Onuora Aseagba & Anor Vs Patrick Animonye Ofodile & Anor (1972)
LawGlobal-Hub Lead Judgment Report
SOWEMIMO, JSC
The respondents, who were plaintiffs in the Onitsha High Court in Suit No. C/84/57, sued the appellants, as defendants, claiming the following:-
(a) Declaration of title of ownership and possession of the piece or parcel of land known as and called AKWUEFE and more particularly delineated on a plan to file in court.
(b) £200 damages for trespass.
(c) Injunction to restrain the defendants, their servants and agents from going on the land in dispute and/or interfering in any manner whatsoever with the plaintiff’s rights of ownership and possession of the land in dispute. In their Statement of Claim, the Plaintiffs averred that the land in dispute, which they called “AKWUEFE’, is the portion verged PINK in plan No. PO 10/57 (tendered in evidence as Ex. 1) and that the portion of Akwuefe land which fell inside the Forest Reserve is edged BLUE on the plan; that the land in dispute had been that of plaintiffs from time beyond human memory, and occupation by them without let or hindrance from anybody, until 1950 when the defendants trespassed on it by farming on portion of the land which had been cleared by the plaintiffs.
That they exercised right as owners by letting out portions for farming to tenants some of whom are members of defendants’ family; that in further exercise of their rights as owners, the plaintiffs had instituted and defended cases in the Native Court in Onitsha, the proceedings of which were tendered in evidence as Exs. 3, 4, 5 and 6; and that not only did defendants, through their women folk trespassed on the land since 1950, but had threatened to continue to do so hence the present action. The defendants, on the other hand, in their amended statement of defence referred to the land in dispute as ‘OZALA ANWA’ and claimed ownership of it from time beyond human memory; that they have by themselves, or through tenants placed on the land by them, exercised rights of ownership; that the land called, AKWUEFE is contiguous to the land in dispute and was wholly in the area of the Forest Reserve; that the suits in the Onitsha Native Court Exs. 3, 4 and 5 did not concern the land in dispute; that ODELILI land belonged to the Plaintiffs but that it was never part of AKWUEFE and that it lay to the north of the land in dispute, which according to the defendants is not AKWUEFE. On the pleadings the triable issues resolved themselves into an inquiry and determination of the following:-
(1) What is the correct name of the land in dispute?
(2) In whom is the title vested?
(3) Who were the people in possession actually and especially immediately before the alleged trespass in 1950? The learned trial Judge reviewed the evidence before him as well as what he observed during the inspection of the different portions as claimed by either parties. He held, and quite rightly in our view, that after the Barton Inquiry, in or about 1935, which was pleaded by the defence, the defendants, that is Umudei people, made several representations to the authorities that a large portion of their land, especially the arable one had been included in the extension to the Forest Reserve, which meant that they would have to look out for arable land elsewhere as tenants. That definitely showed that their claim that it was the Plaintiffs’ land that had been taken up by the extension of the Forest Reserve is not true.
The learned trial Judge also considered the evidence about the boundaries as shown on Plaintiffs’ plan Ex. 1, and Defendants’ plan Ex. 2 and also the fact that on a visit to the land in dispute all the features as indicated on Plaintiffs’ plan and given in evidence were seen but the defendants were unable to show any of their own features. In view of this we can see no justification for the criticism of the findings of the learned trial Judge. The learned trial Judge had this to say about the land in dispute as described by either party:-
“One issue is clear; “Anwan” and “Akwuefe”, though contiguous, are not even for the purposes of this case, different names for the same portion of land, but one or the other of them is wholly within the Reserve and each party admits that some portion of their “Akwuefe” or “Anwan” land is partly within the reserve.” … Evidence is available that Akwuefe was inspected, no evidence has been made available that Anwan was inspected. A permit was issued to farm on Akwuefe, no evidence of any permit issued in respect of Anwan has been adduced (Exhibits 9 – 11). When representations are (were) made (about) these controls, no representations are (were) made in respect of Anwan (Exhibit 12). The object of the exercise was to compile a register of land, with a view to introducing controlled farming………………………………………………..” ……………………………………………………………………….
