Ekembai Opuzibau & Ors. V. Isaiah B. Kwokwo & Ors.(2001)

LawGlobal-Hub Lead Judgment Report

NSOFOR J.C.A.

This is an appeal from the decision of the Port Harcourt High Court (F. F. Tabai, J.) in Suit No. YHC/6/82 on the 5th of May, 1994. The plaintiffs, herein respondents, had claimed against the appellants, qua defendants in the trial court, the following reliefs as per paragraph 11 of the statement of claims:-

“a declaration that the plaintiffs are entitled to a right of occupancy under Gbarain customary law to all that piece or parcel of lands known and called Opubuo land and the adjoining Nguasa land situate near the left bank of Taylor Creek in Gbarain clain as shown in the plan No. ECRS/17/78 plea with this statement.

The sum of Two thousand Naira (N2,000)being general damages for trespass in that the defendants between January and April, 1977 without the permission of the plaintiffs broke and entered the said Opubuo land and adjoining Nguasa land and destroyed several economic trees on the said land while tracing survey line across the same.

A perpetual injunction restraining the defendants, their servants and agents from further acts of trespass upon the said lands”.

The plaintiffs sued and prosecuted the action in a representative capacity.

Pleadings were ordered in the suit. They were filed and exchanged. Subsequently, the defendants with leave of court filed an amended statement of defence. The case eventually came on for

trial on the issues joined on the original statement of claim and the amended statement of defence.

The case came before Tabai, J. (as he then was) on the 21st of January, 1987 when the actual hearing commenced. The plaintiffs testified, “viva voce” and called the evidence of other witnesses. In all eight (8) witnesses testified in support of the plaintiffs’ case.

The defendants similarly testified, “viva voce”, and called the evidence of other witnesses. Nine (9) witnesses testified in support of the defence case.

At the conclusion of all the evidence and after receiving the addresses by the counsel, the learned trial Judge reserved his judgment.

In a reserved and considered decision after making an elaborate review of all the evidence, the learned trial Judge acceded to the demands of the plaintiffs. He concluded in the following terms:( See Page 156 line 35, page 157 lines 1 to 12).

” It is my conclusion that the plaintiffs are entitled to the declaration sought over the land as claimed except the Opubou creek or stream from the junction of Okpoba creek upstream which portion of the Opubou stream has been adjudged to be that of the defendants”.

Since the plaintiffs assertion that the defendants entered upon the land and carried out a survey of same in the course of another suit is not denied in evidence there is in my view evidence of trespass for which the plaintiffs are entitled to some damages. And for this purpose I award N300.00 general damages for trespass.

I also grant the perpetual injunction sought”.

The learned trial Judge made no order for costs.

The defendants were dissatisfied with the decision. They have now appealed therefrom to this court on four grounds of appeal. I shall decline to reproduce those grounds of appeal to avoid undue prolixity,

Now, it is necessary to state albeit briefly the background facts of the case giving rise to the appeal in order to appreciate what issues were canvassed at the trial and are being pursued on appeal.

The land being disputed, according to the plaintiffs, is the Opubou land with its adjoining land called the Nguasa. The Opubou land with its adjoining Nguasa land is as delineated in the Survey Plan No. EGRS/17/80 (Exhibit D) and therein verged.

It was the plaintiff’s case as pleaded in paragraph Sea) of the statement of claim that the lands were founded by their ancestor, Sunmo. He, it was who cleared the lands, owned them and farmed on them. On the death of Sunmo his descendants successively inherited the lands until the land devolved on the present plaintiffs.

The plaintiffs are therefore claiming the lands through Sunmo by inheritance. As the owners in the exclusive possession of the lands, the plaintiffs say (see paragraph S(b) of the statement of claim) that they have farmed on the lands; fished in the lakes or ponds thereon, exploited the natural resources thereof without interference from anybody including the defendants until sometime between January

and April, 1977 when, as pleaded by paragraph 7:-

(7) The defendants between January and April sued Oliwari and Gua families of Opokuma and in the course of their survey of the land, cut trace lines through a large portion of the lands in dispute. The plaintiffs had warned the defendants that their acts of trespass upon the lands would not be tolerated by the plaintiffs… ”

Hence the action:

The defendants, on their pleadings, set up a case quite parallel to the plaintiffs’. According to the defendants, it is only the land called the Opubou land that is in dispute.

