CHIEF ALABIDE KEI & ORS. V. NGULE OKPOSE & ORS.
(2011)LCN/4677(CA)
(2011) LPELR-3921(CA)
In The Court of Appeal of Nigeria
On Thursday, the 7th day of July, 2011
CA/E/34/1989
RATIO
EVIDENCE: EFFECT OF EVIDENCE ON MATTERS NOT PLEADED
It is settled law that evidence on matters not pleaded goes to no issue, and that the court in all proceedings before it, acts only evidence which is admissible in law. See RAIMI v. AKINTOYE (supra) at 104 E-F. PER EJEMBI EKO, J.C.A.
ADMITTED FACTS: WHETHER FACTS NOT DISPUTED OR ADMITTED BY THE PARTIES NEED FURTHER PROOF
Facts not disputed are taken as established Section 75 of the Evidence Act is very clear on this. No fact need be proved in any civil proceedings which the parties agree to admit, or which by the rules of pleadings in force the parties are deemed to have admitted. No further proof of such fact is necessary as it ceases to be an issue between the parties. See DIN V. AFRICAN NEWSPAPERS OF NIGERIA LTD (1990) 3 NWLR (p. 139) 892 AT 405 A-C. PER EJEMBI EKO, J.C.A.
INTERPRETATION OF STATUTE: PROVISION OF SECTION 151 OF EVIDENCE ACT AS TO THE EFFECT OF ESTOPPEL BY CONDUCT
Section 151 of Evidence Act provides that when one person has, by his act or omission, intentionally permitted another to believe a thing to be true and to act upon such belief, neither he now his representative in interest shall be allowed, in any proceedings between himself and such person to deny the truth of that thing. PER EJEMBI EKO, J.C.A.
DECLARATORY RELIEF: WHETHER THE COURT IS ENTITLED TO REFUSE A DISCRETIONARY REMEDY WHERE THE PLAINTIFF OR CLAIMANT FAILS, UPON EVIDENCE, TO SATISFY THE COURT THAT HE IS ENTITLED TO IT
The law is settled that granting a declaratory relief is discretionary on the part of the trial court. The court is entitled to refuse this discretionary remedy where the plaintiff or claimant fails, upon evidence, to satisfy the court that he is entitled to it. See ANYAOKU V. ADI (1986) 3 NWLR (PT. 31) 731 AT 749; OGOLO V. OGOLO (2003) 12 SC (PT. 1) 56. PER EJEMBI EKO, J.C.A.
DECLARATION OF TITLE: ON WHAT BASIS IS A PLAINTIFF ENTITLED TO THE DECLARATION SOUGHT
It is only by credible and convicting evidence that a plaintiff seeking declaration of title to a piece of land becomes entitled to the declaration sought. See FABUNMI V. AGBE (1985) 1 NWLR (PT. 2) 299 AT 318. PER EJEMBI EKO, J.C.A.
CUSTOMARY ARBITRATION: EFFECT OF A SUCCESSFUL PLEA OF CUSTOMARY ARBITRATION
A successful plea of customary arbitration means that the plaintiffs by operation of estoppel per rem Judicatam is estopped from insisting on the title to the dispute land only on traditional history. See ANYABUNSI v. UGWUNZE (1995) 6 NWLR (Pt. 401) 255. It is a bar to fresh action as between the parties over the same land. See YOYE v. OLUBODE (1973) ALL NLR 653 at 663-664, ODAOHE v. OKUJANI (1973) 11 SC 343 at 353. PER EJEMBI EKO, J.C.A.
JUSTICE
ISTIFANUS THOMAS Justice of The Court of Appeal of Nigeria
EJEMBI EKO Justice of The Court of Appeal of Nigeria
TUNDE OYEBANJI AWOTOYE Justice of The Court of Appeal of Nigeria
Between
1. CHIEF ALABIDE KEI
2. BINALAYEFA KEI
3. TIMKARE WERIGBELEGHA
(for themselves and as representing the Sekeme Sub-Family of kiligbegha Family of kaiama town)Appellant(s)
AND
1. NGULE OKPOSE
2. JOSHUA AMANGULA
3. GEORGE ORINGO
4. LAMBERT AGAGAIKIN
5. LUCY UBARUGU
(For themselves and as representing SEITUGHA Sub- Family of Talawari Compound of Kaiama Town)
6. SATURDAY ZIDIRI
7. MARK ZIDIRI
8. SAMUEL AMABEBE
(For themselves and as representing the Ngbelewari Family of Okotiama)Respondent(s)
EJEMBI EKO, J.C.A. (Delivering the Leading Judgment): This case has a very chequered history. It was first filed in January 1981 and numbered as AHC/56/81 at the High court of Rivers State sitting at Ahoada in Ahoada Judicial Division. When Yenagoa Judicial Division was created out of Ahoada Judicial division it was transferred to the High court at Yenagoa and renumbered as YHC/11/82.
