Gbajumo Bunyan & Ors. V. A. O. Akingboye & Ors (1999)

LAWGLOBAL HUB Lead Judgment Report

MOHAMMED, J.S.C.

A parcel of land between the Oluwa and Oreana rivers in Okitipupa Division of Ondo State has been a source of dispute between the ljaw-Apois and Ilaje communities. The dispute has a chequered history. The first record of the dispute is from a civil suit filed by one Jubo, the Oba of the Ijaws, against one Omoluwole, the Amapetu of Mahin. The case was heard on 19th December, 1917, at Ondo Provincial Court, presided over by R.D.N. Raikes, a Colonial Resident.

In January, 1974, the respondents in this appeal, who were the plaintiffs before the trial High Court of Ondo State claimed against the appellants (defendants before the High Court) for the following declarations:-

“(i) Declaration of title according to customary law to all that piece or parcel of land situated at Kurugbene-Ipinle in Ilaje area of Okitipupa Division;

(ii) Forfeiture of the defendants’ customary tenancy of the said land;

(iii) Possession of the land.”

Before the trial opened, the trial court granted leave to Oba Samuel Oladiran II, the Kalashuwe of Apoi land to be joined in the suit as the 4th defendant. He appeared for himself and on behalf of Kurugbene community and other members off Ijaw-Apoi community. After the joinder, the 4th defendant filed a counter-claim and prayed for the following reliefs:

“(a) Declaration of title as absolute owner under Ijaw Apoi native law and custom of all that piece or parcel of land situate at, lying and being at Igbanran. Kofawe and Kurugbene (with the exception of Igbokoda) up to Ibila, portion of Ijaw Apoi landed properly in Okitipupa Division, Ondo State verged blue in the attached plan No. WP 419 dated 22-12-75.

(b) N200 being special and general damages for trespass.

(c) Injunction to restrain the plaintiffs their agents or servants from committing further acts of trespass on the said land.”

After pleadings were filed and exchanged, the trial opened and both parties called witnesses in order to establish their respective claims. At the conclusion of the hearing the learned trial Judge, in a considered judgment, dismissed the respondents’ claim. He however found the counter-claim of the 4th defendant meritorious and made the following declarations in his favour:

“(i) That the 4th defendant’s community are entitled to the customary right of occupancy to the land shown blue in plan WP 419 dated 18th November, 1979 excluding areas assigned or alienated to a third party;

(ii) N150 general damages for trespass;

(iii) an order of perpetual injunction to restrain the plaintiffs, their servants and agents from further trespass on the said land.”

Dissatisfied with this decision, the plaintiffs, armed with 18 grounds of appeal, contested the judgment of the trial court at the Court of Appeal, Benin Division. The Court of Appeal, in a well considered judgment, allowed the appeal and declared that the plaintiffs were entitled to a customary right of occupancy to the land edged red in plan No. JF06766. In addition, the Court of Appeal granted injunction restraining the defendants from further putting tenants on the disputed land or alienating any part of it. The court dismissed both the plaintiffs’ claims for forfeiture and possession and the 4th defendant’s counter-claim.

Aggrieved by the judgment of the Court of Appeal, the defendants, who hereinafter shall be referred to as the appellants, after obtaining leave from this court, filed their notice of appeal. Before I consider the issues raised for the determination of this appeal I will deal first with the preliminary objection raised by learned counsel for the respondents in the respondents’ brief against the hearing of this appeal. Learned counsel for the respondents submitted that this appeal is incompetent because the appellants did not seek appropriate leave of this court before filing the notice and grounds of appeal against the judgment of the court below.

Learned counsel referred to an application filed by the appellants seeking for extension of time to appeal. In the application the appellants sought for the following reliefs;

“(i) An order for the extension of time within which to apply for leave to appeal against 27th May, 1988.

(ii) An order granting them leave to appeal against the judgment of the Court of Appeal dated 27th May, 1988 on question other than law alone.

(iii) An order for extension of time to file and serve notice of appeal against the judgment of the Court of Appeal dated 27th May, 1988.

(iv) Such further order or orders as this honourable court will deem fit to make in the circumstances.”

Learned counsel referred to prayer (ii) above and pointed out that the appellants were seeking for leave to appeal on grounds of facts or mixed law and facts. Leave to appeal is not synonymous with leave to appeal on grounds of facts or mixed law and facts. Learned counsel thereafter submitted that by a long line of authorities there are three mandatory prayers an appellant/applicant must seek before the Supreme Court in applying for leave to appeal out of time. The prayers are:

(a) extension of time within which to seek leave;

(b) leave of appeal;

(c) extension of time within which to appeal.

