D.O. IDUNDUN V. DANIEL OKUMAGBA
(1976) LCN/2240(SC)
In the Supreme Court of Nigeria
Friday, October 8, 1976
Case Number: SC. 309/1974
RATIO
EVIDENCE – WRONGFUL ADMISSION OF EVIDENCE: Whether any wrongful admission of evidence will constitute a ground for reversing a decision of court
“It is settled law that any wrongful admission of evidence shall not constitute a ground for reversing a decision unless the party complaining can show as well that without such evidence the decision complained of would have been otherwise. (See Section 226(1) of the Evidence Act and the decision of this court in Ugbe & 4 Ors. v. Edigbe & 2 Ors. (unreported) but see S.C.736/66 page 15, delivered on 27th February, 1970).” Per Fatayi-Williams, J.S.C.
LAND LAW – PROOF OF OWNERSHIP OF LAND: Various ways of proving ownership of title to land
“As for the law involved, we would like to point out that it is now settled that there are five ways in which ownership of land may be proved. We will now proceed to consider each of these five ways in order to see if the findings of the learned trial Judge can be seen to bring the evidence adduced in the case in hand within the ambit of any of them. Firstly, ownership of land may be proved by traditional evidence as has been done in the case in hand. In our view, not only was the evidence of the witnesses called by the appellants rightly rejected by the learned trial Judge for good and sufficient reasons, we also think that he was right in not attaching any weight to the views expressed in the books cited in support of such traditional evidence. As Lionel Brett, JSC., (as he then was), rightly in our view, once pointed out in a learned address given by him at the University of Lagos to the Nigerian Association of Law Teachers: “The courts are not to be hypnotised by the authority of print. The crucial fact is that a book cannot be cross-examined, either as to the opinion expressed, or as to the claims of the author to have special knowledge. If the author is living, there is no reason why he should not be tendered as an expert witness, when this difficulty would vanish”. No evidence was adduced to show that any of these books is generally acknowledged either in Nigeria or elsewhere as a standard work or as appropriate authority on the relevant traditional history so as to enable the court to resort, with justification, to its aid. (See Sections 58 and 73(2) of the Evidence Act, Cap. 62 and Adedibu v. Adewoyin 13 WACA 191 at page 192). Moreover, none of the authors of these books testified in support of the views stated therein and no explanation was given for this omission. For all these reasons, we share the apprehensions of the learned trial Judge about the value or weight of the traditional history as narrated by each of these authors, particularly as the authenticity and impartiality of the sources of their narratives cannot, for obvious reasons, be easily ascertained. Secondly, ownership of land may be proved by production of documents of title which must, of course be duly authenticated in the sense that their due execution must be proved, unless they are produced from proper custody in circumstances giving rise to the presumption in favour of due execution in the case of documents twenty years old or more at the date of the contract (see Section 129 of the Evidence Act and Johnson v. Lawanson (1971) 1 All NLR p.56). As the appellants’ case was not based on any document of title, this requirement, in the circumstances of this case, is not particularly apposite. Thirdly, acts of the person (or persons) claiming the land such as selling, leasing or renting out all or part of the land, or farming on it or on a portion of it, are also evidence of ownership, provided the acts extend over a sufficient length of time and are numerous and positive enough as to warrant the inference that the person is the true owner (see Ekpo v. Ita 11 NLR p.68). It is clear from the judgment in the case in hand that the learned trial Judge completely, and for good reason, rejected the evidence in support of the acts of ownership put forward by the appellants while he accepted those given by the respondents. Fourthly, acts of long possession and enjoyment of the land may also be prima facie evidence of ownership of the particular piece or quantity of land with reference to which such acts are done (see Section 45 of the Evidence Act, Cap. 62). Such acts of long possession, in a claim of declaration of title (as distinct from a claim for trespass) are really a weapon more of defence than of offence; moreover under Section 145 of the Evidence Act, while possession may raise a presumption of ownership, it does not do more and cannot stand when another proves a good title (see Da Costa v. Ikomi (1968) 1 All NLR 394 at page 398). It cannot be gain-said that, in the present case, not only did the learned trial Judge reject the appellants’ evidence as to possession of any portion of the land in dispute, he also found that the respondents have proved by evidence, which he accepted, that they are the owners of the land in dispute. Finally, proof of possession of connected or adjacent land, in circumstances rendering it probable that the owner of such connected or adjacent land would, in addition, be the owner of the land in dispute, may also rank as a means of proving ownership of the land in dispute (see Section 45 of the Evidence Act, Cap. 62).” Per Fatayi-Williams, J.S.C.
