Chief Isiah Mba Ejem & Ors. V. Chief Ugbor Ofia & Ors. (2000)
LawGlobal-Hub Lead Judgment Report
AKPIROROH, J.C.A.
This is an appeal against the judgment of the High Court of Imo State holden in Afikpo Judicial Division delivered by Anyanwu J. on the 30th day of July, 1991 in suit No. HAF/3/77.
The appellants herein, acting for themselves and on behalf of the people of Etiti Edda and Oso Edda communities took out a writ or summons against the respondents herein and claimed as follows:-
(1) Declaration of title to the piece and parcel of land called Nchara Edda situate in Edda within jurisdiction. The annual value is less than N10.00.
(2) N50,000.00 being general damages for trespass to plaintiffs’ land.
(3) Perpetual Injunction restraining the defendants, their agents and servants from further interference with the plaintiffs land.
(4) In the alternative all Order of Court that the ADC be ordered to enter into an agreement of the lease with the plaintiffs and the payment to the plaintiffs by the defendants of any compensation paid by the A.D.C.
The case which was tried on the pleadings supported by evidence relates to a piece of land situate in Edda and known by the Plaintiffs as “Nchara” land means “leprosy or barren” and by the defendants as “Ala Elu Ukwa” land.
From the pleadings and the supporting evidence, the plaintiffs’ case is that, the land in dispute shown and verged pink in their survey plan No. MCE/414/78 (Exhibit A) is the land which they inherited from Omaka Okocha who founded it. He was later joined by other settlers to make up their community. In the exercise of rights of ownership and possession, they farmed on the land, reaped the economic trees on it and also rounded leper settlements on it undisturbed.
It is also their case that in 1959, one Okpani Agwu, a relation of the 2nd defendant came to the land to open an oil palm plantation, and they engaged the services of the 2nd defendant who wrote a petition for them and removed the said Okpanu Agwu from the land. In 1962, the 2nd defendant/appellant brought in Eastern Nigeria Development Corporation (ENDC) to the land in dispute. The enquiry of the plaintiffs through P.W.1 revealed that it was their land that the 2nd defendant gave to E.N.D.C. They lodged protests to the manager of the ENDC, the District officer of Afikpo and Bende, and one Chief Emok Ururuka. In 1966, the 2nd defendant/appellant invited PW1 to agree on the proposal by Chief Emole that the plantation when established, would be called “Edda and Nkporo Palm Estate”, but this arrangement was disrupted by the Nigerian civil war of 1966. In 1970, one Reverend Aso Oji brought a farm settlement to the land to be managed by the Christian Council of Nigeria and one Chief Okam Omaka of Amasonta Oso protested and the settlement was removed. The 2nd Defendant/Appellant without the knowledge and consent of the plaintiffs granted that land in dispute to E.N.D.C leaving their land intact.
Based on this deceit, the respondents instituted this action against the appellants.
The defendants/appellants denied the respondents’ claim to the land in dispute. The land in dispute is part of a larger piece of land called Ala Ukwa which was deforested by their ancestor, Ala Ochie who led other founders to it, and that they have been in possession of it at all material times. It is their case that they have a leper settlement on the land and that they allowed the respondent to bring lepers from their community to their leper settlements. In exercise of their rights of ownership, they granted portions of their land, Ala Ukwa, to the respondents who paid them annual rents. Later they expelled the tenants from the plaintiffs’ community for making adverse claims to the land but granted them an option to get fresh grants which were subsequently granted to them.
In 1962, they granted the land in dispute to E.N.D.C. (Eastern Nigerian Development Corporation) without protests from the respondents and that there was no intervention by one Chief Echeme Emole who was a Minister in the Government of Eastern Nigeria at that time. The sum of 10.00 Pounds paid to the 2nd defendant/appellant by the respondents was for procuring a hunter from Ikom who killed a wild animal that was harassing them on the land, and not for the eviction of Okani Agwu, his cousin, from the land in dispute.
At the end of the trial, the learned trial Judge delivered his judgment and granted all the reliefs sought in the amended statement of claim.
Dissatisfied with the judgment, the appellants have appealed against the decision to this court on ten grounds of appeal.