ON 17TH March, 1988 F. F, Tabai, J. (as he then was) delivered judgment in the suit wherein he found inter alia at page 122:
Thus, in the traditional history as to the founder of the land in dispute the evidence of the plaintiffs is slightly stronger and tends therefore to confer a better title to the land in dispute. But in the light of the other competing evidence from the defendants parts of which I have accepted I conceive that it will be inequitable to confine myself to the evidence of traditional history to ascribe title to the land in dispute on any of the parties. According to Oputa, JSC in AWOYALE v. OGUNBIYI (1986) 2 NWLR 626 at 646 “traditional evidence is but a bit of ancient history. Its weight and value can better be assessed where there exists factual evidence contemporaneous acts and events.”
Thereafter His Lordship invited counsel on both sides to address him on whether he should not enter an order of non-suit. Both counsel addressed His Lordship on 24th March, 1988 and on 29th March, 1988 His Lordship entered Non-suit. He gave reasons for this order at page 127 of the Record as follows:-
I have examined the address of counsel for both sides. I have stated earlier in this judgment prefer (sic) the plaintiffs evidence of traditional history. But I do not like to confine my consideration only to that aspect of the evidence to grant title.
That aspect must be considered along with other pieces of evidence to decide the case. In all other aspects, the evidence of the defendants was clearly better. They impressed me that they are not strangers in Kaiama and that they in fact own lands or at least in exclusive possession of lands. They satisfied me that they are in exclusive possession of the land immediately … in dispute. In view of their overwhelming and uncontradicted evidence of their occupation of the adjacent land their claim to possession and title of the land can not, in my view, be without foundation.
The plaintiffs, the resent appellants (who shall hereinafter be called the Plaintiffs) not satisfied, filed their appeal on 8th June 1988 against the judgment and the order of non-suit. The Notice of Appeal, at pages 129-132, has four grounds of appeal. The appeal was before the Enugu Division of this court and was later remitted to this Division upon the creation of this Division. The appeal carries Enugu number. In the Amended Appellants’ Brief settled by Wilcox Abereton, Esq. three (3) issues have been formulated respectively from grounds 1, 2 and 3 of the Grounds of Appeal. No issue has been formulated from Ground 4 that complains that the “decision is altogether unwarranted, unreasonable and can not be supported having regard to the weight of evidence before the court” the consequence of the plaintiffs, in their appeal, not formulating any issue for determination of their appeal from grounds 4 of the Grounds of appeal is that the appeal has been abandoned, and therefore liable to be discountenanced or struck out. Ground 4 of the Grounds of appeal is accordingly struck out.
The three issues for determination, as formulated by the plaintiffs, are as follows:
1. Was the trial court right to make an order of non-suit in this case on the ground that the traditional evidence of title established by the Plaintiffs/Appellants and which the court accepted was insufficient to entitle the plaintiffs to the declaration of title damages for trespass and injunction sought therein? (Ground one).
2. Whether the learned trial judge was right in holding that section 145 of the Evidence Act (now section 146 of the Evidence Act) availed the 1st set of Respondents who never counter claimed and whose traditional evidence has been rejected? (Ground Two).
3. Was the learned trial judge right to rely on extraneous and unpleaded facts like a bakery, Petrol station and burrow pits as acts of possession upon which he could apply section 145 (now section 145) of the Evidence Act in favour of the defendants? (Ground 3).
The defendants at the suit of the Plaintiffs (now appellants) are the present 1st set of respondents. They shall hereinafter be referred to simply as “the defendants”.
The 2nd set of respondents was not parties to the suit at the trial court. It was only in this court they applied to be joined as respondents to the appeal as parties interested. This Court obliged and they were accordingly joined in the appeal as 2nd set of Respondents. They have not filed any brief of argument in this appeal. On 18th May, 2011 their application filed on 13th May, 2011 for “leave – to file a statement of Defence and give oral testimony in this court” was struck out for want of prosecution.
As it is presently the only active parties in this appeal are the plaintiffs, as the appellants, and the defendants, the 1st set of respondents. They were respectively the plaintiffs and defendants at the trial court.
The defendants, as the 1st set of respondents in this appeal, formulated four (4) issues for determination. They are as follows:-
01. Whether evidence of traditional history which is only slightly stronger than another conflicting evidence of traditional history is sufficient per se to entitle the plaintiffs to a declaration of title or a customary rights of occupancy over a pieces of land without any regard to the issue of long possession by the Defendants, which issue was seriously contested by the parties at the trial? By the parties at the trial? In other words, has a plaintiff who relies on both evidence of traditional history as well as acts of long possession, fully discharged his burden of proof of title by merely giving evidence of traditional history which is only slightly stronger than the conflicting evidence of traditional history adduced by a Defendant who otherwise has proved long acts of possession to the satisfaction of the court?
02. Whether where both parties in a claim for declaration of title to land rely on evidence of traditional history, is it not necessary that their evidence must be further tested by reference to the acts in recent years as established by evidence.
03. Whether the decision of the trial judge was based on evidence of possession in relation to adjacent land which was never pleaded? In otherwords, couldn’t the trial judge have reached the same decision despite the unpleaded evidence of possession in relation to adjacent lane having regard to the weight of pleaded evidence and admissions before the court?
