Edheremu Ugbodume & Ors. V. Rev. Moses Abiegbe & Ors. (1991)
LawGlobal-Hub Lead Judgment Report
O. OLATAWURA, J.S.C.
This appeal arose from two consolidated actions between the Appellants and the Respondents.
In the High Court of the then Mid-western State, the Respondents in this appeal instituted an action on 28/2/67 against the Appellants. The parties were Rev. Moses Abiegbe and three others for themselves and on behalf of the Descendants of EKPO in Igbide and Ovwodokpokpo villages in Isoko Division as plaintiffs. They sued Edheremu Ugbodume and two others for themselves and representing the people of Ore were village in Isoko Division. This case was later transferred to Ughelli Judicial Division. The Suit No. in Warrri Judicial Division was W/12/1967 whilst it bore the suit number UCH/17/67 in Ughelli Judicial Division. The suit no. in Warri Judicial Divsion was W/12/1967 whilst it bore the suit number UCH/17/67 in Ughelli judicial Divsion.
In 1970 vide suit No.W/44/70 Ukpe Orewere and two others took out a writ of summons for themselves and on behalf of the people of Enhewe village against Rev. Moses Abiegbe and three others for themselves and on behalf of the people of Ovwodokpokpo village. The earlier case of UCH/17/67 was renumbered W/125/73.
On 18th February 1974 two actions in W/125/73 and W/44/70 were consolidated. Their claims respectively are as follows:
“1. A declaration of title to the piece or parcel of land at Igbide known and described as “Ahoro” land -the exact area of the said land in dispute will be-shown in a plan to be filed in support of this claim.
- A declaration that the defendants by denying plaintiffs’ title to all the land in dispute and by refusing to pay customary rents to plaintiffs have forfeited under native law and custom their rights of user in respect of the said land.
- The sum of 200 (Two Hundred Pounds) being general damages for trespass and/or meane (sic) profits.
- Perpetual injunction restraining the defendants their agents and/or servant from further going on the said AHORO land aforesaid.”
In W/44/70 the claims read thus:
“1. A declaration of title to all that piece or parcel of land known as EHAO lying and situate at Enhwe in Isoko Division within the jurisdiction of this honourable Court. The exact area and situation of the said EHAO or parcel of land will be more particularly described and shown on a plan to be filed in support of this action; annual value (rent of the land in dispute) is (now N30).
- A declaration that the defendants by selling up a title adverse to plaintiffs’ title in relation to the said EHAO land they (the defendants) have forfeited under native law and custom their rights of user in respect of that said EHAO land allowed to them by the plaintiffs.
- The sum of 1,000.00 (One thousand pound, now N2,000.00 (Two Thousand Naira) being damages for trespass committed by the defendants in respect of the said EHAO land.
- Perpetual injunction restraining the defendants, their servants and/or agents from further trespass on plaintiffs said piece or parcel of land”
Pleadings were exchanged in the consolidated actions.
The plaintiffs in W/125/73 were regarded as the plaintiffs in the consolidated actions whilst the plaintiffs in W/44/70 were regarded as the defendants.
Evidence was led on both side. Learned counsel addressed the learned trial judge on the issue raised in their pleadings. After a thorough review of the evidence and due consideration of the address of counsel on both sides, the learned trial judge Akpata J. (as he then was) gave judgment in favour of the plaintiffs (now respondents in this court) against the defendants (now appellants in this court) as follows:
“In the circumstances the plaintiffs are accordingly declared the owners of the area verged pink in Exhibits A and B plans No. (sic) TJM 655 and 1650 respectively covering about 545.2 acres … This declaration of title granted the plaintiffs is however, subject to the Land Use Decree”.
In addition, the learned trial judge forfeited the right of user granted the defendants on the ground that they denied the plaintiffs title. He also granted an order of perpetual injunction against them and limited it to the area verged pink in Exhibits A and B.
The claims of the defendants were dismissed in their entirety.
