Chief Tobias Otuboh & Ors V. Chief Anike Agbowo & Ors (2016)

LawGlobal-Hub Lead Judgment Report

RITA NOSAKHARE PEMU, J.C.A.

 This is an appeal against the decision of Hon. Justice A. A. Umezulike (OFR) of the High Court of Justice Enugu, Enugu State, Enugu Judicial Division delivered on the 27th day of March 2004, wherein the learned trial Judge found for the Plaintiffs (Respondents in the present Appeal) in Suit N0. E/87/74.

SYNOPSIS OF FACTS:
The Suit, the subject matter of this Appeal, was instituted by the Federal Court of Appeal Enugu order for retrial made on the 28th of February 1983 – Page 1 of Appeal.

In Paragraph 24 of the Amended Statement of Claim filed on the 20th of June 1989, the Plaintiffs (Respondents in the present appeal) claims against the Defendants (Appellants in the present appeal) the following –
i) “Declaration of title to Ogbagu, Ogbanu, Idume and Ugbene portions of the land verged pink in the Plan No, EC/165/74.
ii) N1,000.00 being general damages for trespass into Ogbanu, Idume and Ugbene portions of the land.
iii) Forfeiture of the tenancy of the defendants of Ogbagu land.
iv) Perpetual injunction restraining the defendants,

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their heirs, agents and assigns from further trespass into any portion of the land in dispute.”
– Pages 16 – 19 of the Record of Appeal.

The Plaintiffs claim in a representative capacity for themselves and on behalf of the people of Onuogba Nike village, Nike Town, Emene.

At the lower Court, the Respondents (Plaintiffs at the lower Court) allege that in 1959 they orally, and under native law and custom, granted their portion of land known and called Ogbagu to the Appellants (defendants at the lower Court). That after fourteen years, the Appellants trespassed on the portions of the land called Ogbanu, Idume and Ugbene.

However, the Appellants story is that some time in the year 1958, they came into the land, because same was granted them by the Respondents who owned the land.

The grant was reduced into writing and the documents was prepared by late Barrister Dominic Nwosu. The agreement was executed by leaders and/or representatives of both sides, in the office of the Enugu Divisional Officers office in 1960. They allege that as at the time of the Grant, they were not restricted to any portion of part of the land at

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Onuogba Nike Enugu. Neither were the names Ogbagu, Ogbanu, Idume and Ugbene mentioned, or known to them when the land in dispute was granted to them. They paid tax, shared markets, contributed to town development levies and worshipped the same dirty called Ngwu Ngene Ojo, together with the Respondents. They did not commit any trespass, hence did they not exceed the area of land given to them.

The matter proceeded to trial. Witnesses were taken from both sides and the trial Judge entered Judgment for the Respondents. – Pages 96-113 of the Record of Appeal.

Dissatisfied with the Judgment, the Appellants filed a Notice of Appeal with four (4) Grounds of Appeal at pages 114-116 of the Record of Appeal.

The Appellants filed their brief of Argument on the 19th of November 2015. It is settled by Ichie L. M. E. Ezeofor, Esq.

The Respondents filed their brief of Argument on the 14th of December, 2015. It is settled by L. O. Etoniru, Esq.

The parties adopted their Respective Briefs of argument on the 26th of April 2016.

The Appellants distilled four (4) issues for determination from the Grounds of Appeal. They are –

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(1) “Having regard to Exhibit 2, the agreement dated 24th February, 1960 between the parties, was the learned trial Judge right in holding that the defendants were confined to Ogbagu land which was never mentioned in the said exhibit?
(2) In giving effect to Exhibit 2, was the learned trial Judge right in holding that the defendants were still mere customary tenants of the plaintiffs notwithstanding the terms thereof making provision for integration of the defendants with the plaintiffs?
(3) Whether the learned trial Judge did not misdirect himself in failing to consider the full effect of Exhibit 2 and the arbitration of 1984 and did such failure not lead to miscarriage of justice to the defendants’ case?
(4) Having regard to the totality of the evidence before him, was the learned trial Judge right in his judgment in not dismissing the plaintiffs’ claim in their entirety and granting the relief not sought by the Plaintiffs/ Respondents?

