Chief Roland Tukuru & Ors. V. Chief Nathans Sabi & Ors. (2004)
LawGlobal-Hub Lead Judgment Report
KUMAI BAYANG AKAAHS, J.C.A.
In their amended statement of claim, the plaintiffs who instituted the action in a representative capacity, claimed against the defendants also in a representative capacity the following reliefs:
“(i) A declaration of title of land known as ‘Opuadino’ situate in Koluama town in Koluama Division.
(ii) (N400) N800.00 general damages for trespass in that the defendants wrongfully entered upon the said plaintiffs’91 land which has been in the said plaintiffs’ peaceful possession by giving it to the Nigerian Agip Oil Company Limited, and by tapping palm wine on the plaintiffs’91 land without paying the customary rent.
(iii) A perpetual injunction restraining the defendants, their servants and or agents from entering upon the said land or presenting themselves as owners of the land or claiming any interest on the land or from committing any other form of trespass on the said land.”
The amended statement of claim dated 30th day of May, 1974 was filed on 22/7/75. The amendment only affected the plan filed along with the statement. The original statement of claim referred to plan No. OK 196 dated 12th March, 1974 but in the amended statement of claim the plan filed along with the statement is plan No. OK 324 dated 9th June, 1975. The defendants’ statement of defence dated 7th day of January, 1975 was filed on 8/1/75.
An application to amend the statement of defence to plead an Intelligence report and a map drawn in 1931, showing that some settlements in the disputed land were in Oporoma District after the plaintiffs had closed their case was dismissed on 15/7/91. The dismissal was based on the grounds that the documents sought to be pleaded were in existence long before the action was filed and Opuadino was not specifically named in the report and so the report was irrelevant. The defendants did not join issue with the amended plan OK 324 of 9th June, 1975.
The matter went to trial with both sides calling evidence. At the end of the trial, the learned trial Judge observed in the course of delivering his judgment on 18/5/92 that the plaintiffs did not adduce that type of evidence that will entitle them to succeed. He then dismissed the plaintiffs’ claims in their entirety. The plaintiffs were dissatisfied with the judgment and appealed to this court by filing the omnibus ground of appeal along with the notice of appeal. They later sought leave and added five additional grounds. The notice of appeal was accordingly amended.
Four issues were formulated in the appellants’ brief as follows:
1. Whether a plaintiff, as the appellants were in this case, is required to prove a fact admitted by the defendant?
2. Whether section 149(d) of the Evidence Act is applicable to witnesses, and applies where a defendant admits facts pleaded by a plaintiff?
3. Whether a court can pick and choose one out of several methods of proof of interest in land pleaded and established by the plaintiff?
4. Whether the approach of the learned trial Judge in the lower court, and the judgment thereof, were correct, given the circumstances of this case?
The respondents in their brief formulated three issues for determination in the following manner:
“(a) Whether on the pleadings, evidence and circumstances of this case the lower court was justified in its findings and conclusion that the appellants did not show clearly the area of land to which their claim relates.
(b) Whether on the pleadings, evidence and circumstances of this case, the lower court was justified in its conclusion that the failure by the appellants to call witnesses from Olugbobiri community their boundary neighbours amounts to a weakness in their case and therefore a violation of section 149(d) of the Evidence Act.
(c) Whether on the pleading, evidence and circumstances of this case, the lower court was justified in its conclusion that the appellants have failed to discharge the burden of proof cast upon them by the law that is, title to the ‘Opuadino’ lands, trespass and injunction.”
Before considering the issues raised in the appeal, it is necessary to give a brief background of the facts of the case. The genesis of the action stems from the compensation which Agip paid to the defendants in 1969, for oil exploration in the disputed area and in order to justify the demand for the compensation, the plaintiffs had to lay claim to the ownership of the land. According to them, they have been in possession of the land and that it is situated in Koluama town. According to tradition, the original settler on the land was Inda, the son of Kolu, who founded Koluama town and that Inda first entered the land for fishing expedition.
Later, Messrs Akpele, Oduwo, Okosu, Okereke and Bein of Koluama also settled on parts of the land to do fishing. Okosu settled at Okosugbene (a fishing settlement named after him). It is the place the Nigerian Agip Oil Company Limited now calls Tebidaba location. The defendants who were farmers supplied food to Inda and his people in exchange for fish. The plaintiffs allowed the defendants to tap the raffia palm, which had grown into a plantation to extract palm wine but had to pay rent. It was agreed that the wine tapped on Sundays would be given to the plaintiffs as rent. As the price of palm wine rose, the agreement was reviewed to enable the plaintiffs pay 6d less for a jar of palm wine. Efforts made by the defendants to usurp plaintiffs interest on the land was resisted, the latest being the compensation paid by Nigerian Agip Oil Company to the defendants who claimed ownership of the land. The plaintiffs had thus, consistently asserted their right to the land.