04. Whether it is necessary to plead the presence of a filling station and a bakery on other parts of the Daboulgbangi land by the Defendants, including that portion of it that is in dispute.
Appeals are argued in this court upon issues formulated from the grounds of appeal. As Niki Tobi, JCA (as he then was) stated in ADISA v. THE STATE (1991) 1 NWLR. (Pt. 168) 490 at 504 issues for determination as expected to be “simple, concisely and tersely formulated to enable the adverse party and the court know the trend of the argument expected in the brief” they must therefore be carefully and succinctly formulated. See FAMAKINWA v. T.A. NIG PLC (2007) WRN (VOL. 18) 36 AT 44. I do not think the four issues purportedly formulated from the 3 surviving grounds of appeal by the defendants, as the 1st set of respondents, would pass the test of an issue being a simple, concise and tersely formulated summary of an argument upon a ground of appeal, just enough for the adverse party and the court to know the expected direction or trend of argument on that ground in the brief of argument. I will in the circumstance adopt the issues formulated by the plaintiffs, as the appellants. I will all the same consider all arguments in the brief of the defendants, as the 1st set of respondents.
The claim of the plaintiffs against the defendants, as endorsed on the writ of summons is:
1. A declaration that the plaintiffs are entitled to the right of occupancy under Kaiama Customary law to all that piece or parcel of land known and called AYAKOROGBO situated at Kaiama Overside in Yenagoa Local Government Area, a plan of which will be filed in this suit.
2. The sum of two thousand Naira (N2,000.00) being general damages for trespass in that the defendants between the 12th January, 1980 and 30th June, 1980, without permission or authority of the plaintiffs broke and entered the said AYAKOROGBO lane cleared same and planted plantain stems while at the same time destroying economic trees growing on the said land including raffia palm and oil palm trees growing on the said land and continued their acts of trespass despite repeated warnings from the plaintiffs family.
3. Perpetual injunction restraining the defendants, their servants and agents from further acts of trespass upon the said land.
The parties at the trial court exchanged pleadings. The case of the plaintiffs was that Kaiama Town, including the area of the land in dispute, was founded by their ancestors and that “their ancestors from time immemorial (were) farming and fishing on the same and cutting palm fruits and felling timber trees without let or hindrance”. They aver that their family shrine, ISANE IGENGE, is on the land in dispute and that their “family owns a large fish pond on the swampy side of the land in dispute” and that they planted raffia palm trees on the land which are being tapped by their tenants. The defendants, the plaintiffs alleged, migrated from Bebelibiri village in Atiasga clan in Yenagoa LGA and settled with their ancestors as fishermen and that “occasionally members of land ownership make annual grants of farmland to them”.
The defendants call the land in dispute DABOU-IGBANGI which they say they, including their ancestors or predecessors-in-title, had been in occupation of from time immemorial. And that they had since exercised numerous acts of ownership over the land without interruption or disturbance from any person, including the plaintiffs. That they permitted Dumez Company which constructed East-west Road to excavate soil from three burrow pits on the land in dispute and that the said Dumez Company paid compensation to them exclusively for the use of the land. They further aver that when a dispute arose within their family over which section of their family was entitled to the compensation the panel that resolved that intra family dispute over compensation in respect of burrow pits on disputed land included chief Eugene Temetin of the plaintiffs Kiligbegha main family and that at no time did the plaintiffs family, though aware, challenge or contest the defendants, claim to that compensation. The defendants also pleaded a customary arbitration through the agency of Kolokuma-Egbesu juju that arbitrated and affirmed their title to the disputed land on 3rd January, 1981. (This suit was fired on 9th January, 1981). The defendant also pleaded that they, like the plaintiffs, are descendants of one EGBE, through Seitugha the son of Eberi who was begotten by Talagha, a brother of Kilegbegha (the grand father of the plaintiffs). In their amended statement of defence the defendants maintain that it was EKPEIN, son of EGBE, who founded Kaiama Town. The disputed land, Dabou-Igbangi, the defendants aver,
Was originally cleared and continuously farmed by Seitugha until his death. There after the said land devolved on his descendants namely: Okpose, Idiga, Amangula, Oringo, Ogonoye, and Ingobou all of whom are of the defendants, family.
That was the state of pleadings on which the parties called evidence, The plaintiffs called 9 witnesses and tendered in evidence Exhibit A, the survey plan. The defendants, on the other hand, called 10 witnesses. They tendered in evidence Exhibit B, their survey plan, and Exhibit C, receipt for payment of compensation for burrow pits along East-West Road East of Nun River.