The Respondents distilled three (3) issues for determination in their brief of argument. They are –
1) “WHETHER THE DETERMINATION OF THE PARTIES’ CASE RESTED ON CONSTRUCTION OF EXHIBIT 2 RATHER THAN

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THE EVALUATION OF THE EVIDENCE GIVEN BY THE WITNESSES AT THE TRIAL.
2) WHETHER THE LAND IN DISPUTE COMPRISES FOUR PORTIONS OF LAND NAMELY OGBAGU, OGBANU IDUME AND UGBENE OR JUST ONE PIECE OF LAND NAMELY ONUOGBA LAND AND WHETHER THE APPELLANTS WERE CONFINED TO OGBAGU LAND.
3) WHETHER ON PREPONDERANCE OF EVIDENCE GIVEN AT THE LOWER COURT THE PLAINTIFF RESPONDENTS WERE NOT ENTITLED TO JUDGMENT DELIVERED IN THEIR FAVOUR.”

The Issues for determination formulated by the Respondents seems to me, to be an adoption of the issues formulated by the Appellants. I shall consider this Appeal, based on the issues for determination formulated by the Appellants.

ISSUE NO 1
The Appellants submit that Exhibit 2 did not mention Ogbagu land, but land at Onuogba Nike, and that the express provisions of this document is inter alia, that the Plaintiffs “do hereby grant them land at Onuogba Nike at the place marked out by an Ogbu tree planted specifically to mark the spot of their settlement.”

Submits that the Court cannot rewrite Exhibit 2 by adding the word “demarcation”, or saying that it was only the Ogbagu land that was given to the

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defendants.

That there was no demarcation of the land into four divisions. An attempted division of the land into four divisions by the Plaintiffs is calculated to enable them run their case against the defendants.

That the Court is required to give effect to an agreement entered into by the parties, and not to import anything. – CHIEF YEYE OYE NEYIN & ANOR v. DR. AKINKUGBE AND ANOR (2001) 1 NWLR (Pt. 693) @ 40 AT 57.

The Respondents contend that the determination of the case did not rest on the construction of Exhibit 2.

They submit that the transaction was done orally and under native law and custom. That the granting of their Ogbagu portion of land to the Appellants was done orally. That it was the Appellants who introduced Exhibit 2 into this customary grant.

The Respondents deny being part of Exhibit 2. That Exhibit 2 was signed in Barrister Nwosus office, without affording the Respondents the opportunity to be represented in its preparation.

ISSUE NO. 2 & 3
They contend that the terms of Exhibit 2, did not make provision for integration of the defendants with the Plaintiffs. That the lower

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Court failed to consider the full effect of Exhibit 2 and the 1984 Arbitration. They contend that the lower Court did not consider the issue raised by the parties relative to the intendment of the settlement. That the lower Court failed to put the respective case of the parties on an imaginary scale as required by law.

That by the Issues settled, the lower Court was to decide or make findings of fact with regard to the effect of the SETTLEMENT/ARBITRATION and Exhibit 2.

That his failure to do so amounts to gross miscarriage of Justice.

ISSUE NO. 4
They submit that Exhibit 2 mentioned the word “integration” after the presentation of a cow. That the land on which the defendants were admitted to settle is land at Onuogba Nike, and that does not mean the whole Onuogba Nike land, but land at Onuogba Nike, which the Plaintiffs have now given the four (4) imaginary names.

They submit that where there are conflicts in the evidence of the Plaintiffs’ witnesses and those of the defence, the evidence consistent with the contents of Exhibit 2 should be preferred. That the evidence of PW1 and PW2 do not get any support from Exhibit 2.

