2000 the appeal was dismissed and the judgment of tile trial court affirmed. The Appellants were still not satisfied and have therefore come on appeal to this Court. The parties have, through their counsel, filed and exchanged their briefs of argument. The Appellants’ Brief of Argument was dated and filed on the 9th of October 2006.

It was prepared by A. Ben Anachebe. The Respondents’ Brief was prepared by Chief 1. T. Nwogu and same was filed on the 19th of October 2009. In the Appellants’ Brier Ben Anachebe formulated two issues for defendants as follows:

1. “As the Plaintiffs/Respondents case is that the land in dispute was a result of a natural phenomenon, alluvial accretion, while the Defendants/Appellants’ case was that the land in dispute was a result of man made reclamation of land, whether the judgment of the court below affirming the judgment of the trial court in favour of the Plaintiffs/Respondents would not rightly be said to be perverse in view of the overwhelming evidence to the contrary.”
2. Whether the court below was right in its conclusion that the trial court was not of the view that the land in dispute in this case was the same as the land in dispute on Suit No. PHC 36/1972. In the Respondent’s Brief, Chief I.T. Nwogu also formulated two issues for determination which he couched as follows:
3. Were the Justice of the Court of Appeal right in holding that no where in his judgment did late Chief B. Gabriel-Whyte say that the land in dispute in 1972 was the same as the land in dispute in the case before him.
4. Were the Justice of Court of Appeal right in holding that the learned trial Judge’s finding that the land in dispute came into existence by accretion and not by reclamation. The issues as proposed by learned counsel for the parties are in substance to the same effect. I shall therefore adopt the issue as formulated by the learned counsel for the Appellant which, in my view, are more comprehensive.

With respect to the 1st issue Ben Anachebe, now Senior Advocate of Nigeria argued that there is overwhelming and conclusive evidence from both sides that would lead any tribunal to the conclusion that the land in dispute came into existence not as a result of alluvial accretion but as a result of land reclamation. He referred to the evidence of the PW1 under cross-examination at Page 37 lines 25-32 of the record and submitted that it amounted to an admission of the Appellant’ case, the A.C.B. building being a vital fact in issue. On this issue learned senior counsel referred to Paragraph 7 (c) of the statement of Defence.

To confirm this he further referred to the evidence of the PW2 to the effect that the place where the A. C. B. LTD Building is situated was reclaimed by a company. It was argued therefore the PW2’s admission about reclamation is inconsistent with their case founded on alluvial accretion. Learned senior counsel pointed out what he considered to be a discrepancy between the evidence of the PW1 at Page 33 to the effect that the land they allotted to the PW2 was from alluvial accretion and that of the PW2 himself who said he reclaimed it. Counsel further referred to the evidence of the PW3, the surveyor assistant to the effect that at the time of the survey the place had just recently been reclaimed. Learned senior counsel tried to identify areas in the evidence of the defence which confirmed their case that the land in dispute came to be as a result of reclamation.

In this regard he referred first to the evidence of the DW1, Chief Allison lbuluya at Pages 52-53 of the record that they, assisted by the Rivers State Ministry of Rural Development and Social welfare, reclaimed the area for a market motor park and a causeway. Learned counsel made further and copious references to the evidence of the DW2, John Howard Wright at Page 57 of the record, the DW4 Silvernus Tomunaro at Page 60 of the record and DW5, Abila John to support their case of reclamation. Still on the evidence in support of reclamation, learned counsel further made references to the evidence of the DW7, Alfred Akosibo a Civil Engineer in the Ministry of Works at Page 64 of the record and DW8, Alpheus Oraudubipi

