Cornelius Anjorin Lebile V.the Registered Trustees Of Cherubim And Seraphim Church Of Zion Of Nigeria, Ugbonla (2003)

LAWGLOBAL HUB Lead Judgment Report

O. UWAIFO, J.S.C.

This action was brought in a representative capacity on behalf of the Lebile family. The full family name was pleaded in paragraph 2 of the amended statement of claim as Lebile Okunnuwa family. The said family is part of a community known as Igbokoda. Igbokoda is in Ilaje/Ese-Odo Local Government Area of Ondo State. The reliefs sought against the defendants were stated as

(1) A declaration that the plaintiff is entitled to a customary right of occupancy of a parcel of land situate along College Road, Igbokoda which is bounded on one side by Ilaje High School, on the second side by the building of Mr. Jeje, on the third side by College Road and on the fourth side by Toloki Stream.

(2) An order of perpetual injunction

(3) N10,000.00 general damages for trespass.

The location and description of the said land was further particularly pleaded in paragraph 9 of the amended statement of claim thus:

“The land in dispute is bounded on the east by the uncompleted building of Mr. Cornelius Jeje, on the west by Ilaje High School, Igbokoda, on the North by Toloki Stream and on the south by College Road, Igbokoda.”

Then in paragraph 10, it was averred:

“The land to the south of College Road, Igbokoda is also part of Lebile Okunnuwa family land.”

The relevance of these averments shall be shown later in this judgement.

In a judgment delivered on 26 November, 1991, by the High Court at Okitipupa presided over by Ajayi, J., the action was dismissed. The Court of Appeal, Benin Division affirmed the judgment on December 1, 1995. In the appeal to this court, the appellant has raised eight issues for determination. I consider only issues 1,6 and 7 are worthy of discussion. I shall however touch on all the issues and for that purpose I do hereby reproduce the eight issues as follows:

“1. Was the Court of Appeal right in affirming the judgment of the trial court based on both amended statement of defence and further amended statement of defence

2. Whether the court below was right when it struck out as incompetent Issue One (1) raised and argued in the appellant’s brief.
3. Whether it was necessary for the appellant to have sought and obtained prior leave of court to raise and argue Issue Three (3) when it arose from grounds of appeal that attacked the judgment of the trial Judge on his interpretation and application of the provisions of the Land Use Act, 1978, particularly section 6 of it.
4. Was the court below right in not deciding against the respondents issues 2, 4, 5, and 6 raised and argued in the appellant’s brief when they properly arose from the amended grounds of appeal filed and when the respondents did not canvass contrary arguments to those of the appellant of them
5. Whether the court below was right to have raised, on its own motion, and decided, two issues and to have neglected to decide the six (6) issues raised by the appellant for the determination of the court.
6. Whether the appellant ought to have joined the Local Government and/or the community before the court could properly decide the issues raised by him in the suit.
7. Was the Court of Appeal right when it held in its judgment that ‘the defendants have shown more acts of ownership on the land in dispute than the plaintiff’
8. Did the court below exercise its discretion judicially and judiciously when it awarded costs against the appellant when it dismissed his appeal but did not award costs against the respondents when it struck out their cross-appeal as incompetent”

I must return here to the plaintiff’s amended statement of claim. It would appear that as a basis of the title relied on, the plaintiff pleaded in paragraphs 6, 7, 8 and 11 that:

“6. Lebile Okunnuwa was the founder of Igbokoda, and the 1st Baale of the place (1930-1957).

7. The land in dispute belongs to Lebile family from time immemorial.
8. Lebile Okunnuwa and his descendants (including the plaintiff) have from time immemorial been exercising rights of ownership (farming, hunting and fishing) in the land in dispute without let or hindrance.
9. The plaintiff’s family has been exercising acts of ownership of the land in dispute from time immemorial and had granted portions of land adjacent to the land in dispute to individuals and institutions, namely: Mr. Cornelius Jeje, Mrs. Rachel Tikolo, Mr. Oki, Mr. Morighanfen and Ilaje High School, Igbokoda.”