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They urge this Honourable Court to so hold.

After a careful perusal of the issues for determination distilled from the Grounds of Appeal by the Appellants, I can safely reframe the issues for determination to this sole issue which is –
1) “Whether the contents of Exhibit 2, confer on the appellants title to the land in dispute and if the answer is in the affirmative, to what extent?”

I shall base my consideration of this Appeal on this sole issue, as I am of the view that this would cover the whole field.

In Paragraphs 7, 8, 10 and 15 of the Amended Statement of Claim, the Plaintiffs (Respondents in the present appeal) aver thus –
Paragraph 7 “About the year 1959, one Chief Ukoro Edene of Nkomon Ezza led the 6th defendant and others to the house of Chief Oko Nweze, the then head of the Plaintiffs village to ask for a grant of a piece of land for use by the defendants for habitation and farming.”
Paragraph 8 “The Plaintiffs acceded to the request of the defendants and allowed them to settle on OGBAGU portion of the land in dispute and to farm thereon. The said OGBAGU land is shown in the plan referred to above and therein

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verged yellow.”
Paragraph 10 “For the issue of the said Plaintiffs’ land by the defendants, the defendants agreed to pay a yearly tribute of one cow, one goad and one hundred years in addition to palm wine and kolanuts. The number of the defendants’ people to settle in the land was restricted to a maximum of 100.
Paragraph 15 “The said OGBANU, IDUME and UGBENE lands are shown in the plan referred to in Paragraph 3 of this Statement of Claim and are respectively delineated and verged blue, violet and green.”

In Paragraph 3 of the Amended Statement of Claim, the plaintiffs averred that ?
“The land in dispute, which is part of a larger piece of land belonging to the Plaintiffs is situate at Onuogba Nike village in this judicial division. The said land in dispute which is more particularly delineated and edged pink in plan No. EC.165/74 filed with this Statement of Claim, comprises four parcels of land known as OGBANU, OGBAGU, IDUME and UGBENE.”

Let me quickly observe here that the said Plan which is Exhibit I was made on the 22nd of June 2001.

?Exhibit 2 is a deed of agreement made on the 24th day of February 1960

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between the 1st and 5th Plaintiffs and others for the first part and the initial Defendants of the other part.

Clauses 1, 2 and 6 of Exhibit 2 are instructive. I shall reproduce same verbatim.

CLAUSE 1
“? That in consideration of the sum of 100 (One hundred pounds sterling) paid to the Onuagba Nike People the receipt of which the Onuogba Nike people hereby acknowledge, and in pursuance of this agreement, the Onuogba Nike people do hereby allow and permit and consent to have Ezza Komolu people to settle with them do hereby grant them land at Onuogba Nike at the place marked out by an Ogbu Tree planted specifically to mark the spot of their settlement.”

CLAUSE 2
“That the Ogbu Tree signifies that the land where the tree stands has been given to Ezza Komolu as nucleus for their settlement and in accordance with custom, a goat, a foul and – were killed on the said Ogbu Tree to mark its significance.”

CLAUSE 6
“That the Ezza Komolu settlers shall remain as long as the world exists or as long as they wish in their settlement, but the land was never sold to Ezza Komolu people.”

Exhibit 3 is a cash receipt

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8 dated 26th of May 1985 issued to one Igwe Joseph for the sum of fifteen thousand naira as “payment for the land in dispute” which is named thereon as “ONUOGBA NIKE COMMUNITY”.

It was issued by one Nwankwo Nweke, and Michael Osulo.

The Plaintiffs (Respondents in this Appeal’s) claim at the lower Court is inter alia, for declaration of title to Ogbagu, Ogbanu, Idume and Ugbene portions of the land verged pink in the Plan No. EC.165/74.

