His Highness, Alhaji A. G. Momoh .v. His Highness, Alhaji I.m.j. Umoru (2011)

LAWGLOBAL HUB Lead Judgment Report

C. M. CHUKWUMA-ENEH, J.S.C. 

The claim in this matter has been set out in the lead judgment of my learned brother Galadima JSC; I adopt it for this contribution.

This is a difficult case, indeed it is difficult to follow the sequence of the facts and events of the divergent traditional histories of both parties as they seem in places to tail into incoherent stories and this is not made any easier by the fact that this matter is coming to this court on appeal for the second time. The traditional history of the plaintiffs/appellants has ranged from facts and events dating as far back as 500 years ago into history when the plaintiffs/appellants father ancestor i.e. Uchi, the ancestor of Auchi people migrated from Udo in Benin to settle in Auchi with his five children; they comprise the five villages of Auchi to wit: Usogun, Akpekpe (Afekpe), Aibotse, Igbei and Iyekhei. The quarters or villages in which each of the children settled bear the name. The plaintiffs have alleged that when Iyekhei people left the land in dispute for their present abode Igbei people, their relations spread out and occupied the same by exercising acts of possession of erecting buildings and farming thereat.

On the part of the defendants their father ancestor Ibie left Benin migrated to their present abode in South Ibie in the 14th century and at the time their father ancestor arrived from Ugboka in the ancient Benin Kingdom; and as they have alleged, the other communities in Etsako have not come to settle in the area, and particularly he settled at Iyakpi with his children; they founded the villages of Iyakpi, Ibienafe, Ugiede, Iyereku and Ugiekha lying on the old Auchi/Agenebode Road. The land in dispute according to the plaintiffs claim is as known to the parties and as delineated in the plaintiffs/appellants survey plan received in evidence and marked Exhibit ‘A’in this matter. The land in dispute according to the appellants case is encompassed by the lands of Auchi people. The plaintiffs claim the ownership of the land in dispute; the defendants/respondents have not counter-claimed. As found by the trial court and affirmed by the lower court the conflicting traditional histories of the parties are as to “the point of arrival and from where they migrated and also on the boundary between the plaintiffs and the defendants’; ultimately, what is in issue in this case is resolving the extent of the area of occupation of each community. In other words, the issue for determination simply put, is which of the two communities that is, the plaintiffs or the defendants own the land in dispute in this case; and the parties being of different communities, resolving of the boundary between the plaintiffs and the defendants is at the bottom line of this matter.

The plaintiffs as the Auchi Community have put the area in dispute as per their survey plan Exhibit A as 280.385 hectares excluding the Auchi Polytechnic. The defendants have put the area in dispute as 548.97 hectares including the Auchi Polytechnic. The defendants as I have said above have not counter-claimed. The plaintiffs survey plan therefore determines the land in dispute. See Wilfred Okpalaeke & Ors. V. Ben Ume and Ors. (1976) 9-11 SC.269 at 287, Mabiaku Owotaire & Ors. V. Benitie Onokposo & Ors. (1984) 12 SC 19 at 37.

What the plaintiff must prove in a land case consists of one at least of the five ways of proving ownership of land in dispute as decided and adumbrated in the case of Idundun & Ors. V. Okumagba (1976) 9-10 SC.227 at 246-250 and I will come to them anon.

It is settled law and with regard to this case that the onus is on the plaintiffs to prove their case in accordance with their pleadings that they have acquired title to the land in dispute under native law and custom and not merely to show a better title than the defendants and to succeed on the strength of their case based on the preponderance of evidence in the case and they cannot rely on the weakness of the defence case except where such weakness supports their case. It is also settled that in cases as this one the onus does not shift to the defendant until the plaintiff has successfully discharged the onus on him. I think I should state these propositions of the law early enough so as to position the above trial courts findings of fact in the storms eye in this appeal in their proper contexts. See: Echolor v. Osayamde (1992) 8 NWLR (Pt.249) 524 at 526, Kodilinye c. Odu 2 WACA 336, Woluchem v. Gudu & Anor. 5 SC.291; (1981) 12 NSCC 214, also see Ngene v. Igbe (1991) 7 NWLR (pt.203) 358 at 361. The crucial question arising from the trial courts decision is the finding of conflicting traditional histories of the parties, that is, as to the point of arrival and where the parties migrated from also the boundary between the parties i.e. the plaintiffs and the defendants.

The next question to examine, on the trial court having found the traditional histories of the parties conflicting is whether the trial court rightly has resolved the cases of the parties in this matter on the evidence of recent acts of ownership and possession of the land in dispute as expounded in the cases of U.B.A. & Anor. v. Agwuncha & Ors. (1976) 6 SC 83 at 85-87, Ayo Wale v. Ogunbiyi (1986) ANLR 442, Aliniloye A. M.A. & Ors. V. Bello Eyidola & Ors. (1968) NMLR 93, also see Kojo II v. Bonsie (1957) 1 WLR 1223.

More facts of this matter have been clearly stated in the lead judgment of my learned brother Galadima JSC, and I have had the preview of it before now; I adopt them for this contribution.

Being dissatisfied with the trial courts decision the plaintiffs/appellants have appealed to the lower court which also has dismissed their appeal. They have now appealed to this court. They have exchanged their briefs of argument.

On the part of the appellants the issues raised for determination in their brief of argument in this appeal are 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)