The defendants while conceding to the fact of being farmers and raffia palm tapers also claimed to be fishermen and gave their own version of the traditional history as follows:
“That Ike, the defendants’ ancestor founded Ikebiri (which was named after him) which included the land in dispute and other parts not in dispute over which he had control down to the seaside. The name ‘Opuadino’ in Olodiama dialect means big creek. The defendants claimed that their ancestors were the first to enter the area that was why the name Ikebiri Creek was given to the creek there. After entering the land, their ancestors founded settlements and called them after their respective first settlers i.e. Izobo from Ikebiri founded lzobogbene, while Otor also from Ikebiri founded Otorgbene and Madam Okosi who was the wife of Otor founded Okosigbene.
The defendants’ traditional history is that one Kolo of Sagbama went to Ikebiri and entered Chief Egne’s house and Kolo sought for permission to settle there. Chief Egne then called other Chiefs of Ikebiri community and put the matter before them. The Chiefs unanimously agreed that a place should be given to Kolo; so they took him down to a place called the back bush of Otorgbene and he settled there as a fisherman. After some years, another set of people carne from Osiama in the present Sagbama Local Government Area and they entered Egulukele’s house.
They were in four groups with their families and were led by Danawari. The others were Tolumote, Awaka and Tomowonowei. These later groups lived with Egulukele for some time before asking for a place to settle. As there was no other vacant land on which they could be settled, they were taken to Kolo where they shared settlement with Kolo’s people and this gave rise to Koluama town.
Issue No.1. Learned Counsel for the appellants submitted by citing the case of Achimugu v. Minister, FCT. (1998) 11 NWLR (Pt.574) 467, that what is admitted needs no further proof. He argued that since plan No. OK 324 is a document which was tendered without any objection from the respondents, it was not necessary to call any further oral evidence to identify the land as a survey plan is a recognised way of proving title to land and the extent and boundaries thereof.
He argued that no issue was joined as to the identity of the land Opuadino, and the evidence of DW1, the respondents’ star witness corroborated the appellants’ evidence and identified the land in question as being bounded by Olugbobiri community. It is his contention that with the concurrence of both parties to the proceedings on the particular parcel of land named ‘Opuadino’ any additional evidence of identity was unnecessary.
Turning to issue No.2 he submitted that section 149(d) Evidence Act deals with failure to call evidence not witnesses. Reliance for this submission was placed on the case of Samuel Onwujuba v. Nathaniel Obienu (1991) 4 NWLR (Pt.183) 16. It is argued that the learned trial Judge completely misapplied the provisions of section 149(d), previously S. 148(d) Evidence Act. He said with the admission of the plaintiff’s plan and the testimonies of PW1 which was corroborated by DW1 (both star witnesses for the plaintiffs and the defence) there was in fact and in law no need whatsoever for the testimony of persons from Olugbobiri and therefore learned Counsel submitted that the presumptions in section 149(d) Evidence Act do not apply in this instance.
Issue No.3 was next dealt with by the learned Counsel. He said the trial court selected traditional history when the plaintiffs pleaded acts of possession and the ownership of surrounding parcels of land and referred to paragraphs 4 and 5 of the amended statement of claim. He argued that the admission of the survey plan and its contents took care of the questions of ownership of surrounding parcels of land as well as the need to call oral evidence to establish the boundaries of the disputed land. The burden of proof was therefore discharged by the plaintiffs.
It is his further contention that PW1 and PW2 gave material pieces of evidence in support of acts of possession and their evidence was not shaken under cross-examination, yet the learned trial Judge concerned himself only with evidence of traditional history. The case of Idundun v. Okumagba (1976) 9 – 10 S.C. 227, lays down that there are five different ways of proving title to land, but that case never decided that a court must pick only one mode of proof of title to the land.
Consequently, learned Counsel submitted that the trial Judge erred in leaving out other modes of proof of title to land, which were not only pleaded but proved in evidence. Having discharged the burden of proof, it was incumbent on the learned trial Judge to make a finding on exhibit ‘A’ and the refusal of the trial Judge to rely on exhibit ‘A’ merely on the ground that PW1 was not a surveyor and so could not read and interpret it occasioned a miscarriage of justice. He therefore urged this court to allow the appeal and enter judgment in favour of the appellants.
In response to appellants’ submissions learned Counsel for the respondents referred to the pleadings filed especially paragraphs 3 and 4 of the amended statement of claim and defence and also exhibits A and C tendered by the parties respectively as well as the evidence of witnesses called by either side particularly PW1, PW2, PW3, DW2 and DW5 and submitted that the parties at the lower court effectively joined issues on the identity of the land in dispute.