It was as a result that the defendants in the Court of trial appealed against that decision to the Benin Division of the Court of Appeal. The Court of Appeal unanimously dismissed the appeal on 5th July, 1988.
The defendants have now appealed to this Court on nine grounds.
In view of the development after the first hearing of this appeal and our subsequent invitation to the learned counsel on both sides to address us on certain issue which I will refer to later. I do not intend to set down the voluminous grounds of appeal and their particulars but will set down the issues adequately covered by the grounds of appeal. Before doing so, however it is necessary to set down a resume of the facts deposed to and the pleadings relied upon by both parties. In a dispute of this nature where each side lays claim to the land in dispute, it is now a common practice to call the same piece of or parcel of land different names. That was what happened in this case on appeal. The appellants called the land in dispute EHAO whilst the respondent called it AHORO.
The respondents who were the plaintiffs in the consolidated suits testified that they are members of Ekpo family in Igbide town and Ovwodokpokpo village and have brought the action in a representative capacity. They described the appellants who were the defendants at the court of trial as natives of Enhwe who before the trial resided in Orewere Camp but who had gone back to Enhwe as at the time of trial.
Their ancestor was one Eru who migrated from Igbide a town in Imo State. Ekpo their father was the son of Eru. Eru after leaving Imo State came to a large lake named Urie Igbide. Urie lake is also referred to as Urie River. The terminology whether a lake or a river is not in dispute, but Exhibits A and B definitely show that Urie River is on the eastern side of Exhibits A and B. Eru cleared the Bush by the side of the river and settled at a place called Ovwodokpokpo and named the place Igbide. Due to constant harassment by his neighbours Aboh and Ijaw who were slave traders. Eru moved further inside to a place which he again called Igbide. He lived in both areas. He was farming and hunting in these two areas. He had five children among whom was Ekpo. When Eru died his land was shared among his children. The land now in dispute known and called AHORO was given to Ekpo as his own share of his father’s property. The entire area given to Ekpo is marked green in Exhibit A. Ekpo also exercise acts of ownership such as farming, fishing and hunting without any opposition from anybody.
According to the respondents one Okpolo the ancestor of the appellants was the founder of ENHWE. Okpolo later came to Eru and begged him for a place to stay on Eru’s land. Okpolo was allotted the Western side of Igbide town. He was allowed to stay on the condition of annual customary tribute of a he-goat. Okpolo agreed and he stayed.
Eru was a pagan. Abiegbe the father of the first plaintiff married a woman Bribina from Patani. The conversion of this woman into Christianity played a role in the life of Abiegbe as he was expelled from his base and later settled at Ovwodokpokpo. Okpolo died later and the new converts later settled at Orewere. They were given conditions for their stay: to supply three tins of palm oil, basket full of yams. These conditions were complied with until 1966 when they thought otherwise and approached the plaintiffs to stop taking these annual tributes from them. This was based mainly on their relationship because they had intermarried. This request was turned down. Their subsequent and persistent refusal to pay the tribute led to the action.
On the other hand the appellants claimed to own the land in dispute and called it EHAO as against AHORO the name given to the land in dispute by the respondents. They founded ENHWE and it was with their permission that the respondents settled at Ovwodokpokpo. The respondents were living at Igbide town before they approached the appellants for the parcel of land called Ovwodokpokpo.
It was their ancestors from Ibo land that founded ENHWE. Their leader was Okpolo. They first settled at Iriri-Enhwe. They farmed there and they also collected palm fruits. Apart from their fish ponds, they were hunting within the land in dispute. All these various acts of ownership exercised by them were without any disturbance from anybody. The present site of Ovwodokpokpo is part of EHAO.
