J. E. Ehimare & Anor V. Okaka Emhonyon (1985) LLJR-SC

J. E. Ehimare & Anor V. Okaka Emhonyon (1985)

LawGlobal-Hub Lead Judgment Report

A. OPUTA, J.S.C. 

This is an appeal against the judgment of the Court of Appeal, Benin Division (the judgment of Agbaje, J.C.A., Ete and Okagbue, JJ.C.A. concurring), allowing the appeal of the plaintiff against the judgment of Aluyi, J. sitting in the Ubiaja Judicial Division of the Bendel State High Court. The trial court dismissed the plaintiffs claim for a Declaration of Title, Damages for Trespass and Perpetual Injunction.

The court below allowed the plaintiffs appeal, set aside the judgment of the court of first instance; and “entered judgment for the plaintiff against the defendants for a declaration of title to customary occupancy of the land in dispute.” It also “granted an injunction restraining the defendants, their servants and/or agents from coming on the land in dispute.” It is against this judgment of the court below that the present appellants, who were defendants in the original suit, have now appealed to this Court.

Counsel on both sides filed and relied on their respective briefs. Mr. Ajayi, S.A.N. for the defendants/appellants, in his oral arguments in the court concentrated all his fire-power against the case of the plaintiff as pleaded and submitted that the plaintiff should not only succeed on the strength of his case but also on the strength of that case as pleaded and no more. He then referred the court to the case of Ochonma v. Unosi (1985) N.M.L.R. 321 relied upon by the court below and distinguished the facts of that case from the facts of the present case on appeal.

In this case, continued Mr. Ajayi, the plaintiff pleaded his own original title but averred that his father and predecessor in title “gave” the land in dispute to the 2nd defendant’s father. The plaintiff then proceeded to plead “abandonment” by the defendants and claimed ownership by virtue of that abandonment. The learned counsel, Mr. Ajayi, then referred the courtto paragraphs 12, 24 and 25 of the plaintiff’s Amended Statement of Claim and forcefully submitted that the onus lies heavily on the plaintiff to prove “abandonment” or “Surrender.’”

So far so good and I entirely agree. But leaving the sphere of academic speculation and concentrating on the practical realities, one soon discovers that it takes two to quarrel; it takes two to be “at issue”; it takes two to have a dispute. In other words, in any given case, the pleadings of both parties will have to be considered before deciding what the dispute is all about. In Josiah Akinola & another v. Fatoyinbo Oluwo & Ors. (1962) W.N.L.R. 133 at p.134 the Federal Supreme Court held:

“The trial judge held that the plaintiff had failed to establish his case and said that the plaintiff must succeed on the strength of his own case and not on the weakness of the defendants’ case. This is true, subject of course, to the important point that the defendant’s case may itself support the plaintiffs case and contain evidence on which the plaintiff is entitled to rely.”

The above observation dealt with the evidence from the defence going to support the plaintiffs case. I will venture to go farther and humbly say that the pleadings of the defendants in answer to the plaintiff’s statement of claim “may radically affect the live issues in the case and ultimately the onus of proof.

“In this case on appeal, Mr. Ajayi would have been on a very strong wicket if the appellants’ Statement of Defence admitted the “gift or “grant”, by the respondent’s predecessor in title, of the land in dispute and then pleaded that there had been no abandonment as they (the defendants) have been in continuous possession. Then abandonment would have been the central issue, if not the only issue in this case. I believe that it was in that spirit that the court asked Mr. Ajayi:-

Court:- “What did you plead as your root of title – Gift of the land from the Plaintiffs father

Ans:- “We did not plead a “gift” from the plaintiff’s father Question:- “What is abandonment”

In answer, Mr. Ajayi referred to the evidence of the plaintiffs witnesses who testified that the defendants/appellants have been in possession of the land in dispute for over 40 years and then arguing that the defendants’ case is rooted in their possession, Mr. Ajayi was quickly reminded that possession was not pleaded as the appellants’ root of title.

