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Marcus Nwoke & Ors V. Ahiwe Okere & Ors (1994) LLJR-SC

Marcus Nwoke & Ors V. Ahiwe Okere & Ors (1994)

LawGlobal-Hub Lead Judgment Report

KUTIGI, J.S.C. 

The plaintiffs’ claims against the defendants as contained in para. 25 of the Amended Statement of Claim (which supersedes the writ), are as follows-

“1. Declaration of title to all that piece or parcel of land in dispute known as and called “Okpuhu-Ukwu”.

  1. N400.00 being general damages for trespass into the said Okpuhu-Ukwu land.
  2. Perpetual injunction restraining the defendants their agents or servants from further trespass thereto.”

After the filing and exchange of pleadings by the parties the case proceeded to trial. At the trial the 3rd plaintiff and four other witnesses testified for the plaintiffs while the 5th defendant along with three other witnesses testified in support of defendants’ case.

Briefly stated the plaintiffs’ case is that the land in dispute known as Okpuhu-Ukwu and delineated in their survey plan, Exhibit A, was founded by their first ancestor called Odudu. Odudu had two children named Emereonye and Nkitaogu respectively who begot their own children. The plaintiffs said they are claiming through Emereonye family. All the male issues of Nkitaogu had died and consequently all his property was inherited by the Emereonye family. The land in dispute was also pledged at one time to one Elele. The pledge was redeemed for an equivalent sum of N80.00 by plaintiffs’ family in 1974.

In 1975 the plaintiffs exchanged the land for another land called Oboro following an arrangement between them and Umukube family of Umuokwa village in Amala. When members of the latter family went on the land they were challenged by the defendants. The plaintiffs intervened saying that they gave the land to the Umukube family. The dispute between the plaintiffs and the defendants was then referred to the Parents Teachers Association (P.T.A. for short), a body consisting of the elders of the community. The body went into the dispute and the plaintiffs had to swear to” Ala Obidi juju” supplied by the defendants that the land was theirs.

The plaintiffs survived the oath for one year and the land became theirs according to the Igbo custom. A document evidencing the arbitration by the P.T.A was tendered and admitted in evidence as Exhibit C. It was in 1976 when the defendant broke into the land in dispute and started farming thereon that the plaintiffs instituted this action.

The defendants on the other hand said the land in dispute is called OkpuUku-Amankwu. Their survey plan, Exhibit B. shows the land in dispute in two parts -one portion larger than the other. The larger portion they said belong to them while the smaller portion was conceded to the plaintiffs. They claim the larger portion through their ancestors Ezeme, who deforested it. They also claim to have pledged and redeemed the land in dispute in 1971 and tendered ‘Exhibit D’ as evidence thereof. They also confirmed the intervention by the Amala Parent Teachers Association in a dispute between them and the plaintiffs in 1975. However, they said when the “Ala Obidi juju” oath was offered to the plaintiffs they refused to swear and according to custom the land was confirmed as theirs (defendants).

After hearing, the learned trial Judge in a reserved judgment dismissed plaintiffs’ claims. Dissatisfied with the judgment they appealed to the Court of Appeal, Port Harcourt Division. Four issues were set down for determination as follows-

“Issue One

Did the appellants prove the identity and precise boundaries of the land in dispute in this case

Issue Two

Which land was pledged and redeemed Who pledged and redeemed the said land

Issue 3

Was there a native arbitration over the land in dispute in this case If there was, who won in the said arbitration Does the said arbitration operate, as an estoppel per rem judicatam in this case

Issue Four

Which of the two competing stories of the parties is the more probable

If the plaintiffs were, were they not entitled to the judgment of the court below in terms of the reliefs claimed by them”

The Court of Appeal in a reserved judgment carefully considered each of the above issues and found all in favour of the plaintiffs. It declared-

“As all the grounds of appeal canvassed succeed, this appeal too succeeds and it is hereby allowed. The judgment of the court below together with its order for costs is set aside. In its place, I order that judgment be entered in appellants’ favour for;

  1. A declaration that the plaintiffs are entitled to a customary right of occupancy to all that piece or parcel of land known as ‘Okpuhukwu’ situate and being at Amala shown and delineated on Survey plan No. UND/9/77 (Exhibit A in these proceedings) and therein edged ‘pink’ .
  2. N200 being general damages for trespass committed on the said land by the defendants.
  3. An injunction restraining the defendants, their agents or servants from committing further trespass on the said land.