When the Isoko people became Christians through Bribina who was the wife of Abiegbe (the 1st respondent). Abiegbe himself became a convert, as a result of the spread of the Christian religion. Abiegbe and his people approached one Ikogho for a parcel of land to build a church since they were refused permission to build a church by the pagans at Igbide. The land given to them to build their church was at Ovwodokpokpo. As a result of a disagreement with the people at Ovwodokpokpo, the appellants built their own church at Bethany-Ehao or Orewere village. Their houses at Bethany were burnt. The proceedings of the court cases were tendered in evidence.
This in short was the case of the Appellants.
Briefs were filed by both parties.
The issues raised by the Appellants are:
“I. Whether as regards the Respondents root of title to the land in dispute, the conflicts in their pleadings and findings of the trial court were inconsequential and did not occasion miscarriage of justice and violate Rules of Pleadings.
II. Whether the Appellants could, in law and on the facts of this case, be properly adjudged customary tenants in respect of the land in dispute or any part thereof
III. Whether the Court of Appeal was right in holding that the Trial Court properly evaluated the entire evidence in these proceedings.
IV. Whether the Court of Appeal was justified in holding that the Respondents had proved their case ‘involving title, customary tenancy, trespass and injunction”,
The Respondents raised the following five issues.
“(01) Whether the Court of Appeal was justified in holding that on the pleadings and evidence the plaintiffs discharged the burden upon them to prove their case involving title, possession, forfeiture of customary tenancy, trespass and claim for perpetual injunction.
“(02) Whether the Court of Appeal was right in affirming the decision of the trial Court to the effect that both in law and on the facts of this case although exclusive possession is one characteristic of customary tenancy there are exceptions such as situations of joint possession as is the case with the land in dispute between the overlord and customary tenant and as the terms of any customary tenancy depends on the understanding reached amongst the parties which differ from one locality to the other.
(03) Whether the Court of Appeal was justified in holding that there were no fundamental conflicts or contradictions in the respondents pleadings and evidence and if any, that they were of no significance and inconsequential having regard to the fundamental question of who founded the land in dispute which root of title was proved by the plaintiffs and that no miscarriage of justice was occasioned thereby.
(04) Whether the Court of Appeal was right in holding that the trial Court properly evaluated the totality of the evidence in these proceedings and that put on the imaginary scale the case for the respondents clearly outweighed that for the appellants.
(05) Whether based on the concrete findings of facts made by the trial judge on the evidence led before him and accepted by him and which was believed and affirmed by the Court of Appeal whether the Court of Appeal was therefore right in refusing to interfere with the trial court’s findings of fact and whether the Supreme Court should so interfere”.
Learned counsel on both sides addressed us orally in support of their respective briefs. We adjourned for judgment but we had cause to recall the parties and their counsel to address us on the desirability of a non-suit.
The question based on the issue of non-suit is:
“Whether in the light of the averment in paragraph 15 of the Amended Statement of claim on page 166 of the Record of Appeal, observations of the learned trial judge on page 252 lines 28 to 36 and page 257 line 21 to page 258 line 13 of the Record of Appeal, vis-‘E0-vis plans exhibit A and exhibit B.
“an order of non-suit should not be entered in the appeal”.
It will be neater to deal with this issue, and if I come to the conclusion that a none suit is inappropriate, I will then deal with the other issues.
In the Appellants’ brief and in order to show the respondents root of title, the learned counsel for the appellants Dr. Odje S.A.N referred to paragraphs 4.10, 11, and 12 of the amended Statement of claim.
These paragraphs read thus:
“4. After settling on the bank of the river for sometime he was constantly attacked by Ijaw and Aboh warriors and was obliged to move his family into the hinterland and thus the now known village of Igbide was founded: and he made his settlement in the two villages. During the fishing season he stayed at the settlement by the bank of the lake and at other times he went to his family at Igbide.