I earlier pointed out: the learned trial judge found that though on the traditional history as to the founder of the land in dispute the evidence of the plaintiffs was slightly stronger and it tended to confer better title to the land in dispute. He however, added that it will be inequitable to confine himself to the evidence of traditional history to ascribe title to any of the parties when there existed factual evidence of contemporaneous acts of possession or ownership in favour of the defendants. Against these findings and conclusion the plaintiffs, the appellants, submit under issue 3 that once evidence on traditional history of the defendants had failed, their evidence built on long possession also fails and that their assertion of the purported acts on the land in dispute were neither pleaded nor proved. Further that the trial Judge ought not to have utilized the evidence of DW.9 which they say was inadmissible and should have been expunged. They further submit that the pleadings of the defendants did not show that they own the land south of the disputed land nor that the land in dispute had burrow pits, a bakery and a petro station thereon. A number of authorities were cited for the submission that the learned trial judge erred in law to have utilized evidence on facts not pleaded. They include RAIMI v. AKINTOYE (1986) 3 NWLR (Pt. 26) 97 at 104, FERDINAND GEORGE v. U.B.A. LTD (1972) 1 ALL NLR (Pt. 2) 347 at 352-353; GEORGE v. DOMINION FLOUR MILLS LTD (1963) 1 All NLR 71 at 78-79; NNPC v. THOMPSON ORGANISATION LTD (1969) NMLR 99 at 104; AFANI v. LADEPO (1986) 3 NWLR (pt. 28) 276 at 287.
Plaintiffs further contend that the trial judge having rejected the defendant’s evidence on traditional history he erred in law in not granting the plaintiffs the declaration of title they sought and also in not treating the defendant’s acts on the land in dispute as acts of trespass. For this the cases of FASORO v. BEYOKU (1988) 2 NWLR (pt. 76) 263 at 273; DA COSTA v. IKOMI (1968) 1 ALL NLR 394; OCBECHIE v. ONUCHIE (1988) 1 NWLR (pt .70) 370 were cited.
The parties joined issues on the ownership of the land in dispute.
The defendants submit, through their counsel, T. W. Owhonda-Wopara, Esq. that they pleaded their ownership of some parcels of land adjacent the land in dispute. They refer to paragraph 4 of the amended statement of defence. They further submit that in paragraph 9 of the said amended statement of defence they pleaded that there were burrow pits on the disputed land and that they were paid compensation by Dumez Company for these burrow pits shown clearly on Exhibit B. That Exhibit C was also pleaded in paragraph 9 of the amended statement of defence and that the said Exhibit C is evidence of the payment of the compensation to only members of their family. On the bakery and petrol station which DW.9 said were on the disputed land, the defendants submit that the evidence of the DW.9 was merely to buttress the substance of their defence that they are the owners of the land in dispute.
It is settled law that evidence on matters not pleaded goes to no issue, and that the court in all proceedings before it, acts only evidence which is admissible in law. See RAIMI v. AKINTOYE (supra) at 104 E-F.
The evidence of DW.8 and DW.9 are confined to the land south of the land in dispute, which in paragraph 4 (b) of the amended statement of defence the defendants claim as their undisputed land. The plaintiffs did not contest it. They did not file any reply to the amended statement of defence to controvert it. Facts not disputed are taken as established Section 75 of the Evidence Act is very clear on this. No fact need be proved in any civil proceedings which the parties agree to admit, or which by the rules of pleadings in force the parties are deemed to have admitted. No further proof of such fact is necessary as it ceases to be an issue between the parties. See DIN V. AFRICAN NEWSPAPERS OF NIGERIA LTD (1990) 3 NWLR (p. 139) 892 AT 405 A-C. I can not see how the learned trial judge erred in law when he stated at page 121 of the Record that the evidence of the DW.8 and DW.9 with regards to defendants’ exclusive possession of the land immediately south of the portion of land in dispute, which remain virtually uncontraverted, is an established fact. The material fact or important thing is the pleaded exclusive possession or ownership of the land immediately south of the land in dispute. Adding that there are a bakery and a Filling Station, based on the evidence of Dw.8 and Dw.9, on that land is a mere slip or aberration on the part of His Lordship. These details do not affect the substance.
In paragraph 9 of the amended statement of defence, the defendants pleaded the existence of “burrow pits made on parts of the Dabou-land now in dispute” and that the plaintiffs were excluded from the compensation as they were not entitled”. The averment goes further to assert that within the Seitugha family an intra family dispute arose “as to which section is entitled to compensation in respect of the said burrow pits” and that the dispute was resolved by an arbitration panel comprising inter alia “Chief Engene Temetin (of the plaintiffs’ Kilegbegha main Family). And that at no time did the plaintiffs contest or challenge the Defendants’ claim to the said compensation although they were aware of such claim. The plaintiffs pleaded and tendered Exhibit C, the receipt of the said compensation. Like paragraph 4(b) of the amended statement of defence, the plaintiffs did not join issues with the defendants on paragraph 9 of the amended statement of defence. Section 75 of the Evidence Act therefore operates against the plaintiffs. They are deemed to have admitted the averments in paragraph 9 of the amended statement of defence.
Both PW.1 and PW.7 admitted in their evidence that the burrow pits were on the disputed land. Of the burrow pits the PW.1 stated under cross-examination at page 46 of the Record:
I know there are some burrow pits somewhere on the land in dispute. The burrow pits were dug by Dumez Company when it was constructing East-West Road. I do not know to whom the compensation was paid by Dumez Company in respect of those burrow pits.
