Ojeamiren Ojehomon V. Albert Ojehomon & Ors (1993)

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JAMES OGENYI OGEBE, J.C.A.

Before the High Court of Justice Afuze, the appellant claimed against the respondents in paragraph 46 of his further amended statement of claim as follows:-
“1. A declaration that the Plaintiff is vested with all existing rights and interests to the use and occupation of all that pieces or parcels of land lying situate at Ukhuoro Quarters in Oke New-Site within the jurisdiction of this Honourable Court which pieces or parcels of land are particularly delineated in green, red, brown, blue and yellow in survey Plan No. MWC/1019/82 dated 11th May, 1982, prepared by Surveyor M.N. Chukwurah and consequently entitled to the grant of a Statutory Right of Occupancy in respect of the said pieces or parcels of land.
2. Fifty Thousand Naira as damages for trespass to the said parcels of land.
3. Perpetual injunction restraining the Defendants, their servants and/or agents from committing further trespass to the said parcel of land.”

The pivot of his claim is contained in paragraph 7 of the further amended statement of claim and is reproduced hereunder for ease of reference:-
“7. Chief Ojehomon and several others in the same predicament as himself decided to move out of Oke and found a new settlement in a more open area. In pursuant of this decision they migrated to a virgin land about six kilometers from Oke and acquired each a parcel of land for himself by deforestation. At the hearing of this suit the evidence will be adduced to the effect that by the custom of Ora any native who deforests any part of communal land and settles thereon becomes the owner of the land so acquired.”

The respondents filed a statement of defence denying the appellant’s claim and joined issues with the appellant on his paragraph 7 of the further amended statement of claim in paragraphs 15 and 16 of their own amended statement of defence as follows:-
“The defendants further deny plaintiff’s assertions in paragraphs 7, 8 and 9 of Statement of Claim and state that following the fire incident of 1926, all the people of Okpotore and some affected members of Ukpafikan quarters who were rendered homeless by the said fire, deserted Oke Old Site under the leadership of one Chief Orhuame, the father of the present Ara of Oke to the new settlement now known and called OKE NEW SITE in Ora. At the time, the plaintiff’s father was a civil servant abroad. He had at no time participated in the movement from Oke Old to Oke New Site with the affected people of Okpotoro and some people of Ukpafikan quarters. It was after some years when the people affected were settled in their new settlements and the new Oke Site became attractive that some of the people of other quarters in Oke Old Site started moving gradually.

These were the people of Ukhuoro, Igbele and some of the remaining people of Ukpafikan quarters to Oke New Site. It was during this stage in the year 1928 that Ofeinmi, the father of the 2nd defendant and the most Senior son Ofojehomon Oyuyu after the death of Uade moved his family and his other junior brothers and sisters including Ewan, the father of the 3rd and 4th defendants to put up a mud building at the Oke New Site very close to and facing Sabongidda/Uzebba Old Road which is the building new being claimed by the Plaintiff as his father’s building. The said building was unanimously put up by Ofeinmi, (the father of 2nd defendant), Ewan (father of 3rd and 4th defendants), Uade’s son, Albert (the 1st defendant), Madam Iyinbor Ojehomon and Madam Ilokoguare Ojehomon.

16. When the walling of the house was completed up to the level required by Ofeinmu, Ewan, Albert, Madam Iyinbor and Madam Ilekeguare. Ewan, the father of the 3rd and 4th defendants went and met the Plaintiff’s father then working at Abraka and requested him to contribute to the setting up of the building. In response, the Plaintiff’s father contributed corrugated roofing sheets to Ewan with which the roofing of the house was made. Ofeinmu, Ewan, Albert, Madam Iyinbor and Madam Ilekeguar unanimously contributed to the purchase of cement with which the house was plastered. The said house has all along been jointly owned and occupied by members of Ojehomon Oyuyu family till today.”

On the facts before the trial court, certain issues were not disputed. The appellant and the respondents were descendants of one grand father Ojehomon Oyuyu. They had their original home in a place called Oke Old Site. A fire disaster drove the family away from the old site in the year 1926. They then moved to a new site about 6 kilometre away in 1928. At that time, the appellant’s father through whom he is claiming the property was living in Benin. He was not part of the family members that physically moved from the old site to the Oke New Site. A large house was built in Oke New Site. According to the appellant his father deforested a virgin land and built a house on the disputed land by sending materials homewhile his two sisters supervised the building. The respondents on the other hand, claimed that the building was the joint responsibility of all members of the family which put hands together to develop the family land.
The learned trial judge reviewed the evidence given by the parties and came to the conclusion that the appellant had not proved his title to the land and dismissed his claim in the following words:-
“The plaintiff had only given evidence of his right to his “father’s property” under customary law of inheritance but gave no evidence at all of the title of his father as pleaded in paragraph 7 of the Further Amended Statement of Claim. He should have done more than he had done.