- When Christianity was introduced to Isoko area, several converts deserted their original homes and founded new settlements and one of such settlements was at the Old village of Eru on the Bank of Igbide River (Urie-lgbide) which was re-christened OVWODOKPOKPO. Among the settlers were some members of the plaintiffs’ family who fled from Igbide as they could not stand the persecutions to which the Christians were subjected. Christianity came to Isoko about 1910 and some other Christians settlements were Bethel (Oyode) and Cannan (Erri),
- After the new settlement at Ovwodokpokpo was made by the Christian converts, one Ijaw Christian whose name was Okporo also came to live there with them. He was given a site to build on and from this site the said Okporo killed crocodiles and sea cows and that place became known as Iwro-Orewere which is derived from Isoko language which in Isoko language means an “Ijaw person” and the place became known as Orewere Camp – meaning “Ijaw camp”.
“12. On the death of Okporo the place became vacant and the Defendants who are descendants of Okpolo (they being natives of Enhwe village) came to the plaintiffs to ask for permission to be allowed to stay at Orewere camp for the purpose of collection (sic) palm produce, They were granted permission, but were asked to pay customary tributes to plaintiffs’ family every year. In addition the defendants were not to disturb the plaintiffs on the land and they were also not to carry out any act or activity which amounted to a challenge to plaintiffs’ title over the land”.
The learned Senior Advocate pointed out how the learned trial judge rejected the case as pleaded by the respondents with regard to the first settlement by Eru the Ancestor of the respondents which in effect was an acceptance of facts not pleaded by them. In his finding, the trial judge said:
“I reject the case of the plaintiffs to the effect that Eru first settled at a spot known as Ovwodokpokpo and that he had to move to the hinterland because of incessant harassments by certain Ijaw and Aboh people hunting for slaves. If he did so, he did not assume ownership of the place at the time, It is my view that he and his people made their way directly to the area known as Igbide and established their settlement there”.
(The Italics is supplied for emphasis: see p.251 lines 9-15)
The respondents in their brief have, as expected, supported the learned trial judge’s findings but missed the point in issue when in their brief submitted thus:
“Also the Respondents will contend in this appeal that the fact that paragraph 10 (supra)(i.e paragraph 10 of the amended Statement of Claim) says Ovwodokpokpo was the old village of Eru: which was not convincing enough for the court does not stop the court holding that it has found as a fact as pleaded in the same paragraph 10 (supra) that the plaintiffs (Christian Igbide) did however settle in the land and also that at that time it was uninhabited and they were not challenged.”
With very great respect to the learned counsel to the respondent, he has missed the essence of pleadings: to compel the parties to define accurately and precisely the issues upon which the case is to be contested, to avoid element of surprise by either party: not to adduce evidence which goes outside the facts pleaded:
TOTAL (NIGERIA) LTD & ANOR V. WILFRED NWAKO & ANOR (1978) 5 S.C.1 GEORGE AND ORS V. DOMINION FLOUR MILLS LTD (1963) 1 All NLR 71/77; (1963) I SCNLR 177. EMEGOKWUE V. OKADIGBO (1973) 4 S.C. 113: ORIZU V. ANYAEGBUNAM (1978) 5 S.C. 21. Once the rules of pleadings are infringed or brushed aside the trial cannot be free and fair, consequently there will be no fair hearing. It is also for this that reliance must not be placed on facts not pleaded. The further submissions by the respondents’ counsel further compounded the issue on settlement. It is their submission that the respondents “settled and/or founded the disputed land in the belief that the disputed land was given or shared to their ancestor Ekpo by his father Eru”. Dr. Odje, I believe, is on firm ground in his submission when he submitted that the findings of the learned trial court are in conflict with the respondents pleadings about their root of title and are clearly outside the evidence led by them.
I now come to the crux of this matter i.e as to whether there should be a non-suit. I will first set out paragraph 15 of the Amended Statement of claim. It is as follows:
“15. The area verged PINK has been used by the plaintiffs for farming, and fishing and there are also seasonal camps, fish dams and ponds on the land. There are rubber plantations owned by the plaintiffs on the land and the different uses to which they have put the said parcel of land are in their right ownership. It is on this same area of land the Defendants are farming and collecting palm produce for which they failed and or refused to pay customary tributes to plaintiffs. The Plaintiffs will also found on the Native Court Case No.295/50; Esebero Versus Eguero & Others.