The defendants denied these and many other paragraphs of the amended statement of claim and this led the plaintiff to file a reply to the defendants’ answer. The defendants’ case in the relevant aspects of their pleading was, in a nutshell, that in Igbokoda village/town, land is communal and that the owners of the land, i.e. the Igbokoda community, granted the 1st defendant a parcel of land in 1972. Later in 1977, the IIaje/Ese-Odo Local Government which had wanted to acquire that same land for the building of its Secretariat complex, approached the defendants, and with the intervention and collaboration of the Igbokoda community it was agreed by all that another parcel of land be given to the 1st defendant in exchange for the one earlier given it by the community. That was done and it was how the land in dispute was acquired by the 1st defendant. A certificate of a customary right of occupancy dated 19 December, 1979 (exhibit E) was in respect thereof issued to the 1st defendant by the Local Government.

It seems to me that paragraph 6 of the statement of claim, which pleaded the founding of Igbokoda by Lebile Okunnuwa, must be regarded as being inconsistent with the pleading of ownership of land from time immemorial as averred in paragraphs 7, 8 and 11. This becomes obvious when one considers the averment that the founder was the first Baale from 1930 to 1957; and even more so from the evidence of the plaintiff in cross-examination inter alia, as follows:

“Lebile Okunnuwa was the first person to settle at Igbokoda and founded the town… My father was Benjamin Lebile. My grandfather was the Baale from 1930 – 1957. He died on 19/12/57. He was very old – up to 100 years. I knew Pa Odidi. I don’t know who was older between him and my grandfather, he died before my grandfather. He was one of the first settlers but my father(sic) granted him land at Larada quarters. My grandfather founded Igbokoda in 1914.”

From the above, it is clear beyond any doubt that what was pleaded and put in issue could not have been proper traditional history of ownership. With this type of pleading and the strength of the evidence led as I shall briefly show, under no circumstances could the plaintiff have been adjudged to have proved his claim. In the first place, the traditional history was not properly pleaded other than what was averred in paragraph 6 of the statement of claim even in the ridiculously short period it was supposed to cover. It cannot be too often said that a party who relies on traditional history (which a claim to the founding of a village or town implies) would need to plead the names of his ancestors to narrate a continuous chain of devolution, not allowing there to be any gap or gaps defying explanation or leadind to a prima facie collapse of the traditional history .The history must show how the land by a system of devolution eventually came to be owned by the plaintiff. See Akinleye v. Eyiyola (1968) NMLR 92 at 95; Total (Nigeria) Ltd. v. Wilfred Nwako (1978) 5 SC 1 at 12; Elias v. Omo-Bare (1982) 5 SC 25 at 57-58; Owoade v. Omitola (1988) 2 NWLR (Pt.77) 413 at 424-425; Eze v. Atasie (2000) 10 NWLR (Pt.676) 470 at 482.

In the second place, the alleged history of founding relied on by the plaintiff can hardly be regarded as traditional history. It is too recent, judging from the time the action was filed in 1988, because it was about 70 years (from 1914). That was clearly within living memory; or in any event, as already said, it was inconsistent with the averment of immemoriality in paragraphs 7,8 and 11, of the statement of claim. Conceptually, it is when an event is beyond human memory or is ancient beyond record, or happened at a time out of mind that it qualifies to be immemorial (see Black’s Law Dictionary, 6th edn, page 750). But even more embarrassing to the plaintiff and completely destructive of his case is the evidence of two of his witnesses, P.W.1. and P.W.5. Rev. Esrom Olubamgbe Omowole who testified as P.W.1 said inter alia:

“Igbokoda land is under the Amapetu of Mahin. Amapetu Omowole was the founder of Igbokoda … I never heard that Lebile Okunnuwa founded Igbokoda.”

Then Adebanjo Omowole, as P.W.5 also said:

“My grandfather, Omowole, as the paramount ruler of the Ilaje/Mahin land founded Igbokoda. Okunnuwa was not the founder of the place known as Igbokoda now. My grandfather founded Igbokoda as a virgin land.”

Admittedly, since there was no averment that Omowole founded Igbokoda the evidence cannot be taken as if he did. However, being evidence led by the plaintiff, it shows that his claim that his grandfather founded Igbokoda is unreliable, apart from the inadequate pleading.

In the third place, looking at the averments in paragraphs 9 and 10 of the statement of claim, it would appear that the area of land (including the land in dispute) to which the plaintiff’s family lays total claim of title or right of occupancy is only a portion of Igbokoda land. In the plaintiff’s reply to the amended statement of defence, he averred in paragraphs 3, 5, 6 and 7 as follows:

“3. The plaintiff says that there are three quarters in Igbokoda and these are (a) Lebile Okunnuwa Family, (b) Larada Family and (c) Araromi Family.