It is as shown and delineated in the Survey Plan No. LSA/R.5/81, and thereon, verged “Green”. The defendants claim title to the Opubou land through their ancestor, Ukunbiriowei, by way of inheritance from the Ayedei and the descendants of Ukunbiriowei.

It is part of the defendant’s case as pleaded in paragraph 6 of the statement of defence that the Opubou land was originally a virgin forest, Ukunbiriowei was the first man who cleared the forest and owned it in accordance with their Ijaw native law and custom. In the same manner, Ukunbiriowei cleared and owned three other parcels of land namely: Oruama, Odubou and Nguasa. Subsequently after the death of Ukunbiriowei his descendants, Okpurubial and Ayadei, had the four parcels of land partitioned between them following a court order in the Sabagreia native Suit No. 269/31. As a result thereof Opubou land, now in dispute and Oruma land went to their ancestor, Ayadei, while Odubou and Nguasa lands went to Okpurubial. It was pleaded in paragraph 7 of the amended statement of defence that since the partition of the lands, Ayadei and his descendants, the defendants, had been in the exclusive possession of the Opubou land and have exercised maximum acts of ownership thereon including farming the land fishing in its creeks and ponds.

As the owners in possession they had received money compensation from Seismograph Services (Nigeria) Ltd for damage done on the land by the company.

In further assertion of their ownership of the Opubou land the defendants alleged that they had successfully defended the Sabagrei Native Court Suit No. JB.122: Kogiama v. Ibiyai in respect of the Opobou land. Similarly their ancestor Ukunbiriowei successfully defended the Gbarain Ekpetiama Native Court Suit No. 103/5 which went on appeal as the County Court Appeal Suit No. 90/61.

The defendants in their pleadings denied the trespass alleged and complained of and urged court to dismiss the plaintiffs claims as being vexatious.

From the state of their pleadings it does seem to me that the principal issue coming on for trial was as observed by the West African Court of Appeal (WACA) in Abotche Kponuglo v Adja Kodadja (1933) 2 WACA at page 24:-

“The respondent’s claim being one of damages for trespass, and for an injunction against further trespass, it follows that he has put his title in issue. His claim postulates in their Lordship’s opinion, that he is either the owner of Bunya land, or has had, prior to the trespass complained of, exclusive possession of it”.

Radical title to the Opubou land was, therefore, in issue. Put in other words, was the ancestor of the respondents, Sunmo, its founder or original owner? Now, “If there are two persons in a field each asserting that the field is his, and each doing some act in the assertion of the right of possession, and if the question is, which of those two is in actual possession, I answer, the person who has title is in actual possession and the other is a trespasser”.

See Clerk & Lindsell on Tort 12th ed. page 746, Article 1331. But see also Goddy Umeobi v. Chief Otukoya (1978) 4 SC 33 at page 55.

In compliance with the rules of the court, the parties filed their respective briefs of argument in the appeal. The learned counsel for the appellants had distilled from the four grounds of appeal filed, four issues for determination to wit:-

“(a) Whether on a proper evaluation of the evidence given by the defendants and their witnesses on issue of acts of possession and enjoyment of the land in dispute as well as acts of long possession and or ownership of the land in dispute as given by them, the court could still have given judgment in favour of the plaintiff/respondents.

(b) Whether it was still a proper judicial exercise for the court to give judgment in favour of the plaintiffs/respondent having reached a conclusion that the evidence of traditional history of the parties is inconclusive.