The appellants are entitled to their costs of this appeal and of the costs in the court below which I assess at N650 and N450 respectively inclusive of out of pocket expenses.”

Aggrieved by the decision of the Court of Appeal, the defendants have now appealed to this court. They will hereinafter be referred to as “the appellants” while the plaintiffs will be referred to as “the respondents”.

In accordance with the Rules of Court, parties filed and exchanged briefs which were adopted at the hearing of the appeal. In the appellants, brief three issues are submitted for determination. They are-

(i) Whether the trial court was right in finding for the appellants on the issue of the identity and boundaries of the land in dispute which it held the respondents did not prove and whether the Court of Appeal was right in reviewing that finding in favour of the respondents, merely because the respondents’ plan (Exhibit A) shows a well defined land mass to which a declaration could be attached.

(ii) Whether the trial court was right in finding as a fact that the respondents did not swear to any juju on the issue of customary arbitration on the land in dispute and whether the Court of Appeal was not wrong in reviewing that decision on the ground that the court did not evaluate the evidence of the parties.

See also  Frederick Onagba Oduaran & Ors. V. chief John Asarah & Ors (1972) LLJR-SV

(iii) Whether the trial court was right in deciding in favour of the appellants on the ground that the respondents did not prove title to the entire land in dispute, and whether the Court of Appeal was not wrong in reviewing that decision.

Issues (i) & (iii) which are interdependent will be taken together while issue (ii) will be treated separately.

Issues (i) & (iii)

Mr Iwuji learned counsel for the appellant has in his brief argued that respondents’ evidence on boundary being inconclusive as found by the learned trial judge, the conclusion is that the identity of the land in dispute was not established. The trial court was therefore right when it dismissed respondents claims. It was argued that no declaration can be granted based on the respondents’ survey plan (Exhibit A) which failed to show the existence of any boundary between their land and appellants’ land. It also omitted to show all essential features as depicted in the appellants, survey plan (Exhibit B). He said there was nothing on Exhibit A to show that the respondents were in exclusive possession and use of the entire land in dispute. The Court of Appeal was therefore wrong to have reversed the findings of the trial court in favour of the respondents. He cited Okorie & Ors v. Philip Udom & Ors (1960) 5 FSC. 162; (1960) SCNLR 362 in support.

Mr Nsofor for the respondents on the other hand submitted that a careful look at the two plans, Exhibit A & B, filed by the parties respectively reveal that the identity of the land in dispute is very clear and certain. He said the main difference between the two plans is that while the respondents’ Exhibit A show the land in dispute as one continuous piece of land, the appellants’ Exhibit B, shows the land as consisting of two unequal piece of land and conceding the small piece thereof to the respondents. He said the respondents gave evidence which was in accord with their plan and submitted that in any case where features shown on a plan are not made issues on the pleadings, mere tendering of the plan is sufficient and the features need not be proved. He referred to cases of Omoregie & Ors v. Idugiemnwanye (1985) 2 NWLR (p.5) 41. Ezeudu v. Obiagwu (1986) 2 NWLR (Pt.21) 208 Okechukwu v. Okafor (1961) All NLR 85; (1961) 2 SCNLR 369.

It was further submitted that since the appellants did not counter-claim, the land in dispute must be as shown in the respondent’s plan and that the said plan and evidence led thereon show identifable land mass to which a declaration and injunction could be attached. The Court of Appeal was therefore right to have granted the declaration and injunction in favour of the respondents.