The PW.1 is the 1st plaintiff. He is a member of Kilegbagha Family from where Chief Eugene Temetin is said, in paragraph 9 of the amended statement of defence, to have hailed from.
The PW.7 is the surveyor who made Exhibit A, the plaintiff’s survey plan. Under cross-examination at page 53 the PW.7 stated-
At the time we visited the disputed land, and made Exhibit A there were no burrow pits on the land. But after we saw burrow pits. We visited and surveyed the land in 1981. We saw burrow pits on the land after some years but I can not say exactly what time. I now say I saw the burrow pits in 1985 when I was passing through the place after the survey of the land in 1985.
The admission by the PW.1 and PW.7 that the burrow pits were on the land in dispute together with the uncontroverted averments in paragraph 9 of the amended statement of defence completely render the evidence of PW4 and other witnesses for the plaintiffs to the contrary unreliable.
They also render untenable that the submissions of the plaintiffs that the findings of the learned trial Judge as regards the burrow pits ran counter to the pleadings, and evidence before him.
The undisputed facts suggest that the plaintiffs knew or were aware that the burrow pits were dug on the land in dispute by Dumez Company and that the compensation for the burrow pits were paid to the defendants. Yet they did nothing. The court is entitled to presume that the plaintiffs did nothing because they knew the true facts. By dint of section 149 of Evidence Act the court may presume the existence of any fact which it thinks likely to have happened; regard being had to common course of natural events or human conduct.
Reading Sections 75, 149 and 151 of the Evidence Act together viz-a-viz the totality of the evidence the trial court was entitled to invoke its equitable jurisdiction as it did in this case” Section 151 of Evidence Act provides that when one person has, by his act or omission, intentionally permitted another to believe a thing to be true and to act upon such belief, neither he now his representative in interest shall be allowed, in any proceedings between himself and such person to deny the truth of that thing. The uncontroverted paragraph 9 of the amended statement of defence seems to plead this equity or estoppels by conduct. Equity follows the law. On this principle of estoppels by conduct, even though the trial court found that the evidence of traditional history put up by the plaintiffs was slightly stronger than that put up by the defendants; it nonetheless found it inequitable to declare title in favour of the plaintiffs against the defendants. The defendant’ long possession and recent acts of ownership coupled with the plaintiffs seeming acquiescence no doubt raises this equity estoppels by conduct in their favour to warrant the trial court not treating them as trespassers.
The law is settled that granting a declaratory relief is discretionary on the part of the trial court. The court is entitled to refuse this discretionary remedy where the plaintiff or claimant fails, upon evidence, to satisfy the court that he is entitled to it. See ANYAOKU V. ADI (1986) 3 NWLR (PT. 31) 731 AT 749; OGOLO V. OGOLO (2003) 12 SC (PT. 1) 56.
This issue, in my view, should be resolved in favour of the defendants, who are in this appeal the 1st set of Respondents, against the Plaintiffs/Appellants. I hereby so resolve.
The learned trial judge entered an order of non-suit on the ground that the traditional evidence of title put up by the plaintiffs, which the court accepted as slightly stronger than that of the defendants was not sufficient or conclusive as to entitle the plaintiffs to declaration of title in the light of the defendants’ very cogent and credible evidence that they are natives of Kaiama and that they own lands immediately south of the dispute, and also the land on which there are burrow pits. The learned trial Judge held that he accepted the defendants’ evidence in its entirety in so far as their exclusive possession of the land immediately south of the land in dispute is concerned. He then invoked the provisions of section 145 (currently section 146) of the Evidence Act. He declined the urge to grant the declaration of title sought by the plaintiffs and held that the defendants were trespassers “on the sole ground of a better evidence of traditional history”.
Upon evaluation of the evidence the learned trial judge hold that the plaintiffs’ “traditional history as to the founder of the land in dispute is slightly stronger” than the traditional history flaunted by the defendants. He was, however, not satisfied that evidence alone was conclusive that the plaintiffs are owners of the customary right of occupancy in and over the land in dispute.
The plaintiffs, as appellants, submit that once the trial judge accepted the traditional evidence of the plaintiffs, the onus on them to prove their title is discharged. They were no longer under any further duty to prove long possession coupled with numerous and positive acts of possession to establish their title.
