Chief Daniel Allison Ibuluya & Ors v. Tom Benebo Dikibo & Ors (1976) LLJR-SC

Chief Daniel Allison Ibuluya & Ors v. Tom Benebo Dikibo & Ors (1976)

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The plaintiffs, who are the respondents in this appeal, are the representatives of members of the Dikibo House of Okrika, and claimed in the High Court of Rivers State the sum of 1,000pounds (N12,000.00) damages from the defendants who are the appellants in this appeal and the representatives of the Ibuluya House of Okrika, for trespass to land situated at a waterfront in their possession and occupation. The plaintiffs also claimed an order for perpetual injunction to restrain the defendants from further acts of trespass.

Pleadings were filed and delivered. The trial proceeded before Allagoa J. and judgment was duly delivered by him in favour of the plaintiffs who were awarded N1800.00 general damages and granted an order of injunction restraining the defendants from further acts of trespass on the land the subject matter of the action.

The defendants, being dissatisfied with this decision appealed to this Court.

Learned counsel for the appellants argued three grounds of appeal which are as follows:

“(vii) The learned trial judge erred in law in granting an injunction against the defendants when it was not clear that the plaintiffs, had exclusive rights over the land in dispute.

(ix) The learned trial judge erred in law in finding against the appellants on the plaintiffs’ claims for trepass and injunction when exhibit ‘B’ shows that the ownership of the land in dispute is jointly vested in both families and occupation or improvement on the land by either or the two families cannot, in law, confer either exclusive ownership or exclusive possession on either of the families.”

Exhibit “B” referred to above is the judgment of Ayo Williams Esq.,

Magistrate, dismissing an appeal by members of Ibuluya House against a member of Dikibo House from the decision of a Native Court, in favour of Dikibo House, in respect of land in dispute between them.

“(v) The learned trial judge admitted inadmissible evidence, to wit, the evidence of Ned Ockiya (2nd plaintiffs’ witness), and that there is no sufficient evidence to sustain the decision after rejecting such inadmissible evidence.”

The remaining grounds filed (Nos. (i), (ii), (iii), (iv), (vi) and (viii) were abandoned.

Arguing grounds (vii) and (ix) together, learned counsel for the appellants submitted that the ownership of the land, the subject matter of the action, is vested in the Community consisting of both Houses, namely, Ibuluya House and Dikibo House and that, consequently, the land is jointly owned. He further submitted that:

(1) once title to land is vested in a community, one section cannot sue the other section for trespass or injunction;

(2) possession of such land is vested in the community as a whole and not in any section thereof, and

(3) where a section of the community possess or occupies a section of the communal land that possession or occupation belongs, and attaches, to the community as a whole.

He relied on the observations with regard to customary tenure in West Africa in the judgment of the Privy Council in Amodu Tijani v. Secretary, Southern Nigeria (1921) 2 A.C. 399 at pages 402 to 405, in support of these propositions.

The respondents and the appellants both claimed the right to exclusive possession and occupation of the land in dispute, but the learned trial judge found as follows:

“What has emerged from the evidence of both parties and court proceedings produced by each side is that Ibuluya and Dikibo families had in the past lived as a mixed community, and drawing no land boundaries in their habitation. That spirit of understanding would appear to have disintegrated with the new generation, giving rise to a series of litigation on the question of title to what the plaintiffs call Dikibo Kiri and defendants Ibulia Amanga. The first was Suit 1027/32 in the Okrika Native Court, the other in the High Court (Exhibit G). In both cases the court dismissed the actions, having found that the land is common to both parties. ”

The appellants’ defence was based on the averments in their pleading that they were the owners of the land in dispute and that the respondents were their tenants. There is, however, abundant evidence to support the learned trial judge’s findings on this issue. It is not surprising, therefore, that learned counsel for the appellants accepted and accordingly based his submissions on these findings.

The learned trial judge, however, went on to incorporate in his own findings the findings of the Native Court in Suit No. 184/41, exhibits A and A1 between certain members of Dikibo House as plaintiffs and certain members of Ibuluya House as defendants, as follows:

“The court finds that the inhabitants of the land had lived amicably Now to get rid of this habit which involved a consequent dispute the land has been permanently demarcated for both parties so that the plaintiff commencing from the Waterside should occupy the left hand side of the land and the defendant should occupy the right hand side of the land. Anyone violating this fixed law will be accounted for as having criminated himself or herself by committing an absolute trespass.”

The judgment of the Native Court is that:

“Neither party is to quit one space of land for the other. Defendants are detailed to occupy the left hand side of it . . . . . The defendants to remove the prevailing existing buildings within one week and no longer uphold the buildings.”

This judgment was upheld on appeal to the Magistrate’s Court and the appeal was dismissed.

The learned trial judge dealt with the question of the identity of the area where the trespass was alleged to have been committed and came to the conclusion, rightly in our view, that both parties understood what area was in dispute. The surveyor engaged by the plaintiffs, Joseph Olugbemi, produced a plan ofthe land in dispute, exhibit B. Comparing it with the defendants’ plan, exhibit F, he testified that the area in dispute verged pink in exhibit E is verged green in exhibit F. The defendants’ plan shows the area in dispute except that it stops at a road indicated as a Federal Road whereas exhibit E covers the area of the road and the sheds built by the appellants on the land in dispute. The trial judge accepted this evidence.