In coming to the conclusion that respondents evidence on boundary was inconclusive, the learned trial Judge on p.134 of the record said-

“On the evidence of witnesses so far reviewed, I am convinced that there is a boundary between plaintiffs and defendants on the land in dispute. The plaintiffs tendered their survey plan of the land in dispute (Exhibit A). I have examined it. It is silent on these details. Then there is the conflicting evidence of Donatus Nwafor (P.W.3) who, in answer to cross-examination stated, inter alia as follows-

“Our land near the land in dispute was inherited by my father from his father. It was not given to us by anybody. I do not know if this our land was got from the plaintiffs as they indicated on their

Exhibit A. My father did not tell me that this our land was got from plaintiffs …….I don’t know if defendants have land having common boundary with the land in dispute. There is no road from Umuekpu to the land in dispute. I know the land in dispute very well. The defendants have no land having common boundary with the land in dispute anywhere.”

To me the evidence on boundary is inconclusive and does not meet the degree of certainty required in these matters.”

The Court of Appeal on the other hand per Ogundare J .C.A.(as he then was) found on page 213 of the record thus

“A close look at the land said to be in dispute in both plans will show on almost identical land on both plans. Indeed respondents’ case is that both of them own different portions of land as against appellants’ claim that they own the whole land. After a careful consideration of the evidence as a whole together with the plans tendered, I am not prepared to say as the learned trial Judge, with respect to him, erroneously held that appellants’ evidence on boundary is inconclusive and does not meet the degree of certainty required in these matters’. On the contrary, the appellants, in my respectful view, proved with certainty the identity of the land to which they claimed and in respect of which they sought a declaration. It is for the respondents who assert title to a part of the land in dispute to prove the identity of the particular portion they laid claim to – see Oyude v. Ogbedegbe (1984) 1 SC. 360. This is more so in this case where they conceded part of the land to belong to the appellants. With profound respect to the learned trial Judge, he laboured under a misconception that the appellants were claiming a part of the land in dispute. Certainly that was not their case but the case of the respondents.”

It is settled law that it is the duty of a plaintiff who comes to court to seek for a decree of declaration of title to land to show the court clearly and accurately the area of land to which his or her claim relates and usually (though not always) a plan is necessary for the purpose. Such a plan must also show clearly the dimensions of the land the boundaries and other salient features thereof. Elias v. Omo-bare (1982) 5 SC 25, Arabe v. Asanlu (1980) 5-7 SC. 78, Etim v. Oyo (1978) 6-7 SC. 91 Udofia v. Afia 6 WACA 216).

The respondents had pleaded in para.4 of their Amended Statement of Claim that-

“4. The land subject matter of this action hereinafter called the land in dispute, is a part of or a portion of a larger piece or parcel of land situate in Amala ……and is known and called “Okpuku-Ukwu”.

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The precise boundaries of the land in dispute are clearly delineated in the Survey Plan No. UND/9/77 filed along with this statement of claim. The Okpuku-Ukwu land of which a portion is now in dispute is verged green whilst the portion thereof now in dispute is verged pink. At the trial the plaintiffs shall found on the boundaries of the land in dispute as delineated in the said plan No. UND/9/77.”

The plan mentioned therein is Exhibit B in the proceedings. In their Amended Statement of Defence the appellant pleaded in para.3 thus-

“3. The defendants deny para.4 of the Amended Statement of Claim. The land in dispute is in two portions: namely, the small portion verged blue in the defendants’ plan and the large portion verged yellow in the defendants’ Amended plan. The small portion verged blue aforesaid is part of the plaintiffs land which had common boundary on the east with the defendants’ land verged green in the defendants’ Amended plan. The large area verged yellow in the defendants’ Amended plan is part of defendants land verged green in their said plan.”