at of the record. It was learned counsels submission therefore that the totality of evidence on record is overwhelming and compelling in favour or the defence and therefore that the concurrent findings of the two courts below are perverse. Learned counsel for the Appellant then referred to a passage in the judgment of the learned trial judge at Page 172 of the record wherein he said: “I am convinced that the land in dispute was reclaimed by the defendants assisted by the Rivers State Government what in effect I have said is that the land in dispute was in the possession and ownership of the Plaintiffs:’ and submitted that the Court of Appeal was clearly in error to regard the underlined portion of the statement as a minor mistake of the trial judge. By that statement, counsel argued, the learned trial judge only succumbed to the pressure of the overwhelming weight of evidence. It was the further submission of learned counsel for the Appellants that the subsequent statement to the effect that the land in dispute was in the possession and ownership of the Plaintiffs was completely irrelevant as that issue was not before the court. To demonstrate his contention that the statement at Page 172 was not any mistake, learned counsel further referred to the earlier statement of the learned trial judge at Page 163 about the evidence of the PW2 confirming the Defendants’ reclamation of the land in dispute. In his view it amounted to a miscarriage of justice for the Court of Appeal to categories the trial courts statement as a minor mistake. Reliance was placed on ONUJOBI vs OLANIPEKUN (1985) 4SC 156 at 163. At Page 171 of the record the learned trial judge gave his impression about evidence of the DW1, DW2 and DW3 when he said: PAGE| 7 “I have not been particularly impressed by the evidence of DW1, DW2 and DW3 as to the time of the reclamation (if any) undertaken by DW2 and most of the other witnesses for the Defendants.” Learned counsel for the Appellants referred to the above impression expressed by the learned trial judge and submitted that in view of the strong evidence in favour of reclamation the impression had no foundation especially in view of the evidence of the DW2, DW3 and DW7. He urged that the issue be resolved in favour of the Appellant and the appeal allowed on that issue. With respect to the 2nd issue of whether the learned trial judge at any where in his judgment held that the land in dispute in this case is the same as that in the previous case between the parties, learned counsel agreed with the finding of the Court of Appeal at Page 262 of the record that there was no such finding and that the land in dispute in this case is only an extension of that in the previous case. It was his contention however that the Respondents did not adduce evidence of how the land which they claim to have come into existence by alluvial accretion after the 1972 case came to be in the Plaintiffs’ possession and ownership. He referred to the trial courts implicit reliance on Suit No. PHC/36/72 at Page 144 lines 17-28 of the record and submitted that the finding was inconsistent with the case fought by the parties. It was counsels final submission that since the land in dispute in the previous case is not the same as the one in dispute in this case, judgment ought to be given against the Plaintiffs/Respondents as the evidence is overwhelming in favour of the Defendants’/Appellants’ case of reclamation. He urged finally that the appeal be allowed. The substance of the arguments of Chief I. T. Nwogu in the Respondent’s brief are as follows. With respect to the first issue of whether the land in dispute was as a result of natural alluvial accretion or by reclamation, it was the contention of learned counsel that it was too late in the day for the Appellants to require the Plaintiffs’ proof through any of the five ways of proof as laid down on IDUNDUN vs OKUMAGBA (1976) 9/10SC 227 at 246-250. On the 2nd issue it was the contention of learned counsel that the Appellants did not PAGE| 8 successfully attack the judgment of the Court of Appeal to warrant any interference. The appeal, counsel argued, was with the leave of court and is essentially on facts and that in this regard the number of witnesses is immaterial and that what is material is the probative value of their testimony.

On this he cited OYEGOKE vs IRIGUNA (2002) 5 N.W.L.R (Part 760) 147; TOBBY vs STATE (1995) 2 N.W.L.R (Part 376) 167; NWABE vs STATE (1995) 3 N.W.L.R (Part 384) 385; ACBKTD vs NBISIKE (1995) 8 N.W.L.R (Part 416) 725. It was his contention that scientific evidence was not necessary to prove the alluvial accretion and that there was no legal authority to that effect. As regards discrepancies, it was the contention of learned counsel that it was not enough to point out discrepancies without reference to their effects and the trial courts views on them. An appellate court, should only concern itself with the propriety of a lower courts decision and not with the propriety of the reasons for the decision. Reliance was placed on IRAGUNIMA vs R.S.H.P.D.A (2003) 12 N.W.L.R (Part 834) 427. He finally urged this court to dismiss the appeal. The above is the substance of the address of counsel for the parties. The entire case revolves on the issue of evaluation. The question is whether the concurrent decisions of the two courts below are supported by the evidence on record? There is no doubt that in its judgment of over 80 Pages the trial court made sustained efforts to examine in details the evidence of the various witnesses for the parties and in the course of which it made several unnecessary and avoidable repetitions. On the first issue learned counsel for the Defendants/Appellants quoted extensively from the evidence of witnesses and the judgment of the trial court and contended that the evidence is overwhelming in favour of reclamation and therefore that the concurrent judgments of the two courts below are perverse. The Appellants relied in particular on the evidence of the PW2, DW2, DW3 and DW7 to urge that the evidence was overwhelming in favour of the Appellants’ claim of reclamation. Learned senior counsel how ever made on reference to the credibility issue highlighted by the trial court for reasons staled in the judgment.

