Moses Ekamatie Sagay V. Messrs New Independence Rubber Co. Ltd & Ors.(1977)
LawGlobal-Hub Lead Judgment Report
S. SOWEMIMO, J.S.C.
This action, Suit S/27/65 was instituted in the High Court of the Mid-Western State (now Bendel State) in 1965 sitting in Sapele. The plaintiff, representing the Sagay family, claim as set out in paragraph 25 of the amended Statement of Claim as follows:-“25. WHEREFORE the plaintiff claim from all the defendants jointly and severally as follows:-
- The sum of 14,972.6s.3d. (Four Thousand Nine Hundred and Seventy two Pounds, Six Shillings and Three Pence) being special and general damages suffered by the plaintiffs as a result of the trespass committed by the 1st defendants, when they unlawfully entered the plaintiffs land at Amukpe, Sapele, and destroyed 2 dwelling houses, 660 orange trees, 50 coconut trees, 30 pear trees 70 grape fruits, 25 kolanut trees and 20 palm wine trees belonging to the plaintiffs.
PARTICULARS OF CLAIM
(a) SPECIAL DAMAGES:-
(i) 2 dwelling houses at
1,000 each = 2,000.s.d.
(ii). 660 orange trees at
2.16s.1d each = 1,520.15s.d.
(iii) 50 coconut trees at
2.15s.9d each = 107.14s.2d
(iv) 30 pear trees at
2,15s.9d each = 83.12s.6d
(v) 70 grape fruit trees at
2.4s.1d each = 154.5s.10d
(vi) 25 kolanut trees at
1.16s.9d each = 45.18s.9d
(vii) 20 palm wine trees at
3.s.d. each = 60.s. d.
TOTAL = 3,972. 6s 3d
(b) General Damages = 1,000.s.d
Total Damages = 4, 972. 6s. 3d
- An Order of Injunction restraining all the defendants, their servants and/or agents from further disturbing the members of the Sagay family in the exercise of their right of use and occupation in respect of the entire parcel of land verged yellow in the plan filed by the Plaintiff and in particular in respect of the sector numbered 9 and verged pink which is the land now in dispute in accordance with the judgment in FSC. 203/1957, and shown in Plan No. GA/63/54 verged pink.
(3) An ejectment order against the 1st defendants their servants and/or agents from the sector numbered 9 in the plan filed. AND THE PLAINTIFF CLAIMS DAMAGES.”
We wish to draw attention to the following aspects of this case. In so doing the appellants hereinafter shall be referred to as plaintiffs and the respondents as defendants. Hearing commenced on the 13th of April, 1972, and case was closed on the 27th of April, 1972. Before commencement of hearing of plaintiffs’ case, we set out herein the state of the pleadings. A notice of motion was filed by the plaintiffs/appellants on the 20th of March, 1972, praying the court “for an order granting leave to amend and file a Statement of Claim in this suit.” The court made the following order on this application on the 10th of April, 1972 as follows:-
“Court: Application granted as prayed. Further Amended Statement of Claim to be filed within 24 hours. The defendants are also granted leave to file further Amended Statement of Defence on or before 12 noon of Wednesday 12/4/72”.
In accordance with this order, the plaintiffs filed an Amended Statement of Claim containing 25 paragraphs. The 2nd to 4th defendants, who represented the Amukpe Community did not file any further Amended Statement of Defence in reply to that filed by the plaintiffs on the 10th of April, 1972.
When hearing commenced on the 13th of April, 1972 there were no issues joined on the pleadings between the plaintiffs and the 2nd to the 4th defendants because the latter did not file an amended defence as ordered. On 27th of April, 1972, however, just before plaintiffs closed their case, a motion was filed on that date on behalf of the 2nd to 4th defendants, praying the court “for an order granting leave to the applicants to amend their Statement of Defence in the manner set out in the Amended Statement of Defence exhibited to this motion”. The court made the following order on the same date:-
“Court: Application granted. The 2nd to 4th defendants hereby granted leave to file a document to be headed a 3rd amended Statement of Defence as per Exhibit A attached to the Affidavit in support of their case within 24 hours from today. After plaintiff and the 1st defendant are also hereby granted leave to file further amended Statement of Claim and defence respectfully within 24 hours of their receipt of the filed 3rd amended Statement of Defence. In view of the fact that copies of the proposed amended Statement of Defence have been annexed to the paper hearing will proceed.”