The plan referred to above is also Exhibit B in the proceedings. So clearly as submitted by learned counsel for the respondents, the features on the plan Exhibit A were never put in issue on the pleadings and so the question of proving them did not arise. And as rightly stated by the Court of Appeal it was never the respondents’ case that the appellants were entitled to any portion of the land in dispute, but rather it was the appellants who conceded part of the land in dispute to the respondents. The respondents did not therefore have to prove the feature of any boundary between them and the appellants on the land in dispute. I found myself in complete agreement with the Court of Appeal that the evidence of the witnesses for the respondents is generally in line with their plan, Exhibit A, and even the testimony of P.W.3 which the learned trial Judge regarded as conflicting, was clearly to the effect that the land in dispute belonged to the respondents and that the appellants had no land having a common boundary with the land in dispute. I am therefore clearly of the view that the Court of Appeal was right when it held that the respondents’ Plan (Exhibit A) showed a well defined land mass to which a declaration could be attached. In fact both the two plans (Exhibits A & B) as earlier observed, are almost identical, apart from the concession made to the respondents by the appellants in their plan Exhibit B. In other words the parties themselves know the identity of the land in dispute. Also having demonstrated above how the trial court wrongly dismissed respondents’ claims on the ground that “the evidence of boundary is inconclusive”, the Court of Appeal was quite in order for holding that the respondents proved their title to the land in dispute. Both issues (i) and (iii) are therefore resolved against the appellants.

Issue (ii)

This is the issue of whether or not the respondents did swear and took oath by “Ala-Obibi” juju in the course of arbitration. It would be recalled that a dispute arose between the respondents and the appellants in 1975 when the respondents tried to exchange the land in dispute or part of it, for another land called Obora, following an arrangement between them and the Umukube family of Umuokwa village in Amala. The exchange arrangement was aborted and the dispute between the respondents and appellants was then referred to the Parents Teachers Association (PTA.) of Amala a body consisting of elders and councillors of the community. The body went into the dispute. The respondents said the PTA. asked them (respondents) to swear on a “juju” supplied by the appellants. The respondents took the oath and survived it for one year after which the land was adjudged to belong to them according to Igbo custom. A document evidencing the arbitration by the P.T.A. was tendered in evidence as Exhibit C. The appellants on the other hand said that when the PTA. offered the “juju” oath to the appellants, they refused to take the oath and the matter was abandoned and they held onto the land. So what was in dispute at the trial was clearly the result if any of the “arbitration” by the Amala P.T.A.

The learned trial Judge on the question of arbitration said on page 136 of the record thus-

“On the question of arbitration and the taking of oath on some juju, I do not believe the plaintiffs took any oath. It is my finding that of the two competing stories regarding the ownership of the land as given by the plaintiffs and their witnesses on the one side and the defendants and their witnesses on the other, the defendants’ story is the more probable and I prefer it.”

Reversing the above finding, the Court Appeal (per Ogundare, J.CA.) after going through relevant pleadings and evidence thereon observed on pages 235-236 of the record that-

“While the witnesses for the appellants were emphatic as to the conclusion of the native arbitration, the same cannot be said of the witnesses for the respondents. According to the Amended Statement of Defence, the arbitration was inconclusive ………The evidence of the 5th respondent was along this line. He however admitted that the head of his family at the time, Egbulike Nwoke (3rd defendant but now deceased) brought out the” Ala-Obibi ” juju on the land for the appellants to swear. D.W.2’s version of the arbitration was that following the refusal of the appellants to take the juju oath, the PTA adjudged the land to the respondents. This witness claimed to have presided over the arbitration proceedings. He was not sure if the respondents produced the “Ala-Obibi” juju. Although the respondents in paragraph 27 of their Amended Statement of Defence pleaded, inter alia that-

“The records of the PTA. on this matter is pleaded and will be founded upon at the trial.”

Yet no such records were produced. This pleading however is an admission that records of the arbitration were made. The appellants produced Exhibit C as the records. Other than saying that Exhibit C was a forgery, no attempt was made by the respondents to prove – this serious allegation. Had the learned trial judge properly evaluated the evidence before him and had he adverted his mind to all the salient points, he would not have rejected, as he did, the evidence for the appellants which evidence was supported by evidence for the respondents on almost all the essentials of the oath taking except the actual oath-taking by the appellants. In admitting Exhibit C in evidence the learned trial Judge remarked:

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“The weight to be attached to it is another matter.”