He submitted that the fact that the appellants’ plan was admitted without objection would not entitle a court to ascribe to it a probative value which it did not otherwise possess when the plan itself is bereft of features which can give the boundaries in it the character of certainty. The cases of Udeze v. Chidebe (1990) 1 NWLR (Pt. 125) 141; Odofin v. Ayoola (1984) 11 SC. 72 and Omoregie v. Idugiemwanye (1985) 2 NWLR (Pt.5) 41, were cited in support of the contention.
Learned Counsel went further to argue that the appellant had the duty to plead and prove with certainty the boundaries of the land they claim and where they fail to do so, their case will be rightly dismissed. He submitted that section 149(d) Evidence Act applied in the circumstances of this case. He contended that the conflicts in evidence of PW1 left nothing for the court to use in determining the boundary of the disputed land.
Dealing with the issue whether on the pleadings, evidence and circumstances of the case, the lower court was justified in its conclusion that the appellants have failed to discharge the burden of proof placed on them, learned Counsel for the respondents referred to paragraphs 3, 4 and 5 of the amended statement of claim and submitted that the appellants gave conflicting and unclear evidence as to the ownership of the surrounding lands to the land in dispute. He referred to the evidence of traditional history given by PW1, aspects of which were corroborated by PW2 and PW3 but there was no pleading of the shrine on the land in dispute called Olou Bou and even though that piece of evidence was corroborated, it went to no issue.
Also, the evidence by PW2 of the children’s cemetery was not pleaded and so went to no issue. Conceding that there are five ways of proving title to land as enunciated in Idundun v. Okumagba (supra) which has been followed in several cases namely Omoregie v. Idugiemwanye supra; Onwuka v. Ediala (1989) 1 NWLR (Pt. 96) 182; Ajibade v. Mayowa (1978) 9-10 S.C. 1.
Learned Counsel for the respondents submitted that for the plaintiff to prove title and boundary to the land in dispute, he must show to the court the area to which his claim relates and referred to the following cases to support the contention:
“Epi v. Aigbedion (1972) 10 SC 53; Akinolu Baruwa v. Ogunshola 4 WACA 159; Udoria v. Afia (1940) 6 WACA 216; Kwadzo v. Adjei 10 WACA274 and Oluwi v. Eniola (1967) NMLR 339.”
It is argued that in a case such as this where there is no counter claim for title by the defendants, the duty of the defendants is nothing more than to defend, as they do not have to prove anything.
Learned counsel’s submission is that before a declaration to title is granted, there must be credible evidence describing and identifying the land with certainty as well as establishing the origin and devolution of the title down to the claimant. He argued that in paragraph 5(1) of the amended statement of claim, the appellants pleaded their origin, but there was no evidence on how the land devolved from Inda to them. Consequently, learned Counsel argued, the traditional history of the appellants must fail citing Elias v. Omobare (1982) Vol. 1 (Pt.1) All NLR 70; (1982) Vo3 NSCC 92 in support.
He then dealt with the issue of trespass, which is based on exclusive possession and submitted that where trespass fails, the relief on injunction, which is an ancillary relief, will automatically fail. In order to succeed in a claim for trespass, the plaintiff must show that he is the owner of the land or that he is in exclusive possession. A trespasser does not by the act of trespass secure possession in law from the person against whom he is in trespass.
He referred to the evidence by the appellants and argued that no evidence was led by them to identify any person from the respondents’ family that paid palm wine rent, nor from the plaintiff’s community who bought at the reduced rate or was paid rent as pleaded. He pointed to the conflict in the evidence of PW1 and PW2 as to who established the two markets at Ikebiri Creek. He said the acts of ownership as claimed by the plaintiffs is unreliable, contradictory and not capable of inducing belief on acts of ownership. The claim by the appellant ought to fail and this appeal should be dismissed.
This appeal is centred on whether the appellants proved their case to be entitled to a declaration of title to the disputed land, damages for trespass and injunction. In a claim for declaration of title to land, the plaintiff must succeed or fail on the strength of his case and not on the weakness of the defence. See: Kodilinye v. Odu 2 WACA336 at 337; Akinola v. Oluwo (1962) 1 SCNLR 352, (1962) All NLR 224 at 227; Mogaji v. Cadbury Ltd. (1985) 2 NWLR (Pt. 7) 393 at 429.
