Otokhagua Ozibe & Ors V. Chief Ile Aigbe & Ors (1977)
LawGlobal-Hub Lead Judgment Report
O. OBASEKI, J.S.C.
This appeal is against the judgment of Akpovi, J., delivered in the High Court of Mid-Western State (now High Court of Bendel State) sitting at Ubiaja on the 12th day of October, 1975.
Before that court, the plaintiffs who are respondents in this appeal claimed:
(a) Declaration of title to that piece or parcel of farmland lying and situate at Ikeken bush in Ewohimi which is particularly described and delineated (and edged) PINK in Survey Plan No. WE1942 filed by the plaintiffs along with their statement of claim;
(b) Perpetual Injunction restraining the defendants servants, agents or privies from entering the said land or doing anything on the land inconsistent with the plaintiffs’ right of ownership;
(c) Five hundred Naira damages for trespass.
The defendants who are appellants herein filed a counter-claim wherein they claimed against the plaintiffs:
(a) A declaration of title to the parcels of land verged green and pink in both Plan Nos. WE494, and AR.1228 filed in these proceedings;
(b) Perpetual injunction restraining the plaintiffs, their privies, servants or agents from entering the said land and from committing wanton destruction of the defendants’ economic crops on the said land or doing anything at all on the said land which is inconsistent with the defendants’ rights of ownership;
(c) One thousand Naira damages for trespass.
Pleadings were ordered and duly filed and exchanged by the parties and at the close of the pleadings, the case was set down for hearing and heard. The Statement of Claim consists of 15 short paragraphs and reads as follows:
“1. The Plaintiffs are natives of Ikeken Quarters in Ewohimi and reside there. They bring this action for themselves and on behalf of the people of Ikeken Quarters of Ewohimi.
2. The defendants are natives of Idumu-Agbor Quarters of Ewatto and reside there. They defend this action for themselves and on behalf of the people of Idumu-Agbor quarters.
3. The piece of land in dispute in respect of which this action is brought situates at a place generally called and known as Odi-Iwe Ikeken, which in English means Farmland of Ikeken, and the said land is edged ‘Pink’ in Survey Plan No. WE. 1942 which is filed along with this amended Statement of Claim.
4. The land in dispute constitutes a small portion of the plaintiffs’ farmland generally known and called Odi-Iwe Ikeken, verged ‘Green’ in the said Plan No. WE.1942.
5. The whole land verged ‘Green’ together with the land in dispute is a communal land belonging to people of Ikeken and it was first de-aforested at a time beyond human memory by the plaintiffs’ ancestors.
6. The plaintiffs who are direct descendants of Ikepiden the first settler on the land, have over the generations consistently maintained positive acts of ownership, cultivated and exercised all other acts of ownership over this without let or hindrance from anyone whatsoever. The plaintiffs have rubber plantations in some portions of the land in dispute and the Iyantube juju which is owned and worshipped by the plaintiffs is beyond the land in dispute.
7. Because of the incidents of shifting cultivation the plaintiffs’ land in the area in dispute became less fertile and the plaintiffs in keeping with good farmland decided to give the said area of farmland a rest.
8. About 10 years ago, the defendants who are not natives of Ewohimi and who had never been on the land approached the Chief of Ikeken to allow them to farm and plant annual crops on the land in dispute.
9. The plaintiffs permitted the defendants to farm on un-occupied portions of the land in dispute, but with the firm condition that the permission was on a year to year basis and they were not to plant economic crops on the said land.
10. Thereafter the defendants renewed the permission every year with the customary tributes of yams, palm wine and kolanuts until about 5 years ago when the plaintiffs refused to renew the said permission.
11. The defendants procured the Onogie of Ewohimi to intercede for them, and upon this intercession the plaintiffs again allowed the defendants to farm on the land in dispute, but with the condition that the permission was for that year only and to this condition the defendants agreed.
12. To the utter surprise and indignation of the plaintiffs the defendants quite contrary to their undertaking and in violation of the plaintiffs rights began to plant permanent crops on the said land in dispute, and which land the plaintiffs claim has always been in their possession.
13. Following the expiration of the defendants’ authorised use of the land in dispute and their unwarranted acts of interference with the residual rights of the plaintiffs the plaintiffs, asked the defendants to leave the land in dispute.
14. The defendants have persisted in their perverseness and remained obdurate in continuing to cultivate the land in dispute.
15. Whereof the plaintiffs’ claim against the defendants as follows:
(a) A declaration of title to that piece of farmland lying and situate at Ikeken bush in Ewohimi which is particularly described and delineated ‘PINK’ in Survey Plan No. WE1942 which is filed by the plaintiffs in this action;
(b) Perpetual injunction restraining the defendants, servants, agents or privies from entering the said land or doing anything on the land inconsistent with the plaintiffs’ acts of ownership”.