Learned counsel for the appellants did not dispute the identity of the area of trespass or that it fell within the land demarcated and allocated to the respondents by the Native court in Suit No. 184/41. He contended, however, that the trial judge wrongly relied on section 145 of the Evidence Law which 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. ”

The respondents tendered exhibits A and Al and they were admitted in evidence. The portion of land demarcated and allocated to the respondents must therefore be presumed to have been in their possession, especially as both plans exhibits E and F, tendered by the respondents and the appellants respectively clearly show that the land in dispute is occupied by the respondents, whose houses are indicated on the plans. The respondents having been thus shown to have been in possession, the burden of proving that they are not the owners nor persons in exclusive possession, was on the appellants who failed to discharge it.

Learned counsel for the respondents submitted that the judgment in Suit No. 184/41 clearly demarcated and gave exclusive possession of one portion of land to the plaintiffs and another to the defendants and that,in view of the mandatory order in that judgment to the defendants to remove “the prevailing existing buildings” standing on the land allocated to the plaintiffs by the demarcation, that judgement must be regarded as having “partitioned” the land as it was the first cleardivision of the land between the two Houses. He contended further that that judgment went on appeal and was affirmed and that it finally regulated the rights of the parties in regard to occupancy, exclusive possession, and the consequential right to maintain an action for trespass. He cited Okorie & Drs. v. Udom & Drs. (1960) 5 FSC 162, at page 165 as authority for the proposition that a person in exclusive possession of land can successfully maintain an actIon for trespass and an injunction. He went on to submit that the evidence shows that the respondents were in exclusive possession of the land abutting the waterfront, that the appellants had conceded that the waterfront should belong to the persons in exclusive possession of the land abutting the waterfront, and that the respondents were accordingly entitled to maintain an action of trespass to the waterfront.

Indeed, Daniel Allison Ibuluya testified on behalf of the defence,under cross-examination, as follows:

“The area verged blue is opposite a waterside where we have built sheds. The waterside should belong to those resident in the area verged blue if they were landlords and not tenants.”

The area verged blue on the appellants’ plan, exhibit F, is admitted by the appellants to be in the occupation of the respondents. By the admission of this witness the waterside where the appellants built the sheds should belong to the respondents “if they were landlords and not tentants”. The appellants’ defence to the action, that is, that they are the owners of the land in dispute and that the respondents are their tenants was clearly rejected by the trial judge and rightly so. It therefore follows that, out of the mouth of the appellants’ own witness, we have this admission that the waterside where the appellants built the shedsb – the acts of trespass complained of by the respondents should belong to the respondents.

It is abundantly clear to us that the legal effect of the judgment of the Native Court in Suit No. 184/41, exhibits A and A1 is upheld on appeal in the judgment of the learned Magistrate in Appeal No. PH/32.A/41, exhibit B, was to demarcate the land in dispute in such a manner that Dikibo House and Ibuluya House would thereafter have and enjoy the right to exclusive possession and occupation in perpetuity of the portion of the land demarcated and allocated respectively to each House. The learned trial judge in effect accepted the fact that this decision was observed and compiled with for 30 years that is, from 1941 to 1971, when the appellants built the sheds on the land, the subject -matter of the action.

Learned counsel for the appellants relying on the dissenting judgment of Taylor F.J. (as he then was) in Madukolu & Drs. v.Nkemdilim (1962) 1 ALL N.L.R. 587, attempted at one time to question the correctness or validity of the judgment in Suit No. 184/41. He also relied on the following passage in Adeniyi & Drs. v. Adeniyi & Drs. (1972) 4 S.c. 10 at page 17:

“It was not competent for the Court to make a case of its own or to formulate its own case from the evidence before it, and thereafter to proceed to give a decision based upon its own postulate quite contrary to the case of the parties before him.”

Quite apart from the fact that the proceedings in a High Court cannot be equated to the proceedings in a Native Court in which no pleadings are filed, Suit No. 184/41 is not now on appeal before us. The law applicable in this situation is as stated in Spencer Bower and Turner, Res Judicata, Second Edition, at page 14 para. 15, where the following passage, with which we find ourselves in agreement, occurs:

“It is not essential or even relevant, to prove that the decision relied upon to found an estoppel is itself correct, or well founded in law or fact; if it is pronounced as a final judicial decision, by a tribunal having jurisdiction, as to the same question, and between the same parties, it will be conclusively deemed correct, as between these parties, unless and until upset on appeal.”

In the circumstances, the members of Dikibo House and Ibuluya House have long ceased to have and enjoy the right of occupation or possession in common of the land in dispute. Further, the point argued by counsel for the appellants on the authority of lsiba v. Hanson and Thomas (1967) 1 ALL N.L.R. 8, “that once it is proved that the original ownership of property is in a party, the burden of proving that that party has been divested of the ownership rests on the other party” does not, in our view, arise since the demarcation effected by the decision in Suit No. 184/41 gave exclusive possession and occupation to the respondents and did not relate to the radical ownership of the land in dispute. The arguments of learned counsel for the appellants based on the concept of ownership or possession and occupation in common are therefore without foundation and must accordingly fail.