(c) Whether the failure of the trial court to properly evaluate the relevance and weight to the exhibits tendered by the defendants/appellants relating to past judgments/ decisions in respect of the land in dispute (Opubou), its judgment can stand the test of weight of balance on an imaginary scale.

(d) Whether the decision of the trial court is comparable with the standard of proof expected and attainable in land matters and if the decision is not against the weight of evidence adduced by the defendants/appellants and their witnesses”.

The counsel for the respondents in his brief of argument formulated the following issues for determination to wit:

“(i) Whether the learned trial Judge was right in applying the principle laid down in Kojo II v. Bonsie (1957) I WLR 1223 on arriving at his decision after having held that the traditional evidence of the parties was inconclusive or was he to dismiss the respondent’s case at that point.

(ii) Whether the learned trial Judge properly evaluated the evidence of both parties their exhibits A, B, C, D, E, F, G, H – H6 on ownership of the land in dispute/having regard to the fact that in their grounds of appeal and evidence of their witnesses substantially relate to their land outside the land in dispute. (The square brackets are supplied).

(iii) Whether Exhibits D, E. F, H – H6 constitute legal proof of acts of ownership or decision of previous cases to operate as resjudicata in respect of the land in dispute.

(iv) Whether there is a special standard of proof in land matters distinct and separate from the usual civil standard in civil cases.

(v) Whether if one of the five ways of proof is established in a land case, can’t (sic) the trial Judge enter judgment for the plaintiff.

(vi) Whether the judgment is against the weight of evidence”.

I shall pause here for a comment briefly on the issues as respectively formulated by the counsel in their briefs to put the point aside. I shall start with the issues as formulated in the respondent’s briefs. Surprisingly the counsel distilled a total of six (6) issues from the four grounds of appeal; a proliferation of issues. It is not usually envisaged that the issues for determination will be more in number than the grounds of appeal on which they are based. Usually, they are less but not more than the grounds of appeal. The essence of the formulation of issues is to reduce the grounds of appeal into terse, compact formulation which takes cognisance and consideration of the same issues running through more than one ground of appeal. See Okonkwo v. Okolo (1988) 2 NWLR (Pt. 79) 632.

On a careful examination of the grounds of appeal filed, (see pages 158 to 160 of the Record of Appeal), some of the issues formulated by the counsel at least issues (i), (iv), (v) and (vi) are not, in my humble view, based on the grounds of appeal, from which they are supposed to be distilled. They are therefore irrelevant. See Ugo v. Obiekwe (1989) 1 NWLR (Pt. 99) 566.

I have studied the issues formulated in the appellant’s brief. I fail to see from which of the four grounds of appeal, issue (d) (supra) was distilled. In my view, the issue not being backed by a ground of appeal hangs in the air. It ought to be discounted and disregarded.

The issues as formulated by the counsel for the appellants may conveniently be condensed. Condensed and concisely stated, they boil down. In my view, to this “Whether on the proper evaluation of the evidence as led, judgment ought to have been given to the respondents”

And this seems to be the back of it all. Afterwards a case is ultimately decided on the totality of the evidence as led at the trial.

At the hearing of the appeal counsel for the appellants adopted his appellant’s brief filed on 18-6-96 and the appellant’s reply brief filed on the 13-5-98.

Counsel for the respondents adopted and relied on the respondents’ brief of argument deemed filed on 11-5-97. In laudably short a speech, counsel for the appellant, on the one hand urged court to allow the appeal. On the other hand, the respondent’s counsel urged court otherwise.

The contentions by the counsel for the appellants in the appellant’s brief of argument, shorn of their repetitions, may be summarized as follows: (i) the learned trial Judge failed to properly evaluate the evidence by the appellants and their witnesses on the appellant’s acts of ownership and enjoyment of the Opubou land in dispute (ii) the documentary evidence, i.e., Exhibits H – H6; (Receipts for money compensation by Seismograph Company Nigeria Ltd) (iii) Exhibits D, E, and F (Native Court judgments). It was further contended that the respondents did not give evidence of acts of ownership extending over the years: (iv) the traditional evidence of title to the disputed land by the respondents was “quite unimpressive and inconclusive”. It was accordingly submitted at page 6 of the appellant’s brief that, (I beg to borrow the language of the brief), “If the trial Judge had properly evaluated the evidence of the appellants regarding the five ways in which ownership of land may be proved, he would not have had any difficulty in giving judgment in favour of the appellants against the respondents”.

