Chief Maduku Waghoreghor & Ors V. Josiah Aghenghen (1974)
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This is an appeal from the judgment of Ogbobine, J., in Suit No. UHC/42/69 delivered in the Ugheli High Court on May 29, 1970, wherein he found for the plaintiffs as per their writ which was endorsed as follows:
(1) A declaration that the plaintiffs as the persons adjudged in both Suit No. W/72/60: Chief Maduku Waghoreghor and Anor. v. Josiah Aghenghen and 11 Ors. and Appeal No. S.C. 563/66: Josiah Aghenghen and 10 Ors. v. Cheif Maduku Waghoreghor and Anor. to be the owners and/or owners in possession of Avbredja parcel of land verged Pink on Survey Plan No. GA. 213/61 lying and situate within the jurisdiction of this Honourable Court are entitled to:
(a) all monies due from and payable by the 1st defendants as rent or rental and/or compensation for the 1st defendant’ user and/or occupation of, and their operations on and/or in, Avbredja parcel of land aforesaid; AND (b) all monies and/or sums due from and payable by the 1st defendants in respect of plaintiffs’ communally owned economic trees growing on the said parcel of land which were destroyed by the 1st defendants during the decade 1959-1969. (2) An order that the 1st defendants do pay over to the Plaintiffs the sum of £9,983 : 4/- (Nine Thousand Nine Hundred and Eighty-Three Pounds Four Shillings or any sum or larger sum) due from and payable by the 1st defendants as claimed by the plaintiffs in (1) (a) and (b) above. (3) Perpetual injunction restraining the 1st defendants their servants and/or agent from paying any monies as claimed by the plaintiffs in (1) and (2) above to any person or persons other than the plaintiffs.”
At the outset both parties agreed not to call any oral evidence but to rest their respective cases on documentary evidence consisting mainly of the transcripts of two previous judgments between the same parties and in respect of the same piece of land. The combined effects of both judgments, one of which was given by the Warri High Court in Suit No. W/72/60 (Exhibit B) while the other was given on appeal against that judgment by the Supreme Court in Suit No. W.C. 563/66 (Exhibit C), may be summarised as follows:- (i) That the land in dispute is owned by the plaintiffs through their predecessors from time immemorial;
(ii) That the defendants are the customary tenants of an adjacent piece of land to whom, or to individual members whom, land rights of customary user in the disputed portion had been granted by the plaintiffs from time to time, and that the defendants have cultivated their various portions by inter alia planting them with economic and other permanent crops;
(iii) That the plaintiffs’ claim to forfeiture of the defendants’ land rights in the disputed portion was refused by the court on the ground that the denial of plaintiffs’ ownership by the defendants was not so serious as to warrant the exercise by the court of its equitable jurisdiction to grant a forfeiture, and that the imposition of a fine of £100 was sufficient: see Cheif Uwani v Akom & Ors. (1928) 8 NLR. 19 and Chief Etim & Ors. v. Chief Eke & ors. (1941) 16 NLR 43;
(iv) That the plaintiffs’ claim to an order of injunction restraining the defendants from further acts of trespass with respect to the land in question was similarly dismissed; (v) That, accordingly, while the plaintiffs were granted a declaration of title to the land in dispute, the defendants were given possession of the land for continued occupation and user under customary tenure”. The learned trial judge, however, decided to give the plaintiffs judgment as per their Statement of Claim.
The appellants have appealed to this court from that judgment on the following grounds: “1. The learned trial judge erred in law and on the facts in failing to observe that the appellants were customary tenants.
2. The learned trial judge erred in law in holding that the appellants were not entitled to claim any of the compensation despite their right of user and their having been in possession at the time of acquisition even if they were not customary tenants. 3. The learned trial judge erred in law in holding that the appellants must adduce evidence on the basis of computing the amount of compensation payable when he should have applied the equitable doctrine of ‘equality is equity’. 4. Judgment is against the weight of evidence.”
Mr. Balogun, learned counsel for the appellants, argued his grounds of appeal, to which Mr. Cole, learned counsel for the respondents, replied. It seems to us right to begin by drawing attention to the effects of the two judgments which we have stated above. That is the legal situation with which Ogbobine, J., was faced in the case before him, but instead of coming to a conclusion based on them, he embarked on a re-assessment and evaluation of the evidence led in the two previous judgments to which he then gave an interpretation totally unjustified in law.
We think that when a case has to be tried on the basis of previous judgments tendered and agreed to by both parties, as in the present one, it is not open to the trial judge to go behind the judgment and quote evidence led in the case to support his own view of what he thought the case itself decided, but the learned trial judge should have confined himself to the substance of the decision contained in the judgment in question.
He has no right to have treated the two previous judgments as if they were pieces of evidence adduced by the litigants before him, upon which he could proceed to make his own deductions. We have had occasion in recent months to warn High Court Judges against the practice of sitting on appeal, as it were, upon the judgment of other High Court Judges and to review and pass upon such judgments: see Okpa Orewere & Ors. v. Rev. Moses Abiegbe & Ors. (1973) 9 & 10 S.C. 1; Akporue & Anor. v. Okei & Ors. (1973) 12 S.C. 137.
In the present case, Ogbobine, J., even purported to review and interpret a Supreme Court judgment in his own way. This is clearly insupportable. Thus it seems to us clearly incompetent for the learned trial judge to hold that the defendants are licencees with regard to the disputed land, a point never raised on the pleadings nor canvassed by either party throughout both judgments on which the learned trial judge was asked to adjudicate.
If, as both parties rightly insisted before the learned trial judge, the only issue for determination is whether or not there should be an apportionment of the compensation money as between the plaintiffs and the defendants and, if so, in what proportion, then the preliminary and indeed crucial question is to delimit the precise scope of the nature of the land rights which the defendants have in the disputed land.
If, on a strict view of the two judgments, it should be found that the defendants have nothing, then they would have no share in the compensation money. But if on a true view of the matter, their customary land rights are found to be recognised in law, then they are entitled to a share proportionate to the extent of their legal interests.
The main question, therefore, is: What is the legal nature of the interests of customary tenant in the land granted to him? Before, however, we attempt to answer it, we should first consider what the two previous judgments really decided. As we have seen, the defendants have at least as individuals through their predecessors -in -title been granted rights of user with respect to the land for which they had at all material times paid tributes, they have from time immemorial planted economic crops and other produce thereon and generally farmed them according to the ordinary course of husbandry practised in the locality, and there is no finding that the plaintiffs have either lived or farmed on the disputed land.
No dispute would seem to have arisen as between both parties over all these years until Shell-BP began to explore for oil on this land. There is neither authority nor warrant for the assertion by the learned trial judge that, in order to become customary tenants, the defendants must establish an express grant to them as a community, such as was presumed to have taken place in the undisputed portion of the land; customary tenants can and often have their parcels of land granted to them individually, provided they duly honour the incidents of tenure, especially the payment of tributes.
It is not in dispute in this case that the defendants are lawfully on the disputed land. If, as contended by the plaintiffs, the defendants are not customary tenants, what are they? They occupy and use the land as ordinary customary tenants do, the plaintiffs have no concurrent rights of user with the defendants in respect of the disputed land, the defendants have duly been paying tributes, the £150 paid by Shell-BP was compensation for user and economic crops, the acquisition has indeed displaced only the defendants who are in possession of the land, and the courts have in the two previous judgments refused to grant either forfeiture or an injunction against the defendants.
The only reasonable conclusion to be drawn from these legal facts is that the defendants are either customary tenants of the disputed land or possess rights analogous to those of such tenants. All the incidents of customary tenure
Other Citation: (1974) LCN/1968(SC)