In the appellants’ brief it was argued strongly that the respondents’ pleadings did not specifically deny paragraph 4 of the appellants’ amended statement of claim dated 30/5/74 and so no issue was joined as to the identity of the land ‘Opuadino’ and the fact that it is bounded by Olugbobiri community in the East. It was submitted that the plan tendered as exhibit A did not require any further oral evidence to identify the land as a survey plan is recognized as one of the ways of proving title to land and the extent and boundaries thereof, and PW1, the appellants’ star witness not only identified Olugbobiri community as neighbours, he identified the land in dispute and tendered plan OK 324 dated 9/6/75 without objection from the respondents. His evidence according to learned Counsel for the appellants was conoborated by DW1, the star witness for the respondents on the fact that the disputed land was bounded by Olugbobiri community.
The law has been stated that the burden of proof of essential features on the plan depends on the nature of the material averments in the statement of defence and plan filed by the defendant. Where these features on the plan are not put in issue, the mere tendering of the plan is sufficient and these features need not be proved. See: Omoregie v. Idugiemwanye (supra) at page 60 where Oputa, J.S.C. stated thus:
“Now the onus of proving the material averments in the plan of the plaintiff will arise if the extent of the land, its boundaries or other features are put in issue by the defendants. It is not a ritual that the plaintiff should in every case ‘prove the features shown by evidence’. Where these features are-not-put-in issue, the mere tendering by the surveyor (in fact the plan can even there be tendered by consent where no issues requiring proof arise thereon) should be sufficient …”
In paragraphs 3 and 4 of the amended statement of claim, the plaintiffs now appellants pleaded as follows:
“3. The plaintiffs are at all material times the owners in possession of all that certain piece and parcel of land known as ‘Opuadino’ situate at Koluama town, formerly in the Southern Ijaw area in Brass Division within the jurisdiction of this Honourable Court. The said land is known as ‘Opuadino’ and is hereafter called the land in dispute.
4. The exact boundaries of the said plaintiff’s land in dispute which is the subject matter of this suit are particularly delineated in plan No.OK 324 dated 9th June, 1975, in which the land owned by the plaintiffs is verged red, whilst the area of the land in dispute is verged green. The said plain No.OK 324 is filed along with this statement of claim.”
The defendants now respondents also pleaded in paragraphs 3 and 4 of the statement of defence the following facts:
“3. In reference to paragraph 3 of the statement of claim, the defendants say that the land called Opuadino is as shown verged green on the defendants’ plan No. UR/392/74 LD filed with this defence and that they are at all material times the owners in possession thereof, having inherited same from their ancestors who were the owners thereof from time immemorial.
The said land is situate in Ikebiri town in Oporoma Division and is bounded as follows:
On the North by the defendants’ land called Torutama; On the South by land given to one Kolo, of Sagbama by the defendants’ people, which land later came to be called Koloama or Koluama after the said Kolo;
On the East by the land of Olugbobiri people; and
On the West by the defendants’ land called Burouba.
The defendants further say that the plaintiffs are the descendants of certain strangers, namely, Damawari, Awaka, Tolumotei and Tamuwoniowei, from a village called Osiama in what is the present Mid-Western State, who came and joined the said Kolo at the said Koloama. The said Kolo from whom the said Koloama or Koluama derived its name was a native of Sagbama, another village also in what is now the present Mid-Western State. He came from the said Sagbama to Ikebiri, the village of the defendants, and first lived in the compound of one of the Chiefs of the said village called Egwue.
Later, he was settled by the said Chief Egwue and his fellow Chiefs on the land, which, as aforesaid, came to be named Koloama or Koluama after him. Save as aforesaid paragraph 3 of the statement of claim is denied.
“4. In reference to paragraph 4 of the statement of claim, the defendants say that the land shown on the plaintiffs said plan is only a portion of the defendant land called Opuadino, except that it includes portion of the land of Olugbobili people, who are the defendants’ neighbours on the Eastern side. It excludes a small port on the North-Western side and a considerable portion on the South.”
The defendants clearly and effectively put the plaintiffs’ plan in issue. The defendants even asserted that the land shown on the plaintiffs’ said plan is only a portion of the defendants’ land called ‘Opuadino’. The defendants’ pleading in paragraph 3 of the statement of defence is more detailed than the sketchy pleadings in the amended statement of claim. There is no truth in the submissions made by learned Counsel for the appellant that no issue was joined on the disputed parcel of land called ‘Opuadino’. It is not the law that once a plaintiff amends his pleadings the defendant is also duty bound to amend the statement of defence.
The issue was already joined on the disputed parcel of land and the plaintiffs’ decision to amend the plan from plan No. OK 196 dated 12th March, 1974 to read plan No.OK 324 dated 9th June, 1975 and filed along with the amended statement of claim will not attract sanction on the defendants, who failed to amend the statement of defence.