Counsel cited and relied on Idundun v. Okumagba (1976) 9-10 SC 227 at pp. 246 to 250; Nwofor v. Nwosu (1992) 9 NWLR (Pt.264)

P.229 at 237 G-B.

Counsel further submitted that it was for the trial Judge to have dismissed the respondent’s case since they failed to discharge the onus on then in that regard.

On their part, counsel for the respondents contended in the respondents’ brief at paragraph 7.01 thereof that the learned trial Judge. had meticulously evaluated the documentary evidence i.e. Exhibits A, B, C, D, E, F, G, H – H6. And the evidence by the parties and thereafter made his findings.

As to what evaluation of evidence connotes and denotes counsel in paragraph 7.02 of the respondent’s brief referred to Akpan v. Archbong (1992) 4 NWLR (PI. 238) 750 at page 753 and Umar v. Bayero University (1988) 4 NWLR (PI. 86) 85 at P. 86.

A good starting point for me in considering the learned submissions by the counsel on the issue will be, to remind myself, firstly, of the principle to guide me in reaching my conclusions. To trial courts, as their name suggests, belongs the reception of evidence (Appellate courts in very exceptional cases and circumstances do receive evidence), the evaluation of such evidence; the issue of credibility or otherwise of witnesses adducing such evidence and the making of findings of facts based most times on the credibility of witnesses and the probability of their story within the con of the surrounding circumstances of the case, for as Aristotle observed many years ago, “probability had never been caught bearing false testimony”.

In our adversary system issues of fact, evaluation of evidence, credibility of witnesses and making of findings of facts are all matters peculiarly and comfortably within the exclusive competence of the trial court – “the court that saw, heard and watched and believed.

See Chief Frank Ebba v. Chief Warri Ogodo (1984) 4 SC 84 at pp. 98/99; (1984) 1 SCNLR 372.

It is otherwise if the sole question is the inference or the deduction to be drawn from agreed or uncontested facts – there the appellate is in as good a position; as, if not better than, the trial court.” See Benmax v. Austin Motors Ltd. (1955) AC 370 at p. 375 and its other line of cases.

I shall further remind myself that it is the duty of the party seeking a declaration of title to land to establish and prove his claim by credible evidence as observed by the West African Court of Appeal (WACA) in Kodilinye v. Mbanefo Odu (1935) 2 WACA 336 at 337:

“The onus lies on the plaintiff to satisfy the court that he is entitled on the evidence brought by him to a declaration of title. The plaintiff in this case must rely on the strength of his own case and not on the weakness of the defendant’s case”.

From the state of the pleadings, the parties each hoisted his claim to title to the land in dispute on (i) history or traditional evidence and (ii) acts of possession and ownership from which it may inferred that he is the owner in title of the land. Out of the five ways or methods of establishing title to land (See Idundun v. Okumagba (1976) 9-10 SC 227 the parties have relied on two.

But the parties also, pleaded previous native court judgments and tendered them in evidence as evidence. It is worthy of note that neither party pleaded res judicata nor were the previous judgments received in evidence to establish estoppel or res judicata. It seems to me that these previous judgments were tendered in evidence as Bannerman, J. observed in Kobina Akabio v. Priest-in-Charge, Catholic Mission (1935) 2 WACA 380 at page 381.

“The judgments were tendered and received in evidence not to establish estoppel or res judicata but to show acts of possession”.

Now, what evidence did the respondents lead to establish their pleaded root of title to the land and how did the trial Judge handle such evidence? The traditional evidence of the respondent’s root of title was given by the PW1 (Isaiah Bobisagha Kwokwo) at page 33 lines 10 to 20 of the record. The appellant’s traditional evidence of their root of title is contained in page 76 lines 1 to 6 of the record of appeal.