“The 1st Plaintiff gave evidence of the situation of the land in dispute, as shown in Exhibit 1, the most Southern point is Mile-Stone 2 from Onitsha, on the Onitsha-Nkwelle Road, and the most Northern point is dead orachi tree, the Eastern boundary is the main road up to pillar OCS 1075, the Northern boundary is motorable road, dividing the land in dispute from Odelili land. All these features as shown on the land were seen by me when I visited the land in dispute.”
These findings of the learned trial Judge were not challenged on appeal before us. Indeed there was ample evidence before the learned trial Judge which support the findings and coupled with this, is his personal observation of the features on the land in dispute which correspond with the boundary marks detailed in the Plaintiffs’ plan Ex. 1. The learned trial Judge also drew attention to acts of ownership – firstly, the sale of portion of Akwuefe land to Mba, a member of defendants’ family in 1927, (which land is referred to as Odelili) and secondly, the granting of right of quarrying for stones on portion of Akwuefe land to one Bosah, who also gave evidence. The learned trial Judge then reviewed the evidence led by the defendants in support of their case. He then set out his findings thus:-
“The defendants did not show me the boundary North of the Plaintiffs plan, indeed their behaviour in respect of showing me there (their) boundaries was to some extent confused and contradictory.” .
If “Akwuefe”, partly lies outside the Reserve, a good deal of the documents adduced in evidence by the defendants relating to land in the Reserve, loses some of its force, and does not tend to establish “little” (title) to the portion of land in dispute, indeed most telling against the defendants is their inability to establish satisfactorily “the boundaries claimed and I am being led to the view that the defendants applied the name “ANWAN” to “AKWUEFE” to defeat the Plaintiffs’ claim rather than it be the other way round.” (Underlining ours). In view of the above findings it is quite clear that apart from the fact that the Plaintiffs have by evidence clearly established their title to the land, the Defendants have, on the other hand failed to discharge the onus of proving that the land in dispute is known as Anwan land, or that the boundaries were as shown on their plan Ex. 2. It is therefore not unjustifiable, that the learned trial Judge gave judgment for declaration of title to the land “Akwuefe” in favour of the Plaintiffs. On the issue of trespass the learned trial Judge had this to say:-
“The defendants do not deny that they put women on the land in dispute but since these acts of farming were done, so they say, on their own Anwan land, they cannot amount to trespass.”
This defence was rejected because the learned trial Judge having found that the women actually trespassed on Akwuefe land, concluded his judgment thus:-
“A declaration of title and an injunction in respect of Akwuefe, the area verged pink but as shown in Exhibit 1 as lying outside the reserve. £100 damages for trespass.”
On appeal before us five grounds of appeal were argued.
“(i) MIS-DIRECTION:-
The learned trial Judge held as follows:-
“That in the Native Court suits, they have established title to the land in dispute or land adjoining the land in dispute as against the other sections of their quarter.”
And thereby misdirected himself as to the true effect of the native court suits to which the defendants were not parties and about which no definite finding of fact was made as to whether they referred to the land in dispute or not.” The learned trial Judge had held, and quite rightly in our view, that the land in dispute is known as Akwuefe and not Anwan land. In paragraph 4 of the Amended Statement of Defence, the defendants inter alia averred:-
“This Akwuefe land is completely within the Forest Reserve and was the land which was the subject matter of Onitsha Native Court Suits 182/1917, 71/34 and 87/34 as set out in paragraph 7 of the Statement of Claim.”
The learned trial Judge had found that the land in dispute is Akwuefe land and that therefore the cases are relevant since they all relate to Akwuefe land outside the Forest Reserve. He therefore held that cases established acts of ownership by Plaintiffs. This ground of appeal cannot therefore be sustained. Ground (ii) reads:-
(ii) MIS-DIRECTION
The learned trial Judge misdirected himself by holding as follows:-
“If “Akwuefe” partly lies outside the Reserve, a good deal of the documents adduced relating to land in the reserve loses some of its force and does not tend to establish title to the portion of land in dispute when he did not make any finding of fact “as to whether the aforementioned documents referred to the land now in dispute.”