5. The plaintiff avers further that the position of Oba Amapeju over Igbokoda is that of titular head to whom traditional homage is paid in respect of land and chieftaincy matters. His position did not divest individual families of their ownership parcels of the land. He holds the land in trust for his subjects.
6. In reply to paragraphs 12 and 13 of the amended statement of defence the plaintiff admits that the Amapetu of Mahin fought the 1917 case against Kalasuwe Jubo of Ijaw Apoi. He also fought the 1974 case through his nominees. This is the accepted practice in land disputes between two sets of people each under a separate natural ruler.
7. In answer to paragraphs 16 and 17 of the amended statement of defence the plaintiff says that his father, Chief Benjamin Lebile defended Suit No. HOD/41/74 as head of Igbokoda community. The suit was brought against him by Chief Ephraim Konye of Okunmo in suit in respect of farmland at the boundary of Igbokoda and Okunmo land.”

One can easily see from the admission of the plaintiff in paragraph 6 above that the Amapetu of Mahin fought the cause of community land of Igbokoda in those two suits; and in paragraph 7 above even the plaintiff’s father fought the suit on behalf of the community. These averments in paragraphs 6 and 7 support community interest and the position of the defendants that land in Igbokoda was communal. That will require clear proof of the averments in paragraphs 3 and 4 that there are three families owning the respective lands in the alleged three quarters in Igbokoda. I think it was the presumption of communal land ownership in Igbokoda that led the Ilaje/Ese-Odo Local Government to issue the certificate of the customary right of occupancy (exhibit E) with the agreement of the community of Igbokoda.

It has long been recognised as a principle that when communal ownership of land is established or known to exist, it must be presumed to remain the customary practice of the community particularly throughout the coast of West Africa until the contrary is proved in the con or circumstances in which an individual successfully claims and proves ownership of a particular portion of the land: see Amodu Tijani v. Secretary Southern Nigeria (1921) 2 AC 399 at 410. This case was relied on in Udeakpu Eze v. Samuel Igiliegbe (1952) 14 WACA 61. The two were cited by this court in Udeze v. Chidebe (1990) 1 NWLR (Pt.125) 141 at 158 to the effect that an individual or family or quarter in a community laying claim to the ownership of any portion of communal land must discharge the onus of proving title to that portion to the exclusion of the community. See also Ojah v. Ogboni (1996) 6 NWLR (Pt.454) 272 at 294. The most obvious way this is done is to establish that the land had been allocated to such a claimant so as to confer individual ownership under the custom or practice of the community by those in authority or in a position to do so: see Kai Tongi v. Sulaiman Kalil (1953) 14 WACA 331 at 332. This is the custom and practice, for instance, of the Bini community of Edo State where all lands in Benin are communal property of the entire Bini people whereof by custom the legal estate is vested in the Oba of Benin in trust for the people until any particular portion is so allocated: see Okeaya-Inneh v. Aguebor (1970) 1 All NLR 1 at 8-10; Aikhionbare v. Omoregie (1976) 12 SC 11 at 28; Aigbe v. Edokpolor (1977) 2 SC 1 at 3; Agbonifo v. Aiwerioba (1988) 1 NWLR (Pt. 70) 325 at 335; Awoyegbe v. Ogbeide (1988) 1 NWLR (Pt. 73) 695 at 703. Another way is to establish that the system of family ownership of land has evolved by tradition or otherwise and is recognised and practiced in the community as is the position in some parts of Lagos State where there are some well known land-owning families. The present plaintiff’s case has not been successfully made under either system.

Although the learned trial Judge made strenuous efforts to avoid making any pronouncement as to the communality of Igbokoda land, he seemed to have recognised this phenomenon when he said:

“Since this court is satisfied that the Local Government put the defendants on the land and once there is evidence in court that the Local Government got their land from the community, it would be too much to expect the defendants to go into the root of title of the community.”

This observation as to the ability of the community of Igbokoda to give land out derives from and is based on the presumption of the existence of a system of communal ownership of land in that village. It is, in my view, justified in the absence of proof by the plaintiff of a contrary system of land ownership or that the particular land in dispute had been allocated to his family. The validity of the Certificate of Customary Right of Occupancy issued to the 1st defendant by the Local Government upon which the defendants relied rests on this premise. The plaintiff attempted to question the admissibility of the said certificate of occupancy in issue 1 raised before the court below. But that court held that being an issue not raised in the trial court, leave to raise it on appeal was necessary. Without such leave, the appellant will not be heard on the point: see Agu v. lkewibe (1991) 3 NWLR (Pt. 180) 385. The issue in question was therefore rightly struck out by the court below.