What was pleaded was “that on his application to the elders of Idumun Eghae Quarters to build and live, the 2nd defendant’s father was given part of the burial ground of Idumun Eghae Quarters of Ivue, on which he built and settled about 50 years ago.” All these show how important pleadings are and that learned counsel should be very careful, thorough, and circumspect in settling their pleadings. I will discuss the pleadings filed in this case more fully later on in this judgment.

With regard to the appellants’ alleged long possession of the land, could the appellants rely on prescription Mr. Ajayi was quick to answer, and I agree with him, that there is no prescription under the customary law. As “abandonment” naturally implied an original grant, Mr. Ajayi conceded, and rightly in my view, that confining himself to the plaintiff/respondent’s Statement of Claim as he has done, he has no option but to accept that radical title must reside in the plaintiff/respondent’s predecessor in title before he could have made the grant whose abandonment is now in dispute. He submitted finally that the appeal be allowed at least, with regard to trespass and injunction.

Mr. Iyare for the respondent submitted that the appellants did not acknowledge the respondent as owner and grantor of the land in dispute. If they did, then the issue of proving abandonment will arise. On the issue of abandonment itself, he submitted that the evidence showed that there was abandonment since 1st defendant/appellant could not at one and the same time be acting as agent of the 2nd defendant/appellant and also divesting the 2nd defendant of all rights on the land and investing his own daughter, Miss B. Ehimare, with those rights. He then submitted that, otherwise, there was collusion between the two defendants to deprive the respondent of his land. He referred the court to page 82 of the record and Exhibit B where the owner of the land in dispute was put down as “Miss B. Ehimare” and to paragraph 27 of the Statement of Claim.

Mr. Ajayi, replicando, submitted that even if Exhibit B purported to transfer the land in dispute to Miss B. Ehimare, and if this purported transfer amounted to abandonment, that was not the case pleaded by the Respondent. What was pleaded in paragraph 24 of the Amended Statement of Claim was an abandonment 40 years ago when Olumese, the father of the 2nd defendant, died; and not an abandonment in 1976 when Miss B. Ehimare applied for permission from the Planning Office to erect a permanent dwelling upon the land.

From the briefs and submissions of counsel on both sides, it is necessary now, to take a hard look at the pleadings of the parties and follow this case as it journeyed from the High Court – through the Court of Appeal to this Court and find out where along the line someone faulted. Having done that, I will then decide whether on the pleadings, the evidence, and the findings of fact it made, the trial court was right in dismissing the plaintiff’s claims for title, trespass and injunction OR whether the Court of Appeal was right in saying that the trial court was wrong, and granting title to the plaintiff and restraining the defendants, their servants or agents from coming on the land in dispute

I shall now proceed to consider the various points and contentions mentioned above. The original Writ of Summons dated 11th November 1976 was filed by Okaka Emhonyon as plaintiff against J. E. Ehimare as defendant, in the Ubiaja Judicial Division of the Bendel State High Court in Suit No.U/32/76. The claim was for:-

1. Declaration of title to the piece and parcel of land situate at Idumun-Egbae, Ivue Village, Uromi.
2. N500 being special and general damages for trespass in that the defendant unlawfully entered upon the said parcel of land in the possession of the plaintiff and commenced moulding upon it cement blocks without the consent of the plaintiff.
3. Perpetual injunction restraining the defendant, his servants and/or agents from further entering upon the said parcel of land for any purpose whatsoever without the plaintiff’s consent.

On the 17/10/77,the plaintiff filed a statement of claim of 25 paragraphs against the only defendant J.E. Ehimare. On the 26/10/77, the defendant J .E. Ehimare brought a Motion on Notice for an Order of Court “that one Phillip Jimah Olumese be joined as a defendant in this action”. On 2/2178, the defendant’s motion was heard and the court ordered “that Phillip Jimah Olumese be joined as a co-defendant in this action.” A new claim for declaration of title, N500 damages for trespass and a perpetual injunction was then on 23/2/78 filed against both defendants. An amended Statement of Claim of 29 paragraphs was then filed on 23/2/78 against both defendants. On the 8/6/78, the defendants filed a joint Statement of Defence of 23 paragraphs. This case was contested on this Amended Statement of Claim and the Statement of Defence.

