Oyibo Iriri & Ors Vs Eseroraye Erhurhobare & Anor (1991)

LawGlobal-Hub Lead Judgment Report

O. OLATAWURA, J.S.C. 

This appeal arose out of two consolidated suits which were separately instituted by both parties in Sapele Judicial Division of the Bendel State High Court. The appellants were the defendants in the first suit filed by the respondents, whilst the respondents were the defendants in the second suit instituted by the appellants.

The issue at stake is the ownership of a parcel of land called by different names, a practice not unusual in land matters. The suit by the present respondents: S/34/69 against the present appellants was filed on 25/11/69. The other suit S/2/71 was filed by the present appellants. Both suits were later consolidated. The present respondents were plaintiffs whilst the present appellants were defendants in the court of trial In their amended statement of claim, the plaintiffs claimed against the defendants as follows:

“As against all the defendants

(1) A declaration of Title to that parcel of land at Mereje sub-clan Okpe Western Urhobo known as Okpirien or Okinokwa land lying between Ovbivbi stream and Ore Stream along Sapele Warri Road in an area edged yellow in plaintiffs’ plan No. AR.1005 filed in this suit.

(2) The sum of N500 being general damages for trespass when the defendants entered on a portion of the land without the plaintiffs’ permission to disturb the plaintiffs in their use of the land in November, 1969.

(3) Injunction to restrain the defendants and their agents from further acts of trespass on the land.

As against the 5th Defendant only

(4) An order of forfeiture against the 5th defendant only in respect of that portion of the said Okpirien land edged black in plaintiffs’ plan adjacent to the area edged green in the plan in which is inscribed the words “Trinity College Okwidiemo Grammar School for Boys” or the payment of rent in lieu of forfeiture.”

Pleadings were ordered and delivered. The facts relied upon by the plaintiffs in the court of trial were that the plaintiffs’ ancestor was one Enaide. The action was filed in a representative capacity on behalf of Enaide Family of Mereje. The land in dispute is situate on the left side of Sapele/Warri Road after Adeje and is part of Mereje land. The defendants who are of Idiemo Family are members of Erhuohwo family of Ugolo, Okpe.

The original home of the parties is Ororokpe. It was founded by four brothers: Orhue, Evrike, Esezi and Orhua. It was during the reign of the first Esezi and after his assassination that people fled into all directions. This assassination led to an upheaval, and consequently a one-time community became small settlements around the original settlement. Both Udegbeme and Odorume from Orhue Quarter founded Mereje Village. Their descendants founded other settlements within the virgin forests in Mereje Village. Enaide who was the son of Udugbeme founded a place called Okwuvo and he later cleared the land in dispute called Okpirien land. The land was blessed with palm trees hence Enaide and his people collected a lot of palm fruits. The place is also called Okinokwa. Enaide family exercised maximum acts of ownership over the land in dispute: built farm huts on the land and fished in the streams and ponds. Apart from fishing, they also hunted on the land. There were also economic trees and cash crops like rubber and cocoa.

The cause of the dispute was the challenge to their title by the defendants (1-4) who claimed the land in dispute as the property of Idiemo family. It is the version of the plaintiffs that Idiemo came from Ugolo. He collected palm fruits on the land but paid tribute in the form of palm oil. The 5th defendant applied to be joined and was joined by the court as a 5th defendant on 3/4/70. The 5th defendant is related to both parties. The 5th defendant approached the plaintiffs’ family for a piece of land on which to build a school. His request was granted but subject to the payment of rent after the school could have been well-established. He built the school, Trinity College but later turned round to disown the plaintiffs and switched over to the defendants to enter into a private arrangement about the ownership and title of the plaintiffs, hence the claim for forfeiture against him.