JUSTICES:
FATAYI-WILLIAMS, JUSTICE, SUPREME COURT
BELLO JUSTICE, SUPREME COURT
OBASEKI, JUSTICE, SUPREME COURT
BETWEEN
APPELLANTS
D.O. IDUNDUN CHIEF P.O. AWANI A.E. HESSE for themselves and on behalf of Ogitsi family of Okere, Warri C.A. LORIE J.D. ORURU ITSEKIRI COMMUNAL LAND TRUSTEES EREJUWA II, THE OLU OF WARRI for himself and on behalf of the Itsekiri people
AND
RESPONDENTS
DANIEL OKUMAGBA (for himself and on behalf of Olodi, Oki, and Ighogbadu families of Idimisobo, Okere, Warri)
FATAYI-WILLIAMS, JSC (Delivering the judgment of the Court): In Suit No. W/48/1968 commenced in the High Court of the Mid-Western State sitting in Warri the plaintiffs claimed against the defendants jointly and severally: PAGE| 2 “1. A declaration that in accordance with Itsekiri Customary Law, all that piece or parcel of land at Okere, Warri, described in Plan No. WE.2367 filed in this suit and verged PINK is the property of the Ogitsi family of Okere subject only to the overlordship of the Olu of Warri now vested in and exercisable by the Itsekiri Communal Land Trustees by virtue of the Communal Land Rights (Vesting in Trustees) Law 1959 and the Warri Division (Itsekiri Communal Land) Trust Instrument, 1959. 2. A declaration that, in accordance with Itsekiri Customary Law, defendants have forfeited their rights of user and/or occupation and any other rights or estate in or over that part of the land in dispute marked Area ‘B’ and any right they may have in or over that part of the land in dispute marked Area ‘A’ in the Plan No. E.2367 filed by the plaintiffs in this suit. 3. An order of injunction to restrain the defendants, their servants and/or agents and any other person or persons purporting to claim under or through them from entering the land in dispute and/or interfering with plaintiffs’ rights and interest in and over the said land in dispute and in particular from granting leases or other disposition of the same to any other persons or collecting rents or any other dues from any other persons in respect of the land in dispute”. Pleadings were ordered and were duly delivered. The averments in the plaintiffs’ amended Statement of Claim and the evidence adduced in support showed clearly that the claim was based partly on traditional evidence and partly on acts of ownership. The averments in the defendants’ Statement of Defence and the evidence given by them in support gave a completely different version of the traditional evidence. The defendants also testified as to their acts of ownership on the land in dispute. It must be pointed out at this stage, however, that the defendants did not counterclaim for title to the land. In a considered judgment, the learned trial Judge after reviewing, at great length if we may say so, all the evidence adduced by both parties, rejected the traditional evidence adduced in support of the plaintiffs’ claim after observing as follows: “Considering first the traditional evidence in the case, my view of that aspect of the evidence in plaintiffs’ case whereby plaintiffs have sought to establish that the land in dispute and even also Okere village were part of the kingdom founded by Ginuwa I and also their evidence that Ogitsi owned the whole of Okere land including the land in dispute in this case is that it is unconvincing. The plaintiffs say that Ginuwa I founded a kingdom and that before Ekpen came to Okere the area of Okere was or would be part of that kingdom. There is no evidence of the extent or area covered by that kingdom, nor is there any evidence going to show any act or acts in history which made the area part of the kingdom founded by Ginuwa I before Ekpen came there … The evidence in plaintiffs’ case only shows that Ginuwa I when he was trying to make a settlement after leaving Benin got as far as Ijalla where he ultimately settled, lived, died and was buried. There is no evidence in plaintiffs’ case going to show that in the process of making his settlement or kingdom he or any persons under him settled anywhere beyond Ijalla and towards or in Okere. PAGE| 3 I do not believe that any kingdom founded by Ginuwa I extended to Okere. Plaintiff’s evide