It is necessary to comment on the pleadings filed in this case as they will determine and define the issues to be contested.

ROOT OF TITLE

The Plaintiff in paragraphs 8, 9, 10 and 11 of his Amended Statement of Claim traced his root of title to his grand-father, Ikhilia, who deforested a large portion of land including the land in dispute, and by virtue of such deforestation became the exclusive owner thereof in accordance with Uromi Customary Law. After death of his grand-father, Ikhilia, his father, Emhonyon inherited his land including the land in dispute, and after the death of his father, the plaintiff by inheritance became the sole owner of the land deforested by his grand-father including the land in dispute. The plaintiff’s root of title was therefore deforestation by his grand-father and inheritance.

ACTS OF OWNERSHIP AND POSSESSION

In paragraph 11 of the Amended Statement of Claim, the plaintiff pleaded various acts of possession and ownership by his father Emhonyon on the land e.g. living on it, farming thereon, and “giving” parcels of it to various persons including Olumese, the father of the 2nd defendant.

The plaintiff’s case simply is that the defendants came on the land in dispute by the leave and licence of his father. If this contention is accepted, then the terms and condition under which the plaintiffs father “gave” the land in dispute to the 2nd defendant’s, father will become relevant and material issues. If the “gift” or “grant” to the defendant’s family is not accepted then the cases of the plaintiff and the defendants will very much resemble two parallel straight lines which will never meet.

In paragraph 24, the plaintiff pleaded the nature of the concession which his father granted to the father of the 2nd defendant thus:-

“The plaintiff avers that the land in dispute was given to one Olumese, the 2nd defendant’s father who hails from Ebhoyi Village, Uromi. The said Olumese who was a stranger in the plaintiff’s village built a temporary hut on the said parcel of land. The said Olumese was a trader in palm kernel produce at the time when Ivue, the Plaintiffs village was a kernel market centre. The said Olumese used to come from his village and sleep over at Ivue. He eventually approached the plaintiff’s father for the land in dispute to reside temporarily. The plaintiffs father agreed whereupon the said Olumese built a temporary hut where he lived. When he died over 40 years ago, his entire family moved out of the land in dispute and have never returned to it for any purpose whatsoever. After Olumese’s family moved out of the land in dispute, the plaintiffs father moved back into the land in dispute. ”

In paragraph 25 of his Amended Statement of Claim, the Plaintiff unequivocally asserted that under Uromi Customary law, where a stranger is given land, it is not an outright gift in perpetuity. Rather “when the stranger or his successor abandons the parcel of land given to him by a native, the parcel of land passes back to the native.”

Note: The nature of the transaction between the Plaintiff’s father and Olumese, the father of the 2nd defendant, can be gathered from a careful and dispassionate consideration of paragraphs 11, 24 and 25 of the Amended Statement of Claim filed in this case.

So far for the plaintiff’s case as disclosed in and by his pleading.

What were the answers of the defendants to the material averments contained in paragraphs 11,24 and 25 of the plaintiff’s Amended Statement of Claim These answers will naturally and obviously determine and define the issues to be tried by the trial court. There was in paragraph 1of the Statement of Defence, a general denial “of each and every allegation of facts contained in the Statement of Claim as if such allegation of fact were set out seriatim and specifically traversed”.

DEFENDANTS’ ROOT OF TITLE

In paragraph 5 of their Statement of Defence, the defendants pleaded:” The defendants deny paragraph 11 of the Statement of Claim….and will add and adduce evidence at the trial to the effect that the piece of land in dispute had formed part of burial ground of Idumun Eghae Quarters of lvue… That on his application to the elders of Idumun Eghae, Quarters to build and live there, the 2nd defendant’s father was given the said piece or parcel of land on which he built and settled’ 50 years ago.”