The principle that it is not necessary to lead evidence on a point in which issue has not been joined does not apply to this case under appeal. See Olufosoye v. Olorunfemi (1989) 1 NWLR (Pt. 95) 26. And since the plaintiffs are seeking for a declaration of title, it is their duty to show clearly the area of land to which their claim relates, its exact boundaries and its extent, as no court will grant a declaration to an undefined area. See: Odofin v. Ayoola (1984) 11 SC 72, (1984) Vol. 15 NSCC 711 at 721.
I agree with the submission made by learned Counsel for the respondents that the fact that the appellants’ plan was admitted without objection will not entitle a court to ascribe to it a probative value, which it did not otherwise, possess when the plan itself is bereft of features which can give the boundaries in it the character of certainty. See: Udeze v. Chidebe (1990) 1 NWLR (Pt.125) 141 at 160.
Learned Counsel for the appellants argued that PW1, the appellants’ star witness, not only identified Olugbobiri community as neighbours, he identified the land in dispute and further tendered plan No.OK 324 dated 9/6/75 without objection from the respondents. He therefore submitted that the plan being a document, did not need any further oral evidence to identify the land and since DW1, the respondents’ star witness corroborated the appellants’ evidence and in particular identified the land in question as being bounded by Olugbobiri Community, any additional evidence on identity was unnecessary.
The evidence of PW1 runs from pages 87 – 116 of the records. He is the star witness for the plaintiffs. Two other witnesses testified for the plaintiffs. Although, exhibit ‘A’ the survey plan was tendered by PW1, none of the other two witnesses, who testified for the plaintiffs was the surveyor who prepared exhibit ‘A’. In his consideration of the evidence called by the plaintiffs, the learned trial Judge pointed out to several areas in the oral evidence of the witnesses, which were at variance with the features in exhibit ‘A’.
He said that PW1 did not admit that Opuadino is situated along the Ikebiri Creek, but exhibit ‘A’ clearly shows that except for a tiny stretch of land on the North-East where Ikebiri and Olugbobiri lands are shown, the whole North-West and South of Opuadino is skirted by the lkebiri Creek which flows into the confluence of the Ikebiri Hand Okoron Creeks. PW1 did not admit the Buloukubu Creek forms the North-Western Boundary of Opuadino land, but on exhibit ‘A’ it is clearly shown that it forms the said boundary. Other discrepancies between the evidence of PW1 and exhibit ‘A’ is the merger of Boulukubu Creek and Ikebiri Creek to form one creek depicted in exhibit ‘A’ but denied by PW1 and the position of Okosi fishing port located on the bank of Ikebiri Creek and lying opposite the Agip channels, but which fact was denied by PW1 under cross-examination. Likewise, he did not admit that the Olugbobiri people are the Eastern Boundary neighbours of the Koluama people yet exhibit ‘A’ shows that the lands of the Koluama people and those of the Olugbobiri people meet at the extreme Eastern end of exhibit ‘A’.
These findings made by the learned trial Judge are not perverse as they are borne out by the evidence on record. The learned trial Judge was right in stating that it was necessary to call the licensed surveyor who prepared exhibit ‘A’ to testify as to the features shown on exhibit ‘A’ since PW1 was not a licensed surveyor and could not interpret the features on exhibit ‘A’. The plaintiffs also failed to call boundary neighbours to testify on their behalf as opposed to the defendants’ witnesses DW2 and DW3 who were from Olugbobiri and Azuzuama respectively and who testified that the disputed land belonged to the defendants. In addition, the defendants called DW5, the licensed surveyor who prepared exhibit ‘C’ and testified on the features which were shown to him. Although, it is the quality and not the number of witnesses called that should decide the weight, apart from the number, the evidence called by the defendants carried more weight than those called by the plaintiffs and the balance therefore tilted in favour of the defence.
Section 149(d) Evidence Act attaches to the production of relevant evidence, which may be oral or documentary. If the relevant evidence concerns seeing or hearing, then it must be a witness who saw or heard that must be called and where the relevant evidence is contained in a document, then the said document must be produced, and if it is not produced, recourse can be made to section 149(d) to say that its production would adversely affect the party producing it.
Other aspects of this case, which merit consideration are the evidence of the plaintiffs’ witnesses, on the boundary between Ikebiri and Koluama and Madam Zibinibirighe’s evidence of the compensation paid to her by Nigerian Agip Oil Company which was confiscated by the Ikebiri.
Apart from the discrepancies of PW1’s evidence and exhibit ‘A’ PW2 and PW3 testified.
