Louis Oniah & Ors. V. Chief Obi J.i.g. Onyia (1989)

LawGlobal-Hub Lead Judgment Report

KARIBI-WHYTE, J.S.C. 

This is an appeal in which both parties in this case have challenged the judgment of the Court of Appeal delivered on the 5th May, 1985. The defendants appealed against the whole decision whereas the Plaintiffs have appealed against that part of the judgment affirming the refusal of the trial Judge of their claim for forfeiture. Thus, this Court has before it both an appeal and a cross-appeal.

This also was the pattern in the Court of Appeal. However, in that Court, the defendants/appellants withdrew their appeal before the conclusion of argument. The cross-appeal of the Plaintiff was fully argued and judgment was delivered on the basis of the arguments before the Court. The appeal of the defendants was dismissed. The cross-appeal of the Plaintiffs was partially successful. Both parties have now appealed to this Court.

I think it is necessary for a clear understanding of the issues canvassed in this court in the grounds of appeal filed by both parties to restate in a fairly summary manner the facts which have led to this litigation.

Plaintiffs who brought this action in a representative capacity as representing themselves and the Umuezei family of Asaba, sued the defendants also in a representative capacity, representing themselves and the people of Okwe; and claimed as follows-

“1. Declaration that the defendants as the customary tenants of the plaintiffs have forfeited their rights to occupy a portion of plaintiffs’ piece or parcel of land situate and lying at Asaba within Asaba Judicial Division which said piece or parcel of Land as to its true position and boundaries will be shown in the plan to be filed by the Plaintiffs in Court.

2. Recovery of possession of the said portion of land from the Defendants.
3. Customary Tribute of 500 yams from the Defendants for the year 1975 or their value N500.00 (Five Hundred Naira).
4. N2,000.00 (Two Thousand Naira) being general damages suffered by the plaintiffs as a result of the defendants trespassing on the land outside the area allowed them to settle upon.
5. Injunction restraining the defendants by themselves, their servants and/or agents from:

(i) unlawfully entering the plaintiffs’ land, and (ii) doing any act which challenged the plaintiffs’ rights to possession of the said land.”

Plaintiffs claim to be the owners of ANIOLU land verged green in their plan No. MWC.893/176 filed with the statement of claim and also an extensive area of land known as ANIOCHA land. Both lands were inherited, they claim, from their ancestors who founded and first settled in these lands and have ever since been in undisputed ownership and possession of same.

Plaintiffs have continued, as their ancestors, to exercise the same rights of ownership and possession exercised by their ancestors over the land. The portion of the land now in dispute is verged pink in the said plan No.MWC893/76 and is known and called UWATU land. This UWATU land forms part of ANIOCHA land. The defendants and their ancestors were granted a portion of ANIOLU land verged Blue in plaintiffs’ said plan, and were accordingly the tenants of plaintiffs in accordance with Native Law and Custom.

In consideration of the land so granted defendants paid and were paying till 1974 annual tribute of 500 yams or their value to plaintiffs. Plaintiffs have enforced default in the payment of such tributes in the Native Court, Asaba in 1905. Similarly in 1931 and 1941 plaintiffs have enforced their claim to ownership and possession in the courts against other communities. In 1975 plaintiffs said that the defendants by themselves, their servants and agents broke and entered, without first obtaining the consent of the Plaintiffs, the piece of land in dispute which was outside the area granted them by the plaintiffs and commenced farming, building operations, and diverse acts without the consent of the plaintiffs. On being confronted by the plaintiffs, defendants claimed to be owners of the entire land shown PINK and BLUE in plaintiffs’ Plan aforesaid.

In their own defence, defendants deny that they have at any time been the tenants of the plaintiffs. They claim that the entire ANIOLU and ANIOCHA land belonged to their ancestors from time immemorial, who first settled in those lands and did not belong to plaintiffs’ ancestors as claimed by the Plaintiffs. Defendants stated that plaintiffs’ ancestors settled at Asaba by the grace of defendants’ ancestors who provided them with shelter against Bini warriors. They denied that plaintiffs possessed any fishing rights in defendants’ fish ponds. They say that their ancestors before them and subsequently they have been exercising maximum acts of possession and ownership over the entire piece or parcel of land. The defendants deny that they were parties to any litigation in respect of the land in dispute, and have been in continuous occupation of the land and exercised numerous acts of ownership and possession.

The above account is from the averments in the pleadings filed and exchanged by the parties. They also filed and exchanged plans of the area claimed by them. At the trial each of the parties called oral evidence tracing their ownership of the area and the exercise of acts of ownership and possession. There was also traditional evidence of their ownership and of the incidents of customary tenancy. In his judgment the learned trial Judge found that the evidence including the several judgments tendered by the plaintiffs established conclusively that title to ANI-OLULAND is vested in plaintiffs. He also found that the Defendants were the customary tenants of the plaintiffs. The learned Judge held that the fact that plaintiffs did not take any action to repossess the land even when they were aware of the acts of defendants inconsistent with their tenancy did not confer title to the land on the defendants. It was also held that although the entire ANIOCHA land was vested in the plaintiffs, and that UWATU land in dispute is part of ANIOCHA land, plaintiffs did not strictly delimit the area which they gave to the Defendants. He therefore held that the expansion into ANIOCHA land by Defendants did not thereby amount to an act of trespass. He rejected the traditional history of the ownership of the land by the defendants.

On the claim for forfeiture, the learned Judge held that Defendants were customary tenants, and were liable to the payment of customary tributes. He however was not sure whether the tributes were regularly demanded by the plaintiffs or paid by the defendants. He held that evidence of regular payment of tributes up to and including 1974 was not satisfactory. The learned Judge observed that although defendants had not asked for relief for forfeiture and had denied the title of the plaintiffs…. he was “constrained to refuse the claim for forfeiture and recovery of possession of the portion of land occupied by the defendants.” Citing Ladega v Akinliyi (1975) 2 S.C.91, at p.96 Taiwo & Ors. v Akinwumi & Ors. (1975) 4 S.C.143, 171 William Ladega & Ors. v. Durosimi & ors. (1978) 3 S.C.91 at p.98 which are clearly against his position said; at p.170

“This opinion is founded on the fact that I am not very much convinced that Obi Akaraiwe and others of Okwe village went to Umuezei people to ask for permission to move to Aniocha land.