The above is the most significant averment in the entire Statement of Defence as it settles the case of each party to this dispute. When parties, to an action have answered one and other’s pleadings in such a manner that they have arrived at some manner point or matter of fact, affirmed on one side and denied on the other, the parties are said to be “at issue”; they have joined issue and the question thus raised is called the issue. In every case, there is always the main issue around which other related and subsidiary issues may revolve.

The learned trial judge was very right when (at p.71 of the records) he observed:-

“It seems to me that the main issues joined in the pleadings are:

1. Whether the land in dispute was part of a larger ‘area of land deforested by the plaintiff’s grand-father as claimed by the plaintiff; was acquired by the 2nd defendant’s father by direct grant from the Elders of Idumun Eghae Quarters as claimed by the defendants ….
2. If the land in dispute was originally owned by the plaintiff’s grand-father arid inherited by the plaintiff’s father who gave it to the second defendant’s father to build a house, What type of interest ‘did the plaintiff’s father pass on to the defendant’s father
3. Was the 2nd defendant’s father a stranger in Ivue by Uromi Native Law and Customs, and if so, had he abandoned the house and land so as to make the land revert to the plaintiff’s father by operation of the Uromi Customary Law”

I will contend that issues 2 and 3’above will arise as subsidiary issues, if and only if, the defendants accepted that there was a grant or a gift of the land in dispute by the plaintiff’s father to Olumese, the father of the 2nd defendant. It is then that the terms of the gift or grant or “the’ type of interest created by the gift or grant will become relevant:”

In paragraphs of their Statement of Defence, the defendants denied any gift Or grant by, Emhonyon, the father if the plaintiff to Olumese, the father of the 2nd defendant. That gift or grant was not their root of title. How can there then be an issue between the parties as to the terms and conditions of a grant or gift, which the defendants categorically denied The aim of ordering pleadings is to secure from the defendants as many admissions as the facts of each given case warrant and thus determine and define the issues to be agitated at the hearing. Unfortunately, nowadays, the practice seems to be to hide as much of the truth as possible. One cannot shut one’s eyes to the present tendency to make pleadings less exact; but if there are going to be pleadings at all, there is a great advantage in holding that they should define the issues between the parties. The defendants did not plead in the alternative, namely, that if the father of the 2nd defendant got the land in dispute, from the father of the plaintiff, they, the defendants, have not abandoned possession. ‘This will then call into question: “what type of interest the plaintiff’s father passed on to the 2nd defendants’ father” and “whether the 2nd defendants’ father being a stranger had abandoned the house and the land as to make the land revert to the plaintiffs father”

Abandonment on which the learned trial judge dwelt at very great length and on which he found against the Plaintiff, was pleaded in paragraphs 24 and 25 of the Amended Statement of Claim which have been reproduced earlier on in this judgment. What was the reply of the defendants It

was a complete denial that the plaintiffs father gave the land in dispute to Olumese (paragraph 19 of the Statement of Defence) and that having got the title from “the Elders of Idumun Eghae, who cut part of the public burial ground that they granted to the 2nd defendant’s father” “the defendants’ family at no time did abandon the possession” which they got by virtue of the prior grant by the Elders of Idumun Eghae (paragraph 20 of the Statement of Defence). It is my humble view that where a party pleads possession derived from a particular root of title, where that root of title fails, he will not be allowed to turn somersault and base his case on possession derived from another root of title which he never admitted in his pleadings.

In the case under review, the defendants did not make much of this abandonment. Rather, it was the trial judge who found abandonment as a fact but held that “the mere movement of Olumese’s family from the said land at that time is certainly not conclusive of any intention on the part of the Olumese’s family to abandon the land. To so hold is to shut one’s eyes to the circumstances warranting the movement of Olumese’s family from the land after his death.”

In other words, the learned trial judge (quite gratuitously since it was not an issue properly so called) found that there was movement of the Olumese’s family out of the land in dispute after Olumese’s death that the factum of abandonment was proved but not the animus. I shall come to this point later on in this judgment. On the pleadings, I hold that the defendants having denied any grant or gift from Emhonyon, the plaintiffs father, they could not Join issues with the plaintiff on any other incident arising from that grant or gift.

