His Highness, Alhaji A.g. Momoh & Ors. V. His Highness, Alhaji I.m. Umoru & Ors. (2011) LLJR-SC

His Highness, Alhaji A.g. Momoh & Ors. V. His Highness, Alhaji I.m. Umoru & Ors. (2011)

LAWGLOBAL HUB Lead Judgment Report

SULEIMAN GALADIMA J.S.C.

This case has a chequered history- The court below was saddled with the task of having to hear the appeal for the second time under the following circumstances. The present appellants as plaintiffs first commenced the action in 1981, before the High Court of Auchi in suit No. HAU/46/81 presided over by Akpovi (J) (as he then was). Judgment was delivered in 1984 whereby the learned trial judge refused to grant the declaratory reliefs and the order of injunction being sought by the plaintiffs. In the said judgment the learned trial Judge gave what he termed as “a compromise solution” judgment.

Dissatisfied with that decision the plaintiffs appealed to the court below, which allowed the appeal but made consequential order remitting the case to the High Court Auchi for re-hearing de novo. Their further appeal to this court was struck out. The plaintiffs were thereby left with no legal option but to revert to the earlier order of the court which was to re-hear the case de novo.

The re-hearing commenced before Maidoh (J). But upon the creation of Delta State out of former Bendel State and the subsequent deployment of Maidoh (J) to the Delta state Judiciary the case was assigned to Sadoh (J) who decided in favour of the Defendants in 1994.

In their 3rd Further Amended Statement of Claim, the Plaintiffs claimed the following reliefs:

“(a) A declaration that in accordance with Auchi Customary Law and tradition, the plaintiffs, the people of Auchi, are the persons vested with all existing rights to the use and occupation of all that piece or parcel of land lying and situated in Auchi, in the Etsako Local Government Area of Bendel State and within the jurisdiction of this Honourable Court, and verged pink in plan No. 1092 filed herewith, (the said land though well known to the defendants is as shown).

(b) A declaration that the plaintiffs, the people of Auchi or Auchi Community by virtue of Auchi Customary Law and tradition, are the persons entitled to the Customary and/or Statutory Right of Occupancy in respect of the said piece or parcel of land.

(c) An order of perpetual injunction restraining the defendants whether by themselves, their servants, agents or any person claiming through or under them or whatsoever from entering re-entering or remaining upon the said piece or parcel of land in purported exercise of any right in relation to the possession, use and occupation of the land or any part thereof in derogation to the plaintiff’s vested rights or interests therein.

(d) Additionally, the plaintiffs seek forfeiture or declaration of forfeiture by the defendants of the area of plaintiffs land (Sabo Quarters) occupied by the defendants with the permission or tacit permission of the plaintiffs before disputes arose between the parties, and by reason of defendants’ claim of title thereto and denial of the plaintiff’s title.”

The defendants on their part filed a 2nd Further Amended Statement of Defence.

The Plaintiffs called a total of 5 witnesses. In addition, the 3rd and 4th plaintiffs also testified while on the part of the defendants the 1st defendant testified.

At the close of the case for the parties, learned Counsel each addressed the Court. Following this the learned trial Judge gave judgment in favour of the Defendants.

Dissatisfied with judgment the plaintiffs appealed to the Court of Appeal sitting in Benin City.

On 19/1/2000, the lower court, delivered its judgment in which all the issues canvassed by the Appellants were resolved against them. The appeal was accordingly dismissed and the judgment of the learned trial Judge was affirmed.

The Appellants herein being dissatisfied with the judgment further appealed to this Court on SEVEN grounds issues formulated by the Appellants for determination of this Court are set out as follows:-

“(1) Was the Lower Court right when it upheld the judgment of the learned trial judge and held that the evaluation of evidence by the learned trial judge was not perverse (Ground 1)

(2) Whether the Lower Court was right when it agreed with the learned trial Judge that the traditional histories pleaded and given in evidence by the parties as to the point of arrival and from where the parties migrated are conflicting. (Ground 2)

(3) Whether the Lower Court did not misdirect itself when it held that the learned trial judge was right in his criticism of Exhibit “A”. (Ground 3).