The parties filed their briefs of argument, the appellants formulated the following issues for determination in the appeal:
Issues for Determination:
2.01 Did the plaintiffs make out a case in the representative capacity in which they brought the action and did they prove a common interest of undivided shares in the land in dispute?
2.02 Did plaintiffs’ witnesses evidence of traditional history of the land in dispute conflict with their pleading, and were there material conflict and contradictions in the evidence of the plaintiffs’ witnesses on traditional history and was the court below entitled to give a different meaning to such material conflicts in evidence other than their ordinary literal meaning in his evaluation evidence?
2.03 Was the court below entitled to purport to have expunged Exhibits F to F27 which when pleaded and admitted in evidence without objection when there is no legal prohibition against their admission in evidence?
2.04 Did the learned trial Judge properly evaluate the evidence of the parties in the case including the contradictions in evidence of plaintiffs’ witnesses, their legal effect and the burden of proof in the case?
2.05 Was the learned trial Judge entitled to make findings of facts in favour of the plaintiffs, on issue not claimed or asserted by the plaintiff’s who never raised or relied nor intended to rely on such issues on matters which support the case of the defence?
2.06 Was the learned trial Judge entitled to find that plaintiff was in exclusive possession so as to render Defendant’s liable in trespass?
2.07 Did the learned trial Judge weigh the case of the parties on the imaginary scale implicit in Mogaji v. Odofin (1974) 4 S.C. 91?
The respondent formulated the following issues for determination:-
Issues for Determination:
(a) Whether the respondents made out a case for the representative capacity in which they brought the action for and on behalf of Etiti Edda and Ama Oso Nta Communities of Oso Edda. Have they common interest in the land in dispute.
(b) Whether the traditional history as pleaded and given in evidence by the respondents and as accepted by the court perverse or unreasonable.
(c) Were there acts of possession numerous, positive and stretching over a long period to give the inference that the respondents are the owners of the land in dispute?
(d) Did the respondents make out a case for declaration of title, trespass and injunction having regards to:
(a) Act of possession on the land in dispute?
(b) The evidence of PW1, 3, 4, 5, and 6?
(e) Was the evidence of the parties properly evaluated and was Exhibits F to F 27 properly expunged?
(f) Was the trial court right in rejecting the boundary as given in evidence by the appellants, Was judgment against the weight of evidence?
I consider the six issues formulated by the respondent’s counsel comprehensive and adequate for the consideration of the appeal.
The first issue concerns the representative capacity in which the action was brought by the respondents.
Learned counsel for the appellants submitted in his brief that the respondents failed to make out a case in a representative capacity in which they brought the action stressing that they did not prove a common interest or undivided shares in the land in dispute.
He referred to the evidence of P.W.1 where he said that all the villages within the Etiti Edda own portions of land within the land in dispute directly or indirectly and submitted that in a situation where a defendant is sued in a representative capacity but the community has individual and not collective or common interest in the subject-matter of the suit like the respondents, the action should be dismissed and not to enter a non-suit and relied on the case of S. Oragbade v. Chief S.J.M. Onitiju (1962) 1 SCNLR 70: (1962) 11 All NLR 32.
It was further argued that, as there was evidence that the respective villages surrendered their portions of the land founded by their ancestors to Etiti and Oso communities and how the members of the two communities came to own the land in dispute together the respondents cannot maintain an action against the appellants in a representative capacity. It was further argued that, the respondents were not granted approval by the court to sue in a representative capacity. It was further contended that, the respondents failed to prove a collective or common interest in the land in dispute and also failed to establish the representative capacity in which they purported to have sued and as such the trial court should have dismissed the action.
In his reply learned counsel for the respondents submitted that the respondents made out a case in a representative capacity because they have joint interest or undivided shares in the land in dispute and referred to the evidence of P.W.1 who said that the 1st-4th plaintiffs are from Ndi Ofia in Etiti Edda and Amoso Edda in Etiti Edda Amoso Nta in Oso Edda and Amaigbo in Etiti Edda respectively and his evidence was not challenged by the appellants.