Having disposed of the pleadings, I will now review the evidence in order to find out whether from that evidence and from his findings of fact thereon, the learned trial judge Aluyi, J. was right in dismissing the plaintiffs claims to declaration, damages for trespass and injunction. The plaintiff gave evidence and called 8 witnesses. The defendants gave evidence and called 5 witnesses. After listening to the witnesses on both sides and evaluating their evidence, the learned trial judge made the following findings of fact:

1. The unshaken evidence of P.W. 4…. gives me no inhibition whatsoever that the land in dispute was not a communal land but the property of Ikhilia who deforested it. I therefore find as a fact that the land in dispute was part of the entire land deforested by Ikhilia who thus became exclusive owner by Uromi Native Law and Customs, and that on his death his son Emhonyon (the plaintiffs father) inherited the entire land.

Note: (It is curious and inexplicable why on the above findings the learned trial judge did not award as much as an empty radical title, devoid of possession to the Plaintiff, the son of Emhonyon and the grandson of Ikhilia adjudged by the learned trial judge to be exclusive owner by Uromi Native Law and Custom).

2. I am satisfied from the evidence of the plaintiff, the 3rd P.W., and the 4th P.W. that it was Emhonyon – the plaintiffs father who gave the land in dispute to Olumese on which to build a house and I so find.
3. I find as a fact that the late Olumese was a stranger in Ivue.

Nature of the Grant and Type of Interest the Plaintiffs father passed on to the 2nd Defendant’s father.

In paragraph 24 of his Statement of Claim, the plaintiff pleaded that Olumese was an itinerant palm kernel trader, that he used to come from his village of Ebhoye to Ivue, the plaintiffs village and a palm kernel centre. The said Olumese used to come from his village and sleep over at Ivue. He then approached the plaintiffs father for the land in dispute to reside temporarily. The evidence of the plaintiff who witnessed the events of which he testified was very clear as to the nature of the transaction:-

“My father gave this Olumese a piece of land at Ivue for a temporary hut which he in fact built … All his family and himself lived in this temporary hut. When Olumese died, his people came to Ivue and removed his property and family…. Since his death no member of his family has returned to the land in dispute…. After Olumese’s death and his family moved out of the land in dispute, my father resumed possession of the land.”

The question that now arises from the pleadings of the plaintiff and from the evidence of the plaintiff and his witnesses is – What was the exact nature of the interest in and over the land in dispute granted to the father of the 2nd defendant, Olumese – Was it title or was it a possessory right or else a mere licence personal to Olumese himself and not a hereditament Here one has to look at the evidence of the witnesses for the plaintiff, 3rd P.W., 4th P.W. and 5th P.W. who were believed that there is an important distinction to be drawn between a “gift” of land to a native of Ivue and a similar “gift” to a stranger which Olumese definitely was. Obviously title was not given to him, otherwise it will be meaningless to talk of “abandonment” or “resumption of possession”. At the highest, what was given to this stranger was mere a usufructuary right to occupy the land in dispute for the purposes of his palm kernel trade. This is not a question of findings of fact by a trial court which should be respected by an appellate court. Rather it is the question of the correct legal conclusion or inference or deduction to be drawn from admitted or undisputed facts. Since there is no issue between the plaintiff and the defendants as to the nature, terms or condition of the grant to Olumese, the only question is the correct legal deduction to be drawn from the facts pleaded and proved by the plaintiff and his witnesses who were believed. An appellate court here is equally capable of drawing such a conclusion. The correct legal conclusion to be drawn from the pleadings and evidence of the plaintiff and his witnesses is that what was granted to Olumese was a temporary use of the land in dispute for a specified purpose which said purpose ceased to exist when he died.