Cross-examination of the 8th witness for the plaintiffs then continued and the evidence 3rd witness for plaintiff, who was recalled was noted down, and the case for the plaintiffs closed. On the following day, 28th of April, 1972, the 2nd to 4th defendants filed their 3rd amended Statement of Defence as ordered by the court. Before this was done, however, hearing of 1st defendant company’s case commenced on 27th April, 1972 but further hearing was adjourned before its completion to the 1st of May, 1972. It is therefore obvious that when plaintiffs case closed there were no issues joined by them on the basis of the order made by the court on 10th of April, 1972, in consequence of which the plaintiffs filed their Amended Statement of Claim and the 1st defendant company filed Amended Statement of Defence. The learned trial Judge however did not consider what the situation was at the close of the pleadings; because the 2nd to 4th defendants having failed to file a Statement of Defence to the plaintiffs’ Amended Statement of Claim did not raise any issue on which they could be heard. It is quite clear that the amended statement of the 2nd to 4th defendants filed on the 28th of April, 1972, after the close of the plaintiffs’ case, and after the 1st defendant had started to give evidence in defence, could not be considered as having properly raised issues which the plaintiffs had an opportunity of being heard. Any judgment given in this circumstance therefore cannot be said to be based on issues properly raised by either parties before the commencement of the trial or at least at any stage before plaintiffs’ case closed.
The learned trial Judge on the assumption that the pleadings were properly before him, did not also decide the basis on which either side fought their case. The plaintiffs’ case was that by a judgment of the Supreme Court, FSC 203/57 their right to the use and occupation of the “larger area” was confirmed. The plaintiffs also pleaded in the amended Statement of Claim that the Supreme Court in a decision which was tendered in the proceeding before the learned trial Judge, had dismissed a claim filed by the Amukpe Community against the Sagay family, when the latter destroyed the palm trees of the former and built on the site. The 2nd to 4th defendants, on the other hand, in their previous pleadings, and in the 3rd Further Amended Statement of Defence, claimed ownership of the land and averred that under an Amukpe Native Law and Custom which incidentally must be proved, but was not proved, claimed that they are entitled to enter on the “larger area” of land and lease any portion of it subject only to the payment of compensation. Portion of the judgment in FSC/22/1962, tendered as Exhibit 8 in the case reads inter alia:-
“It is clear from this part of the judgment that at the inspection the tribunal of that court found that the palm trees cut down were in the “larger area” which the respondents and members of the Sagay Family are entitled to use and occupy. It is apparent that the consideration which influenced the judgment of the Adeje Customary Court was not that the site is outside the area of land the Respondents are entitled to use and occupy, but that the Respondents had cut down these trees maliciously because they failed to ask for the consent of the appellants before cutting down so many palm trees.Counsel for the appellants referred to this aspects of the case, he submitted that under Native Law and Custom of the Urhobo people palm trees on land must not be cut down by tenants who have the usufructuary rights in the land without the prior approval of the radical owners. The authority for this, according to counsel, is in the judgment of the Native Court already referred to. It is enough to say that this Native Law and Custom was not sufficiently proved before the court and in fact the evidence of Dorogun (2nd Witness for the plaintiff) in the Adeje Customary Court negatived it.