(4) Was the Lower Court right when it upheld the Trial Court’s decision that the Justice Obi’s Commission of Enquiry Report on the boundary between the parties in this appeal was binding on the appellants (Ground 4),

(5) Was the Lower Court right when it upheld the learned trial judge’s finding that title to the land in dispute could not be declared in the appellants’ favour because the payment of compensation to the respondent by Dumez and the establishment of Ekhabhele Primary School, Iyakpi were positive and numerous acts of ownership and possession of the land in dispute by the respondents. (Ground 5).

(6) Was the Lower Court right in upholding the judgment of the Trial Court (Grounds 6 and 7).

Sole issue was presented by the Respondents for determination thus:

“Whether the Learned Justices of the Court of Appeal were right in law and on the facts in holding that the appellants failed to prove their case at the Court of first instance.”

On 15th day of March, 2011, this appeal was heard. Learned Counsel for the Appellants, C.O. OHIKOGU Esq., referred the Court to the Appellants’ brief of argument dated and filed on 07/03/2005, but after been granted an enlargement dated and filed on 07/03/2005, but after been granted an enlargement of time to file it was deemed filed on 25/03/2005. He urged us to allow the appeal. In the same vein, the learned senior counsel for the Respondents having identified his brief of argument deemed filed on 20/08/2008 urged us to dismiss the appeal.

From the issues formulated by the parties in this appeal, I am of the respectful view that the sole issue formulated by Respondents can properly and effectively determine the appeal. But before going into the arguments of the parties to resolve the issues raised, it is apt and necessary to give a brief narrative of the facts, which form the basis of the claims of the respective parties.

The Appellants’ side of the story is that their ancestor Uchi, together with his five sons namely Usagun, Akpekpe (Afekpe) Aibotse, Igbei and Ekhei migrated from Udo in Benin, which is within the present day Ovia West Local Government Area of Edo State to settle in the place now called AUCHI. The original settlement encompassed an area marked by the site of the Uchi Market at Auchi. Uchi’s settlement grew in size because of the demand for land for farming and hunting purposes and also as a result of the sons’ movement to settle in area bearing their names and farming quarters or villages of Auchi.

The boundary neighbours of the Auchi people are named as the people of Warrake and Ivbiaro (Iyaro) to the West, the people of Avia to the North, Jattu (Uzarue) to the North East, Ibienafe people of the South, Ibie clan to the East and the people of Ugioli (Aviele) to the South. That their boundary with Ibie Nafe is marked by an Albino mound on an old ancient footpath.

It is the case of the Appellants that in 1964 – 65 the people of Auchi as represented by the Otaru gave the parcel of land on which Auchi Polytechnic (formerly Mid-West Technical College). It was then that the first direct and overt assertion of adverse title by Iyakpi people to the land in dispute came when the Respondents claimed to be the owners of the said land in order to benefit from compensation payable by Government. The Appellants also claimed to have left the Respondents on the land in dispute because they were subjects of the 1st Appellant form 1920 to 1950. The appellants went to court when the Respondents became unfriendly by teaming up with Uzairue people against the appellants.

The Respondents on the other hand assert that their ancestors migrated from Benin in about the 15th century and settled at their present site. It was from this site that the founders of the other South Ibie villages migrated to where they now occupy. That “Ibie Nafe” means people that ran away from home. That Iyakpi is the original settlement of the South of Auchi Polytechnic was done with their permission. Other positive acts of ownership by the Respondents, as they claim are the possession of 100 houses, Ekhabhele Primary School and farms. The Respondents accepted the decision of the Justice J.A. Obi’s Commission of Inquiry which was set up by the government to establish the boundary between the Plaintiffs’/Appellants’ Community and its neighbours.