The learned trial judge at p.74 of the record rejected the submission of Mr. Obeahon “that on the pleadings, the interest passed to the 2nd defendant’s father was one of temporary habitation only and no more”. His reason was that “There is no evidence that the plaintiff’s father limited Olumese’s use of this land to any particular period.” That may well be, but other factors such as the specific purpose for the gift – to reside temporarily to carry on his palm kernel trade – did limit the use Olumese should put the land to. It was then only a personal grant for a specified purpose. No heritable right was passed on to Olumese and there was none his heirs and successors in title could claim. In the present appeal, the situation is further confounded by the fact, which I noted earlier on, that the defendants are not even claiming through any gift from the plaintiff’s father. (This they stoutly rejected). It takes two to quarrel; it also takes two to be at issue. The plaintiff cannot possibly have an issue with himself.

ABANDONMENT

I have already considered this and held that on the pleadings, abandonment will become an issue only if the defendants admitted that they derived title from the plaintiff’s father and that although radical title still resided in the plaintiff, they are still entitled to possession which they had not and have not abandoned. But that happens not to be the case of the defendants. The learned trial judge was wrong in considering abandonment in vacuo, when it was not an issue between the parties; when it was not the case of the defendants. But be that as it may, the learned trial judge did find the factum of abandonment but not the animus. That finding at p.76 of the record was enough to cast on the defendants the onus to prove (what they had denied) the terms of the gift by the plaintiffs father and that under those terms “the mere movement of the Olumese’s family out of the said land was not conclusive of any intention to abandon the land.” Also at p.79, lines 6-14, the learned trial judge observed that:-

“In my judgment the plaintiff’s father purported resumption of ownership after Olumese’s death was premature”.

The above observation necessarily admits that there was a factual resumption of ownership. Whether such resumption was mature or premature is irrelevant to the farther of resumption. If the defendants are aggrieved by this premature resumption, they are at liberty to pursue their remedy if any. At any rate the defendants are not complaining that the resumption of ownership by the plaintiff’s father was premature.

As I observed earlier on, it was not and it is still not easy to comprehend the reasons for dismissing the plaintiff’s case in its entirety but the mystery becomes more mysterious when one considers the concluding portion of the judgment of the learned trial judge:

“I am more impressed by the defendant’s case which is amply supported by the plaintiff’s witnesses. The plaintiff has in the circumstances failed to discharge the onus on him to establish title to the land in dispute and the claim in the circumstances ought to be dismissed.”

After the trial court’s formulation of the issues at p.71 of the records and his findings of fact at p.72 “that the entire land was deforested by Ikhilia who thus became the exclusive owner by Uromi Native Law and Customs and that on his death his son, Emhonyon (the plaintiffs father) inherited the entire land”, it should have followed logically that the plaintiffs claim for title had succeeded.

The Court of Appeal, Benin Division, however remedied the situation by awarding title to the Plaintiff/Respondent and injunction against the Defendants/Appellants.

The present appeal is against this judgment of the Court of Appeal. Since Mr. Ajayi himself had conceded that the trial court was wrong in not awarding the Respondent radical title, he will not now be complaining against the award of title to the Respondent by the court below. The court of first instance dismissed the Plaintiff’s now Respondent’s claim for damages for trespass. The Court of Appeal did not award the Plaintiff any damage for trespass when the Plaintiff appealed to it. Mr. Ajayi cannot possibly complain in this Court against something which was not awarded to the Respondent in the courts below. There is no cross-appeal by the Respondent on the issue of Trespass. That issue was therefore left to atrophy. It is no longer a life issue. It is dead and buried. Now what about the injunction granted by the court below – should that be allowed to stand As between the parties, will it be more in accord with the justice of this case, considered within the con of its surrounding circumstances to grant the Respondent an injunction or to refuse him one In exercising its discretion to grant or refuse an injunction, this court will not close its eyes to the findings of facts of the trial court and to facts pleaded or given in evidence and not controverted, to find out where the balance of equity lies, namely that:

i. The 1st defendant/appellant in his own right has legally nothing to do with this land now in dispute.

ii. The gift of the land in dispute was made by the Respondent’s father to Olumese, the father of the 2nd Defendant/ Appellant.

iii. The gift to the father of the 2nd defendant/appellant was specific – for temporary use in aid of his palm kernel trade at Ivue.