Having perused the record of proceedings in the Adeje Customary Court I am unable to impute malice on the part to the respondents in cutting down the palm trees. There is evidence that one of them was going to build a house and, in fact, foundations for the building had been laid. That these were too many is to my mind, a matter of opinion since the space required for a building and ground by one man may differ materially from that required by another, also if fifty palm trees grow so closely together, they do not occupy such a vast space. It was admitted by counsel for the appellant himself, which had visited the site that the area is now a built up area largely developed with houses, a school and a church. It might have been a different consideration if the palm trees were cut down in a palm bush which is opened to the community in the season and closed out of season.
It is abundantly clear that the Adeje Customary Court approached this matter from a wrong angle and have failed to appreciate the rights of the Sagay Family to the “larger area” of land as referred to in the judgment of this court in FSC. 203/57 (Exhibit C) and to use the language of the Judge in the High Court who heard this appeal “the Customary Court wrongly whittled down” the rights of the respondents to the land in question.”
On the averments on plaintiffs Statement of Claim and the defence of the 1st defendant as at the close of plaintiffs’ case the issues that arose for determination were:-
(a) Were the Sagay family customary tenants of the Amukpe community in the “larger area”
(b) If so, does this type of tenancy confer on the Sagay family rights to undisturbed possession of the “larger area” in exercise of their use and occupation of the land
(c) Was a custom accepted by the Sagay family which entitles the Amukpe community to enter into the “larger area” whilst the Sagay family’s customary tenancy still subsists
The answers to (a) and (b) could be found in the two decisions of the Supreme Court referred to above. The first case, FSC. 203/57 which sets out a descriptive nature of the tenancy which in substance is the form of customary tenancy which gives possessory right to tenants; conditions for the surrender of such tenancy include:
(i) express surrender or release;
(iii) failure of effectual occupation or user;
(iv) alienation or attempted alienation;
(v) refusal or failure to pay the customary dues or render the customary services;
(vi) “bad behaviour to the chief or family head.”
The learned trial Judge, on the assumption that parties have in their pleadings raised triable issues, and therefore admissible evidence, (both of which we do not agree had been properly done in view of the improper procedure in which the pleadings came before the court) proceeded to evaluate the evidence and made the following findings:-
“After a very careful consideration of the evidence adduced, and a perusal of the documents tendered, I have come to several firm conclusions and make the following and consequent findings of fact. Firstly, that in December, 1960, the Amukpe Community leased the area of land verged pink and numbered 9 on Exhibit L to the 1st defendant company as evidenced by Exhibit R. Secondly, that later that month, a director of the 1st defendant company one Mr. Pappas, went on the land with very may labourers (workers) and proceeded to remove all crops, trees and other things on the land which might prove an obstacle to the purpose for which they leased the land i. e the building and operation of a rubber factory. I am satisfied that the 3rd defendant only in person (out of the 2nd to 4th defendants) was present and directing operations during this “clearing operation”…..
“I therefore find, as a fact, that the late Dadson Sagay had a citrus plantation on the land cleared for which the defendants of Amukpe did not pay any compensation. I will consider later, if necessary, the size and contents of this plantation.
Fourthly, were there any buildings on land when it was cleared, If so, where in this land were these houses situated: To whom did they belong Specifically, did P.W. 7 and P. W. 8 have any houses on the land If so, what type of houses What is the truth about the Baptist Church” ….
“the Western Urhobo Customary Court. The defendants of Amukpe insist that only sticks were put up by P. W. 7 and P. W. 8 in the building process. The present 3rd defendant in his counter affidavit Exhibit D values the “buildings” at 30 each. I find myself completely unable to accept the evidence of P. W. 7 and P. W. 8 that they built BLOCK houses at all. The testimony of the defendants as to the nature of these houses is in my findings nearer the truth i. e. that they were mud and wattle houses. I find that they built beyond the sticks “planting” stage and in fact almost completed the houses. The estimated cost of these houses by the defendants is grossly under valued. These buildings were obviously standing at the time the order Exhibit E Was made on 1/11/60 otherwise it would not be made on those terms. I am satisfied and find as a fact that these houses were demolished by the defendants during the clearing operation just over a month later….