He further submitted that, their evidence at page 68 lines 20-25 of the records show clearly that the authority to sue in a representative capacity was granted by the court to the respondents. He further submitted that, the appellants did not call any body from Ama Oso Nta or Oso Edda or Etiti Edda to challenge the authority given to the respondents or to dispute the fact that the land in dispute is not the communal property of the respondents. Reliance was placed on the case of Olatunji v. The Registrar, Co-operative Societies Ibadan (1968) NMLR 393.
Reliance was placed on Exhibit B, the receipt to the respondents by the 2nd defendant/appellant for services rendered in connection with the land in dispute to show that the respondents have joint interest in the land in dispute and as such they can bring an action against the appellants in a representative capacity.
On the question whether the court granted approval to the authority given to the respondent to prosecute the action in a representative capacity against the appellants. it is quite clear from page 68 of the records lines 20-25, that the court granted approval to the authority given to the respondents to prosecute the action against the appellants. At page 6B lines 20-25 the learned trial Judge said:-
“In the circumstance, I grant the applicants application and order that the aforementioned be granted leave of this Honourable court to be substituted for the original plaintiff and they should prosecute the action for themselves and as representing the community of Etiti and Oso Edda.
On the question whether the respondents made out a case in the capacity in which they brought the action. I would like to reproduce the evidence of PW1 and PW3 which to my mind is crucial to the determination of this issue. At page 116 of the records. PW1 said under cross-examination:-
“In Etiti Edda there is a village called Amaoba. That village did not authorise me to bring this action, I can show the various portions of land belonging lo different owners on the land in dispute … Ezi Edda people cannot sell the portion of land belonging to Ama Oso Nta, In fact, none of the villages can deal with the portions belonging to another village…
At page 132 of the records. PW3 under cross-examination said:-
“The land in dispute does not belong to the entire community of Etiti Edda, it is not the entire community of Oso Edda that authorised the institution of this suit but a section of it called Ama Oso Nta.
There are ten villages in Osa Edda community of which Ama Oso Nta is one. The other nine villages did not authorise this action. It is not the entire Etiti Edda community that authorized this action…”
The evidence of PW1 and PW3 reproduced above shows clearly that the land in dispute is not a communal land of the respondents because each village has its own portion and no village can sell the portion belonging to another village.
It is also clear from their evidence that, out of the ten villages which make up Oso Edda community only one village, Oso Nta authorized the action. In effect the respondents did not represent the entire Etiti Edda community in the action. It is also clear from their evidence that they do not have common interest in the land in dispute because, each village has its own portion of land and cannot deal with the land owned by other villages. This is therefore a proper case in which the respondents could have brought separate actions against the appellants.
The respondents cannot claim to represent all the villages which make up Etiti Edda and Oso Edda communities in view of their evidence that not all the villages authorised the action against the appellants and also that they do not have common interest in the land in dispute.
In the case of Oragbade v. Chief Onitiju (supra), Bairamian F.L delivering the judgment of the court said at 37 as follows:-
“…on the evidence adduced for the plaintiff it was plain that he and others claimed to have each an individual farm of his own within the area in dispute which means that Ifetedo community as a whole cannot claim the entire area as communal land.”
The facts of the above case apply with equal potency to the facts of this case because evidence adduced by the respondents shows clearly that none of the villages can sell the portion of the land belonging to another village. This issue is resolved in favour of the appellants against the respondents.
On the second issue namely traditional evidence, learned counsel for the appellants submitted that, the evidence adduced by the respondents is in conflict with their pleadings. It was further argued that they contradicted themselves as to the founding of the land in dispute by their ancestors. In paragraphs 8-13 of their statement of claim, they pleaded that each of their ancestors founded a portion of the land in dispute. He referred to the evidence of PW5 who said that the land in dispute was deforested by Omaka Okocha from Amaigbo and that he was succeeded by each of their ancestors until it came to their turn. He then submitted that, the evidence of PW5 that the land in dispute was founded by their ancestor Omaka Okocha is in conflict with their pleadings that their ancestors founded a portion each which make up the two communities.