The issue of title to support ownership of the land as claimed by the plaintiff not having been proved, the court below considered whether the plaintiff could rely on acts of ownership. The court then observed and reached a conclusion per Akpabio, JCA as follows:

“On the question of acts of possession, I myself have looked at the records and can find no act of possession performed on the land in dispute by the plaintiff. He has neither a house on it, nor any farm. Even on his own pleadings, the palm trees he planted on the land between 1967 and 1969 were ‘bulldozed, cleared and destroyed by Ilaje/Ese-Odo Local Government. On the other hand, the defendants averred that they had eight residential houses, which were then being occupied by members and officials of the Church in addition to their Church’s main building. Under the circumstances I am of the firm view that the defendants showed more acts of ownership on the land in dispute than the plaintiff. The suit of the plaintiff was therefore rightly dismissed by the learned trial Judge.”

It does not matter that the court below may not have gone into the available details of circumstances which, put together and considered, must lead to the conclusion that the plaintiff’s claim was properly dismissed. It is in law enough that it reached the right decision as I consider it did. In other words, if the conclusion reached by the court below is correct, that cannot be affected by the fact that it was arrived at on insufficient or even some wrong reasons: see Ukejianya v. Uchendu (1950) 13 WACA 45 at 46; Ayeni v. Sowemimo (1982) 5 SC 60 at 74-75; Abaye v. Ofili (1986) 1 NWLR (Pt. 15) 134; (1986) 17 NSCC (Pt. 1) 94 at 133.I have endeavoured in this judgment to show all the weaknesses in the plaintiff’s case and there is no doubt in my mind that the plaintiff woefully failed to prove his case and that the proper order of dismissal has been entered against him. I therefore answer issues 1 and 7 in the affirmative.

From what I have said earlier on, issue 2 must be answered in the affirmative since the issue therein was raised for the first time on appeal without leave of court. As to issue 3, I think leave was not necessary because the matter arose from the interpretation of section 6 of the Land Use Act, 1978 by the learned trial court in the final judgment delivered by him. The plaintiff was entitled to appeal as of right from the effect of that interpretation. The court below was therefore in error to have thought that leave was required and consequently the issue raised as issue 3 was wrongly struck out. But I must say it was an irrelevant issue, which could in no way affect the merit of the case. This also applies to issue 4. As to issue 5, what the court below did was to summarise what it found to have survived out of the six issues raised by the plaintiff and then considered them under two issues which it framed from those other issues the way it understood them to connote. There is nothing improper about that so long as the summary was reasonably reflective of the issues in question as they relate to the grounds of appeal. The problem with the method the learned counsel for the plaintiff employed in stating his issues for determination in this case and the argument in support, with due respect, is that it hardly made for easy comprehension of the issues and argument. I have myself had to contend with what appeared to me to be extensive argument (covering 50 typed foolscap pages) largely on irrelevancies in the present appeal. I do not intend this as a criticism but I do express it perhaps as an observation of the difficulty I found myself to have encountered in the way a relatively simple matter was presented.

In regard to issue 6, I do not think the plaintiff was necessarily required to join the Local Government of Ilaje/Ese-Odo and/or the community of Igbokoda in the present case having regard to the reliefs sought against the defendants to a parcel of land in the said community. The learned trial Judge in the course of his judgment made certain pronouncements in reaction to the submissions of the plaintiff’s counsel which would now appear to have been misunderstood by the plaintiff himself or his counsel. It will be recalled that the defendants said the land in dispute was given to them by the Local Government leading to the issuance of a certificate of customary right of occupancy at the instance of the community. The second defendant in his testimony said that although there are three quarters in Igbokoda, each of those quarters are limited to their homestead and that Igbokoda land belongs to the entire community. The implication of that evidence is the communal ownership of land in Igbokoda raised as an issue. The plaintiff’s counsel specifically addressed the court on that issue in respect of which the court made an observation. I shall recite the relevant passage of the judgment thus:

“Prince Mafo has urged the court to pronounce on the ownership of Igbokoda land as between the community and the Local Government or between the community and the Lebile family. I regret to disagree because neither the Local Government nor the community is a party to this case. If the plaintiff did not think that it was necessary to join either of these two bodies as co-defendants in this case, then the court can only decide the issue of ownership as between the plaintiff and defendants.”