Counsel argued that once any of these prayers are missing the application is defective. See Atanda v. Olarewaju (1988) 4 NWLR (Pt.89) 384; Incar v. Bolex (1997) 10 NWLR (Pt.526) 530; (1997) 7 SCNJ 194 at 199. The learned counsel in addition referred to Owena Bank v. Nigeria Stock Exchange (1997) 8 NWLR (Pt.515) 1; (1997) 7 SCNJ 160 at 171-172 and urged us to strike out and/or dismiss this appeal being lacking in competence.

In his reply to the preliminary objection learned counsel for the appellants, Mr. Jimoh-Lasisi, submitted that the contention of the respondents is misconceived in law. Learned counsel explained in the appellant’s reply brief that a party who wishes to appeal against questions of fact or mixed law and fact requires leave to appeal in compliance with s.213(3) of the Constitution of the Federal Republic of Nigeria. Secondly, a party who wishes to appeal against questions of law alone can appeal as of right. But if he is out of time i.e. he has not appealed within the statutory period of three months he must pray for extension of time to file notice of appeal containing question of law alone,

It is pertinent to observe that the prayer in the motion in which learned counsel raised this preliminary objection was granted by this court in the following terms:

“The application is granted as prayed and time is extended within which to seek leave to appeal, for leave to appeal and for extension of time to appeal. Time to file notice of appeal extended to sixty days from today.” (Per Belgore, J.S.C.)

It goes without saying that the order of this court is binding on the parties, Learned counsel for the respondent seems to be complaining against the additional phrase in prayer II in the motion dated 27th May 1998, to wit; “on questions other than law alone”, That phrase may not be necessary in prayer II but it does not affect the main prayer, that is, application for leave to appeal. Be that as it may, it is clear that the learned counsel is crying over spilt milk because this court had ignored the additional phrase, granted the prayer and extended time to the appellants to seek leave to appeal. The preliminary objection is therefore overruled by me.

I now go back to the main appeal. Learned counsel for the appellants identified four issues for the determination of this appeal. The respondents have adopted the four issues formulated by the appellants. The issues are as follows:

“1. Did the plaintiff prove title to the land in dispute at all.

2. Whether the Court of Appeal was right when it held that the 1917 judgment. Exhibit 2, estops the defendants from relitigating the ownership of the land in dispute as well as Igbokoda town.
3. Whether the decision of the Court of Appeal granting suo motu an order of injunction restraining the defendants from further putting tenants on the land or alienating any part of it was right in law,
4. Whether the dismissal of the 4th defendant’s counter-claim by the Court of Appeal was right.”

I will consider issue 2 first because if I agree that the 1917 judgment, Exhibit 2, operates as estoppel per rem judicatam, that will substantially dispose of this appeal. Learned counsel for the appellants, in the appellant’s brief, submitted that the judgment entered in favour of Amapetu of Mahin in 1917 did not decree title to him, Therefore the Court of Appeal was in error to conclude that the land in dispute formed part of the land in dispute in the 1917 case. Learned counsel referred to the case of Atanda v. Oshoboja (1984) 7 SC 68 at 83 and submitted that the judgment for the defendant to a declaratory claim, as in this case where the defendant did not counter-claim, is tantamount to a dismissal of the plaintiffs claim in the 1917 suit. I have looked into the ratio decided in Atanda v. Oshoboja (supra) and with respect to the submission of the learned counsel what was decided in that case was that where a defendant did not counter-claim to a declaration of title, the dismissal of the plaintiffs claim for a declaration of title would not mean that the land belonged to the defendant. This court further held in Oshoboja ‘s case as follows:

‘The Court of Appeal committed a serious error of law in its misconception of the effect of the operation of the plea of estoppel per rem judicatam even if such plea were available in the circumstances of the instant case.It acted under the impression that the operation of the plea was sufficient to grant a declaration of title to the land in dispute to the respondent, and this is a misdirection, in law,., It is only where the issue of ownership was raised and, decided in the earlier proceedings in favour of the defendant that the judgment in that suit should have settled his title to the land and rendered the operation of estoppel per rem judicatam in his favour.. .”

It should be noted however that the 1917 case was before a Provincial Court presided over by a Resident who was not a lawyer. The court was not bound to strictly follow the rules of pleadings. In the suit, the plaintiff, Jubo, the Oba of Ijaw, the ancestor of the appellants, put up his claim over the land in dispute thus:

“I now claim the whole land called Igbokoda for myself. This means all the land between the Oluwa and Oreara rivers.”

The Amapetu of Mahin who was the ancestor and paramount ruler of the Ilaje community, the respondents in the appeal, told the Provincial Court that the strip of land between the Rivers Oluwa and Oreara belonged to Mahin community. The Ijaws used to ask for permission to stay on the land and build canoes or engage in hunting. Now considering the evidence of the plaintiff and defendant in the 1917 case it is abundantly clear that both parties raised the issue of ownership of the land in dispute before the provincial court. The judgment of the provincial court, although couched in a colonial ruler’s language, considered the competing claims to title by both parties and decided in favour of the Amapetu of Mahin.