It was further argued that where evidence led is in conflict with the pleadings, such evidence goes to no issue and should be ejected and relied on the cases of Aniemekwua Emegokwue v. Okadigbo (1973) NMLR 192; Aderemi v. Adedore (1906) NMLR 398. It was further argued that PW3 and PW5 contradicted themselves when they said that Omaka founded the land in dispute and at another breath, they said that each of their ancestors, founded a portion on it. He further submitted that the evidence of the respondents as to the establishments of leper settlement on the land is also contradictory.
He referred to the evidence of PW1 who said that, each of their ancestors founded leper settlements on the land and the evidence of PW5 who said that only one leper settlement was founded by their ancestors on the land. He argued that with all these contradictions in the evidence of the respondents, the trial Judge could have rejected their traditional evidence as to the founding of the land in dispute.
In reply, learned counsel for the respondents submitted that, the evidence of the respondents is not at variance with their pleadings. He referred to paragraphs 8 and 15 of the amended statement or claim where the traditional evidence of the land was pleaded and the evidence of PW1 and PW4 where they said that the land was rounded by Omaka Okocha and others joined him.
I must say straight away that traditional evidence of the land as given by the parties is not only contradictory but very scanty. The learned trial Judge was therefore wrong in preferring the evidence of the respondents to that of the appellants.
The respondents gave evidence to the effect that each of their ancestors rounded a portion of the land in dispute and in another breath that Omaka Okocha, their ancestor, founded the land in dispute and others joined him. With regards to the leper settlements, the respondents pleaded that leper settlements were established on various portions of the land in dispute but PW5 said that only one leper settlement was established on the land. (page 160 lines 5-7 of the records).
He also said that Chima Oyiri established a leper settlement other than the one established by Omaka Okocha on the land in dispute (page 159 lines 28. page 160. lines 1-2).
The traditional history of the land in dispute was pleaded in paragraph 6 or the statement of defence as follows:-
“6(1) The defendants deny paragraph 9 of the claim and state that it was one Awalu Ochie that led founders of Ukwa Nkporo or defendants to settle at and found Ukwa land including the land in dispute among other lands in the area where they had their farms after reducing the virgin forests into their possession. The said Awalu Ochie and his people had their houses initially at a place called Ekeje …
DW4, Chief Kama Onu Kama Onyioha testified in support of it. He testified that the land in dispute was rounded by their ancestor Awalu Ochie and took possession of it. There was no evidence led by him to show how the land passed to them from their ancestor and as such there are missing gaps in his evidenee. In Mogaji v. Cadbury Nigeria Ltd. (1985)2 NWLR (Pt.7) 393. it was held among other things that where one line of succession is not satisfactorily traced in an action for declaration and that line of succession has gaps and mysterious linkages or issues which are not established such line of succession should be rejected.
Besides, his evidence as to where his ancestor came from to round the land is also contradictory.
In examination in chief, he said that his ancestor first settled at Ekeje and from there he deforested the land and under cross-examination he said that he came from Libolo in Edda.
The learned trial Judge was wrong in accepting the respondents’ traditional evidence which is not only inconclusive but unsatisfactory and unconvincing.
On the third issue which relates to acts of possession on that land, learned counsel for the appellants contended in his brief of argument that the learned trial Judge was wrong in expunging Exhibits F-F27 (tenancy agreement) which were legally admitted in evidence.
It was further argued they as they were not disputed by the respondents, they are deemed to have accepted them as true and as such there is no obligation on them to call the tenants to whom they were issued.
Reliance was placed on the case of Owosho & Ors v. Michael Adebowole Dada (1984) 7 SC. 149.
He further contended that there was no suggestion to DW4 who tendered Exhibits F-F27 that they were made for the purpose or this case. It was further argued that the learned trial Judge was wrong when he said in his judgment that Exhibits F-F27 conferred interest on land and as such they ought to have been registered because they are tenancy agreements which confer no interest on land.
With respect the 20k stamps on Exhibits F-F27 which the learned trial Judge said looked fresh, is misconceived because DW4 who tendered them was not cross-examined as to the ages of the stamps.