Dr. Odje S.A.N has submitted that this averment boils down to the fact that both parties are jointly in possession and that this cannot amount to existence of a customary tenancy. Learned counsel referred to the camps: Orewere. Oghoro and Ikpesan: but the respondents are unable to explain how the appellants came to live and settled at Ekpajeje camp. There is no doubt that as clearly shown in Exhibits A and B, the plans relied upon by the respondents that Ekpajeje is within the area marked pink as the area of the land in dispute.
Ovwodokpokpo and Igbide have featured prominently in the traditional history of the land put forward by the respondents. It is now settled that according to the respondents, the land in dispute is Ahoro land. This much is clear from the claims i.e. paragraph 17 of the Amended Statement of Claim. Paragraph 17(1) and (4) reads:
“17(1). A declaration of Title to the piece or parcel of land at Igbide known and described as “Ahoro” land the exact area of the said land in dispute will be shown in a plan Filed in support of the claim.
(4) Perpetual Injunction restraining the Defendants, their agents and/or servants from further going on the said “Ahoro” land aforesaid”
As shown in Exhibits A and B. Ovwodokpokpo village is on the eastern side of Exhibit A.
When the first Plaintiff/Respondent Rev. Moses Abiegbe gave evidence he said:
“I am a native of Ovwodokpokpo. It is a village of Igbide. Igbide is a clan. There is also Igbide town…
We have brought the action for and on behalf of Ekpo family of Igbide and Ovwodokpokpo”.
After he has referred to their ancestor Eru who founded the land in dispute the witness i.e. Rev. Abiegbe continued:
“Where he settled is now called Ovwodokpokpo. He named the place Igbide…The land in dispute was given tp Ekpo (one of the Five children of Eru). It is named Ahoro. It is the entire area verged green in Exhibit A that was given to Ekpo, Ekpo farmed, fished and hunted in the area without molestation…
The land in dispute is between Ekpo quarters and Ovwodokpokpo”
The 3 P.W. Abuego Akrube in his evidence concerning Ovwodokpokpo said:
“Ahoro land belongs to Ovwodokpokpo and Ekpo quarters in Igbide
I am from Ovwodokpokpo”.
From the extracts shown above, the position of Ovwodokpokpo is of great importance to the respondents. It is also clearly shown in Exhibits A and B.
In his overall assessment of the evidence of the plaintiffs and his findings with regard to the area of the land claimed by the respondents the learned trial judge said:
“I however accept the evidence of the plaintiffs that a part of the land south of Igbide known as Ahoro was allocated to Ekpo, the ancestor of the plaintiff. While I cannot say for certain that the present site of Ovwodokpokpo formed part of the said Ahoro land. I am satisfied that at the time the Christian group headed by Abiegbe, were forced by their religious zeal at Ovwodokpokpo village the place was uninhabited and no community lay claim to it.”
With due respect, this appears to me a serious misdirection. The evidence led and the cross-examination by the present appellants reinforced the submission of Dr. Odje S.A.N before us that with this finding the bottom has been knocked out of the respondent case.
The issue was raised in the court below but the lower court considered the submission as inconsequential which did not lead to a miscarriage of justice. That finding by the learned trial judge is a finding of fact against which there has been no appeal. It still stands. It is not within our own competence to set it aside.
In his lead judgment, Musdapher J.C.A. said:
“Contradictions which are minor and which do not affect the verdict of the court cannot ground a reason to reverse the verdict.”
Well said. I entirely agree. But the question now is: Is that the position in this appeal bearing in mind the pleadings and the evidence led I do not think so. What the learned Justice considered to be inconsequential is the cornerstone of this appeal.