It is impossible to fault the observation of the learned trial Judge going by the nature of the submission made by learned counsel. This is because, first, there was no relief before the court seeking a declaration that would in effect put at risk the right of the community of Igbokoda to their land or the right of the Local Government to issue a certificate of customary right of occupancy. Second, even if there had been such a relief, the court would have no jurisdiction to make a decision in the present circumstances to adversely affect such a right without the community and the Local Government being made parties. It is a fundamental principle of natural justice that a person must be given an opportunity of a hearing (which hearing must be fair) before being deprived of his liberty or property or right. This leads me to the imperative that a court can only exercise its jurisdiction or power over parties before it and strictly in respect of the case between them upon issues raised and reliefs sought. It cannot do so concerning, and to the extent it may affect, persons who are not parties before it and must resist the temptation to make pronouncements to that end. The court must confine its decision to the parties and the claim: see Ochonma v. Unosi (1965) NMLR 321; Ojogbue v. Nnubia (1972) 1 All NLR (Pt.2) 226; Intercontractors Nigeria Ltd. v. UAC of Nigeria Ltd. (1988) 2 NWLR (Pt.76) 303.

Still considering a further though almost similar aspect of the plaintiff’s counsel’s submission, the learned trial Judge said:

“Prince Mafo has asked me to decide the issue of the ownership of Igbokoda town once and for all as to whether the town is owned by individuals, or by the community at large. I would have gladly done so if either the community or the Local Government had been a party before me. The fact that the Baale of Igbokoda gave evidence before me does not make him a party to the suit and therefore, the court cannot decide the right of the community without the community being made a party.” (Italics mine)

A close comparison of the submission contained in the above observation with that in the earlier one reveals a salient difference. In the earlier one the real question is whether Igbokoda land is owned by the community or by the Local Government, or by Lebile family. Strictly a clear answer may warrant the Igbokoda community and the Local Government being made parties. But looking at the emphasised phrase in this later observation, the submission in question does not seem to me to make the presence of those parties necessary since going by the strength of the plaintiff’s case, the question turns on whether the presumption of communal land ownership has been rebutted by the plaintiff so as to declare him (i.e. the Lebile family) the owner of the land in dispute. It is the resolution of that question in the negative that can reasonably justify the observation later made by the learned trial Judge that:

“It is not in doubt nor does the plaintiff deny it that the land in dispute was the one exchanged by the Local Government for the one granted to them by the community.”

Obviously the community can only grant communal land and if that is how the learned trial Judge implicitly regarded the land in dispute then it could not be the property of the Lebile family. Nothing prevented the learned trial Judge from reaching a conclusion as to the communal nature of Igbokoda land even without the community or the Local Government being made a party. The plaintiff has complained in issue 6 in this appeal whether the community and/or Local Government should have been joined in the action before the court could have properly decided the action brought by him. This is clearly an irrelevant issue to the substance of his case. It must be realised and made clear that the time and ultimate purpose for which an appellant ought to raise issues for determination in an appeal should be for him to assist the court to decide the appeal in his favour. Such issues ought therefore to be on vital aspects of the judgment where errors perceived to lead to a miscarriage of justice have been carefully identified from complaints made in the relevant grounds of appeal and exposed in the argument reflecting those issues. In order to do this effectively, it is inadvisable to make the issues prolix nor is it of any help to raise them on irrelevant or all manner of errors which may not necessarily lead to a reversal of the judgment.

On issue 8, it is pertinent to state briefly how the cross-appeal was disposed off by the court below. The cross-appeal filed by the defendants was regarded by the court as incompetent on the ground that from the nature of the complaint made by them against an aspect of the judgment of the trial court, a respondents’ notice rather than a cross-appeal was appropriate. It was a view reached by the court below upon which the appellant gave no assistance to the court in his response to the said cross-appeal in his reply brief. In other words, he did not know that the cross-appeal was incompetent and has not complained in this court against the manner the lower court dealt with it. I do not think he can be seen to be aggrieved by complaining that the court below did not compensate him by costs for striking out the cross-appeal. It was clearly within the discretion of the court below in the circumstances not to award costs and I think that discretion was properly exercised.

I have come to the conclusion that this appeal is absolutely without merit. I therefore dismiss it and award costs of N10.000.00 in favour of the respondents who were the defendants at the trial against the appellant who was the plaintiff.

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SC.18/1997