It was also his contention that if the learned trial Judge had not expunged Exhibits F-F27 and evaluated them with Exhibit E, he could have come to the conclusion that the respondents proved sufficient acts of possession numerous and positive to warrant the inference that the land belongs to the appellants.
He also contended that granting the land to E.N.D.C. in 1962, establishment of a leper settlement and juju on the land also show that the appellants are in possession of the land.
Learned counsel for the respondents referred to paragraph 5 or the amended statement of claim where they pleaded that they arc owners in possession of the land and have been exercising maximum acts of ownership thereon as shown from the evidence. He relied on Exhibit B given to the respondents by DW4 to show that the respondents have been in exclusive possession of the land. It was further argued that the learned trial Judge was quite right in expunging Exhibits F-F27 in his judgment because nobody was called from the respondents’ community to testify that he entered into such agreement with the appellants and also that they do not refer to the land in dispute.
This issue is predicated on acts of possession. It is settled law that acts of the person (or persons) claiming the land such as selling, leasing or renting out all or part of the land or farming it or any portion of it, is evidence of ownership provided the lets extend over sufficient length of time and are numerous and positive enough to warrant the inferenee that that person is the owner Ekpo v. Ita (1932) 11 NLR 68 at 69: Aderemi v. Adedire (supra).
With regards to acts of possession on the land in dispute. I would like to consider Exhibit B which learned counsel for the respondents contended that is a clear admission by the appellants of the respondents’ exclusive possession of the land in dispute.
At this stage, I would like to reproduce Exhibit B. It reads as follows:-
“Temporary Receipt:
Received from Ezi Edda and Amaigbo Chiefs the sum of 10.00 (Ten pounds) for services rendered so far to them in connection with Nchara Osso Edda communal bush.”
Exhibit B shows that the service was rendered in respect of “Nchara Osso Edda” communal bush and not “Nchara” the land in dispute. At pages 202 and 203, DW4 said that, he did not issue Exhibit B in respect of Nchara Edda and his evidence was not controverted.
Besides, the evidence of PW1, PW2 and PW3 is full of contradictions on the purpose for which Exhibit B was made.
At page 113 of the records, PW1 said:
“In 1959 one Okpani Agwu of Nkporo from the village of the defendant, came to the land to open an oil palm plantation. The plaintiffs refused to allow him. He entered by force. The plaintiffs hired the services of the 2nd defendant. He wrote a petition against Okpani Agwu on behalf of the plaintiffs. As a result, Mr. Okpani was ejected from the land. The 2nd defendant received a fee of 10.00 pounds (now N20.00) and issued a receipt for that amount…”
At page 128 of the records PW1 said:
“In 1959 one Okpani Agwu came from Ukwa Nkporo and related to the 2nd defendant, came to our land and attempted to establish a farm settlement. We objected. He is a dispenser by profession. He refused to leave our land for us. We therefore appealed to somebody for help. The 2nd defendant was the person to whom we appealed for help. The 2nd defendant one way or another drove Okpani Agwu away from the land. We later went to show our gratitude to the 2nd defendant. We gave him 10.00 (Ten pounds) then ….”
At page 161 of the records. PW5 said:
“The 2nd defendant told Okpuni Agwu to leave the land so that there could be no trouble between the plaintiff and the defendants. We went to the house of the 2nd defendant to lodge a complaint against Okpani.”
The evidence of PW1 shows that the sum of 10.00 (Ten pounds) was given to DW4 for writing a petition against his cousin, Okpani Agwu, PW1 on the other hand did not say that the sum of 10.00 (Ten pounds) was given to DW4 for writing a petition against Okpani Agwu from their land and later went to him to show gratitude for which he issued a receipt for the money. PW5 on the other hand said that the 10.00 (ten pounds) was given to DW4 because he and Chief Ejem Nkuma advised Okpani Agwu to move away from the land and they later thanked him for his good job of driving Okpani Agwu away from the land. If the 10.00 (ten pounds) was given for petition, it cannot at the same time be for gratification for the services rendered to them.
Under cross examination, PW5 said that they went to the house of the 2nd defendant to lodge a complaint against Okpani Agwu and that he was present when the 2nd defendant asked Okpani to vacate the land in dispute.