Now turning to the issues for determination, it should be observed that the learned senior counsel for the appellants in the brief of argument argued issues 1, 2, 3 and 6 together. This is in view of the fact that those issues are intertwined and cannot be properly dealt with without touching on matters surrounding them which are unduly proliferated but are ably subsumed in the sole issue raised by the Respondents. In the main, it is the contention of the appellants counsel that the lower court was wrong when it held that the evaluation of evidence by the trial court was not perverse. He submitted that the lower court came to this conclusion without showing how it arrived at same. That apart from reproducing the evidence led at the trial, the lower court did not marry the issues raised by the appellants in their brief of argument touching on the said evidence so led That once an issue is raised for determination, the court has duty to determine same, relying on the case of AFOLAYAN v. OGUNRINDE (1990) 1 NWLR (Pt 127) 369 at 383.

On the traditional histories as pleaded by the parties, it is the submission of Learned Senior Counsel for the appellants that the lower court was not right when it agreed with the learned trial judge that the traditional histories pleaded and given in evidence by the parties as to the point of arrival and settlement on the disputed land and from where the parties migrated are conflicting. It is the contention of the appellants that they pleaded their traditional history in paragraphs 8, 9, 10, 11, 12, 14, 15, 16, 17, 18, 18(a) of the 3rd Further amended Statement of claim. Summarizing the paragraphs’ the Appellants have claimed that by Auchi Native Law and Custom all lands are communally owned and are subjected to the overriding interest or rights of the community. That the Otaru of Auchi is the traditional trustee of all Auchi lands and he alienates any parcel of land on the recommendation of the Land Allocation Committee. That the land in dispute was originally occupied by Iyekhei people of Igbei quarter or village of Auchi. That the people left the land in dispute for the present day lyekhei sub-quarter of Auchi. After the said Iyekhei left the land in dispute, the people of Igbei who are their brothers spread in and occupied same by erecting buildings and farming.

On the question of boundaries of the disputed land, learned senior counsel in his brief in paragraphs 4.11 alluded to the pleadings of the appellants in paragraphs 17, 18 and 18(a) and summarized them thus:

“(a) That people of Warrake and Ivbiaroto the West, those of Avia to the North, Jattu (Uzairue)to the North East, those of Ibie-Nafe of South Ibie clan to the East and those of Ugioli (Aviele) to the South.

(b) The land in dispute is encompassed by Auchi land to the West and abuts Auchi Polytechnic land granted to the then Government of Midwestern Region by the Otaru of Auchi on behalf of Auchi Community.

(c) On the north-west of the Auchi Polytechnic land is the Igbei quarter or village of Auchi.

(d) Also the boundary with the land in dispute to the South is the land of the Ugioli (Aviele) people, on the East-north is the Ibie Nafe people and to the far North is the Otaru Grammar School, Auchi.

(e) The Intelligence report of Mr. H. Spottiswood boundaries settlement ordinance enquiry between Auchi and Uzairue clans and that of Mr. S. J. Henry between Auchi and Aviele clans.”

In their further quest to strengthen their case the appellants in paragraphs 4 .12 of their brief summarized the traditional history in the following terms:

(i) That Akpi is the ancestor of Iyakpi people of South Ibie;

(ii) That the original home of Atse was Ibie-Nafe (meaning of Ibie people at the place where all the Ibies once settled);

(iii) That Atse begat Akpi and other sons;

(iv) That Akpi like other sons of Atse broke away from their father;

(v) That Akpi, after breaking away, settled on part of Ibie-Nafe land to the East and South-East of Auchi known a Iyakpi;

(vi) That the Native Authority School was established on a small portion of the land in dispute;

(vii) The land on which the school was sited which was later taken in by Sabo quarters turn out to be the land in dispute as a result of the acts of trespass carried out by Iyakpi people who squatted and built houses on part of the land which they nicknamed Sabo.