Before investigating the trial court’s handling of the evidence of history or tradition as led, let me remind myself of the principle to guide me in reaching my conclusion.

It is now settled law that provided evidence of history or traditional evidence is conclusive and satisfactory a declaration of title to land may be made based solely on it. See the Stool of Abinabina v. Chief Kojo Enyimadu (1935) 12 WACA 171 at p.174; Idundun v. E Okumagba (1976) 9-10 SC 227 at pp. 246 to 250; Balogun v. Akanji (1988) 1 NWLR (Pt.70) 301 to mention only these.

It is however, worthy to note that a claimant to title to land is not bound to plead and prove more than one root of title to succeed. If he pleads and relies on more than one root of title, that is merely to make an assurance doubly sure. See Onyelakan Balogun v. Oladosun (1988) 2 SC 234.

Based on the evidence before him the learned trial Judge after a review of the traditional history of the respondent’s root of title expressed himself at page 142 lines 33 to 35 of the record as follows:”

Before me therefore are two competing traditional histories none of which appears to me to be more probable than the other”.

The only deduction based on the evidence of tradition or history is that the respondent’s case ought to be dismissed if nothing else. Why?

Because his evidence of history on that imaginary scale does not preponderate in his favour. See Mogaji v. Odofin (1978) 4 SC 91 at Pp. 90/99.

Learned counsel for the appellant had submitted that the trial court ought to have dismissed the claim at that stage. The submission is unacceptable. Why? again, because from the pleadings more than one root of title were pleaded. It would be the duty of the trial court to consider the evidence led to establish the other root of title as pleaded. See Kojo v. Bonsie (1957) 1 WLR 1223 at p. But as observed by Idigbe, JSC in Aderemi v. Adedire (1966) NMLR 398 at page 403:-

” … We take the view that as decided in Ekpo’s case (supra), in a claim where as in the case in hand the evidence “traditional history” given by plaintiff in an attempt to establish his ownership of the land is inconclusive, a court may yet determine ownership of the disputed land in their favour if they succeed in establishing acts of ownership, numerous and positive enough to warrant the inference that their possession of the land is to the exclusion of the defendants”.

But as to how the trial Judge treated the evidence of acts of ownership pleaded by the respondents, this was what he held at page 150 of the record:-

“The plaintiffs pleaded in paragraph 5(a) of the statement of claim that the land had been in the continuous occupation and possession of the plaintiffs who had farmed, fished and exploited mineral resources on it. However, at the trial I did not see any serious attempt by them to prove these assertions by evidence.”

It becomes clear therefore, that respondents had failed to prove their title to the land in dispute either by traditional evidence and/or acts of ownership to warrant the inference that their possession of the land is to the exclusion of the appellants. Their two pleaded roots had therefore failed. Indeed, the trial Judge’s conclusion at page 151 lines 32 to 36 of the record bears this out.

He wrote:

“I hold therefore that apart from the evidence of boundary witnesses neither of the parties succeeded in proving acts of ownership over the land numerous and positive enough to warrant the inference that they are the owners”.

(The italics is supplied)

The question is: was the evidence of boundary men necessary to determine the issue of title to land? And was the identity of the land in dispute in issue? Surprisingly. The learned trial Judge wrote at page 143 of the record inter alia:-

“Each of the boundary witnesses tried to establish that the land in dispute with which his family shares common boundary belongs to one side or the other. In my view therefore a thorough assessment of the evidence from boundary witnesses might help in determining which of the competing claims of title over the land in dispute is more probable”.

Is this an appropriate step? With due respect, the trial Judge was grossly in error in this approach. It is a legal faux pas. He, thereupon, expended valuable time and paper reviewing the evidence of the boundary men on the four cardinal points of the land in disputes.