Establishment of one of the five (5) ways of proving title laid down in IDUNDUN & ORS V. OKUMAGBA (1976) 9 – 10 SC 227 AT 246 – 250 by the Supreme Court is sufficient to prove their ownership of the land in dispute. The cases of IFO V. BSSEIN (1986) 5 NWLR (PT. 41) 378; BALOGUN V. AKANJI (1988) 1 NWLR (PT. 70) 301 AT 321, and EZEOKE V. NWAGBO (1988) 1 NWLR (PT. 72) 616 were cited for this. They insist, on authority of STOOL OF ABINABINA V. CHIEF JOJO ENYIMADU 12 WACA 477; KUMA V. KUMA 5 WACA 96 et al, that once their traditional evidence as accepted by the trial court, it is enough for their claim to title to be granted and that it was no longer necessary for the trial court to look for evidence of their exclusive possession of the land in dispute before granting the declaration of title sought. Acts of ownership and possession, they contend, are only material where the traditional evidence is inconclusive and unsatisfactory to the trial court. They cited OKAFOR v. ODIGO (1989) 1 SCNLR 481, and BALOGUN v. AKANJI (supra) for this. That once radical title has been pleaded and proved, defendants’ acts of ownership and possession become non issues which need not be considered: FASORO v. BEYOKU (1988) NWLR (pt. 76) 263.
The trial judge held that in view of other competing evidence of the defendants on their numerous acts of ownership it was inequitable for him to declare title over the disputed land in favour of the plaintiffs. Against this plaintiffs submit that since the trial court hand accepted their traditional evidence, they had discharged their burden of proof and that it was erroneous on the part of the trial judge to have considered other competing evidence of the defendants especially as the defendants’ evidence on traditional history had failed: UKEAGBU V. NWOLOLO (2009) 3 NWLR (PT. 1127) 194 AT 221 – 222; AJANI V. LADEPO (1986) 3 (PT. 28) 276 AT 286 G, that. Where evidence preponderated in favour of the plaintiffs, as the trial judge had found, the plaintiffs were entitled to judgment, plaintiffs contend: UKEAGBU V. NWOLOLO (supra) at 231 G; ODOFIN V. MOGAJI (1978) 4 SC 91 AT 94 – 95.
Section 145 (now section 146) of the Evidence Act can not be invoked in favour of the defendants, the plaintiffs contend, since they did not specifically plead and prove by credible evidence any acts of possession and had not also counter claimed. In BALOGUN V. AKANJI (supra) at page 323, the Supreme Court held, plaintiffs contend, that acts of possession will not arise where the root of title is known, pleaded and proved. And that it is only when the traditional evidence is inconclusive that the court is obliged to look at acts of possession and determine there from on whose side the presumption in section 145 (146) of Evidence Act will operate. The learned trial judge, plaintiffs submit, was misled to consider defendants’ acts of possession upon inadmissible evidence and extraneous matters.
These submissions of the plaintiffs are no doubt very powerful. But the question remains whether the traditional history of the plaintiffs was accepted by the learned trial judge as satisfactory and conclusive proof of their title to the disputed land. In BALOGUN v. AKANJI (supra) at page 323 OPUTA JSC restated the law that acts of possession will not arise where the title is known, pleaded and proved, and that it is only where and when traditional evidence is inconclusive that the court will be obliged to look at the acts of possession of the parties and therefrom determine on whose side the presumption in section 146 of Evidence Act will operate. This position of law has not been altered by the position taken in MOGAJI v. CADBURY NIG. LTD (1985) 2 NWLR (pt. 7) 393 at 431 and FASORO v. BEYOKU (supra) at 273 that once radical title has been pleaded and proved, acts of ownership resulting from such title need no longer be considered for they become non issues. If, however, evidence on tradition is inconclusive the issue of title has to be resolved by other means – see EKPO V. ITA 11 NWLR 68.
The case of the plaintiffs, preditated on traditional history, is that the defendants were not descendants of Egbe, whom they said was the founder of Kaiama. They insisted that the defendants were strangers in Kaiama, and that as such they do not own any land there. The learned trial judge did not believe this assertion. He infact dismissed it at page 121 of the Record, where he found that “the defendants are also natives of Kaiama” and that they own land immediately south of the land in dispute. He also found that the defendants own the portion of land on which the three burrow pits are located, and that the Defendants call the land Dabou – Igbanji. The plaintiffs call it AYAKOROGBO.
At page 122 of the Record the learned trial found that “in the traditional history as to the founder of the land in dispute the evidence of the plaintiffs is slightly stronger”. He was however, quick to add that “in the light of other competing evidence from the defendants, parts of which I have accepted, I conceive that it will be inequitable to confine myself to the evidence of traditional history to ascribe title to the land in dispute on any of the parties”. By this finding the learned trial judge appears, in my view, to hold that “the slightly stronger evidence of traditional history” of the plaintiffs was not accepted by him as satisfactory and conclusive evidence of their title to the land in dispute. It is only by credible and convicting evidence that a plaintiff seeking declaration of title to a piece of land becomes entitled to the declaration sought. See FABUNMI V. AGBE (1985) 1 NWLR (PT. 2) 299 AT 318.
The plaintiff in a claim for declaration of title succeeds only on the strength of his evidence, and not on the weakness of the defence.