It is the Plaintiffs (Respondent) case that on or about 1972, the defendants (Appellants) trespassed on Ogbanu land, drove away some of the Plaintiffs who had farms there, cut palm fruits on the land and began to farm there. They commenced the erection of huts thereon and refused to pay the annual tribute.

That they extended their trespass to Idume land, and Ugbene land in 1974.

The law is without doubt, trite that the onus is on a party claiming title to land to establish that claim, and, in so doing, the weakness of the adverse party is immaterial. The Plaintiff cannot rely on that weakness. He has to succeed on the strength of his case.
MELIFONWU v. EBGUJI (1982) 9 S.C. 145;

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EGONU v. EGONU (1978) 11-12 S.C. 111.

The law is trite that a declaration of title to land will only be granted when the Court is satisfied as to the precise extent, nature of the land, or interest in respect of which that declaration is sought. There also has to buttress this, cogent, credible and sufficient evidence, which would enable the Court be satisfied that the person seeking the declaration is worthy of it. Moreso that a title of the nature claimed has been established.

A person seeking declaration of title to land must state specifically the nature of the title and the terms of the grant. To establish the nature of the title can entail proving original ownership, customary grant, conveyance, sale under customary law, long possession or otherwise – OBAWOLE & ANOR v. OLUSOJI COKER (1994) 6 SCNJ 20; OKONKWO & ANOR v. OKOLO (1988) 1 NSCC 908.

The parties are agreed that the land in dispute belongs to the Plaintiffs (Respondent in this Appeal) save that the Defendants aver that the land had never before been split into four places, and that the Plaintiffs split it for the purpose of this case.

?PW1, Ben Oko was the

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6th Plaintiff in the representative suit at the lower Court. Hear part of his testimony of 22nd April 1998 –
“My name is Ben Oko, I live at Onu-Ogba Nike Enugu East Local Government Area. I am a farmer. I am one of the plaintiffs in this case. I am the 6th plaintiff, I know the defendants in this case. … We commenced this action because the defendants trespassed into our land. We do not own land communally with the defendants. The defendants were given land when we arrived in our place. The land granted to the defendants in Ogbagu land. This was in 1959? I was present at the time of this grant. I am 64 years old now. The defendants were restricted to Ogbagu piece of land and they agreed. The defendants are on the Ogbagu land and have now exceeded the boundaries granted to them and encroached upon other lands i.e. Ogbanu land; Idume land; and Ugbene land. The names of these pieces of land had been so since time immemorial. The grant to the defendants was made orally?.”

He continued –
“The name of the land which was granted to the Defendants is called “OGBAGU” for farming purpose and the land is designated for farming

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purpose. There is Ogbanu land before the Ogbagu land. After Ogbagu we have Udume land; ad Ugbene land.”

He went further –
“? There has been an arbitration on the dispute at the instance of the defendants after we sued them to Court ? The arbitration concluded that the defendants were farmers and tenant of the Plaintiff only on Ogbagu Land and no where else?”

Answering questions put to him in cross-examination, he said inter alia –
“I do not know that an agreement was tender in the former proceedings relative to this action… The defendants were given the land in 1959. No agreement was signed in 1960.”

He said earlier –
“I know Anike Agbowo, Njim Onuma, Aneke Nwede, Lawrence Anike, they are all from the Plaintiffs side. I do not know Barrister D. O. Nwosu. On 24/2/60, I was in my home town. These people never signed any agreement to my knowledge with the defendants.”

It is noteworthy that on Exhibit 2, Anike Agbowo, Njim Onum, Aneke Nwede, and Lawrence Anike were the ones who names reflected on Exhibit 2 on behalf of the Plaintiffs.

?PW2. – Ugo Ojele Alo testified on the 29th of January

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2001. He is from the defendant camp.
“? The land shown to us is called Ani-Ogbagu. The land is bounded by three track road or foot paths. These foot paths separated this Ogbagu land from other lands. ? The land given to us was demarcated with “Ogbu tree” between Idume and Ogbagu lands. ? We now occupy Ogbanu, Idume, Ugbene and Ogbagu lands. These are outside those granted us. ?.. At the time Ogbagu land was granted us, my people agreed that we will not go into other surrounding land not granted us.”