PW3 said the parcel of land is nearer to Koluama than Ikebiri but when he was cross-examined as to the boundary between Ikebiri and Koluama, he replied that he did not know. At page 91 of the records PW1 in his evidence in chief asserted that the case which Madam Zibinibirighe Kokoro reported to the Yenagoa police station was that the defendants had no right to collect the compensation paid to her by the Nigerian Agip Oil Company because the parcel of land on which compensation was paid was given to her father by Koluama people. The defendants tendered the proceedings in which the said Madam Zibinibirighe testified which was received in evidence as exhibit ‘B’. At page 23 of exhibit ‘B’ lines 27 – 38 she said:
‘I heard later that the money had been paid to Ikebiri, and asked for it and they refused to pay me. I went and reported at Yenagoa and took Police and arrested them.
They admitted taking the money. They were asked why they took it. They said I was an Ikianbiri, but partly from Ikebiri and that was why I was allowed to stay on the land, but I had refused to pay contributions in Ikebiri and that was why they seized the money. The land belongs to Ikebiri people and through them we have been farming.”
On being cross-examined she answered thus on page 24 lines 31 – 32:
“I never said to the police that I refused the Ikebiri taking my money because the land was Koluama land”.
The learned trial Judge held that the contents of exhibit ‘B’ had no probative value. I do not agree with him because section 34(1) Evidence Act states as follows:
“34(1) Evidence given by a witness in a judicial proceeding, or before any person authorised by law to take it, is relevant for the purpose of proving, in a subsequent judicial proceeding, or in a later stage of the same judicial proceeding, the truth of the facts which it states, when the witness is dead or cannot be found, or is incapable of giving evidence, or is kept out of the way by the adverse party, or when his presence cannot be obtained without an amount of delay or expense which, in the circumstances of the case, the court considers unreasonable:
Provided –
(a) that the proceeding was between the same parties or their representatives in interest;
(b) that the adverse party in the first proceeding had the right and opportunity to cross-examine; and
(c) that the questions in issue were substantially the same in the first as in the second proceeding.”
It is this same suit between the same parties, which was started as suit No.PHC/168/72 in 1973, before Allagoa, then acting Chief Justice and passed through several Judges before evidence was taken by Justice P. G. Okara, including that of Zibinibirighe who testified as DW2 among others and the case adjourned to 9/3/83 for judgment. Judgment was however, not delivered and so the case had to be started de novo before Blankson, J. in 1988 as suit No.YCH/19/88. The plaintiffs cross-examined DW2 and elicited the answer, which she gave on page 24 lines 31 – 32 of exhibit B. The issues for resolution are the same in suit No. PHC/168/73 as in suit No.YHC/19/88. So what DW2 stated under cross-examination is relevant to debunk the claim made by PW1 that Madam Zibinibirighe challenged the seizure by the Ikebiri of the compensation paid to her by the Nigerian Agip Oil Company on the ground that the land for which the compensation was paid was given to her father by the Koluama and not the Ikebiri. As the defendants did not counter-claim, the case should stand dismissed. See Udeze v. Chidebe supra.
For the plaintiffs to prove title, they were duty bound to show to the court the area to which their claim relates. See Epi v. Aigbedion (1972) 10 S.C. 53; Akinolu Baruwa v. Ogunshola & Ors. 4 WACA 159. Before a declaration of title is granted, there must be credible evidence describing and identifying the land with certainty as well as establishing the origin and devolution of the title down to the claimants.
In paragraph 5(1) of the amended statement of claim, the appellants pleaded their origin. They said that the land in dispute was first settled upon by Inda, who was the son of Kolu, the founder of Koluama.
Later on other people from Koluama namely Akpele, Oduwo, Okosi, Okereke and Bein joined Inda at Opuadino. The plaintiffs neither pleaded nor did PW1 testify how the land devolved from Inda to them. The chain of inheritance from Inda to the present appellants has not been established; consequently, not much use can be made of the traditional history put forward by the plaintiffs/appellants. See: Elias v. Omo-Bare (1982) 1 All NLR 70, (1982) Vol. 1 ANLR 75.
The learned trial Judge preferred the evidence of the traditional history adduced by the defendants to that of the plaintiffs and found that a conflict exists in the traditional history adduced by the parties and so had to apply the principle enunciated in Koja II v. Bonsie (1957) 1 WLR 1223, where the Privy Council decided that where there is a conflict in traditional evidence resort should be made to relevant facts in recent years as to establish by evidence and seeing which of the two conflicting and competing histories is the more probable. It is incorrect to assert that the learned trial Judge considered only the evidence on traditional history before dismissing the plaintiffs, case. The learned trial Judge found that not only did the plaintiffs fail to prove the boundaries of the land in dispute as they claimed; they did not show how the said land devolved from Inda to them. Their claim for declaration ought and therefore had to fail. The reasoning by the learned trial Judge cannot be faulted in any way.