After his exercise, he wrote at page 148 inter alia:

“From the foregoing analysis of the evidence it is my view that the evidence of boundary witnesses from the North and West is not clearly in favour of one side or the other. So also is the evidence from the East”.

It is clear that the first duty of a claimant to a decree of declaration of title to land is to show clearly the area to which his claim relates; its exact boundaries; its extent as no court will grant a declaration to an undefined area. The law reports are replete with decided cases in support of the proposition, Again, where as here the respondents failed to prove the boundaries of the land to which claim relates, their case ought to be dismissed on that account.

But the trial Judge did not stop there. With respect to the southern boundary, he wrote at page 148 lines 32 to 34:

“With regard to the South/Taylor Creek, it is my view that evidence is overwhelming in favour of the plaintiffs”.

Based on the Southern boundary the trial Judge concluded at page 149 of the record inter alia:-

“From the foregoing, I hold that so far an evidence of boundary witnesses are (sic) concerned it is in favour of the plaintiffs. The finding … tilts the balance in favour of the plaintiffs so as to render their evidence of traditional history more probable than that of the defendants”.

In my respectful opinion there was no legal authority for resorting to the evidence by boundary men on the south of the land to improve on the traditional history of the respondents. The above finding is perverse. The trial Judge had defied all known authorities and had stood the principles decided in the Idundun case (supra) and/or the Okpo case (supra) on their heads. Now as observed by the Supreme Court in James E Egbunike v. Simon Muonweokwu (1962) 1 SCNLR 97, (1962) 1 All NLR 46 at p. 51:-

“A declaratory judgment is discretionary. It is a form of judgment which should be granted only in circumstances in which the court is of the opinion that the party seeking it is, when all the facts are taken into account, fully entitled to the exercise of the court’s discretion…”

In the matter before us, the declaration of title made cannot be said to be as a result of proper exercise of judicial discretion.

But were the respondents shown to be in the exclusive possession so as to be able to maintain an action in trespass? See Pius Amakor v. Benedict Obiefuna (1974) 1ALL NLR 119; Nosiru Adeniji v. Ogunbiyi (1965) NMLR 395 at page 397. The above opens the door to me to look at paragraph 1 of the statement of claim (supra).

Paragraph 15 of the amended statement of defence denied paragraph 7 of the statement of claim. The PW 1 testified in-Chief in line with paragraph 7 at page 34 of the record, inter alia:-

“Some time later the defendants had a land dispute with Oliwari and Guawari families of Opokuma about 1979/80. While making their survey plan, the defendants surveyed parts of our land”

The evidence of the DW1 in-chief at page 83 of the Record, inter alia read:

“I remember Exhibit D. The case was between our family and In that case we never surveyed the plaintiff’s land. We did not at any time carry survey activity to the plaintiffs’ land. Rather it was our land in which we carried our surveys”.

But not withstanding evidence by the DW1 the learned trial Judge wrote at page 151 of the record inter alia:-

“Since the plaintiff’s assertion that the defendants entered upon the land and carried out a survey of same in the course of another suit is not denied in evidence, there is in my view evidence of trespass for which the plaintiffs are entitled to some damages”.

He accordingly awarded the sum of N300.00 an general damages for trespass against the appellants.

With respect, the above finding by the trial Judge is perverse.

There was of course, some evidence by DW1 in denial of the trespass alleged and complained of. It cannot be said that the assertion of the respondents, “is not denied in evidence”. The trial Judge just ignored the evidence by DW1.

In my humble opinion this judgment cannot be allowed to stand.

The issue for determination ought to be answered in the negative.

In other words, to put it beyond any doubts, the issue is resolved in favour of the appellant and on that account against the respondents.

In the final analysis, there is some merit in the appeal. I, therefore, allow the appeal, set aside the judgment of the trial court on the 5/5/94 and enter a judgment dismissing the respondents’ claim.

There shall be costs in this court in favour of the appellant against the respondents assessed at N5,000.00.

Other Citations: (2001)LCN/1026(CA)