Olum Ogba & Ors V. Israel J. Onwuzo & Anor (2000)
LawGlobal-Hub Lead Judgment Report
JAMES OGENYI OGEBE, J.C.A.
The respondents sued the appellants in the High Court of Rivers State holding at Ahoada for a declaration of customary right of occupancy to a piece of land known and called “El Aga osumini’, trespass and perpetual injunction restraining the appellants from further acts of trespass on the land. The respondents amended their statement of claim and the appellants filed a statement of defence which was never amended. The respondents based their claim on the land on traditional history and various acts of ownership.
The appellants denied the alleged acts of possession by the respondents and claimed ownership of the land.
The respondents called 6 witnesses including a licensed surveyor to establish their claim.
The appellants called 7 witnesses in aid of their defence.
The traditional history given by either side could not conclusively prove the ownership of the land and the trial court had to resort to acts of recent ownership to determine the owner of the land.
The trial judge reviewed the evidence given by both sides extensively and came to the conclusion that the respondents had proved their claim and were entitled to the reliefs sought. He therefore granted the reliefs claimed by the respondents.
Dissatisfied with that decision the appellants have appealed to this court and the learned counsel for them filed a brief of argument and identified two issues for determination as follows:
“(1) whether the court below was right in its conclusion from the evidence adduced at the trial that the Respondents proved that they are the persons entitled to the customary right of occupancy of the land in dispute having regard to the credible evidence in the case in respect of
(a) traditional evidence relating to the settlement of the land in dispute;
(b) acts of ownership on the land in dispute;
(c) rejection of the evidence of Owho holders;
(d) the contradiction in very material particulars between the evidence led by the Respondents and their pleadings in addition to reliance on matters not pleaded; and
(e) rejection of the evidence of DW7.
(ii) whether by reason of provision of section 6 of the constitution of the Federal Republic of Nigeria 1979 particularly sub-sections (2) and (6) thereof and section 33 of the said constitution the court below was right to base its decision on the result and effect of the oath taken by a member of the Appellants’ family concerning the land in dispute.”
The respondent also filed an amended brief of argument and formulated two issues for determination as follows:
“(1) whether the judgment of the Learned Trial Judge was perverse or not as a result of an improper or proper exercise of a discretion.
(2) Whether the judgment bore a violation of some principles of law or the constitution of the Federal Republic of Nigeria, 1979 which led to a miscarriage of justice.”
The learned counsel for the appellants submitted that the respondents did not prove their claim before the trial court and that if the trial court had properly evaluated the evidence, especially evidence of chief Alete, P.W.5, who was the overall Chief of Agba Ndele, it would have come to the conclusion that the appellants owned the disputed land. The appellants’ brief is lengthy and too detailed to be called a proper brief. The learned counsel complained that the trial court wrongly rejected the evidence of DW6 and DW7 and relied wrongly on an account of oath taking administered by a non-constitutional means which resulted in a wrong decision by the court.
On the 2nd issue, the learned counsel for the appellants contended that the trial court was wrong in relying on the oath taken by a member of the appellant family concerning the land in dispute as this amounted to an unconstitutional act.
This issue was never raised in the court below and was being raised for the first time in this court. My
Attention was not drawn to any order of this court granting the appellants’ leave to raise this issue for the first time in this court.
At page 10 of the appellants’ brief the learned counsel for the appellants applied in paragraph 5(2) for the leave of this court to raise issue 2 for the first time on appeal. With the greatest respect such an application should have been brought-by way of motion on notice and granted before such an issue can be raised for the first time in the Court of Appeal. See Osakwe v. Governor of Imo State (1995) 5 NWLR (Pt. 191) 318. It follows therefore that the second issue is not properly before this court and I accordingly strike it out.
On the 1st issue the learned counsel for the respondents submitted that the learned trial judge properly, evaluated the entire evidence of the parties and rightly came to the conclusion that the respondents have proved their claim. He said that the judgment appealed against shows no miscarriage of justice. The learned counsel further argued that the trial court was right in relying on the oath taken by a representative of the appellants to determine the owner of the disputed land along with other credible evidence.
There are five ways by which title or ownership of land can be proved. They are:-
- By traditional evidence, or
- By production of documents of title duly authenticated and executed, or
- by acts of ownership extending over a sufficient length of time numerous and positive enough as to warrant the inference of true ownereship, or
- By acts of long possession and employment, or
- By proof of possession of connected or adjacent land in circumstances rendering it probable that all such connected or adjacent land would in addition be the owner of the land in dispute.
See Idundun v. Okumagba (1976) 9-10 SC 227 and Ochin v. Ekpechi (2000) 5 NWLR (Pt. 656) 225.
In order to succeed in a land matter a plaintiff need not satisfy all the five ways enumerated above. A court of law will give judgment to a plaintiff who satisfies any of the five ways.
From the facts of the present case the traditional history of the land given by both sides is more or less the same and the trial court had to rely on recent acts of ownership.
PW2, Godwin Wokoro Iroanwusi who was one time chairman of the community meeting of Ogbakor Agba testified that when the community needed land for a Town Hall, it approached the respondents’ family for the disputed piece of land and was given that land and when they hired a caterpillar to clear the land; there was no protest by the appellants.
PW5, Stephen Ikpoku Alete who was overall head of the community testified that he and some other elders went to the land sometime in 1978 to settle a dispute over a juju placed on the land by the appellants. They did not decide the land dispute itself but asked the appellants to take away their juju from the land. This witness’ evidence did not support the case of the appellants as was suggested by the learned counsel for the appellants. There was evidence which the trial court believed that at one stage of the dispute, the elders in settling the dispute invited a juju priest to administer an oath to one Echim Amadi for and on behalf of the appellants and if he died within the year of the oath, the land would be given to the respondents and he actually died less than a year of taking the oath in 1982.
I have examine the record of appeal scrupulously and I am satisfied that the trial judge did a dispassionate appraisal of the evidence and came to the conclusion that the respondents proved their claim and were entitled to judgment. It is not the function of an Appeal Court to substitute its own views for those of the trial court which has dispassionately made findings of fact unless such findings of fact are perverse or not based on the evidence before the trial court. See Bua v. Dauda (1999) 12 NWLR (Pt 629) 59; Akinloye v. Eyiyiola (1968) NWLR 92 and Wulgo v. Bukar (1993) 3 NWLR (Pt. 596) 539.I have no cause whatsoever to interfere with the decision of the trial court.
In the result, I see no merit in the appeal and I hereby dismiss it. The appellants shall pay costs of N5, 000.00 to the respondents.
Other Citations: (2000)LCN/0831(CA)