What remains to be considered is the issue of trespass. Trespass is a wrong to possession by a person who cannot show a better title. See: Kponuglo v. Kodadja (1933) 2 WACA 24. In order to succeed, the plaintiff must show that he is the owner of the land or that he has exclusive possession of it. A trespasser does not by the act of trespass acquire possession in law from the person against whom he is in trespass. See Adebakin v. Odujebe (1972) 6 S.C. 208. It is a wrong to possession. See Osho v. Foreign Finance Corporation (1991) 4 NWLR (Pt.184) 157. In paragraphs 5(ix), 6, 7 and 9 of the amended statement of claim the plaintiffs pleaded as follows:
“5(ix) When the people of the defendants’ place had attempted to usurp plaintiffs’ interest on the land the plaintiffs had always asserted their right; thus:
(a) The timber locally called ‘KU’ was sacred to the defendants and dealers in this timber were prohibited from bringing it to any part of Ikebiri (defendants) land.
(b) In 1922, at the request of the people or the defendants the paramount Chief of Koluama established a market in Opuadino for the mutual benefit of Koluama and Ikebiri people.
(c) In 1928, one Mr. Bicycle and others from Akwegbe in Urobo (now in the Mid-Western) approached the Ikebiri community seeking their permission to settle at Opuadino.
The Ikebiri people with Ogodo as their head chief, who knew that the defendants’ people have no right to the land referred his application to the Koluama community, who are the proper Landlords of the place. The visitors were taken to Koluama by Kieriama and Omeragene to meet late Chief Tukuru of Koluama for negotiation. The visitors later settled in Opuadino as tenants of Koluama.
(d) The people of Koluama had in the past prevented people from the defendant’s place from selling, leasing or pledging the land in dispute. An example is the case of Tueke versus Ikebiri community, whereby the defendants were prevented from pledging part of the land in dispute to one Osain Oluku in 1962. And the defendants were asked by the plaintiffs to remove their signboards from the place.
The signboards were obediently removed by the defendants.
(e) On one-occasion crops which belonged to Madam Zibinibirighe Kokoro of Ikeinghebiri were damaged by the Nigerian Agip Oil Company Limited, but the defendants went to claim compensation in respect of the land. But Madam Zibinibirighe reported the matter to the police at Yenagoa, who made the defendants refund her money. Her case was that it was Koluama people, who gave the said parcel of land to her father which she inherited.
6. The defendants received money from the Nigerian Agip Oil Company Limited as compensation by falsely claiming that the land in dispute was their land. The Koluama community reported the action of defendants to the district officer Brass. The district officer invited both parties but the defendants refused to show up.
7. The defendants know that the land in dispute was not their property, hence, they were prepared to accept any amount offered to them by the said Oil Company.
9. The defendants have now discontinued to pay rent to the plaintiffs for palm wine that are being tapped on the land and are now claiming that the land is their own and have further presented themselves to the Nigerian Agip Oil Company Limited that the defendants are the owners of the land in dispute and received compensation for which the plaintiffs are entitled, and have committed various forms of trespass on the land.”
The defendants denied these averments in paragraphs 6, 7 and 8 of the statement of defence and the said paragraphs in the statement of defence state as follows:
“6. Save that it is admitted that the tree called ‘Ku’ was at one time held or considered sacred by the defendants’ people all the allegations contained in paragraph 5(ix), (a) to (e) of the statement of claim are, and each and everyone of them, is denied. The plaintiffs are not the owners of the land in dispute and had no interest there in which the defendants at any time attempted to usurp. The plaintiffs only appeared on the scene when they heard of the Nigerian Agip Oil Company Limited and the compensation, which was paid, or to be paid to the defendants by the said company. The markets at Opuadino were established by the defendants’ people, the old one, no longer in use, in March, 1921, and the present one in 1969. In particular reference to paragraph 5(ix), (d) of the statement of claim, the defendants further say that the person named Tueke is a woman and native of Ikebiri.
She violated a law or custom of the defendants’ people which prohibited the Ikebiri people from engaging strangers except natives of Ikebiri to fell trees or do any work on the defendants’ land called Sambou, which was held sacred by the defendants and their people.
She had employed strangers who were prevented from felling trees for her on the said Sambou land by the defendants and their people. In consequence, she took out an action, which she later withdrew. There was no question of any pledge of the land in dispute or of the said Sambou land or any other land by the defendants.
The defendants placed no signboard on the said land, and were not asked by the plaintiffs or any other people to remove same and removed none. As to paragraph 5(ix)(e), certain payment for sugar cane planted by the said woman, who is a native of Ikebiri on the land in dispute and damaged by Nigerian Agip Oil Company Limited was seized by the Ikebiri people, against certain money owed by her. She reported to the police, who advised that the money be returned to her and, if necessary, an action be taken against her for any debts she owed to the community. The said money was accordingly returned to her.