But throughout his judgment he gave no indication as to the weight he ascribed to Exhibit C. Indeed he said nothing about the document, important as it was to the case before him. On the totality of the evidence before the learned trial Judge had he exercised his discretion judiciously, he would have found that the appellants’ version of the oath taking was the more probable and would have concluded that issue in their favour.”

I think the Court of Appeal was right. I have also read the Amended Statement of Claim and the Amended Statement of Defence and evidence led in support thereof. Counsel for the appellants was in my view wrong when he said the Court of Appeal should not have disturbed the finding of fact by the trial court that the respondents took no “juju” oath when that finding as could be seen above cannot be reasonably justified nor supported by credible evidence in the case. Admittedly a Court of Appeal should not easily disturb the finding of facts of a trial Judge who had the singular opportunity of listening to the witnesses and watching their demeanour. It is settled law, however

that such finding of facts or inferences drawn from them may be questioned in certain circumstances and certainly this is one of such circumstances when the finding is perverse or cannot be supported by evidence. (See for example Akinloye & Anor v. Eyiyola & Ors (1968) NMLR 92. Akinola v. Fatoyinho Oluwo & Ors (1962) All NLR 244); (1962) SCNLR 352.

This issue (ii) is therefore resolved against the appellants.

There was no appeal against the finding by the Court of Appeal that-

‘The decision of the Amala PTA Arbitration Panel would, in my respectful view constitute estoppel per rem judicatam, the subject matter, the parties and the cause of action being the same in the arbitration as well as in the High Court action.”

My comments will therefore be very brief. There is no doubt that the respondents took the “juju oath” which was witnessed by members of the Amala P.T.A. That was on 6th Septcmber 1975 (See Exhibit C). The P.T.A. did not award the land in dispute to any of the parties on that day or on any other day. On that day the “decision” or “judgment” was “reserved” for one year to 6th September 1976, The “juju” was to decide. If members of the respondents’ family who took the oath were still alive on the adjourned date (6/9/76), the land belonged to the respondents. If on the other hand they died before that date, then the land belonged to the appellants. No investigation or inquiries were necessary. And none was made. The P.T.A. did not claim to possess the power of life and death. Only the juju had that power. As it turned out the respondents did not die. It was not their time to die! They were still all alive on the “judgment” day. The P.T.A. again witnessed their survival on the day as set out in Exhibit C. So one can safely say that the P.T.A. were never arbitrators in the real sense of the word. They were merely witnesses to the oath taking ceremony as well as the survival ceremony. The arbitrator in my view was the “Ala Obibi” juju which they believed had the power of life and death. My own belief is that nobody died because it was not yet time for anyone to have died. Enough of that.

However the respondents have by his suit in my view positively established their ownership of the land in dispute independently of the previous” Ala Obibi” juju oath-taking. Both sides in the contested suit called as their witnesses natural and real human beings to say what they knew about the land. All the witnesses were available for cross-examination and re-examination on their testimonies. This was as it should have been under the law. The “juju” method as cheap and quick as it might appear to have been had its own disadvantages.

For example you cannot put a “juju” in the witness box for any purpose. Its activities, methods and procedure would appear to belong to the realm of the unknown even though the effects may be real in the end. The worst of it all is that a “juju” “judgment” or “decision” is not subject to an appeal like the one we are all witnessing now in this suit. So that unless and until the “juju” descends to the level on which we can all understand its workings, it would be difficult to enforce its “decision” in a law court.

We have come a long way from the oracle! At any rate it was held in Ojiako v. Ogueze (1962) 1 All NLR 58; (1962) 1 SCNLR 112 that where a plaintiff had already received a declaration of title in a native court, the High Court could exercise its discretion to grant a new declaration where the second suit was made with reference to a plan. So it is in this case where the “juju” declaration had no plan of the land attached to it.

All the issues having been resolved against the appellant, this appeal fails. It is accordingly dismissed. The judgment of the Court of Appeal is hereby confirmed. The respondents are awarded costs assessed at one thousand Naira (N1,000.00) only.


SC.78/1992

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