Lawrence Onyekaonwu And Ors V Ekwubiri And Ors (1966)

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BAIRAMIAN, J.S.C.

The plaintiffs have appealed from the judgment of Egbuna J. dismissing their claim for a declaration of title to a certain area of land, damages for trespass, and an injunction.

The plaintiffs applied for leave to sue as representing the people of Ebikoro Obinze and put in three affidavits in support of their application, which was granted; and in their Statement of Claim they averred that they sued as representing their village. In their Defence the defendants denied that the plaintiffs were representing the whole of Ebikoro village, and put the plaintiffs to proof of it. There is a good deal on that in the judgment, which concludes with the view that it had not been satisfactorily proved that the plaintiffs had authority to represent the whole kindred of Ebikoro. This view was objected to on appeal, but we need not discuss the soundness of it, for Mr Oputa, on the defendants’ behalf, conceded that upon the evidence the plaintiffs were authorised to sue by the Ebikoro village.

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There remains the point on the learned judge’s approach to the burden of proof.

The judgment refers to what Webber J., as a member of the Full Court, said in Ekpo v. Ita, 11 N.L.R. 68, and quotes what that learned judge said at more length in Kodilinye v. Odu, 2 WA.C.A. 336, at p.337, that-

“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. If this onus is not discharged, the weakness of the defendant’s case will not help him and the proper judgment is for the defendant. Such a judgment decrees no title to the defendant, he not having sought the declaration. So if the whole evidence in the case be conflicting and somewhat confused, and there is little to choose between the rival traditional stories the plaintiff fails in the decree he seeks, and judgment must be entered for the defendant.”

Both those cases have been cited from time to time; they state the same principle, and it will be enough to say that it was followed in Nwokafor v. Udegbe. F.S.C. 440/1961 decided in the Federal Supreme Court on 19 February, 1963, and affirmed in the Privy Council on 14 July, 1964 in the appeal by Udegbe. The proposition is undoubtedly correct, that in a case of a claim to land the onus lies firmly upon the claimant. The question in a given case is whether that onus has been discharged.

The judgment under appeal goes on to say that the evidence on acts of ownership is so unsatisfactory that the court cannot grant the relief sought: the learned judge was not satisfied that the plaintiffs were exclusive owners or that the defendants were trespassers, and dismissed the claim. It will be enough to quote these two objections from the additional grounds of appeal, namely:

“1. The learned trial judge erred in law and on the facts in failing to determine the issue whether the plaintiffs were farming on the land in dispute in exercise of their right of ownership (as the plaintiffs alleged) or by the permission of the defendants (as the defendants alleged).

2. Since there was no finding in favour of the defendants’ allegation that it was they who permitted the plaintiffs to farm on the land in dispute, the learned trial judge erred in law and on the facts in giving judgment against the plaintiffs when there was no dispute that they were in possession of the land in dispute and farming the same.”

Again there is no need to go into details because Mr Oputa, very properly and rightly, conceded those objections. Briefly put, the plaintiffs’ case is that the land is their property and they had been farming on the land unchallenged from ancient times. Also briefly put, the defendants’ case is that the plaintiffs’ great grandmother Egbeocha was a lady of the defendants’ village, and because of that relationship the defendants allowed members of the plaintiffs’ family to farm on the land-which is part of the large tract belonging to the defendants-upon receipt of customary gifts-wine, yams, etc.-but after the farming season of 1952 the gifts were not brought; and that the land lay fallow until 1960, when the defendants themselves cultivated it in exercise of their right as owners.

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And that is precisely the cause of the action-the defendants’ coming in to farm the land in 1960.