The defendants’ case (i.e. the 1st-4th defendants) was that the plaintiffs are not Okpe citizens. They denied that Enaide, the plaintiffs ancestor was one of Orhue’s descendants who fled Ororokpe after the upheaval following the assassination of Esezi. It was their case that Udugbome was not the father of Enaide and Enaide did not found any village in Okpe. He was, according to the defendants, a slave to one Okokor the daughter of Okpo who was the defendants’ ancestor. Enaide grew up and later got married to one of Okpo’s slaves, it was that union that led to the birth of “Idiemo.” This Idiemo was not the same Idiemo who was the defendants’ grandfather. The plaintiffs Idiemo was, according to the defendants, called Idiemo-Enaide. It was the defendants’ ancestor who settled the plaintiffs’ ancestor in Okuwo. This Okuwo is beyond Ovwivwi stream, which is the boundary of Emereje clan and Ugolo clan.

The defendants denied that the land in dispute is called Okpirien or Okinokwa but that the land called Okpirien had been litigated upon in an earlier suit S/6/68 and that it was in that suit that the plaintiffs’ counsel acknowledged this fact. The Solicitor’s letter was admitted in the course of the proceedings as Exhibit K.

With regard to the village called Iginene, the defendants’ evidence was that the village can still be traced on the land in dispute and that it was founded by a descendant of Okpo, the defendants’ ancestor. The defendants maintained that the land on which the 5th defendant built his school – Trinity College – was granted to the 5th defendant by ldiemo people who are the owners of the parcel of land.

The defendants also executed various acts of ownership farming and fishing.

Although the 5th defendant did not file a separate Statement of Defence, his fortune in the case is tied to the outcome of the case if in favour of the defendants. He gave evidence, he denied the title of the plaintiffs. He admitted that the land belongs to the defendants from whom he took a conveyance. He admitted building the Trinity College on the land in dispute, although that school was dosed, down as at the time the case was being tried. He also confirmed that the land is not called Okpirien.

After the conclusion of evidence both Counsel addressed the court. After a painstaking review of the evidence and considerations of the submissions made, the learned trial Judge Akpovi, J. (as he then was) dismissed the defendants’ claims in suit No.S.2/71 and gave judgment for the plaintiffs in respect of THEIR CLAIMS IN SUIT No.S./34/69. The land granted to 5th defendant on which the Trinity College was built was also forfeited, but the learned trial Judge gave him the opportunity “to negotiate a settlement with the plaintiffs as to a new tenancy.”

The defendants appealed against that decision to the Court of Appeal.

In a unanimous decision, Coram, Eboh, Musdapher and Ajose-Adeogun, JJ.C.A., the appeal was dismissed. A further Notice of Appeal to this court was filed by the Appellants.

The following grounds of appeal filed against the judgment of the lower court read as follow:

“(i) The Court of Appeal erred in law and on the facts in failing to uphold the submission that the traditional evidence given by the two parties is inconclusive and the case can only properly be determined by reference to recent acts of ownership and possession within living memory.

(ii) The Court of Appeal erred in law and on the facts in failing to give due weight and consideration to various acts of ownership and possession put forward by the Appellants herein in support of their case.

Particulars

(a) evidence of selling or leasing of the land in dispute by the Appellants;

(b) a portion of the land in dispute was leased to the 5th appellant by the appellants and he exercised acts of possession thereon;

(c) various other acts of possession put forward by the appellant.

(iii) The Court of Appeal erred in law and on the facts failing to attach any probative value to the admission contained in Exhibit K

(iv) The Court of Appeal erred in law and on the facts in giving no consideration or no adequate consideration to the evidence relating to acts of possession (by the appellants) of land adjacent to the land in dispute.”

Briefs were filed by both parties. In the appellants’ brief the following issues were raised by the appellants:

“(i) Whether the learned justices of the Court of Appeal were right in affirming the decision of the learned trial Judge to reject the traditional evidence of the appellants

(ii) Whether the learned justices of the Court of Appeal were right in failing to hold that the learned trial Judge did not consider properly and/or at all the evidence of acts of possession given by the appellants

(iii) Whether the learned justices of the Court of Appeal were right in failing to hold that the learned trial Judge did not consider properly and/or at all the evidence of ownership of surrounding parcels of land given by the appellants and

(iv) Whether Exhibit ‘K’ was not an admission to which some probative value ought to have been given”

Whereas the respondents have formulated the following issues:

“(i) Whether the Court of Appeal was right in affirming the findings of fact which the lower court arrived at after a careful examination and appraisal of the evidence before the court.