7. In reference to paragraph 6 of the statement of claim, the defendants admit receiving compensation from the Nigerian Agip Oil Company Limited in respect of the land in dispute, but that only as to the portion thereof which belong to them, the remaining portion being land of the Olugbobiri people.
They also admit that the plaintiffs or their people made a report to the district officer at Brass against them in respect of the land in dispute and that the said district officer in consequence invited them. Save as aforesaid the said paragraph is denied. They say that on the said invitation, they met the said district officer, together with the plaintiffs, that they went again on another occasion fixed by the said district officer, when the plaintiffs, having apparently realised the falsity of their claim, and having abandoned same, failed to appear.
Thereafter, the matter was considered closed by the defendants and the said district officer and the defendants heard no more about it until this action. Thus, the plaintiffs acquiesced in the assertion by the defendants of their ownership of the said land and of their right and title to compensation in respect thereof.
8. In reference to paragraph 7 of the statement of claim the defendants say that they are the owners in possession of the land in dispute, which they inherited, from their ancestors who owned and possessed it from time immemorial. As owners, the defendants accepted what they considered to be a fair or adequate compensation in respect thereof. The plaintiffs are not the owners of the land in dispute and no offer was made to the plaintiffs, which they rejected. No action was taken out by the plaintiffs against the said Nigerian Agip Oil Company Limited for any compensation considered by them as due and payable to them in respect of the said land. On the contrary, the plaintiffs looked on while the defendants asserted their right and claimed the compensation rightly due and payable to them (defendants).
Considering the evidence adduced especially by the plaintiffs on acts of possession, they did not show they were in exclusive possession to enable them maintain an action in trespass against the defendants. A few examples will suffice. In his evidence in chief PW1 stated that the plaintiffs had never pledged nor moved away from the land in dispute since it was founded by Inda, their ancestor and they have been in peaceable possession until the defendants came to interfere with their possession. This witness stated under cross-examination that the name of the old market on the land in dispute is Koluama-Ikebiri market and it was established in 1922.
He did not admit that another market was established by Ikebiri people in 1969. But PW2 agreed that the old market was no longer in use and the new one was established by the Ikebiri people. This is a material contradiction in the evidence of PW1 and PW2 on the ownership of the land, which invariably has to affect possession. Nobody in the company of Mr. Bicycle, who was said to have visited the defendants in 1928 was called to corroborate the fact that the defendants had to refer Mr. Bicycle’s request to be settled on the land to the plaintiffs who were the overlords. I had earlier pointed out that Madam Zibinibirighe did not contest the confiscation of the compensation made to her by Agip based on the fact that the land belonged to Koluama people as asserted by the PW1. The acts of ownership and possession as claimed by the plaintiffs is therefore unreliable, contradictory and not capable of inducing belief. This finding was made by the learned trial Judge and it is amply supported by the evidence adduced.
The pleadings in paragraph 6 of the amended statement of claim (earlier reproduced) does not show that the plaintiffs were in exclusive possession because the activities of oil exploration are not carried out in a clandestine manner as to suggest that the defendants went secretly and collected the compensation from Nigerian Agip Oil Company Limited. Another aspect of the plaintiffs’ evidence on which no weight can be attached is the payment of rent to the plaintiffs for the tapping of palm wine that was being carried out by the defendants.
No evidence was led by the appellants to identify any person from the respondents’ people that paid rent on the palm wine that was tapped from the raffia palms, nor is there evidence concerning any family from the plaintiffs’ community who purchased palm wine at a reduced rate from the defendants. The respondents on the other hand pleaded and gave evidence as to their juju shrine, the establishment of the market and it is only the respondents as against the plaintiffs/appellants that have received compensation in respect of the land in dispute and this was what prompted the appellants to institute the action in court. The plaintiffs did not establish exclusive possession to be entitled to damages for trespass just as they failed to prove the boundaries and the ownership of the disputed land to entitle them to a declaration of title.
Since the claim for ownership of the land has failed and the appellants were not found to be in exclusive possession, the claim for a permanent injunction will equally fail as it is an ancillary relief based on trespass. The evaluation of evidence made by the learned trial Judge and the conclusions reached therein are not perverse and I therefore, uphold them. Accordingly, I do not find any merit in this appeal. I affirm the decision of the learned trial Judge and dismiss the appeal with N5,000.00 costs in favour of the respondents against the appellants.
The appeal was deemed argued on the briefs in accordance with Order 6 rule 9(5) Court of Appeal Rules, 2002, since briefs had been filed but the respondents’ Counsel was absent from court to present his oral argument even though there was proof of service of the hearing notice on him.
Other Citations: (2004)LCN/1556(CA)