In the circumstance this action is dismissed.” It is against that judgment that the appellant has appealed to this court on one original ground of appeal and with leave of court, 4 additional grounds of appeal. Out of these grounds of appeal, 5 issues for determination were settled in the appellant’s brief of argument as follows:-
“1. Whether from the state of the pleadings filed and exchanged between the parties and the evidence adduced before the Court, the learned trial judge was right in taking the view that there was no evidence of deforestation of the land in dispute and of ownership of the land by deforestation under Ora Customary Law?
2. Whether the learned trial judge was right in holding that the building in question was the joint responsibility of the family of Ojehomon?
3. Whether evidence of contribution to the building of house per se is sufficient to constitute such building or property a family property within the concept of ownership of family property under Ora Customary Law?
4. Was the judge right in treating the evidence of PW2 and PW3 as unreliable, or put differently.
5. Did the learned trial judge adequately and correctly evaluate the evidence adduced before the court?”
The respondents filed their brief or argument in reply to the appellant’s brief of argument and formulated only one issue for determination thus:-
“Whether the Appellant by the evidence tendered at trial had proved his father’s radical title to the parcels of land in dispute by deforestation under Ora Customary Law having regard to the settled state of the pleadings.”

Having carefully examined the issues formulated by both parties, the only issue that arises for determination in this appeal is the first issue formulated by the appellant which is more or less the same thing as the only issue formulated by the respondents. I shall therefore deal with this appeal on the basis of that sole issue.

The submission of the learned counsel for the appellant on this issues is that the trial court was wrong in taking the view that there was no evidence of deforestation and of ownership of the land by deforestation adduced before him having regard to the pleadings filed and exchanged and the evidence led by appellant in support of this case. He said that the appellant’s case was that his late father Chief Francis Godfrey Ojehomon required the land in dispute when it was a virgin land and deforested it in accordance with Ora Customary Law. The father moved along with other migrants to found a new place called Oke New Site. He then built a house on the land and used the rest of the land for farming. The father was away from home but sent building materials to his elder sisters called Okhuokhimeti and Iyinbor to supervise the building for him.

In the learned counsel’s submission the respondents only made a general traverse in respect of the appellant’s averment in paragraph 7 of the further amended statement of claim concerning the deforestation of the disputed land by his father. It followed therefore that the respondents did not join issues with the appellant on the question of deforestation which must be taken as having been admitted. He cited in support the case of Lewis & Peat (MRI) Ltd. vs. Akhimien (1976) FNR page 80.

It was also submitted that the trial court was wrong in holding that the building on the disputed land was the joint property of the family of Ojehomon as the respondents did not lead evidence under Ora Customary Law as to how the joint family property could be acquired. It was finally submitted that the trial court did not do a proper evaluation of the evidence led before it in arriving at its judgment in favour of the respondents as it had no basis in disbelieving the evidence of PW2 and PW3.

In reply, the learned counsel for the respondents in their brief of argument, submitted that the respondents joined issues with paragraph 7 of the further amended statement of claim in paragraph 10, 14, 15, 16, 17, 24, 25 and 26 of their amended statement of defence. There was therefore no question that the issue of deforestation of the disputed land by the appellant’s father was admitted.

It was contended that the burden of adducing evidence in establishing the averment in paragraph 7 of the further amended statement of claim rested squarely on the appellant. In this case the appellant’s root of title is the acquisition of the land by deforestation under Ora Customary Law. This he was unable to prove before the trial court and that knocked the bottom out of his case. Once the root of title was not proved, the subsidiary issue of inheriting the disputed property could not arise. Finally it was submitted that as the appellant failed to prove his root of title, there was nothing else before the court to evaluate and the trial court was right in dismissing the appellant’s claim as that was the only option open to it. Reliance was placed on the cases of Ebohon vs. Anankwenze (1967) FMLR 277 at 282 and MACFOY vs. U.A.C. Ltd. (1960) A.C. 152 at page 160.