(ii) Whether the Court of Appeal was right in confirming the view of the trial court that Exhibit ‘K’ does not constitute any admission by the respondents on which the appellants can rely as admission against the interest of the respondents.

(iii) Whether any act or acts of possession enjoyed by a customary tenant as in this suit with leave of the owner or founder of the land in dispute can defeat the claim for a declaration of title to the land by the true owner or founder of the land in dispute.”

In his oral submission in amplification of the appellants’ brief, Mr. Sofunde, S.A.N., the learned counsel for the appellants after adopting his brief referred to Issue No. 1. The learned Senior Advocate drew our attention to specific passages in the judgment of the trial court and pointed out why the trial court rejected the defendants’ evidence: Conflicts in the evidence of the defendants, that it was impossible to have deforested the entire area including four villages and that the question of Enaide being a slave is bizarre and hard to accept. Learned Senior Advocate then submitted that the learned trial Judge did not pin-point the conflicts; learned Senior Advocate then pointed to the passage where the Court of Appeal considered the area of conflict but concluded that the trial court came to the right decision.

On issues II and III, learned Counsel referred to paragraph 4-1 of this brief on the issue of extinct village of Iginene, and drew our attention to Exhibits C and D i.e. the parties plans. Exhibit D was drawn by the Survey Department in 1959. He pointed of that the extinct village is part of the land in dispute.

With regard to the evidence of possession and ownership, he referred to the evidence on the exercise of ownership; farming etc. Also, there was evidence that the 4th defendant lives on the land in dispute, but that the learned trial Judge did not evaluate the evidence. He referred to p. 170 line 16 to page 179 line 9. Learned Counsel then submitted that the Court of Appeal failed to deal with specific issues relating to acts of possession. He asked for a retrial if the Court accepts his submissions.

On the 4th issue which deals with Exhibit K, learned counsel then pointed to what he considered to be an admission on part of the respondents that the land does not go beyond Ovbiubi stream. He finally urged that the appeal be allowed.

In his own reply Chief Ororho the learned counsel for the respondents adopted and relied on the respondents’ brief. He also referred to the issues already set out above and pointed out that the action was defended in a representative capacity.

On the acts of possession, learned counsel submitted that the trial court was right in believing the evidence of the respondents, he also pointed out where the Court of Appeal considered the issue.

On Exhibit K, learned counsel submitted that the appellants tendered Exhibit K so as to confuse issue as Exhibit K was in respect of a different piece of land and that the Court of Appeal considered the findings and came to the conclusion that these findings of fact were justified. These, learned Counsel submitted are concurrent findings of fact and that the issue of retrial does not arise.

He finally urged that the appeal be dismissed.

I will now consider the written and oral submission of the learned Senior Advocate on issue No. 1. One must, in considering the evidence on which the learned trial Judge relied upon in finding in favour of plaintiffs, bear in mind that the first three witnesses who gave evidence (see pages 98-106 of the record of appeal) were not cross-examined due to the absence of the defendants and their counsel in court. Their evidence was vital. Where the evidence of a witness is not inadmissible in law, uncontradicted and unchallenged, a court of law can act on it and accept it as a true version of the case it seeks to support. The first plaintiff Eseroraye Erhurhobare in his evidence said:

“The Idiemo family (i.e. the defendants) came and settled on the land as tenants who paid rent in palm oil but they later refused to pay. Their family paid a kast (sic) of oil per year. One Eradavwe was the first tenant…

I know Benedict Onokpasa. He approached my family to get a piece of land to build a Grammar School. I gave it to him to use it as a school and not to plant economic crops or trees. ONOKPASA is related to me on my maternal side.”

The second plaintiff – Damugolo Erhakpotobor said inter alia:

“I know Idiemor…

…He collected palm fruits and paid tribute to Enaide family as they crossed over from Egboma village to our land. They paid a cask of oil yearly…

I know Benedict Onokpasa. Paternally he comes of (sic) Idiemor family. Sometime ago he came to our family to ask for land for a school…

We gave him the land for a school on condition that after the school had become grant-aided, he should agree with us the annual rental…

I have cassava, coconut trees, rubber plantations and other cash crop on the land. I showed them to the surveyor.”