What appears to a court of trial in all sincerity as trivial or inconsequential may tilt the scale of justice in the appellate court.Consequently an issue properly raised and canvassed must be given a fair hearing and consideration. It must be examined critically in order to avoid a miscarriage of justice. The appellate courts are to correct the mistakes of the lower courts to confirm their judgments where they are right thereby giving a stamp of authority or approval to their decisions. Any issue considered trivial must have been so obvious or plain and incapable of effecting the merits of the case.
Mr. Fashanu in answer to the question raised by us about the possibility of a non-suit made a spirited attempt to limit and qualify the conclusion of the trial judge on the location of Ovwodokpokpo by referring to the Pink area of Exhibits A and B forgetting that the failure to locate Ovwodokpokpo within Exhibit A or B is a non-consideration of a material issue. He relied on MAKANJUOLA V. BALOGUN (1989) 3 NWLR (Pt.108) 192/204.
With respect that case is not of any assistance in this appeal if it is meant to ignore the serious misdirection I had pointed out earlier. This case is not a case of failure to prove the identity of the land but what I will regard a fatal omission to ascertain a vital issue i.e Ovwodokpokpo within the land in dispute.
Dr. Odje has urged us in respect of their own case i.e W/44/70 to give the appellants judgment in that they have proved their case: I will quickly point out that he had a second thought and urged us to send the case back for retrial.
Both sides have relied on the recent case of AHWEDJO EFETIROROJE & ORS V. HIS HIGHNESS ONOME OKPALEFE II & ORS (1991)5 NWLR (Pt.193) 517/535 where the issue of non-suit was considered. Karibi-Whyte J.S.C. on page 537 said:
“There is a welter of decided cases in support of the proposition that an order of non-suit can, and ought to be made when the plaintiff has not totally failed and where at the same time defendant is not entitled to the judgment of the court. NKANU V. ONUN (1977)5 S.C. 13. The contention here is that the Plaintiffs claim has not failed. This has been conceded”.
Mr. Fashanu has also agreed that the best that could be done in the circumstances of this appeal is to order a non-suit.
A non-suit is not a favour to either side. It is not meant to rob a party of a technical success but it is based on the foundation of justice itself that the door of temple of justice should not be shut against a party who has not totally failed to prove his case. Sometimes the fault is that of the trial judge who has misdirected himself in law. The overall essence is to see that justice is done and that opportunity be given for another trial.
It is true the case started a long time ago, it is true that the case was handled and tried by a respected and a painstaking judge, but the proprietary interests of the parties in this case cannot be ignored without injustice to either side. It is for the reasons given above that I order a non-suit. As indicated earlier, it will therefore be unnecessary to go into other issues raised by the Appellants. Parties are at liberty to amend their pleadings.
In sum the appeal is allowed: the judgment of the Court of Appeal dated 5th July 1988 together with the order for costs is hereby set aside. There will be an order of non-suit. The cost in the High Court shall abide the retrial. Costs in the lower court assessed at N500.00 and cost in this court assessed at N1,000.00 in favour of the Appellants.
M. L. UWAIS, J.S.C.: I have had the opportunity of reading in draft the judgment read by my learned brother Olatawura, J.S.C. I agree with his reasoning and conclusion. The appropriate order to be made in this appeal is to allow the appeal and enter an order of non-suit with costs as assessed in the said judgment.
P. NNAEMEKA-AGU, J.S.C.: This is a further appeal in two consolidated suits which began their tortuous journey in the High Court as suits Nos. UCH/17/1967 and W/44/70. Before trial, the first suit was transferred to Warri Judicial Division of Bendel State as W/125/73.
My learned brother Olatawura, J.S.C. has fully and lucidly set out the facts in his lead judgment and so I do not intend to repeat them here, more so as the ultimate issue for determination is as to the desirability or otherwise of an order of non-suit.
It is enough to state that in each of the two consolidated cross-actions, the plaintiffs claimed for:
(i) A declaration of title to a piece or parcel of land which the people of Ekpo i.e plaintiffs in suit No.W/125/73 called “Ahoro” whereas the defendants in the consolidated suits i.e. plaintiffs in suit No. W/44/70 called “Ehao”
(ii) A declaration that the defendants in the respective suits have forfeited their right under native law and custom to the user of the land by reason of their denying the title of plaintiffs, their customary landlords.