I find as a fact that the Baptist Church building was in existence in 1960 at the time of the clearing operation within the land in dispute but in an advanced state of DISUSE and partly in ruins. All that the defendants did therefore was to completely pull it down. It would appear that there may have been other houses which were not specifically claimed for and which I will therefore deal with separately in a consideration of and findings on paragraphs 15 to 19 of the Statement of Claim and the answers thereto. Here I need only add that the evidence that five graves were dug up by the defendants is not entirely satisfactory, …
“Fifthly, was the area in dispute or any part thereof effectively and/or actively or otherwise occupied by the plaintiffs and/or anyone else at the time of the clearing operation Exhibit M prepared by the Amukpe people shows quite clearly that the area now in dispute was in 1954 fully and effectively occupied by the plaintiffs. Not only did they have plantations on the land but they also had several buildings thereon, one of them being situated on the boundary of the land leased to the Pioneer Oil Mills. Between Aja Sagay and the Warri-Sapele road there are no less than 10 buildings shown on the plan. It is instructive to compare the nature of the occupation of this section of the land verged pink in Exhibit M with all the other areas where the only evidence of “occupation” is the existence of same crop plantations. In his testimony before me the only evidence of occupation of the area in dispute led by the plaintiff was the citrus plantation of Dadson Sagay, the two block houses of P. W. 7 and P. W. 8 and the graves/tombstones of the four Sagays and a Baptish School teacher dug up/destroyed. Nowhere in his evidence is there any mention of any of the buildings shown on Exhibit M within the area in dispute. It is only from the evidence of the 2nd defendant and the second witness of the 2nd to 4th defendants.- Agbeyeke Sagay, that it is possible to deduce what has happened. The latter, after confirming the position as per Exhibit M that the Sagay family built houses on both sides of the road from the Sapele – Warri Road to Aja Sagay, one of which was built by her father after his rubber plantation (within the area in dispute) for drying rubber sheets, proceeded to state that this particular house had “fallen down since”. In fact the rubber trees ceased being tapped on her father’s death (before 1960). Under cross-examination, the 2nd defendant stated that certain buildings shown on Exhibit M before Aja Sagay (and on the right going from the Sapele-Warri road to Aja Sagay) were still on the land NOW. These are buildings he described as belonging to a brother of J. E. Sagay and Amone Sagay. These are clearly within the area in dispute and he must be mistaken because Exhibit L (the plaintiffs plan) does not show the existence of any such building within the section marked 9. Besides even if these buildings were in existence in 1960 on the land, one would expect the plaintiff on record – M. E. Sagay – ( the present head of the Sagay family) to testify to the destruction of these buildings by the defendants in the course of their clearing operations. The inescapable conclusion therefore must be that these buildings have fallen into ruins and been deserted by the members of the Sagay family who built them. From a close consideration of the evidence of the 2nd to 4th defendants particulary under cross-examination. I am however satisfied that that part of what used to be the Iregbati Sagay’s compound and what is still the Amone Sagay compound were excised by the 2nd to 4th defendants and included within the area granted to the 1st defendant. In 1960 therefore besides the crop plantations, the only area of effective occupation in the area nearer what both parties agree to be the original AJA SAGAY – verged purple on Exhibit M.” The learned trial Judge considered a decision of this court in SC. 153/67 delivered on the 22nd of December, 1969 between the parties:
Peter Orere Sagay Plaintiff/Appellant; and
(i) Messrs. United Africa (Nigeria) Ltd.;
(ii) Chief Erute Ikpirina;
(iii) William Egwegbu; and
There this court stated thus:
“The Sagay family appealed to the Federal Supreme Court against that decision and the main purpose of the appeal was to have the rights of the Sagay family in the land in dispute clarified. On the 25th of April, 1958, the Federal Supreme Court dismissed the appeal, but, in doing so, it modified the judgment of the High Court thus:
“There is, therefore, this qualification of the declaration of title granted to the respondents; that as long as the appellants conduct themselves as good neighbours observing the simple well-known and well recognized native customary tenure and not, without consent, alienating the land to a stranger, the appellants are entitled to use and occupy the larger area defined in the plan but not more, but that if, to employ the language of the learned Judge:
“the defendant and his family continue to adopt and exhibit the truculent and provocative attitude they have shown … by claiming the land as their exclusive property, they may not find the court further prepared to forbear in their favour.”