Although the learned trial Judge did not refer specifically to these three witnesses who gave evidence the totality of his findings about the ownership and possession of the land, exercise of acts of ownership on their part is summarized thus:

“I am satisfied that the plaintiffs have always occupied the land by collecting palm fruits and farming on it and so own several fish ponds, palm oil troughs, old camps, economic and cash crops including the P.W.D. Camp which they had given to late Otemewo.”

There is ample justification for the findings of the learned trial Judge. These findings were confirmed by the Court of Appeal. It has been the consistent practice of this court not to disturb concurrent findings of fact once they are not perverse and are based on the evidence before the trial court: Obi I. Ezewani v. Obi Onwordi (1986) 4 NWLR (Pt.33) 27; Nigerian Bottling Co. Ltd. v. Constance O. Ngonadi (1985) 5 S.C. 317.319; (1985) 1 NWLR (Pt. 4) 739; Ogbechie v. Onochie (1988) 1 NWLR (Pt.70) 370/390.

I now come to the traditional evidence accepted by the trial court. The learned Senior Advocate has drawn attention to a portion of the judgment where the learned trial Judge preferred the traditional evidence given by the respondents to the traditional evidence given by the appellants, and that these findings were confirmed by the Court of AppeaL However, the learned Senior Advocate cited Agedegudu v. Ajenifuja and Ors. (1963) 1 All NLR 109/115; [1963] 1 SCNLR 205 for his submission that the learned trial Judge cannot “accredit and discredit witnesses as to traditional history but should test the competing stories by recourse to recent acts of ownership and possession.” It was further submitted that the Court of Appeal should have corrected the error the learned trial Judge fell into by taking that course. With respect to the learned Senior Advocate, the case of Agedegudu v. E Ajenifuja & Ors. (supra) is different from the facts and findings made by the trial Judge in this case. In Agedegudu’s case the learned trial Judge ran into difficulty about which story is worthy of credence and confessed his inability to know which side to believe, he then said:

“The evidence as to the traditional history of the land is confusing and I am unable to arrive at any definite conclusion as to what really took place. The plaintiffs claim that their family came from Ife and not from Igbesa and the Revd. Ogundipe gave a truthful account of the family history as it has been handed down. The truth probably lies somewhere between both accounts.”

It appears to me that the learned trial Judge ran into difficulty of knowing which side to rely upon, and it is for that reason that where a Judge in such a situation finds himself at cross-roads with regard to traditional history, it is better to test the competing stories by recourse to recent acts of possession. That is not the position in this appeal before us. The Judge had no difficulty in finding for the respondents. The learned trial Judge said:

“I accept the evidence of the plaintiffs that when their remote ancestor left Orerokpe, he settled in Mereje whence they branched off to found Okwovo where they lived and deforested the land now in dispute. I am satisfied that the proper name of the land is Okpirien or Okpirie and not Otebe”

This to my mind is a definite and clear finding of fact on the traditional history. The finding is also borne out by the pleading and evidence led in support. Paragraph 5 of the Amended Statement of Claim reads:

“5. “Enaide, the son of Udugbeme after the death of Udugbeme moved from Mereje Village to found the place now known as Okwuvo in Mereje sub-clan in Okpe and later cleared the land in dispute known as Okpirien land of its virgin forest, and farmed on it with his family. As the main occupation of Enaide and the male members of his family was the collection of palm fruits, the entire area now in dispute was named Okpirien land because of the abundance of fruitful palm trees on the land. The area is also called Okinokwa land because of Okinokwa stream which flows into the land.”