(iii) Damages for trespass; and
(iv) Perpetual injunction.
Each party claimed to have granted the land occupied by their adversary to them. I may pause here to observe that by the very nature of the claims, each set of plaintiffs has impliedly conceded it that the defendants were in possession of at least a portion of the land in dispute. I shall bear this in mind while considering the ultimate question as to whether or not a non-suit is a proper order.
As already mentioned in the lead judgment, after this court had adjourned the case for judgment, we decided to recall the parties for their counsel to address the court further on the following issue:
“Whether in the light of the averment in paragraph 15 or the Amended Statement of claim on page 166 of the Record of Appeal, observations of the learned trial judge on page 252 line 28 to 36 and page 257 line 21 to page 258 line 13 of the record of appeal, vis-a-vis plans exhibit A and exhibit B. an “order of non-suit should not be entered in the appeal”.
Learned counsel for both sides addressed us fully on the issue.
Learned Senior Advocate for the appellant, Dr. Odje, submitted that the learned trial judge in effect rejected the case pleaded by the respondents with respect to the settlement by Eru, their ancestor, upon which they based their title to the land in dispute. This, in his contention, destroyed the respondent’s case. He further pointed out that the facts upon which he later based his judgment were in fact contrary to their pleading and therefore went to no issue. Also the respondents’ pleading in paragraph 15 of their Amended Statement of Claim amounts to common, and not exclusive, possession. As it is so, the learned trial Judge’s conclusion that the appellants were the customary tenants of the respondents was contrary to the respondents’ pleading. This could not stand, he submitted. Finally he submitted that the learned trial Judge’s finding that Ovwodokpokpo did not form part of Ahoro land as claimed by the respondents completely knocked bottom out of their case in that it was a vital element in the traditional history which they
pleaded. The Court of Appeal, he submitted, was in error when it held that it was a mere inconsequential slip. He therefore contended that the respondents were not entitled to succeed in that their case ought to have been dismissed particularly as there was no cross-appeal against any of the above findings. He also was ahead to submit that the appellants proved their case and were entitled to judgment. He contended that although in some circumstances a non-suit or an order of re-trial could be a proper order, the court should, in this case, enter judgment for the appellants.
Learned counsel for the respondents. Mr. Fashanu, submitted that in view of the evidence before the court the findings by the learned trial judge which have been affirmed by the Court of Appeal and the fact that the respondents limited their case to the area verged pink in the plan. Exh. A, there was really no conflict for which a re-trial or non-suit could be ordered. On the pleading of common possession, he submitted that as the learned trial judge found that the appellants were customary tenants over the whole area, joint possession was immaterial. In any case, he pointed out, the learned trial judge restricted his order to the area verged pink on the respondents’ plan. He contended that, in view of the massive findings of facts in favour of the respondents, a non-suit is not an appropriate order. In the alternative he submitted that if the court feels that the respondents were not entitled to succeed. It should order a non-suit.
In his reply, Dr. Odje submitted that the case of Isiba & Hanson (1968) 5 N.S.C.C. 3 at pp.5-6 supports the appellants’ case as to the nature of a customary tenancy. He also submitted that it is the law that where a party bases his case on traditional evidence which is rejected, he cannot base his case on acts of possession. In support he cited the following cases:
Mogaji v. Odofin (1978) 4 S.C. 91, p.93-94;
Mogaji v. Cadbury(Exports)Ltd. (1985) 2 N.W.L.R. (Pt. 7) 393,429 paras C-D;
Amajideogu v. Ononaku (1988) 2 N.W.L.R. (Pt 78) 614;
Emmare & Ors v. M. Emhonyon (1985) 1 N.W.L.R. (Pt. 2) 177, p. 184
He urged the court to at least enter judgment for the appellants over Epajeje and other camps which have been conceded to have been settled upon by them.