The Statement of Defence and counter-claim delivered in reply consists of 9 short paragraphs and read as follows:
“1. Except as herein expressly admitted, the defendants deny each and every allegation of fact contained in the plaintiffs’ Statement of Claim as if each and every such allegation were separately taken up and specifically denied seriatim.
2. Paragraphs 1 and 2 of the Plaintiffs Statement of Claim are true.
3. As regards paragraph 3 of the Plaintiffs’ Statement of Claim it is not true that the piece of land in dispute edged PINK in Plan No. WE494 is the farmland of Ikeken. The land in dispute is situate and lying within part of Idumu Agbor Quarters farmland in Ewatto and is verged PINK in Plan No. AR.1228 which is filed along with this Statement of defence and called OIIGBAN which when interpreted into English language means “sticky soil,” and the said land historically derived this name from the fact that when cultivated yams were being dug from the land during harvest, the soil of the land often stuck firmly to the yam tubers and so difficult to be removed from the soil.
4. As regards para.4 of the plaintiffs’ Statement of Claim the portion of the land verged “GREEN” in plaintiffs’ Plan No. WE 494 constitutes part of the defendants’ land which is NOT the land in dispute between the plaintiffs and the defendants but the actual land in dispute is the land verged PINK in the defendants’ Plan No. AR.1228.
5. In answer to para. 5 of the plaintiffs’ Statement of Claim both the land verged GREEN in the Plan No. WE.494 and the land in dispute verged PINK in Plan No. AR.1228 are part and parcel of land communally owned by the defendants and their people of Idumu-Agbor Quarters in Ewatto and was deforested and possessed by the defendants, ancestors from a time beyond human memory from whom the defendants and their people of Idumu-Agbor Quarters in Ewatto inherited the land and continuously possessed and maintained acts of ownership from time immemorial.
6. With regard to para.6 of the plaintiffs’ Statement of Claim both the portion of land verged “GREEN and PINK” in Plan Nos. WE.494 and AR.1228 respectively have been owned by the defendants and their people of Idumu-Agbor Quarters in Ewatto who from the time of their ancestors possessed and maintained various acts of ownership over the land and planted in parts of the land different types of economic crops such as rubber, pea, kolanut, duca-nut and many others which they have long been enjoying without let or hindrance whatsoever. In particular the defendants own and worship from time immemorial, two of their jujus known and called separately IYIANTUBE and ULUBI both of which are generally worshipped together by the defendants and their people of Idumu-Agbor Quarters of Ewatto.
7. As regards paragraphs 7, 8, and 9 of the plaintiffs’ Statement of Claim the defendants deny each and every one and require strict proof of the facts contained therein but with the qualification that the defendants and their people have at all times continued in possession and use of the land verged GREEN and PINK in both Plan Nos. WE. 494 and AR. 1228.
8. In answer to para.11 of the Statement of Claim, it is not true that the defendants made any approach by themselves or agents to the Onogie of Ewohimi for the purpose of reconciliation of the land in dispute and the plaintiffs are put to the strictest proof of the allegation of the facts contained therein.
9. Paragraphs 11, 12, 13 and 14 of the plaintiffs’ Statement of Claim are false and the defendants require strict proof of the allegation of facts contained therein.
The defendants repeat paragraphs 1, 2, 3, 4, 5, 6, 7, 8 and 9 of the Statement of Defence filed in these proceedings wherefore the defendants claim:
(i) Declaration of title to the parcels of land verged “GREEN and PINK” in both Plan Nos. WE 494 and AR. 1228 filed in these proceedings;
(ii) Perpetual Injunction restraining the plaintiffs, their privies, servants or agents from entering the said land and from committing wanton destruction of the defendants’ economic crops on the said land or doing anything at all on the said land which is inconsistent with the defendants’ rights of ownership”.
We observe that the defendants joined issue with the plaintiffs on every material allegation of fact in their pleadings. These issues raised in the pleadings were tried. At the hearing, both sides adduced evidence through their witnesses. The 2nd and 3rd plaintiffs and 4 other witnesses gave evidence in support of the claim by the plaintiffs. The 1st defendant, 4th defendant and 4 other witnesses testified for the defence. At the close of the evidence, counsel for the parties addressed the court and the court adjourned for judgment. We must point out that the trial lasted 7 days. It was commenced on the 14th day of October, 1974 but due to repeated adjournments at the request of Counsel, it did not end till the 2nd day of November, 1975. Thereafter, on the date fixed for judgment, the learned trial Judge delivered a short judgment in which he dismissed the counter-claim and allowed plaintiffs’ claim.
The judgment reads:
“The Plaintiffs belong to Ikeken Quarters of Ewohimi Clan whilst the Defendants come from Idumu-Agbor Quarters of Ewatto. Both Clans are neighbours. The inhabitants of both Quarters are farmers.