The trial court expressed doubts about the credibility of the DW2, DW3 and DW7 whom the Appellants categorized as independent witnesses. The first of these is the DW2 John Howard Wright. He is the focal point of the Appellants’ claim of reclamation of the land in dispute. The trial court expressed its reluctance to accord credibility to his evidence and the alleged reclamation of the land in dispute when at Page 148 of the record it stated:

“What one has to say at this juncture is that whatever area this witness says it is not shown where he gave assistance to the Ibuluya House or the Defendants as this witness rightly observed there was no project site that is to say no plan was ever drawn up to the area which was being reclaimed. If this were in respect of the land in dispute at least a feature of that land could have been either mentioned or described.”

Next is the DW3 Iberegu Suware who also gave evidence of reclamation. At Page 150 of the record the trial court expressed its doubt about his being a witness of truth for reasons stated therein. At Page 150 lines 8-14 the court had this to say:

“Could it be said that this man is a witness of truth, he says there is no motor park at the land in dispute nor did he know the 6th defendant who is having a block moulding industry in fact he did not mention that he saw that industry established if he ever went there as all.”

The above expression of doubts about the credibility of the witness would, no doubt, have arisen partly from the courts observations when it visited the locus inquo and for which therefore an appellate court cannot provide a substitute. The DW4 and DW5 each also gave evidence of the Appellants’ Ibuluya family’s reclamation of the land in dispute which the trial court, for reasons stated therein, disbelieved. At Pages 152-153 of the record the trial court observed:

“The only observation which can be made is the evidence that when the suit between the parties was going on in the 1972 case PW1 did not allow the dredger to be around the area in dispute, then would it be possible to have used the dredger in reclaiming the present land in dispute or the 1972 land in dispute. The question that always comes to mind is, can a dredger reclaim any land adjoining in a waterside or waterfront? What is meant by a dredger? That the dredger given to the witness for that purpose particularly in the land ill dispute is too good to be true.”

The trial court also examined the evidence of the DW6, DW7 and DW8 which, for reasons contained in the judgment, it disbelieved. Its rejection of the evidence of the Appellants was premised essentially on its assessment of the credibility of witnesses. It is settled law that the assessment of the credibility of witnesses in a case is primarily the function of the trial court which alone has the opportunity of seeing and hearing witnesses and therefore an appellate court has no basis for interference with findings based thereon.

See SUNDAY ONUOHA vs THE STATE (1989) 2 N.W.L.R (Part 101) 23; MADUAGWU vs MADUAGWU (1991) 8 N.W.L.R (Part 212) 684; ONYEMAECAN vs NWAOHAMUO (1992) N.W.L.R (Part 265) 372; ASANVA vs STATE (1991) 3 N.W.L.R (Part 180) 422. The court below relying on ACHIBONG vs AKPAN (1994) 4 N.W.L.R. (Part 238) 150 and BALOGUN vs LABIRAN (1988) 3 N.W.L.R (Part 80) 66 adopted this principle and decided not to interfere with the findings of the trial court. It is my view that the court was right and I shall therefore also not interfere particularly having regard to the fact that the findings are now concurrent. It is to be noted that learned counsel for the Appellants did not react to the trial courts impression about the credibility of their witnesses. Further more it is clear from the record that one of the things which persuaded the trial court to find for the Plaintiffs/Respondents is its visit to the locus in quo on the 11th of June 1987 and the inspection notes made thereat. At Page 166 of the record, the court observed and found as follows:

“It will be recalled that when (he) we went to visit the locus in quo each side showed the land in dispute and the features lbiatelis house was shown together with that which was destroyed and where he deposited the petrol tanks and behind the ACE building is Ibiatelis mothers grave and the alleged pipes used by Rural Development and Social welfare of the Rivers State Government. What one can gather both from the inspection notes and exhibit ‘D’ and ‘E’ is that the land in dispute adjoins the land in dispute in PHC/36/72.”

This finding based on the visit to the locus inquo and the inspection notes made there is crucial on the issue of who has title over the land in dispute. It is, in my view, equally unassailable and it is not surprising therefore that the Appellants made no attempt to impugn it. There is yet another aspect or the case of the Appellants which the trial court examined to find against them. In paragraph 7,8 and 9 of the amended statement of claim the Respondents pleaded as follows: “7. The Plaintiffs will at the trial contend that by the said judgments they had exclusive possession and occupation in perpetuity of the area of land verged GREEN in Plan No. SL 36/72 aforesaid and verged PINK in Plan No. EC RS/9/83 filed along with this statement of claim.