He also said –
“? Our people living on the Ogbagu land have their permanent home stead of Izee Komolu where their parents and relatives lived and, or still live. We also go home during Udenyi feast to Izee Komolu.”

PW2 had earlier testified thus –
“? We paid the customary tributes as stated above for two years to the Onuogba Nike people, but we did not give them a cow, or goat in those two years since then, we have not paid tribute to the Onuogba Nike people despite demands, from Onuogba Nike people but my people refused but still occupy and farm on the land in question. …”

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Under cross-examination, he said inter alia ?
“? We paid N15,000.00 to Onuogba people. ? I was there when the N15,000.00 was paid. I cannot remember the date. I do not remember whether a receipt was issued after we paid the N15,000.00.”

Again he said under cross-examination –
“? I know Aneke Agbowu; Igbo Onume; Nweke Anede; Lawrence Anike. They were the leaders of Onuogba in 1960. I do not know whether these people signed an agreement with my people?.”
Pages 51-52 of the Record of Appeal.

At Page 52, he continued –
“? After I testified in this Court before Justice Umezinwa my people now want to kill me.”

PW2 had earlier testified inter alia that –
“? We were told by the Nike people that only a hundred people on our side would live and farm on the land. Our people accepted these conditions that we would meet yearly?”
Pg. 47 of the Record of Appeal.

PW3 is Ezeamaka Ejiofor Edward. He testifies on the 24th of October 2001. He prepared Exhibit I – the Survey Plan at the instance of the plaintiffs in 2001. Hear his

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testimony in part ?
“Each of the parcels of land is clearly demarcated with natural boundaries. So there are demarcations. Between Ogbanu and Ogbagu, there is a foot path running in a North/South direction from the beginning to the end. Between Ogbagu and Idume, there is also a foot path running North and south and runs towards the West of Ogbagu at the southern portion ?. There is a foot path separating Ogbagu and Idume. Between Idume and Ugbene you also have a foot path. The plaintiffs showed me Ogbagu land as the land granted to the defendants. The Plaintiffs also showed me a position where an Ogbu tree was planted at the South Eastern portion of the Ogbagu land. A little position on the left is a burial ground of the Plaintiff. The foot path crosses the portion of the Ogbu.”

Pages 55-56 of the Record of Appeal.

DW1 Simeon Nwaezema testified that Exhibit 2, the deed of Agreement was signed by representatives of both parties. He is 55 years old.

He testified that when they were given the land to settle they were not restricted to any particular portion. That the land in dispute is where they were

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allocated.

Hear him –
“The Plaintiffs did not name any other piece of land except Onuogba.”
Page 60 of the Record of Appeal.

He testified further thus ?
“? We were not expected to be confined to the Ogbagu and Ogbenu land and Ugbene. These names were not mentioned to us when we came into the land. We have never denied that land in dispute belonged to Onuogba community?”
Page 61 of the Record of Appeal.

Under cross-examination on the 29th of October 2002, he said inter alia –
“? The land in question did not belong to us?.”
?I was not present when the agreement was made in 1960. I saw it after it was signed.”

DW2 – Ituma Nwambara testified on the 12th of November, 2002 that he was one of those who occupied the land in 1958. Hear him –
“? The agreement was drafted by Lawyer Nwosu in his chambers. He is dead now. The agreement was signed at the D.O’s office. My father signed the agreement.”

He said further –
“I think the agreement was signed in 1960. After signing the agreement he still contributed 4 tubers of yam as agreed. We agreed to

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intermarry, farm together and attend the same school etc. The cow and the goat signified integration into Onuogba Community. The owners of the land is Onuogba but they allowed us to settle with them. The grant was to start from the Ogbu tree from where he shall live and expand. We complied with all the customary requirements.”
Pages 66 – 67 of the Record of Appeal.