(viii) This initial act of trespass by Ivakpi people was accommodated by the Auchi people who before the advent of the 1st respondent as the Aidonogie of South Ibie clan acknowledged the over lordship of the Otaru of Auchi, assumed an alarming proportion in the wake of 1964 – 1965.

(ix) As a result of this alarming rate of trespass, there became a threat of violent clashes and this led to three (4) inconclusive Government Commissions of Inquires.

As I have noted the learned senior counsel for the Appellants conveniently argued issues 1, 2, 3 and 6 together. I agree with him that the argument on issue 1 cannot be entirely dealt with without touching on those matters surrounding issues 2, 3 and 6. But as I have equally observed the sole issue raised by the Respondents has most comprehensively covered all the six issues set out by the Appellants. In the circumstance, I shall consider the findings of fact made by the learned trial judge based on both oral as well as documentary evidence vis a vis their evaluation since the lower court came to the conclusion that the evaluation, of evidence by the trial judge was not perverse.

The Appellants as plaintiffs at the trial court in their 3rd Further Amended Statement of Claim inter alia, sought for a declaration that in accordance with Auchi customary law and tradition themselves, and the people of Auchi are the persons vested with the title, use and occupation of all the disputed land lying and situate in Auchi, East of Etsako Local Government Area of Edo State.

At the trial the learned trial judge identified the issue for determination at pages 248 – 249 of the records therein thus:

“The issue for determination therefore in the case is, which of the two communities i.e. the plaintiffs or the defendants own the land in dispute in this case. The parties being different communities, the determination of the boundary between the plaintiffs and the defendants is the burden for the determination of the ownership of the land in dispute in this case.”

Then to his findings on the same page:

“The Auchi Community being the plaintiffs in this case have put the area in dispute as pet their survey plan filed in this case, exhibit A; as 280.383 hectares. The plaintiffs did not put the area occupied bv Auchi Polytechnic within the area in dispute. The defendants put the area in dispute as 548.97 hectares as per their survey plan exhibit Q. The area occupied by Auchi Polytechnic its staff quarters is put in dispute. This area is twice the Area put in dispute by the plaintiffs. It is however pertinent to point out that the defendants did not counter-claim any land in this suit. In the end whether the plaintiffs’ claim succeeds or fails will be related to the area claimed by them.

The learned trial judge went into considering some authorities on what plaintiff must prove in a land case (as in IDUNDUN v OKUMAGBA (1976) 9-10 SC.227 and he quickly reverted into the evidence of traditional history and held as follows:

”Reverting once more to the traditional histories pleaded and given in evidence by the parties to his suit, I hold that the said traditional histories are conflicting as to the point of arrival and from where the parties migrated and also on the boundary between the plaintiffs and the defendants. It has been held by the Supreme Court in the case of POPOOLA & ORS v JOSHUA ADEYEMO & ANOR (1992) 8 NWLR (Pt.257) 1 at ratio 1 that where there is such conflict, the proper course open to the court in resolving the conflict is to test the traditional history by reference to the facts in recent years established by evidence and by seeing which of the competing, histories is more probable”. (Underlined for emphasis).

Indeed the learned trial judge accordingly resorted to the examination of Exhibits ‘C’ and ‘D’. He found that these exhibits tendered by the Appellants’ which are inter-tribal boundary proceedings between Auchi and Aviele and between Auchi and Uzairue clan respectively to be of little help in the determination of the boundary between the Appellants and the Respondents. The learned trial judge also examined the survey plans Exhibits ‘A’ and ‘Q tendered by the Appellants and Respondents respectively and found that Exhibit ‘A’ did not represent the correct position of things on the ground especially with respect to the positions of IYAKPI, a boundary neighbour to Auchi. He disbelieved that the boundary between the Appellants and the Respondent was correctly reflected in Exhibit ‘A’ He then found that the numerous acts shown in the area in dispute such as buildings and farms were acts of ownership properly exercised by the Defendant/Respondents within the land in dispute.