This is in conflict with the evidence of PW1 who said that they got the 2nd defendant to write a petition for which they paid him 10.00 (Ten pounds), If the mode of getting Okpani Agwu out of the land was by oral words spoken to him by the 2nd defendant, the question for writing a petition according to PW1 would not have arisen.
The 2nd defendant, (DW4) was consistent in his evidence that the sum of 10.00 (Ten pounds) was given not to him to write a petition against Okpani Agwu, his cousin but to show gratitude to him by the respondents for procuring a Fulani hunter who killed an animal that was harrassing and terrorising people in the locality of Ndi Obasi in Edda and also killing and making it difficult for people to enter Osso Edda in Ndi Obasi and not the land in dispute. It is most unlikely that DW4 would write a petition against his own cousin to leave the land. The story of DW4 is more probable than the story of the respondents in respect of Exhibit B.
If the learned trial Judge had adverted his mind to these contradictions and conflicts in the evidence of PW1, PW3 and PW5 with respect to the purpose for which the sum of 10.00 (Ten pounds) was paid to DW4, he could have accepted the version of DW4 that the money was paid to him in consideration of his assistance in procuring a Fulani hunter who killed a wild animal which was ravaging and terrorising people in Nchara Eso Edda bush. Owned by the respondents.
The finding of fact by the learned trial Judge is not supported by the evidence led before him and it must be set aside. See Lawal v. Dawodu (1972) 8-9 S.X 83 at 114. Fashanu v. Adekoya (1974) 6 S.C. 83 at 91 Torti v. Ukpabi & ors (1984) 1 SCNLR 214 and Remi v. Sunday (1999) 8 NWLR 613 92 at 105.
The respondents also relied on the establishment of leper settlements on the land in dispute to show that they are in exclusive possession of the land. As I said earlier in this judgment, the traditional evidence of the respondents as to the establishments of leper settlement on the land is riddled with material contradictions. PW1 said that each of their ancestors founded a leper settlement on the land in dispute while PW5 said that, it is only one leper settlement that was established on the land by their ancestors. In view of the material contradictions in the evidence of the respondents as to establishment of leper settlements on the land by their ancestors they cannot rely on it as act of possession.
The evidence of PW5 that only one leper settlement was established on the land in dispute supports the evidence of the 2nd defendant that their ancestors established only one leper settlement on the land in dispute.
On acts of possession, the appellants relied heavily on Exhibits E and F-F27, leasing of the land to Eastern Nigeria Corporation Development Board, A.D.C., and establishment of a leper settlement on the land by their ancestor, farming and leasing it to tenants.
I will first of all consider the grant of the land in dispute to the Eastern Nigerian Development Corporation.
The fact that the land in dispute was granted to the Eastern Nigerian Development Corporation, by the appellants in 1962 is not in dispute because it is supported by the evidence of PW 1 and PW2.
At page III of the records, PW1 said:-
“I remember the year 1962. Early that year many people were coming to the land in dispute…
We later found that the people entering the land in dispute were workers of Eastern Nigeria Development Corporation (ENDC) led by the 2nd defendant Chief Kama Onu Kama Onyioha. We protested in writing to the 2nd defendant and sent a copy of our protest to the District Officer (D.O.) at Afikpo. On 24th March, 1962 the D.O. Mr. S. W. Igwe sent a sergeant police officer to me to take the officer to the land in dispute. I took him and he saw for himself…
At page 128 of the records. PW3 said:-
“In 1962 the land in dispute was handed over by Nkporo people led by the 2nd defendants to former ENDC…”
The contention of the respondents is that, before they instituted this action against the appellants, they have never stopped asserting their right over the land in dispute. At page 246-247 of the records, the learned trial Judge said:
… I accept his evidence that he and Chief Emole and others intervened and appealed to the parties to give the land to ENDC. If the land had actually by been granted to ENDC in 1962 one would imagine that there was no need for the invention.