He testified further thus –
“? We own the land in common with Onuogba people?”

DW3 – Aroma Nwamu also testified on 9/4/2003 that Exhibit 2 was signed in the office of the Divisional Officer. That when they settled at Onuogba, they were not restricted to any piece of land.

That it was Onuogba people who invited the defendants to the land, and his people were asked to pay certain tribute to Onuogba people for their occupation of the land.

He did testify that the N15,000.00 which they paid to Onuogba people was to compensate them so that they shall live in peace. That they were invited to live on the land and not to farm thereon.

?It is clear, from the Provisions of Exhibit 2, clause 1, expressly states that the land is Onuogba Nike which

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is verged yellow in Exhibit I. It is a portion of Onuogba land known as and called Ogbagu land which is of ONUOGBA NIKE. It is the land which was given to the Defendants as customary tenants.

The Appellants are not denying that they are not customary tenants to the Respondents, but that land is not n respect of Onuogba Nike alone, but the entire Onuogba land which covers Ogbanu, Ogbagu, Idum and Ugbene. And that their customary tenancy covers that whole area.

It is not for the Court to substitute its own words for those used in an agreement. The ordinary meaning must be given to words used.
The object of all Construction of the terms of a written agreement is to discover there from the intention of the parties to the agreement.

It is apparent that some of the witnesses did testify that there was no agreement.

But they (all the witnesses for the respective parties) had testified that money was paid for the grant and that other customary rights were performed. These were reflected in Exhibit 2.

The Appellants have filed no Survey Plan in the Court below.

?I am of the view that from the totality of the

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evidence and putting the case of the two parties on an imaginary scale, the Appellants have not been able to establish any claim to the land in dispute, but as customary tenants in respect of the land known and called Onuogba Nike. Exhibit 2 was issued by the Onuogba Nike Community.

Now to the issue of Trespass. Simply put, in a claim for trespass and injunction, title is involved because such claim postulates that the plaintiff either is the owner of the land in dispute or has prior to the trespass, complained of exclusive possession of it – OLOHUNDE v. ADEPOJU (2000) 6 SCNJ 470; OGUNBIYI v. ADEWUNMI (1988) 5 N.W.L.R. (Pt. 93) 215; OGUNMEYE v. ONI (1990) 2 NWLR (Pt. 135) 743.

It is clear that the Respondents are in exclusive possession of the entire Ogbagu land, a fact admitted by the Appellants. They are therefore entitled to undisturbed enjoyment of it against all wrong doers except the true owner or a person with a better or superior title.

The Respondents had established title to the land in dispute.

Some of the defence witnesses even admitted trespassing on the other portions of land not given them.

?I am of the

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view for the totality of the evidence that it is a fact that the Respondents granted the area known and called Ogbagu Nike to the Appellants and nothing more, as customary tenants. By their exceeding that portion of land in the course of time, their action constitutes trespass, moreso as they failed to continue to pay their customary dues for TWO YEARS.

When the learned trial Judge observed at Page 17 (Page 112 of the Record of Appeal) that “? I am satisfied that the Plaintiffs did not grant Ogbanu, Idume and Ugbene portions of the land as shown under Exhibit 1 (the survey plan) to the defendants” – I am of the view that he is right.

The Reliefs sought by the Plaintiffs (now Respondents in this appeal are grantable and the lower Court was right to have granted them).

The answer to the sole issue for determination formulated by me in the place of those formulated by the parties is that the question must be necessarily answered in the negative.

The Appeal lacks merit and same is hereby dismissed by me.

?The Judgment delivered by Hon. Justice I. A. Umezulike (OFR) on the 27th of March 2004 in Suit N0. E/87/74 is hereby

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affirmed with N100,000 costs in favour of the Respondents.

Other Citations: (2016)LCN/8784(CA)