Learned counsel for the appellants submitted that the respondents who rely on the 1917 judgment ought to have proved the extent of the land covered in that case. Counsel further argued that the Court of Appeal having observed that the plaintiffs/respondents, in the present case. did not produce the plan tendered in the judgment of 1917 ought to have agreed with the trial High Court that the foundation of the plaintiffs/respondents’ claim had collapsed. I agree that the identity of the land in dispute was indeed a main issue before the trial High Court. However, the Court of Appeal considered the issue and dealt with it exhaustively before resolving that the land in dispute was the same land claimed by Jubo, the Oba of Ijaw Apoi in the 1917 case.

In arriving at this conclusion, Ogundare, J.C.A. (as he then was) referred to the claim of the respondents in the present action wherein they averred that the land in dispute is the land edged “red” and “green” between Oluwa and Oreara or Ofara rivers in Exhibit 1. The appellants, however, pointed out that the land in dispute in 1917 case is a small piece of land edged “green” in Exhibit 10. It is relevant in ascertaining the land in dispute to refer to the claim of Jubo in 1917 case. The claim as reproduced in the judgment of 1917 trial reads thus;

“To establish his (Jubo’91s) right to common ownership with the defendant (Omoluwole the Amapetu of Mahin) of that land known as Igbokoda situated between the rivers Oluwa and Oreara (Ofara) in Ondo Division land valued at ‘100pounds.”

In the Court of Appeal’s judgment, Jubos’ testimony referred to the land in dispute as Igbokoda. Jubo, however, during the trial claimed all the land between Oluwa and Oreara rivers for himself alone. He said his farms were at Kofawe where he lived before he was made a chief. His evidence was supported by Oji, the Bale and Kulubo, a shipwright or canoe maker. This assertion is clear in the judgment of the Provincial Court where Jubo claimed to have established farms in the village of Kofawe. In his judgment, Ogundare, J.C.A. (as he then was) analysed the testimonies of witnesses in the present action in regard to the identity of the land in dispute and concluded as follows:-

“Taking the evidence of these three witnesses along with the evidence of Jubo, Oji and Kulubo in the 1917 case and having regard to the position of the land in dispute to Rivers Ofara and Oluwa in Exhibits 1 & 10, there can be no doubt that the land in dispute along with the land edged “green” on Exhibit 1 was the land in dispute and claimed by Jubo, the Oba of Ijaw Apoi in the 1917 case. Jubo lost that case and the land was adjudged to Omoluwole, the Amapetu of Mahin. In the light of this conclusion, the learned trial Judge, with respect to him, cannot be right when he held that the land in dispute in 1917 ‘is outside the claim of the plaintiffs and does not require any pronouncement from this court.”

I have gone through the testimonies of witnesses and examined the two plans, Exhibits 1 and 10, and I agree that the land between the rivers of Ofara/Oreara and Oluwa is the land the parties are now in dispute over. It is the same land which was claimed by Jubo, the ancestor of the appellants against Omoluwole, the Amapetu of Mahin, the paramount chief and ancestor of the Ilajes. As a matter of fact the appellants confirmed this in paragraph 44 of their amended statement of defence, where in they pleaded thus:

“44. The defendants aver that Oluwa river forms a natural boundary between them and their ancestors and the plaintiffs and their ancestors along Ibila village.”

In both Exhibits 1 and 10 Ijaw Apoi land is shown on the eastern side of Oluwa river. It can also be observed from the two plans that all the towns and villages of the Ijaw Apoi tribe are located on the eastern part of River Oluwa. Since the land in dispute which includes Kurugbene and Igbokoda is between Oreara/Ofara and Oluwa rivers it is a logical argument that the appellants cannot lay claim on the land on the western side of the river. I therefore agree with the decision of the court below that 1917 judgment, Exhibit 2, estops the appellants from relitigating the ownership of the land in dispute. The respondent’s failure to file the plan tendered in 1917 case is not fatal to their claim since both parties in this case have given sufficient particulars of the land in dispute ” Abiodun v. Fasanya (1974) 11 SC 61.

Having established that the title to land in dispute had been declared by the Provincial Court in the 1917 case in favour of Omoluwole, the Amapetu of Mahin, who was the ancestor of the respondents it is not necessary for the respondents to prove ownership of the said land. The respondents have traced their title directly to one whose title to ownership has been established see Mosalewa Thomas v. Preston Holder (1946) 12WACA 78 at 80.