“We consider it necessary to examine the judgment carefully as much reliance has been placed on it, from time to time, in cases which have come before the courts since the judgment was given. We are in no doubt that it preserves the rights of the members of the Sagay family to use and occupy the larger area; and precludes them from asserting the right of exclusive possession. But the argument of Mr. Sowemimo that by the judgment, the Sagay family were granted a customary tenancy of the larger area seems to us manifestly untenable as the court did not decide that the Sagay family are customary tenants of the Amukpe community. It is clear beyond argument that the Sagay family did not establish that they were customary tenants of the Amukpe community in respect of the larger area and it follows that the answer to the 2nd question posed by Mr. Sowemimo must be in the negative.
In our view, the learned trial Judge was right in dismissing the plaintiff’s claim as the Sagay family could not sustain the action for damages for trespass against the Amukpe community in whom was vested the radical title”.
As the learned trial Judge quite rightly remarked, the statement of the law may be limited to the circumstaces of the case; but we wish to state that it does not appear that the court considered the judgment of a strong Federal Supreme Court comprising of:-
- Sir Adetokunbo Ademola, Chief Justice of the Federation.
- Sir Lionel Brett, Federal Justice,
- Sir Vehe Bairamian, Federal Justice,
in FSC/22/62 delivered on the 21st day of June, 1963. (Exhibit H). Exhibit K is another judgment in Suit SC.305/66 (Ademola, CJN., Madarikan, JSC., and Fatayi-Williams, JSC.), between the same parties (Amukpe and Sagay) which touched on the nature of the interest of the Sagay family in the larger area.
On a proper consideration of the judgment of Federal Supreme Court in 203/57, FSC/22/62 and SC.305/66, it is quite clear that the holding of the Sagay family in the “larger area” is simpliciter, one of customary tenancy of the Amukpe, though not by direct grant from the Amukpe people but by virtue of a judgment of this court. The holding of the Sagay family as defined in FSC.203/57 may be described in the words of J. in Chief E. Ekpri Etim v.Ors and Essien and Ors. 16 NLR page 43 at page 50:
“It is now settled law that once land is granted to a tenant in accordance with Native Law and Custom, whatever be the consideration, full rights of possession are conveyed to the grantee.
The only right remaining in the grantor is that of reversion, should the grantee deny title or abandon or attempt to alienate. The grantor cannot convey to strangers without the grantee’s permission and rights in respect of the land.
The grantor must share the proceeds of rents accruing from strangers keeping one-third only as his share”.
Before concluding this judgment, we wish to draw attention to the fact that the learned trial Judge held that the Sagay family:
“had abandoned their plantations due to harassment and litigations by Amukpe people”.
In the pleadings the 2nd to 4th defendants never averred that it occupied the plantation of the Sagay family after it had been abandoned. We feel that it is not open to the Judge to formulate a defence which was not made by a plaintiff as the basis of a judgment for award of special damages.
Apart from the observations which we have drawn attention to above, we are satisfied that this case was not tried on issues properly raised in the pleadings before plaintiffs closed their case. We will therefore in the circumstances of this case, remit the case back to the lower court for a new trial before another Judge. We will also state that our remarks as to the pleadings in this case should be regularised before a new trial proceeds. We set aside the whole judgment of the learned trial Judge and the award of cost made therein either in favour of the plaintiffs or the defendants. We do not consider that any award of cost should be made on this appeal, as our judgment is not based on the arguments canvassed before us.