Now, on what principles should this Court, as an appellate court, order a non-suit after hearing an appeal and hearing the parties on the issue It should not be ordered if the Court is satisfied that the respondents, as plaintiffs had failed completely to prove their case and if it is obvious that to so order is merely to enable unsuccessful plaintiffs to have a second bite at the cherry. That would be injustice to the defendants. In other words, it will not be ordered if the defendants were entitled to judgment. The order of non-suit has long ceased to be the technical procedure it used to be. It is one that can only be properly made upon the dictates of justice to both sides, when upon a calm and full view of the scale of the case in favour of either side, the court can say that no side is entitled to win. See: Festus Sunmoila Yesufu v. African Continental Bank Ltd. (1976) 4 S.C. 1; Awosanya v. Eko (1965) 1 All N.L.R. 228. In my view, Coker, J.S.C. stated the principle correctly when in the case of Craig v. Craig (1966) 1 All N.L.R. 173 at p. 177 he said:
“Inevitably a non-suit means giving the plaintiff a second chance to prove his case. The court has to consider whether in this case that would be wronging the defendant, and on the other hand whether the dismissal of the case would be wronging the plaintiffs”.
Applying the above principles in this case, I am inclined to agree with the learned Senior Advocate for the appellants, Dr. Odje, that the respondents were not entitled to judgment. For although the learned trial judge found that the land in dispute was founded by the respondents ancestor, Eru, other features in their case and his findings weakened their case. Their claim; as formulated, as it relates to appellants’ customary tenancy impliedly conceded possession to the appellants. Also their amended statement of claim avers common possession of portions of the land in dispute by both parties. In my opinion a pleading of common possession by both sides cannot be a proper basis for a finding of a customary tenancy. It is trite that a customary tenant is in exclusive possession of his holding, subject to the incidents of his tenure. Finally, when the learned trial judge said that he could not find that Ovwodokpokpo, an important element in the respondents’ case on tradition, formed a part of the land in dispute, he had done a serious damage to their case. With respects, I am of the clear view that the Court of Appeal was in error when it stated that that was a trivial or inconsequential slip. It is not so. In my view, an issue in a case is not trivial or inconsequential simply because a court has said so. For a court to come to a correct decision as to whether or not an issue is trivial, it is necessary to consider the issue from the background of the party’s pleading and the effect which a decision on the point one way or the other would have on the party’s case. In the instant case, the pleading in paragraph 10 of the Amended Statement of claim of the respondents as it relates to settlement at Ovwodokpokpo cannot rightly be said to be trivial or inconsequential.
On the other side of the balance and in favour of the respondents were the findings by the learned trial judge of recent acts of possession. Material in this respect are the fact that the respondents were paid compensation for Oil exploration in portions of the land in dispute by Shell Development Petroleum Company Limited in 1966 as per Exhibits H, H1, H2, J, and R. They also have schools on parts of the land. Also, although the Native Court suit, Exh. C. was a personal action and as there is nothing to show that the appellants were aware of the proceedings and so were estopped from relitigating the issues, yet the view I have taken is that it is some evidence which goes to support the claim of the respondents.
Finally I must advise myself that this is a case in which both parties in their respective cross-actions have claimed title. The true implication of this is that each party has the onus to prove its case to the hilt, failing which it is bound to fail. But as I have shown, none of the parties has failed in to-to and none is really entitled to win.
Putting the above features of the case for each side on the scale, the conclusion I have reached is that no side is really entitled to judgment. I therefore agree that an order of non-suit is the proper order on the justice of the case. I also agree with the reasoning and conclusions of my learned brother, Olatawura, J.S.C., in his lead judgment. I hereby set aside the judgments of the courts below and in their place non-so it the plaintiffs.
I also subscribe to his order for costs.
Other Citation: (1991) LCN/2456(SC)