iv. That Olumese, the father of the 2nd defendant/appellant was a stranger to Ivue and according to accepted Uromi Custom cannot perpetuate a gift of land in another village. It will be otherwise if the gift were in his own village.

v. That the 1st Defendant/Appellant consciously and knowingly double-crossed the 2nd defendant when the 1st defendant, a supposed agent of the 2nd defendant, gave the land to his own daughter Miss B. Ehimare, to set up “a permanent dwelling building” in another man’s land.

vi. That this permanent dwelling building was against the tone and tenor of the original “grant” made by the father of the Plaintiff and is meant to transfer an estate in perpetuity on the 1st Defendant’s daughter, Miss Ehimare.

vii. That the said estate if allowed to subsist will be against the interest of the Respondent and it was to protect that interest that he sued the 1st defendant alone claiming a declaration, damages for trespass and an injunction.

viii. That the transfer of the land in dispute to his daughter by the 1st defendant was an act also injurious to the interest of the 2nd defendant.

ix. That by the said transfer of the land in dispute the interest of 1st and 2nd defendants in this case should have been mutually antagonistic except of course there was a collusion between them (uncle and nephew) to deprive the Plaintiff/Respondent of his interest in his land.

x. The fact that the defendants fought this case together from the High court to the Supreme Court does leave a sour taste in the mouth.

He who comes to equity should come with clean hands. I am not satisfied that the hands of the 1st and 2nd defendants/appellant are clean enough to receive any gift from Equity. I will not disturb the judgment and order the court below by revoking the injunction it granted. It will still stand.

In the final result, this appeal is dismissed with costs to the Respondent against the appellants which I assess at N300.A. O. OBASEKI, J.S.C. (Presiding): The appellants won in a claim for declaration of title in the High Court, Ubiaja and lost in the Court of Appeal which thereby granted to the respondent his claim for declaration of title and injunction against trespass. The main issue for determination is whether discounting the evidence adduced by the appellants and their witnesses, the respondent and his witnesses adduced sufficient evidence to entitle him to the declaration and order of injunction granted him by the Court of Appeal.

In the course of his argument, Mr. G. O. K. Ajayi, SAN, who appeared as counsel for the appellants resiled on the issue of title when his attention was drawn to the findings of fact made by the learned trial judge, the most fatal being that the respondent’s grandfather or father of his father by name Ikhilia deforested the land in dispute and thereby acquired ownership of the land under Uromi Customary Law.

The finding that the land in dispute was granted to the father of 2nd appellant for temporary occupation in connection with his business completely destroyed the defence of the appellants that the land was part of burial ground granted to his father by the elders of the quarter.

However, the finding of the learned trial judge that the 2nd appellant never abandoned occupation and possession of the land to effect a reversion of it to the respondent was very beneficial to the appellants in that properly interpreted and construed, it meant that the 2nd appellant inherited the interests of his father in the land and since the quantum of interest gave him occupation and possession from the time of his father’s death, there was no abandonment. This finding was a non sequitur in view of his finding that after the death of the father of the 2nd appellant, the surviving members of his family moved out of the land.

The observation or finding of the learned trial judge that the resumption of ownership and occupation by the respondent’s father 40 years ago was premature, settles the issue of whether or not there was a resumption of occupation and ownership. The finding of the learned trial judge that there was no intention to abandon the land does not and cannot arise from the evidence or facts. If, on the death of the father of the family, the surviving members of the family move out of the land granted in the circumstances of this case, i.e. for temporary occupation in connection or on account of his business, the intention to abandon the land by the surviving members of the family of the deceased requires no further proof to establish it. The case of the defence having been rejected, there is nothing to rebutt the necessary inference of abandonment that arose from the movement out of the land.

The questions raised in this appeal involve detailed consideration of the facts. This has been admirably done in the judgment of Oputa, JSC, delivered a short while ago the draft of which I had the advantage of reading in advance. I agree with his opinions on the issues raised and his conclusion that the appeal be dismissed and I hereby dismiss it with N300.00 costs to the respondent.

SC.7/1984