It does appear to me from the entire judgment that the plaintiffs’ evidence on traditional history, though adjudged slightly stronger than the defendants’ traditional history, trough adjudge slightly stronger than the defendants’ traditional history did not convince the trial judge as satisfactory and conclusive proof of the plaintiffs’ radical title to the land in dispute. I, therefore agree with the defendants that the plaintiffs traditional history did not satisfy the court below, and the learned trial judge was therefore right in non-suiting the plaintiffs in the light of other competing evidence from the defendants. This instant case must be distinguished from BALOGUN V. AKANJI (supra) where the trial court held that the traditional evidence of the plaintiff was conclusive. In that case the trial court was satisfied with the plaintiff’s traditional evidence but not with the defendant’s traditional evidence. In the instant case the trial court was not satisfied that the plaintiffs’ traditional evidence alone was sufficient and/or conclusive as to warrant is granting the declaration of title they sought of him. And so, we have to fall back on the principle in EKPO v. ITA (supra). That is; if the evidence on tradition is inconclusive, title will be determined by other modes.
The parties herein in order to undo each other pleaded and relied on traditional histories. The defendants, in addition, pleaded active acts of possession of the land in dispute in recent times. The trial court though finding that the plaintiffs’ evidence on traditional history was slightly, not totally, stronger than that of the defendants was not confident about that evidence. His Lordship was, in my view, conscious that reliance on this evidence of traditional history alone could be misleading. As observed by Lord Denning in Kojo II v. Bonsie (1957) 1 WLR 1223, evidence of traditional history is merely hearsay evidence or oral history “handed down by word of mouth – from generation to generation”. The law Lord then warned that-
In the course of transmission from generation to generation mistakes may occur without any honest motives whatever.
When there is a conflict of traditional history the best way to test the traditional history, the learned jurist suggested.
Is to test the traditional history by reference to the facts in recent years as established by evidence and by seeing which of the two competing histories is more probable.
In this case the learned trial judge though found that the traditional history of the plaintiffs was slightly stronger than that of the defendants; he nonetheless was satisfied that that history alone was not enough to earn the plaintiffs the declaration of title to the land in dispute. He considered recent acts of possession, and found that the defendants, acts of recent possession were overwhelming. The basis of the learned trial judge holding that the plaintiffs’ traditional history was slightly stronger than that of the defendants is largely due to the fact of missing links, which in the case of defendants were more than those of the plaintiffs. The probability of honest mistakes is still there.
Plaintiffs seem to suggest that the defendants did not specifically plead and prove by credible evidence any acts of possession. There is some fallacy in this suggestion. For instance the matters pleaded in paragraphs 14-77 of the amended statement of defence, at page 35-36 of the Record, suggest act of possession which were affirmed by customary arbitration. The arbitration panel was headed by the DW2.
And in their verdict handed down on 3rd January, 1981 (six days before the suit was filed on 9th January, 1981 by the plaintiffs) the panel “found that the Dabou-Igbangi, land in dispute, belongs to the Defendants”. The DW2 testified on this arbitration at pages 69-70 of the Record. When the panel visited the disputed land, which the plaintiffs and defendants respectively call AYAKORO OGBO and DABOU-IGBANGI, they saw farms and burrow pits thereon. The review of evidence on this issue is at page 123. The trial court found that-
Both parties admitted the existence of the panel and the fact that the panel inspected the land in dispute. DW2’s membership of the panel was also not contested by the plaintiffs. Only his chairmanship of the said panel was contested by way of cross-examination. His evidence in my view is therefore strong.
The learned trial judge had earlier found that the evidence of the Dw.2 that the panel had settled the dispute was equally strong. The plaintiffs had pleaded in paragraph 17 of their amended statement of defence that the arbitration panel or “tribunal found that the Dabou-Igbangi land in dispute belongs to the defendants”. The PW.1 admitted the existence of this panel. He however averred in one breadth that the parties to the dispute dispersed without settlement of the dispute by the panel. In another breadth he stated tersely that there was settlement. A successful plea of customary arbitration means that the plaintiffs by operation of estoppel per rem Judicatam is estopped from insisting on the title to the dispute land only on traditional history. See ANYABUNSI v. UGWUNZE (1995) 6 NWLR (Pt. 401) 255. It is a bar to fresh action as between the parties over the same land. See YOYE v. OLUBODE (1973) ALL NLR 653 at 663-664, ODAOHE v. OKUJANI (1973) 11 SC 343 at 353.
Upon evaluation of the evidence before him, the learned trial judge found that the evidence of the Dw.2 on the customary arbitration between the parties was strong.
The defendants pleaded that the burrow pits were on the disputed land and this had been confirmed by evidence from both sides. They averred that Dumez Company made these burrow pits when the company was constructing the East-West Road and that the compensation the company paid for these burrow pits was “solely received and enjoyed” by them. And further that when an intra family dispute arose within their family over which section of the family should enjoy the compensation a customary arbitration panel comprising Chief Eugene Temetim (of the plaintiffs’ main family) resolved the dispute. The pleading in paragraph 9 of the amended statement of defence further avers that at no time did the plaintiffs contest or challenge the Defendants’ claim to the said compensation, although they were aware of it. The plaintiffs did not join issues on this very damaging averment. They did not file Reply to controvert the averment. They are therefore deemed to have admitted the averment. By operation of section 75 of the Evidence Act facts admitted need no further proof. The plaintiffs, being aware of the adverse acts of ownership by the defendants on portions of the disputed land, including the areas of the burrow pits, and yet stood by are estopped from denying the defendants ownership of the same. See Section 151 Evidence Act.