The case of the plaintiffs is that some ten years ago the defendants crossed over to meet them in Ikeken and pleaded to be permitted to farm on their own side of the land. The elders met and allowed them. They farmed on the land on yearly basis when they had their licence renewed by payment of tribute. About five years later they refused to pay the tribute in yams, palm wine, and kolanuts so they refused to renew their permission. The defendants procured the Onogie of Ewohimi to intercede, when the elders agreed to renew the permission on condition that the defendants were to farm there that year only. Plaintiffs later discovered that the defendants had planted permanent crops in complete disregard of the understanding to plant annual crops only. At the end of the agreed term of one year, plaintiffs asked the defendants to leave the land but refused and continued to cultivate the land in dispute and destroyed pear trees.
The plaintiffs own the land by the customary right of being the first to deforest the virgin bush and occupied it for farming. By the system of shifting cultivation, they moved from one part to another annually to make a fresh farm.
The defendants have counter-claimed and put in dispute a portion of the land less than what the plaintiffs put in dispute and claimed all the land around as theirs with common boundary to the plaintiffs’ land outside the disputed area. According to them, they deforested the land and occupied it. They have indicated several permanent crops as belonging to them and showed an area where the plaintiffs trespassed into the land and farmed thereon. After observing the witness in the witness box, I have come to the inescapable conclusion on the evidence on the balance of probability, that the story told by the plaintiffs should be accepted as against that put out by the defendants. I am particularly impressed by the story of Chief Usifo, the Onogie of Ewohimi who had interceded in the matter.
I accordingly find for the plaintiffs virtually according to their amended writ thus:
(a) Declaration of Title
(b) Perpetual Injunction
(c) N100.00 damages for trespass
Accordingly, I find no merit in the counter-claim and hereby dismiss it”.
The judgment delivered did not cover more than one and a half page and this brevity has been a major complaint in this appeal. The main argument being that the learned trial Judge
(i) did not give a fair summary of the cases presented by the parties;
(ii) did not summarise the evidence and make findings of fact on the various issues raised in the pleadings; and
(iii) did not relate the declaration granted to the evidence and plan.
The compass of the complaint widened to include the existence of irreconcilable conflicting evidence wrapt up by the clothing of belief by the learned trial Judge without any attempt at resolving the conflicts.
Finally, the complaint deepened into emptiness of the declaration granted as it was not tied to any plan.
The judgment found support neither from defendants’ counsel nor plaintiffs’ counsel.
Four grounds of appeal were filed against it. They read as follows:
(1) The judgment of the learned Judge was against the weight of evidence;
(2) The learned trial judge erred in law in failing to make a proper evaluation of the evidence of the defendants;
(3) The learned Judge was wrong to prefer the case of the plaintiffs to that of the defendants without stating reasons or facts;
(4) The learned Judge erred in law in giving judgment to the plaintiffs when plaintiffs failed to prove exclusive and sufficient acts of ownership over the land in dispute.
These four grounds of appeal were argued together by Chief F.R.A. Williams, the learned counsel for the appellants. He pointed out that the learned trial Judge totally failed to discharge his duty as judge and jury. He observed that there was no summing up and review of the evidence, that findings of facts were not made and that above all there was no proper evaluation of the evidence led. The learned counsel further observed, rightly in our view, that these omissions were not cured by the favourable impression the learned trial Judge expressed that he had of Chief Usifo, the plaintiffs’ 2nd witness, and his acceptance of the story told by the plaintiffs in preference to that put out by the defendants.
Chief Akere, the learned counsel for the respondents indicated his agreement with the observations of the learned counsel for the appellants and agreed that it would be in the interest of all parties to remit the case back to the High Court of the Bendel State for retrial before another judge.
We have, ourselves studied the record of proceedings in this matter and found ourselves in entire agreement with both counsel appearing before us in this appeal. Pleadings were ordered filed and duly delivered. Several issues were joined on the pleadings and a great deal of evidence both oral and documentary led before the learned trial Judge. The issues raised were not stated so as to engage the mind of the learned trial Judge to a review and an examination of the evidence on the issues and enable him to make specific findings of fact on them. Plans were tendered by both parties in support of their claim and counter-claim. Nowhere in the judgment was any reference made to them. Although judgment was entered in favour of the plaintiffs/respondents, the declaration was not tied to any plan.
The appeal therefore succeeds and the judgment of Akpovi, J., in Suit V/4/69 between Gabriel Ile Aigbe and 2 Ors and Otokhagua Ozibe and 4 Ors delivered on the 12th day of October, 1975 including the award of costs is hereby set aside and the case is remitted to the High Court of Bendel State holden at Ubiaja for retrial before another judge. There will be no order as to costs in this court. Costs in the court below is to abide the conclusion of the retrial.