To give a clear picture of the traditional history put forward by the appellants i.e. the defendants, the learned trial Judge had no hesitation in rejecting their evidence. He found thus:

“I reject the conflicting evidence of the defendants and their witnesses that Okpe (sic) founded the whole area including the land in dispute. It must be well nigh impossible for a man in his life time to have deforested the entire area including the nine villages, I am satisfied that Idiemo is a descendant of Okpo and he settled in the village that now bears his name, which is outside the land in dispute. I do not find it necessary to make a finding on the point whether he met Egboma there or not as this is not relevant to the present case. That will be touching on land not here put in dispute. I am also satisfied that Idiemo family founded no settlement and owned or occupied no land beyond Idide or Okinokwa stream. Those of them who crossed that stream did so to collect palm fruits and did so with the permission and payment attribute in the past until the incident that resulted in the scuffle that ended one of their men’s life called Oga.”

The Court of Appeal was right in the conclusion reached in the lead judgment of Ajose-Adeogun, J.C.A., when he said:

“After a most anxious and careful consideration of all the arguments from both sides, I am fully satisfied that apart from the justified acceptance of the traditional evidence of the respondents in preference to that of the appellants, there are ample materials from the available evidence which could also justify the findings of the learned trial Judge on the issues relating to the acts of possession set up by either of them. These findings of facts in favour of the respondents, not being perverse but based on reasonable acceptable evidence, cannot be lightly set aside by this court.”

I agree with the submission of Chief Ororho in the respondents’ brief where he said:

“This preference (i.e. on traditional history) is based not only on the traditional evidence of the respondents but also on the acts of possession testified to by the respondents.”

Since the appellants have admitted that there were two concurrent findings of fact and have not shown that these findings were perverse, I will answer the question on the first issue by saying that the Court of Appeal was right in affirming the decision of the learned trial court on traditional evidence.

With regard to issues II and III which were argued together, I will deal first with Iginene village. The learned Senior Advocate has referred to the two plans Exhibit C and D. In Exhibit C, the ruins of the village were shown. The conclusions of the learned trial Judge on this village were high-lighted in the Appellants’ brief. The fact that part of the village was awarded to Awenuvie family appears to me that the appellant has lost title to that half. There is nothing on record that the judgment on that issue has been challenged. Learned counsel fell far short of revealing why the learned trial Judge did not accept the story put forward on Iginene. While it is true that features on a disputed piece of land must be shown on a plan of the land in dispute, it is not enough to draw the plan showing the features without giving credible or convincing evidence linking the ownership of the disputed land with the features. In other words, to show the feature on the plan is one thing, but to lead credible and convincing evidence about the ownership is another. It is the totality of the evidence led on this issue that led the trial Judge to conclude thus:

“How much of the ruins and economic trees of the camp remains on the left side of the road which is the land now in dispute, is not made clear. The 5th defence witness who says she was born there in the village but lives at Okwidiemo, an area completely outside the land in dispute has not told a convincing story. She says her father Iginene belongs to Effurun, his paternal side but lived in the camp apparently by virtue of his maternal relationship to Idiemo. I have my doubts if Iginene came to the site as of right or because of his relationship to the Idiemo family. More particularly, I am not satisfied that the ruins of the old camp whose extent is not clearly shown do fall within the land now in dispute.”

It is the duty of the trial Judge to evaluate the evidence and to make primary findings of fact. This duty, unless it is shown not to have been done according to well laid down principles of law, an appeal court cannot interfere with such findings: Ibanga v. Usanga (1982) 5 S.C. 103; Kuforiji v. V. Y.B. Ltd. (1981) 6-7 S.C. 40; Akpapuna v. Nzeka II (1983) 2 SCNLR 1:

The onus to show that those findings are not based on the proper evaluation of evidence is on the party who sets out to challenge them. This has not been done in this case.

An appeal court deals with complaints of the appellant against the judgment. Where an issue has not been raised by the appellant, it is not the business of the Appeal Court to formulate an issue unrelated to the issues raised in the appeal for itself. Adeniji & Ors. v. Tawa Adeniji Mrs. (1972) 1 All N.L.R. (Pt.1) 298; Oke-Bola & Ors. v. Molake (1975) 12 S.C. 61; Veronica Graham & Ors. v. Lawrence Esumai & Ors. (1984) 11 S.C. 123.