The third issue deals with the grant of injunction which the court below made without being asked to do so. Learned counsel for the appellants submitted that granting suo motu of an order of injunction in favour of the respondents is tantamount to granting an amendment of the plaintiffs’/respondents’ claim, thus making a new case for them after their claims for forfeiture and possession had failed. Counsel referred to the case of Aruba v. Aiyeleru (1993) 3 NWLR (Pt.280), page 126 where this court held that a judge is an impartial umpire. He cannot make a new case for either part where the case brought before the court has collapsed Orizu v. Anyaegbunam (1978) 5 SC 21. Learned counsel further submitted that the granting of relief of injunction which was not claimed by the plaintiffs/respondents without hearing the defendants/appellants was a serious breach of section 33 of the Constitution of the Federal Republic of Nigeria 1979.

I do not see where the court below had violated section 33 of the Constitution in granting an injunction restraining the appellants from further putting tenants or alienating any part of the land in dispute. It is important to note that the court below had declared title to the land in dispute in favour of the respondents. The Court of Appeal, by virtue of its power under section 16 of the Court of Appeal Act, can make such consequential orders as it deems fit in order to avoid multiplicity of legal proceedings concerning any of those matters which any of the parties may appear to be entitled to. See Chief R.A. Okoya & ors. v. Santilli & Ors. (1990) 2 NWLR (Pt.131) 172; (1990) All NLR 250 at 280 – 281 and Katto v. Central Bank (1991) 9 NWLR (Pt.214) 126; (1991) 12 SCNJ 1 at 17.

Furthermore, there is evidence before the trial court that the appellants have admitted putting tenants and alienating parts of the land in dispute. Since the court below had declared title in favour of the respondents it is their right that the appellants be restrained from further alienation or putting tenants in the disputed land.

The dismissal of the 4th appellant’s counter-claim by the court below is the question raised in the 4th issue in this appeal. Learned counsel for the appellants argued that the learned trial Judge, after finding that the traditional evidence adduced by the parties was inconclusive, resorted to recent acts of possession and found for the 4th defendant/appellant. Counsel pointed out that the 4th appellant, being the Kalashuwe of Apoi and therefore the overlord of Kurugbene community, was entitled to sue for declaration of title in respect of land in Kurugbene. Counsel further argued that even if claim for title has not been proved the appellants, being in possession of the land in dispute, could claim for trespass and injunction ” Obanor v. Obanor (1976) 2 SC 1 at 6 and Olaloye v. Balogun (1990) 5 NWLR (Pt. 148) 24 at 40.

In reply to the above, P.A. Akubo, learned counsel for the respondents in the respondents’ brief, referred to a portion of the judgment of the trial High Court where the learned trial Judge opined thus:

“As I have said, the traditional evidence of both the plaintiffs and the defendants are not only conflicting but inconclusive.”

Mr Akubo submitted that the appellants failed to appeal against the finding reproduced above. Learned counsel further submitted that the trial court was in error to declare title in favour of the 4th appellant after it had found that the appellants’ traditional evidence was inconclusive and since the foundation of appellants’ claim based on traditional history had collapsed it was improper to resort to the other ways of proving ownership of land as laid down in the case of Idundun v. Okumagba (1976) 9 & 10 SC 227.

I have looked into the pleadings and evidence adduced on the 4th appellant’s counter-claim and I agree that the evidence was in conflict with the pleadings. In paragraphs 8 & 9 of the statement of the amended counter-claim of the 4th defendant, it was averred thus:

“8. That Kurugbene was settled upon about 300 years by one of the ancestors of Kurugbene community named Apa who came from Inikorogha.

9. Kulubo the son of Apa and also his wife Yeye settled in Kurugbene with Apa who exercised all acts of ownership including farming the land, building houses on the land, making of canoes carved out of trees grown on the land and also fishing in the river and fish ponds made on the land and putting of tenants on the land.”

If Kulubo was the son of Apa who established Kurugbene 300 years ago he could not be alive to give evidence in the 1917 suit! The evidence of Kulubo in the Provincial Court in the 1917 suit was as follows:

“Kulubo sworn states:- I am shipwright living at Nikuruwa in the Ijaw confederation. I know the land that plaintiff is claiming. I have a village on the land called Rugbeni. It is not on the land between the Oluwa and Oreara rivers. I have never farmed on the land but I have built canoes there. Nobody has farmed on the land but there are villages which are composed of fishing huts. I know Kofawe. It belongs to plaintiff.”

The confusion between the pleadings, the evidence adduced in the present suit and the testimony of Kulubo in the 1917 case clearly points to undisputed facts that the claim of the 4th appellant was rightly dismissed by the court below. The inconsistencies are very clear.

In the result this appeal has failed. It is accordingly dismissed. The judgment of the Court of Appeal delivered on the 27th of May, 1988 is hereby affirmed. I assess N10,000.00 as costs and award same to respondents.

---

SC.173/90