8. The Plaintiffs will further contend that by the Defendants admission in the High Court suit aforesaid (which admission was confirmed on appeal) the waterfront or waterside should belong to those resident in the area abutting thereto. 9. In the said admission and decision the area verged PINK and the waterside/waterfront adjoining thereto belong to the Plaintiffs.”

In response to the above the Appellants in paragraph 5 of the Statement or Defence pleaded. “5 paragraphs 7, 8 and 9 are denied as the custom in Okrika is that waterfronts are never in exclusive possession of abutting land owners. In any event the land in dispute does not form part of any frontage to a piece of land owned by the Plaintiff. It is a reclaimed land from the territorial water of Okrika.”

Again in paragraph 7 (f) they pleaded as follows:- “7(f) That there is a limit to what call constitute waterside (Poku) or waterfront adjoining the land of any Okrika person by Okrika native law and custom and this reclaimed land cannot come within that limit of the Plaintiffs’ waterfront (Poku). It is rather part of the Okrika Creek which is communal to all Okrika people and which by Okrika native law and custom call be reclaimed and owned by any Okrika person.”

The Plaintiffs/Respondents adduced both oral and documentary evidence in support of their paragraphs 7, 8 and 9 of the Statement of claim. The Defendants/Appellants failed to adduce evidence of the alleged native law and custom copiously pleaded on their paragraphs 5 and 7(f). At Page 167 of the record the learned trial judge noted this failure of the Appellants to lead evidence of the alleged Okrika native law and custom, rejected the contention that the 1st Plaintiff admitted the existence of the native law and custom and relying on the principle “he who asserts must prove ” held:

“The only conclusion is that the land in the waterfront are in the exclusive ownership of the owner of the waterfront .”

This finding cannot be faulted. It is the only reasonable and natural conclusion from the state of the matters pleaded and the evidence in relation thereto. And with respect to the totality of the cases presented by the parties the learned trial judge at Page 171 of the record stated:

“I have examined the evidence adduced by the Plaintiffs and the Defendants ill tile light of the above facts as given by them and in accordance with the principles I have stated earlier, I have weighed them and find that the Plaintiffs account from a totality of the whole evidence is more probable than that of the Defendants.” Again it is my view that this finding is unassailable same having been supported by the totality of the evidence on record. The finding cannot, in any conceivable sense, be said to be perverse. There was therefore no basis whatsoever for any interference either by the court below or by this Court. Still on this issue, at Page 172 lines 1-6 of the record the learned trial judge is recorded to have stated thus: “I am convinced tltat the land in dispute was reclaimed by the defendants assisted by the Rivers State Government what in effect I have said that the land in dispute was in the possession and ownership of the Plaintiffs”

Learned Senior Counsel for the Appellants argued rather strenuously that the underlined portion of the above statement was, in view of the evidence, a finding in favour of the Appellants and therefore that the court below had no basis to regard it as a minor mistake. With respect, I am not persuaded by that argument. The statement should not be read in isolation. The statement read along with the paragraphs immediately preceding it and those immediately after it shows clearly that the learned trial judge could not have made a finding in favour of the Appellants. In the statement at Page 171 lines 19-26 which I have reproduced above, he expressed unequivocally that the evidence of the Plaintiffs/Respondents was more probable than that of the Defendants/Appellants. And in lines 27-31 of the same page he stated clearly that he was not impressed with the evidence of reclamation put forth by the DW 1, DW2, DW3 and other witnesses for the defence. In view of these surrounding circumstances therefore the learned trial judge could not have made a finding in favour of the Appellants story of reclamation. In the light of the foregoing considerations I resolve 1st issue in favour of the Respondents. The arguments of the Appellants on the 2nd issue are substantially to the same effect as those in the 1st issue.

In my view the resolution of the first issue has taken adequate care of the 2nd issue. In conclusion I hold that the appeal lacks merit and same is accordingly dismissed by me. I assess the costs of this appeal at N50, 000.00 (Fifty Thousand Naira) only against the Appellants. FRANCIS FEDODE TABAI, JUSTICE, SUPREME COURT

SC. 149/2001