A perusal of the documents referred to show that the cases deal with land in the Forest Reserve and the claims by the Defendants to certain rights therein. Since the learned trial Judge had found as a fact, that the land of the Plaintiffs known as Akwuefe lies outside the reserve, the documents tendered by the Defendants which relate to the land which they called (though they failed to prove it) Akwuefe and which land lies wholly in the Forest Reserve become irrelevant. It is quite unnecessary for a specific finding of fact to be made of the land covered by the documents vis-a-vis the land in dispute – Akwuefe – which lies outside the Forest Reserve; because the documents dealt with land within the reserve. This ground, in our view, is misconceived. Ground (iii) reads:-
“(iii) MIS-DIRECTION:-
The learned trial Judge has held as follows:-
“There is a statement said to have been made by an Okpala or Headman of Plaintiffs family tending to show that the whole of Akwuefe “lies within the Reserve.”
The land is reserve land, I remember some years ago when Chief Mba took me to the District Officer and permission was granted to allow Ibos to farm on the reserved land, I am the man taking rent for Akwuefe” – “I suppose putting the whole of Akwuefe in the Reserve was a mistake but I find it nevertheless exceedingly curious.” And therefore misdirected himself as to the true effect of the admission in relation to the plaintiffs’ claim.’ The learned trial Judge found as a fact that Akwuefe land in the suit before him is outside of the Forest Reserve. He therefore thought the purported admission could not be true. After all the person who was alleged to have made the admission was dead, and we do not know how his statement was introduced in evidence. In any case if Akwuefe was in the Government Forest Reserve, how does one relate the ‘admission’ that Ibo farmers pay rent to Akwuefe people as allegedly stated by the dead man. It was therefore open to the learned trial Judge to consider the evidence of that witness in the light of the facts in that case and therefore to have rightly held that it must have been a mistake to state that Akwuefe lies within the Forest Reserve.
This ground also fails.
Ground (iv) complains of: (iv) NON-DIRECTION:-
The learned trial Judge failed to direct his mind properly as to the onus of proof imposed by law on the plaintiffs in a case of declaration of title to land as evidenced in the following passage of his judgment:-
“It is stated in Ekpo vs. Ita XI NLR 68 at p. 69 that ‘In a claim for a declaration of title the onus is on the Plaintiff to prove acts of ownership extending over a sufficient length of time, numerous and positive enough to warrant the inference that the plaintiffs were exclusive owners- if the evidence of tradition is inconclusive, the case must rest on question of fact.”
“I am not prepared to agree to the proposition that apart from tradition, title can only be proved in the above manner” as by so holding, the learned trial Judge did not consider what the plaintiffs should prove and whether they proved them.”
The portion quoted must be read along with the portions before it and after. It would be seen that the learned trial Judge never disagreed with the principle set out in Ekpo vs. Ita (supra). He definitely considered that the Plaintiffs have to prove and in this regard we refer to this portion of his judgment which reads:-
“If Akwuefe” partly lies outside the Reserve, a good deal of the documents adduced in evidence by the defendants relating to land in the Reserve, loses some of its force, and does not tend to establish little (title) to the portion of land in dispute, indeed, most telling against the Defendants is their inability to establish satisfactorily the boundaries claimed and I am being led to the view that the Defendants applied the name “Anwan” to “Akwuefe” to defeat the Plaintiffs’ claim rather than it be the other way round.”
The issue of title can only be decided when the totality and preponderance of credible evidence is ascertained, it is not enough to apply minimum standards of proof, it must be established with a fair degree of probability, the weakness of the defence will not establish the Plaintiffs’ title but it may help with other evidence to strengthen his claim”. (Underlining ours). The argument on this ground lacks merit and therefore fails.
On ground V, which deals with weight of evidence, there was ample evidence led to support the findings of the learned trial Judge and the complaint on this ground cannot succeed. The appeal therefore fails and it is dismissed. The appellants will pay the costs of this appeal to the Respondents assessed at 50 guineas.
Other Citation: (1972) LCN/1405(SC)