I do not agree with the plaintiffs that the learned trial judge, in invoking the presumption under Section 145 (now 146) Evidence Act, was misled by inadmissible evidence or some extraneous matters. The contend that the acts of ownership or possession the trial judge relied on to invoke the presumption under section 145 (now 146) Evidence Act were not specifically pleaded and proved. I have just, in this judgment, highlighted two of those acts, and shown that they were pleaded and proved. Section 145 (now 146) Evidence Act provides as follows:-
145. When the question is whether any person is the owner of anything of which he is shown to be in possession, the burden of proving that he is not the owner is the person who affirms that he is not the owner.
The application of this presumption in the foregoing provisions, as held by Karibi-Whyte, JSC in ADEGBITE v. OGUNFAOLA (1990) 4 NWLR (pt. 146) 578 at 595 A-D is dependent upon the proof that the party in whose favour the presumption is raised is infact in possession. The evidence of a DW.2, adjudged as strong by the trial judge, and the uncontroverted averment in paragraph 9 of the Amended Statement of Defence and the evidence of the plaintiffs’ witnesses on the said averments are readily handy to satisfy the requirement.
It appears from the Supreme Court decision in ONI v. ARIMORO (1973) 3 sc 163 at 179 and this court’s decision, per ADIO, JCA (as he then was) in IGIEHEN v. OMOREGIE (1993) 2 NWLR (pt. 266) 398 at 408 G, that an adverse possession of land for some years by the defendant could ripen into some equitable interest in and over the land or at least a presumed ownership if the plaintiff who had acquiesced knew of the adverse possession. This is what estoppel by conduct in equity and under section 151 of the Evidence Act is all about.
In ONI V. ARIMORO (supra) the defendant was in adverse possession for 15 years and he did various acts of ownership within the period to the full knowledge of the plaintiff. The Supreme Court held that those acts of ownership warranted an inference that he was the owner in exclusive possession. It is the law that possession in most cases is a weapon of defence the defendant can use to defeat a claim for declaration of title. See ONI v. ARIMORO (supra); DA COSTA v. IKOMI (1968) 1 ALL NWLR 394. Possession is one of the five ways of proving title. See IDUNDUN V. OKUMAGBA (supra).
I agree that the defendants did not plead the bakery and petrol Filling Station which the DW.9 alluded to in his evidence. The law is settled that it is not every slip of a judge in his judgment that results in the judgment being upset. For a mistake to so result, it must be substantial in the sense that it affects the decision appealed against. See ONOJOBI v. OLANIPEKUN (1985) 11 SC (pt. 2) 156 and NZEOKE v. NWAGBO (1988 1 NWLR (Pt. 529 at 626.
It is on Record, however, that the defendants pleaded the burrow pits in paragraph 9 of the Amended statement of Defence without a Reply thereto from the plaintiffs. The PW.1 and PW.7 admitted that the burrow pits were located in the land in dispute. The undisputed fact suggest that the plaintiffs knew that the burrow pits were dug on the rand in dispute, at the instance of the defendants, by the Dumez Company that constructed the East-West Road. The plaintiffs also knew that Dumez Company paid the compensation for the burrow pits to the defendants exclusively. I earlier stated in this judgment that from the existing facts and applying the provisions of Sections 75, 149 and 151 Evidence Act to the existing facts the trial court was justified in invoking its equitable jurisdiction as it did in this case. I am therefore of the firm view that the trial court correctly applied the presumption under section 145 (now 146) Evidence Act to the facts of this case.
In view of my foregoing stance I think it is correct that I resolve issues 1 and 2 against the plaintiffs/appellants. They are, accordingly, so resolved against the plaintiffs/appellants in favour of Defendants/Respondents. I had earlier resolved issue 3 against the plaintiffs/Appellants.
On the whole, I find no substance in this appeal and it is hereby dismissed in it entirety. The Defendants/Respondents are entitled to costs and I hereby order that costs assessed at N60.000.00 shall be paid to the Defendants/Respondents by the plaintiffs/Appellants.
The order of non suit, contained in the judgment and final order of the court below in suit No. YHC/11/82 is hereby affirmed.
ISTIFANUS THOMAS, J.C.A.: I read before now, the lead judgment of my learned brother Eko, JCA, just delivered, I am in total agreement that there is no substance in the appeal.
I abide with consequential orders including costs in favour of the respondents.
T. O. AWOTOYE, J.C.A.: I have read through the draft of the judgment just delivered by my learned brother EJEMBI EKO JCA. I am in full agreement with it.
I have nothing to add. I also abide by the consequential orders (including costs) made therein.
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Appearances
WILCOX ABERETON, ESQFor Appellant
AND
Respondent absent [Brief of 1st Set of Respondents settled by T.W. Owhonda-Wopara Esq was deemed argued]For Respondent