At page 255 lines 15-20 of the Records the learned trial judge while considering Exhibit ‘F’- “Short History of South Ibie Clan” o0n which Pw5 was called and examined, held as follows:

“…With respect to exhibit ‘F’, I have no difficulty in coming to the conclusion that exhibit ‘F’ cannot be relied upon as an authority on the subject matter of the book”

With regard to the Justice Obi’s Commission of Inquiry in respect of the land in dispute between the parties learned trial Judge held that:

“………Hon. Justice Obi’s Commission of Inquiry set up by virtue of the provisions of the Commission of Inquiry Law cap 41 should enjoy the benefit of a judicial tribunal whose findings and decision should, subject to the review of the Government that set it up to be conclusive and guiding on the parties concerned.”

The Court of Appeal in this case noted that the appeal before it “revolves principally around the appraisal and evaluation of oral and documentary evidence of witnesses”, it was not in as good position as the trial court to examine them before forming its opinion. The court rightly proceeded to analyze the oral and documentary evidence tendered at the trial. It rightly decided on the extent of the area of occupation of each community. After painstaking consideration the court below came to the conclusion that the evaluation of evidence by the learned trial judge was not perverse. It is trite that the primary function of the trial court that saw and heard the witnesses to assess the credibility of those witnesses and to believe or disbelieve any of them The court below came to the conclusion that the Appellants by their own admission in paragraph 20 of the Amended Statement of Claim and from the evidence at the trial they conceded that compensation paid to the respondents for the crops destroyed by DUMEZ, a road Construction Company, that constructed Benin/Auchi/Okene Express Road, was clear acknowledgment by the Appellants of Respondents’ possession or possessory rights.

It is quite clear to me and the court below rightly held that the learned trial judge made his findings on facts based on both oral as well as documentary evidence and these cannot be faulted. In effect, the court below agreed with the findings of the learned trial Judge that the legal and evidential burden of proof placed on the appellants, as plaintiffs, the trial court was not discharged.

I agree with the learned counsel for the Respondents herein that the decision appealed against by the appellant are concurrent findings of fact. The principle of law as stated in so many decisions of this court, notably in AMAYO V. ERINMWINGBOVO (2006) 5 SC 1 at p. 11 per Katsina-Alu JSC as he then was (now CJN) is as follows:

“The attitude of this court where there are concurrent findings of fact by the lower court is that it will not disturb such findings unless they are shown to be perverse.”

See also OLOKO TINTI V. SARUMI (2002) 7 S.C. (Pt.1) P. 152 and (2002) 13 NWLR (Pt.784) 307 at 317; NWORAH V. AFAM AKPUTA (2010) 42 NSCQR 302; ATTAH V. THE STATE (2010) 42 NSCQR 350, and PAN AFRICAN V. SHORELINE LIPEBOATS 42 NSCQR P.25 at 38.

In this appeal, regarding this point, it is clear on the records that the court below at page 444 lines 10 – 15 held that the findings of the learned trial judge could not be faulted. The court was in clear agreement with the findings of the trial court. It becomes its findings. In order to set aside the decision of the court below the Appellants must show that the decision is perverse. This has not been shown in this case. A finding is said to be perverse when it runs counter to the evidence and pleadings or where it has been shown that the trial judge took account of matters which he ought not to have taken into account or shuts his eyes to the obvious or when such finding has occasioned a miscarriage of justice. The findings of the trial court do not in any way run counter to the evidence proffered. The trial court did not take into consideration extraneous matters and there is certainly no miscarriage of justice.

In conclusion, I hold that this appeal is devoid of any merit. It fails. The decision of the trial court and its affirmation by the Court of Appeal is hereby affirmed. The Respondents are entitled to costs against the Appellants which I assess at N50,000.

SC.63/2004