Echenim Ofume V. Isaac Ngbeke (1993)

LawGlobal-Hub Lead Judgment Report

JUSTIN THOMPSON AKPABIO, J.C.A. 

This is an Appeal against a Judgment of Amissah, J., of the High Court of the then Bendel State, Holden at Agbor in suit No.AG.28/82 delivered on 29th May, 1986, wherein he entered judgment in favour of the Plaintiff by declaring for him entitlement to Statutory Right of Occupancy in respect of the land in dispute: he also awarded him N230.00 as Special and General Damages for trespass, plus Injunction with 250.00 costs. The Defendant being dissatisfied with the judgment appealed to this court.

At the trial court the claim of the Plaintiff was worded as follows:-

CLAIM

“1. The Plaintiff is in possession of a piece and parcel of land lying, situate along Okobi/Efeizomor/Ebu Owa Road, Boji-Boji Owa within Agbor Judicial Division this is to be more particularly described in Plan to be filed later.

2. On or about 26th day of July, 1982, the Defendant, his servants, agents and/or privies braked and entered without the authority of the Plaintiff, upon the said piece and parcel of land and unlawfully arrested the Plaintiff’s workmen who were working on the said piece and parcel of land. The Defendant at the same time and place unlawfully cut down some quantities of rubber trees belonging to the Plaintiff.
3. WHEREOF the Plaintiff Claims:-

(a) Declaration that the Plaintiff is entitled to the Statutory Right of Occupancy to the said piece and parcel of land which would be more particularly delineated in a plan to be filed later.

(b) One thousand Naira (N 1,000.00) as Special and General Damages for trespass.

(c) Perpetual Injunction restraining the Defendant, his servants, agents and/or privies from continuing his further acts of trespass on the said piece and parcel of land.”

The evidence for the Plaintiff was that the land in dispute known as and called Eku Mgbeke was given to his late father NGBEKE NWAJIE by the OWANTA COMMUNITY in 1930 in appreciation of his efforts towards the economic and cultural development of the area Plaintiff’s father accordingly deforested the area, farmed on it, and also planted economic crops such as rubber on it. When Plaintiff’s father died in 1964, the land in dispute devolved on Plaintiff as his eldest son, Plaintiff continued to farm on the said land inherited from his late father, and also contracted with one Ibo man by name John Ikem to tap the rubber trees for him at the rate of one shilling (1) per rubber tree. The Plaintiff thus continued to enjoy the land unmolested until sometime in July, 1982, when the Defendant together with his servants, agents and privies entered unto the land in dispute without Plaintiffs authority or consent as earlier stated. The matter was reported to the Police and Elder’s of Owanta. But when no settlement could be effected, the Plaintiff had to institute this action.

In response to the above, it was the case of Defendant that he (Defendant) owned, not only the land in dispute, but also the large expanse of land that surrounded it, which was verged green in his survey plan Exhibit ‘B’. He then averred that the whole of the said land was founded and deforested by his great grand father by name Ejeogwu Ebo over 200 years ago, who also farmed and hunted on it. At the death of Ejeogwu Ebo, his land was inherited by his children including Ubo and Onyeamai, with whom he (Defendant) later lived and grew up.

On his becoming of age, the said Ubo, Onyeamai and their other brothers gave the said land verged green to the Defendant. The Defendant thereafter planted rubber seedlings on the land about 45 years ago, and they have since grown to maturity. He tapped the rubber trees until the trade in rubber fell. He then fell the rubbers on part of the area and farmed on it. A large part of the land is still covered with rubber trees as shown in the area verged blue in his Survey Plan. He and his family have since been in occupation of the said land until the Plaintiff trespassed into it in 1982. Defendant then enumerated in his Statement of Defence several acts of ownership performed on the said land, prominent among which were the fact that he successfully defended actions in respect of the land in 1961 at the Owa Customary Court including Suit No.20/61 – Chief Olaton of Owanta v. Echenim Ofume, where it was held that as an Owa man, he, the Defendant, could not pay rent for the land. He also sold portions of his said land to diverse persons as shown on his survey plan and also donating a part of the land to His Royal Highness the Obi of Owa Efeizomor II who later testified as D.W.3 in this suit. Lastly, Defendant conceded that in 1982 they arrested the Plaintiff and his servants, agents or privies, when they cut down some rubber trees, plantains, mangoes and orange trees from the area in dispute (verged, pink in his survey plan; (but claimed that to be part of his acts of ownership of “defending and warding off trespassers from the said land, among whom were the Plaintiff his servants or agents”

At the end of the day, the learned trial judge took a critical look at the Pleadings and evidence of both parties, and came to the conclusion that there were contradictions between the pleadings of Defendant and evidence of his witnesses as to his root of title, i.e., how he came by the land. One said he inherited the land, while the other said it was given to him. Also the Defendant said the land was registered with the local plot Allocation committee, yet no Certificate of registration was ever tendered. Learned trial Judged said nothing about the alleged acts of ownership of both parties – whether they were positive or not positive, numerous or not numerous, and who was exercising them.

Finally he fell back on the question of credibility and concluded that:

“I am satisfied from the evidence before me that it is the Plaintiff and not the Defendant who has been in possession of the land in dispute. On the other hand I do not believe the evidence of the Defendant and his witnesses. I am very satisfied that the Defendant has not, with legally admissible evidence, traced his title to Ogogu Ebor. On the preponderance of evidence the Plaintiff’s case appears to me to be more credible than that of the Defendant…”