One would have expected the defendants to tender in this case the deed of lease granted to ENDC. This the plaintiff all along has been led to believe that they were still negotiating and that each party was prepared to donate its land … From the foregoing and the evidence led in that case, I find that the plaintiffs promptly brought this action when the defendants and the ENDC carried out the activities specified in the area marked Green in Exhibit A…
This clearly is evidence that the plaintiff were still protesting against the presence of the 2nd defendant on the land in dispute. The plaintiffs therefore cannot be accused of sleeping over their rights…”
This finding of the learned trial Judge that the land in dispute was not granted to Eastern Nigeria Development Corporation (ENDC) by the appellants in 1996 is perverse because the evidence of PW I and PW3 supports the evidence of the 2nd defendant that they granted the land to ENDC in 1962. It is trite that what is admitted needs no further proof. Okesuji v. Lawal (1986) 2 NWLR (Pt.22) 417, Owosho & Ors v. Dada (1984) 7 SC 149.
The finding of the learned trial Judge that the respondents have been protesting over the grant of the land to the Eastern Nigerian Development Corporation by the appellants and that they promptly brought the action when the appellants and ENDC carried out the activities specified in Exhibit A is also perverse because of the clear evidence of the appellants and supported by the evidence of PW1 and PW3 that the land was granted to the Eastern Nigeria Development Corporation by the appellants as far back as 1962 whereas this action was instituted only in 1975, a period over twelve years after the grant of the land by the appellants to the Eastern Nigerian Development Corporation. At page 133 of the records PW3 said:-
“Some of the protests we made were in writing. Some were oral. I cannot say which ones were in writing. I took part in the protest we wrote to the Divisional Officer at Afikpo. I cannot say the year unless, I am allowed to look into my file …”
PW1 also said that, they protested in writing to the 2nd defendant and sent a copy of their letter of protest to the District Officer (D.O.) at Afikpo. Curiously none of the letters of protest was tendered by PW1 and PW3. Suffice it therefore to say that, the respondents knew that the appellants granted the land to the Eastern Nigeria Development Corporation (ENDC) as for back as 1962 and did nothing until 1975 when they woke up from their slumber and filed this action against the defendants. The granting of the land in dispute to ENDC as far back as 1962 by the appellants unchallenged shows clearly that they have been in exclusive possession of the land in dispute from the time it devolved on them. At page 244 of the records the learned trial Judge said:
“It is difficult to dismiss the testimony of PW6 with a wave of the hand. A former Senator in the Nigerian State but now blind, he impressed me as a very reasonable person and one who could not be procured to tell falsehood … I accept his evidence that he and Chief Emole, and others intervened and appealed to the parties to give the land to ENDC. This was in 1964…”
This finding is glaringly wrong in view of the evidence of 2nd defendant supported by the evidence of PW1 that the land was granted to ENDC by the appellants in 1962 and not in 1964.
As I said above, the appellants also relied on Exhibits E and F-F27 to show that they are in exclusive possession of the land.
A look at Exhibits F-F3 and F5-F27 shows that they carry the thumb impressions of the alleged plantation tenants and their names are not written against their thumb impressions. Only Exhibit 4 was purportedly signed and no reason was given for not calling the tenant to testify.
Exhibit F7 is the same as Exhibits F6 and F9 as also Exhibit F16 and Exhibit F18. Besides, no reason was given for not calling them to testify. Suffice it therefore to say that, the learned trial Judge was right in expunging them. The leaned trial Judge was also right in expunging Exhibit E because the alleged writer was not called to testify that the Chief of the respondents’ community instructed him to write it and it is in respect of the land in dispute. Be that as it may, the appellants have succeeded in proving that they are in exclusive possession of the land in dispute as borne out from the grant of the land to the Eastern Nigerian Development Corporation by them in 1962 unchallenged, and establishment of a leper settlement on it by their ancestor.
Besides, the respondent failed to make out a case to sue the appellants in a representative capacity.
In the final conclusion, this appeal is allowed. The judgment of Anyanwu J. given on 30th July, 1991 including the order as to cost is set aside. In its place the respondents’ claim in the lower court is dismissed. There will be N2,000.00 costs in favour of the defendants/appellants for appearance to the High Court and N3,000.00 for appearance in this court.
Other Citations: (2000)LCN/0686(CA)