As regards ground (v) learned counsel for the appellants relied on the Law which provides as follows:

“When any judgment of any court or any other judicial or official proceedings, or any contract, or any grant or other disposition of property has been reduced to the form of a document or series of documents, no evidence may be given of such judgment or proceedings, or of the terms of such contract, grant or disposition of property except the document itself, or secondary evidence of its contents in cases in which secondary evidence is admissible under the provisions hereinbefore contained; nor may the contents of any such document be contradicted, altered, added to or varied by oral evidence. ”

A proviso follows but it is not relevant to the argument. Counsel submitted that it was impossible to say that the trial judge would still have found for the respondents, as he did, if the evidence of the 2nd plaintiffs’ witness Ned Nathaniel Ockaya, the Native Court Clerk (who recorded the evidence and accompanied the Native Court on inspection, during the hearing of Suit No. 184/41) concerning his observations as to the identity of the land in dispute, had not been admitted and relied on by the trial judge

Counsel for the respondents, on the other hand, countered by pointing out that as no plan of the land in dispute was tendered at that trial, although the land was otherwise identified, it was in order to call evidence at the trial of the action to identify the land which was in dispute and the subject matter of the earlier action, especially as the evidence was not called for the purpose of contradicting the record of proceedings at the earlier trial.

To begin with, it is indicated in the “summary” (exhibit G) which is in fact the Judgment delivered on 27th April 1935 in the suit filed on 3rd October, 1934 in the High Court of the Onitsha Judicial Division holden at Port Harcourt” that pleadings and a plan were ordered to be filed and that the order was complied with and a plan filed and admitted in evidence as “exhibit A” but that plan was not tendered or admitted in evidence at the trial of the present action. It was therefore not possible to identify, by reference to a plan, the land in dispute in the present action as the land referred to in exhibit G as having been demarcated in an earlier action, that is, Suit No. 2/32 in the Okrika Native Court. It is also not possible to say, with any degree of certainty, that the demarcation made by the Native Court in Suit No. 2/32 was in respect of the rights of possession and occupation of the Dikibo House and the Ibuluya House respectively, the parties to the present action, or their predecessors in title. It is stated at exhibit G that:

“A dividing line was demarcated however so that these two persons would live at peace as they had done heretofore.”

Indeed, that action was between two individuals only namely Chief Benebo Dikibo and Chief Iwo and it was decided that while the land in dispute remained the “common property” of the Dikibo and Chukubi families, it was impossible “to uphold any action for trespass in a representative capacity of one family against the other”.

However the trial judge accepted the submission of learned counsel for the defendants, Chief Okara, that from the evidence in the proceedings, exhibit A, the area which was the subject-matter of the action in the 1934 case (exhibit G) was not the same as the area that the Native Court demarcated in the present case. He went on to say that:

“Apart from the evidence of the Court Clerk who testified that the waterside was demarcated to the plaintiffs it is obvious from the plans of both parties, exhibit E and F which agree as to the area of the waterside and the area occupied by the Dikibos adjoining the waterside that they understood the demarcation.”

(Italics are ours)

And again:

“Since both the parties understand the area in dispute it is not necessary to argue that it is not reflected on a plan” .

It is obvious that if the parties to an action in respect of land in dispute know precisely what area is in dispute, and the boundaries of that area “on the ground”, a plan is not an absolute necessity for successfully maintaining an action for trespass and injunction in respect of that area. (See Chief Sokpui v. Chief Agbozo (1951) 13 W.A.C.A. 241 at page 242). The trial judge did not rely entirely on the evidence of the court clerk for his finding in regard to the identity of the land in dispute and the area on which the acts of trespass were committed. It is, in our view, clear that he arrived at this finding “apart from the evidence of the court clerk”-that is, irrespective of that evidence.

We are also clearly of the view that the evidence of the court clerk was admitted in contravention of section 131(1) of the Evidence Law. Counsel for the respondents contended that this evidence was admissible by virtue of section 132(4) of the Evidence Law which reads as follows:

“In order to ascertain the relation of the words of a document to facts, every fact may be proved to which it refers, or may probably have been intended to refer, or which identifies any person or thing mentioned in it”

We are unable to agree with him. We consider that counsel for the appellant was right in his contention that this subsection does not apply to judgments and proceedings of a court.

Section 226(1) of the Evidence Law provides as follows:

“The wrongful admission of evidence shall not of itself be a ground for the reversal of any decision in any case where it shall appear to the court on appeal that the evidence so admitted cannot reasonably be held to have affected the decision and that such decision would have been the same if such evidence had not been admitted.”

The wrongful admission of the evidence of the court clerk did not in our view, prejudice or affect the mind of the trial judge, to the extent of causing him to arrive at a wrong decision and there was, in any event, other ample evidence to support his findings and decision.

In the result, this appeal is dismissed with costs to the respondents assessed at N125.00.

Other Citation: (1976) LCN/2310(SC)

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