Samson Owie V. Solomon E. Ighiwi (2005)

LAWGLOBAL HUB Lead Judgment Report

ONU, J.S.C.

This appeal relates to a land dispute under Bini customary law measuring 200 feet by 500 feet and situate at Egba village along Benin/Abraka road.

By his further amended statement of claim dated 2nd June, 1992 and filed on 9th October, 1992, the plaintiff/respondent claimed as against the defendant/appellant in the defunct Bendel State High Court (per Agun,J.) sitting at Benin as follows:

1. A declaration that the plaintiff is entitled to customary right of occupancy in respect of the said piece or parcel of land measuring 9302.500sq. metres verged pink on survey plan number KP.139 dated 11th May, 1988.
2. N500.00 damages for trespass; and
3. An order of perpetual injunction restraining the defendant, his servants and/or agents from further trespass on the said piece or parcel of land.

The parties having filed and exchanged pleading following which the case thereafter went for trial before the learned trial Judge, Agun, J. delivered his reserved judgment on 24/6/94. In it, he held, inter alia, that the respondent’s case partially succeeded in that his claim for declaration of customary right of occupancy to the land in dispute was made out. In similar vein, the claim for perpetual injunction restraining the appellant, his servants and/or agents from further trespassing on the land was granted. However, the damages for trespass on the land was dismissed and the respondent was awarded N1,000 as costs. Dissatisfied with the said decision, the appellant appealed to the court below where he also lost. He has further appealed to this court on four grounds of appeal which, with leave of this court, he raised two issues for our determination, to wit:

1.Whether the Court of Appeal was right in holding as it did that the respondent led credible evidence in support of his case to justify the conclusion reached by the learned trial Judge.

2. Whether the respondent’s case was caught by the statute of limitation and/or laches and acquiescence.

The three issues distilled from the five grounds of appeal filed by the appellant may be summarized as follows:

1. Whether the Court of Appeal was justified in affirming the judgment of the trial court in holding that the respondent had proved his case having regard to sufficient credible evidence led in support of same (encompasses grounds 1,2,3 and 5).
2. Whether there are sufficient grounds to warrant the interference with the concurrent findings of facts by the lower court. (encompasses ground 1, 3, & 5 of grounds of appeal).
3. Whether the claim of the respondent was statute-barred. (encompasses ground 4).

In my consideration of this appeal, it is my view that the treatment of the appellant’s two issues which overlap the three issues proffered at the instance of the respondent would adequately dispose of it as follows:

Issue One

This issue enquires whether the Court of Appeal was justified in affirming the judgment of the trial court in holding that the respondent had proved his case having regard to sufficient credible evidence led in support of same. I agree with the respondent that the Court of Appeal was right when it held:

“Finally, I believe that the plaintiff led sufficient evidence in support of his case to justify the conclusion reached by the learned trial Judge.”

The appellant and the respondent both claimed title to the said land in dispute. Whereas it is the respondent’s submission that the learned trial Judge in considering who between the appellant and the respondent put up a better claim to title, made a thorough review of the evidence of the parties and their witnesses in the light of the prevailing Bini native law and custom in relation to land acquisition. I agree with the respondent’s submission that while he and the appellant gave evidence at the trial court in relation to each party’s root of title the trial court considered the evidence of each party. I agree with the respondent’s further submission that it was in the course of this that the parties gave evidence of the fact that bush inspectors inspected their respective land as claimed by each. Thus, the submission by the appellant that the respondent made reference to two bush inspectors while PW3 made reference to 4 of them is not material as the trial court found as a fact that there was indeed bush inspection as per the evidence advanced by the parties and I so hold.

Furthermore, the learned trial Judge after satisfying himself of the fact that there was actually bush inspection by bush inspectors as advanced by both parties, went further to properly evaluate the evidence relating to the root of title of the appellant and the respondent and the evidence led by the respondent was preferred. On the issue that it is only the Oba of Benin who can determine which of the plot allotment committees in the village is recognized, I agree with the respondent that there were two allotment committees in Egba village and that of the two, only the respondent’s is recognized by the Oba of Benin. Before the trial Judge arrived at this finding, the testimonies of PW3, PW8 and the respondent were properly evaluated before he arrived at his conclusion. Of utmost importance in this regard, is the testimony of PW8 who stated amongst other things that the Plot Allotment Committee in Egba recognized by the Oba was that which was chair-manned by the respondent. This is an admission against interest and the trial court, in my view, was right to rely on it. See the case of Kamalu v. Umunna (1997) 5 NWLR (Pt.505) 321, particularly at 336 paras. E -G; Joe Ige v. Chief Joseph Amakiri (1976) 11 SC 1; Ojiegbe & Ors. v. Okwaranyia (1962) 2 SCNLR 358 and Seismograph Services (Nig.) Ltd v.Eyuafe (1976) Vol. l0 NSCC 434.

The other faction of the plot allotment committee comprising of PW8, the appellant, DW2 and DW3 was not recognized by the Oba of Benin. The pieces of evidence were not controverted. This is why there was no need to call for evidence from the Oba’s palace moreso, that the evidence before the trial court was clear on the issue and the lower court affirmed the findings on them and which I unhesitatingly uphold. The trial court further found that by exhibit “E” a letter which was written by DW3 James Igbinere, the said DW3, admitted in the said letter that there was only one plot allotment committee in Egba recognised by the Oba’s palace and that plot allotment committee is the one chair-manned by the respondent. The trial Judge after satisfying himself by the pieces of evidence adduced before him on the authority of exhibit E, concluded that exhibit ‘E’ emanated from DW3 even though the witnesses denied the same.

The learned trial Judge rightly found as a fact too, that DW3 was not a credible witness to be relied upon because the same witness had testified in an earlier proceeding, viz suit No.B/104/83 and charge No.B/25C/86 vide exhibit ‘K’ and “L”, that there was no allotment committee in Egba village. It is for this reason that I agree with the respondent’s submission that only one allotment committee was recognised in Egba village by the Oba of Benin, namely, the one headed by the respondent as rightly found by the trial court and affirmed by the Court of Appeal.