If however the court decides to raise an issue arising from the case but not raised by the parties the court must call on the parties to address the court. The issue of Iginene village has been laid to rest, when the learned trial Judge concluded that it was not clearly shown to fall within the land in dispute. This in effect is direct opposition to the pleading in paragraph 7 of the Amended Statement of Defence and the evidence led in support. The Court of Appeal was right to have confirmed the finding of the trial court.

I regret to say that there is too much generalisation in the Appellants’ brief concerning the duty of the Court of Appeal. Where the trial court has made specific findings of fact supported by the evidence, it is not the duty of the Court of Appeal to recapitulate such findings once the Court of Appeal is satisfied that the findings were based on the evidence. The best guide to the findings of fact in so far the appeal court is concerned, together with the inferences that can be drawn, or refusal of the Court of Appeal to substitute its own views for those of the trial court can be found in the case of Chief Ebba v. Chief Ogodo &Anor. (1984) 1 S.C. N.L.R. 372. This case was relied upon by the lower court. A careful reading of this case will reveal that nearly all the authorities on the findings of fact were carefully reviewed. I find nothing wrong in the approach of the Court of Appeal. It is a misconception of the facts, the law and the role of the Court of Appeal to come to the conclusion that on the authority of Olubode and Others v. Salami (1985) 2 N.W L.R. (Pt. 7) 282/288 that the lower Court has abdicated its role.

I now come to the last issue which deals with Exhibit K. Learned Senior Advocate has submitted that the most important fact in this exhibit is that the respondents had admitted that Ovbivbi stream is the boundary between the two of them. It is the contention of the appellants also that “whoever owns the land beyond the stream, is irrelevant to the admission that the respondents’ land does not extend beyond the stream.” Any natural boundary between two pieces or parcels of land ought to be so indicated on a plan of the land in dispute that, prima facie, it represents the boundary. True it is, Ovbivbi stream is shown in the plans. What did the Judge say about it. The learned trial Judge’s finding has been quoted in the appellants’ brief, the kernel of his finding on that issue has not been challenged as being inaccurate or not supported by evidence. The learned Judge said inter alia:

“If, I accept that Okwirie land which is separated from the land of the plaintiffs by Ovwivwi (sic) stream belongs to the defendants or that they have a common boundary in that area, I will be speculating as there is no evidence on that point.”

It is now the duty of the appellants not only to show that there was evidence before the trial court, but that in truth and in fact that stream is the boundary. It would appear that since the appellants failed to show positively and decisively, the importance of the stream to their case they now want to rely on Exhibit K as having established it.

The respondents in their brief when dealing with Exhibit K submitted thus:

“This document is not relevant to the case in hand as the area referred to in this letter was not shown in any of the plans. There is nothing in the letter which can be interpreted to show that the respondents conceded any area of the land in dispute to the appellants.”

(Italics supplied for emphasis).

I think this is an area in which the appellant should have filed a reply. If the land in S/6/68 falls within the land in dispute, one can then see the relevance of Exhibit K in this matter.

I think the lower court has come to a correct decision on Exhibit K when it said (per Ajose-Adeogun. J.C.A.)

“It is apparent that the trial Judge actually considered the letter Exhibit “K” (marked “Without Prejudice”). His final conclusion that it would be merely speculative to accept the purport of the said letter would appear to be correct since there was no evidence that Okwirie land belonged to the appellants.”

I now come to the case of the 5th appellant who has forfeited his holding. The learned trial Judge having held that the land on which the School Trinity College – was built was granted to the 5th Appellant by the respondents and since the 5th Appellant denied their title, the Judge was right to have granted the claim for forfeiture:

Asani Taiwo & Ors. v. Akinwunmi & Ors. (1975) 4 S.C. 143; M. Onolaire & Ors. v. Onakpasa & Anor. (1984) 12 S.C. 19.

On the whole there has heen no effective challenge to the findings of fact made by the trial court and confirmed by the Court of Appeal. The appeal is hereby dismissed with costs assessed at N500.00 in favour of the appellants.

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Other Citation: (1991) LCN/2472(SC)