CHIEF CLAUDE DIETE-AMANGE & ORS V. SYLVESTER MANGE-PEGE & ORS(2003)

CHIEF CLAUDE DIETE-AMANGE & ORS V. SYLVESTER MANGE-PEGE & ORS

(2003)LCN/1349(CA)

In The Court of Appeal of Nigeria

On Thursday, the 20th day of February, 2003

CA/PH/271/91

 

Before Their Lordships

JAMES OGENYI OGEBEJustice of The Court of Appeal of Nigeria

SYLVANUS ADIEWERE NSOFORJustice of The Court of Appeal of Nigeria

MICHAEL EYARUOMA AKPIROROHJustice of The Court of Appeal of Nigeria

Between

 

  1. CHIEF CLAUDE DIETE-AMANGE
    2. CHIEF GIDEON A. OBIENE-OJOKE
    (On behalf of Amange/Ojoko Houses of Nembe.)
    3. CHIEF PEDRO A. EGI-IKATA
    4. CHIEF S.I. SAGBE/ORUWARIAppellant(s)

 

 

AND

  1. SYLVESTER MANGE-PEGE
    2. MACLEAN T. INAINFE
    3. OMUNGU FEREMONDE
    4. MADAM MERCY OTINIRespondent(s)

 

MICHAEL EYARUOMA AKPIROROH, J.C.A (Delivering the Leading Judgment): This is an appeal against the judgment of the Rivers State High Court sitting at Bori, delivered on 16th July, 1990.
The Plaintiffs who are the respondents in this appeal claimed from the defendants (appellants) in the court below the following reliefs:
l. “Declaration of Customary Right of Occupancy to a piece of land known as Korobada Kiri lying and situate at Obolomabiri Nembe;
2. Perpetual Injunction restraining the defendants, their privies,agents and servants from interfering with the plaintiffs rights of use and enjoyment in and over the said land.
Pleadings were ordered, filed and exchanged. The respondent’s case put briefly in the Court below is that the land in dispute was founded by Obolo, the founder of Obolomabiri and situates at the back of Obolomabiri. Obolo used the land in cultivating specie of banana called Amakorumo Idu. When Obolo died, the land devolved on his first daughter, Atubu according to their custom. Atubu descendants continued to use the land until it devolved on the respondents, Later, one of the descendants of Atubu by name Amene converted the land to a raffia palm plantation by planting raffia palms on it. As a result of the raffia palms planted on the land,it became known as “Koro Daba” Kiri”, meaning raffia palm tree pond. Since the time of Amene, the respondent’s family had been tapping win” from the palm trees. They also hired out the palm trees to Ibibio palm wine tappers on payment of rents. They also allowed one Mr. Ferguson to plant rice on the land on a Seasonal basis.
When the Nembe Grammar School was established at Anymain Polo, they allowed the Community to gain access to the School through the land in dispute. They also protected the land from trespassers until the appellants laid claim to it.
The appellant’s case put briefly is that the 1st and 2nd appellants are Chiefs and members of Amango/Ojoko group of Houses Nembe, while the 3rd and the 4th respondents are Chiefs and members of Ikata/Oruwari group of Houses. Nembe and the land in dispute belong to the two groups of houses and situates at Ogbolomabiri, Obuakiri or Ogbolomabiri back bush which starts from Tombi to the end of Amasara Polo.
A very long time ago, Nembe comprised three statements, namely Oboloma founded by Obolo, Olodiama founded by Olodi and Oyoama founded by Onyo. As a result of conflicts, fights, and smallpox opedemic outbreak, they deserted the three settlements for Kalabari land and other places. After a century, Kala Ekule led few immigrants from Kalabari to Nembe and settled at Opu Pogu otherwise known as Ogbolomabiri.
Ogbolomabiri back bush was a den of wild animals at that time. The Chiefs led by Chief Allagoa ordered that the back bush should be cleared and it was cleared between 1904 and 1917. After its clearing, it was shared among the twelve chieftaincy houses, Ojoko and Oruwari houses portion is shown on the survey plan as the land in dispute which is quite different from Oboloma.
They have been using the land since it was shared. In 1963, one Mr. Ferguson approached them through his father in law, Chief James T. Ogbari for permission to use the land in dispute as a rice plantation and it was granted to him. In 1977 while the 2nd appellant was going to his office, he met the members of the respondent’s family with a surveyor surveying the land in dispute and he made a report to Mingri. In 1981, they saw the 2nd respondent clearing the land and this was reported to the Mingri who invited them for arbitration and after visiting the land, found in their favour which decision accepted by the respondents.
After the end of the hearing and in a reserved and considered judgment, the learned trial judge granted the two reliefs claimed by the respondents.
Dissatisfied with the judgment, the appellants have appealed to this court and formulated five issues for determination as follows:
ISSUES FOR DETERMINATION
(i) “Whether in this case the Plaintiffs/Appellants proved the boundaries of the land in dispute with the certainty required in law, in view of the dispute between the parties as to the boundaries of or the identity of the land in dispute ( Ground 1 of the Grounds of Appeal).
(ii) Whether in law Plaintiffs in this case proved the devolution of customary title to the land in dispute unto them so as to rely on traditional history to succeed (Grounds 2 and 3 of the Grounds of Appeal).
(ii) Was the issue of representative capacity of Plaintiffs in this case their mere capacity to institute the action as representatives of members of Atubu family or the effect of their proved descendancy from Atubu in a society with a matrilineal inheritance custom. (Ground 4 of the Grounds of Appeal.
(iv) Whether the learned trial judge adequately consider the case of the Defendants (Ground 5 of the Grounds of Appeal)
(v) Was the judgment against the weight of evidence?”
The respondents also filed a brief of argument and framed six issues for determination as follows:
1. Whether the appellants proved the identity of the land in dispute with the certainty required by law. (Ground 1)
2. Whether the traditional history of the plaintiffs/respondents coupled with the numerous and positive acts of ownership established by them at the trial are sufficient to enable the Court declare them as the holders of the customary right of occupancy over the land in dispute. (Grounds 2 and 3)
3. Whether the plaintiffs in this case proved their ownership and representative capacity of the Atubu Family. (Ground 4)
4. Whether the learned trial judge adequately considered the case of the defendants/appellants. (Ground 4)
5. Whether the land in dispute is part of Oboloma or connected with it as claimed by the plaintiffs/respondents or it is part of Ogbolomabiri Obuakiri (back bush) shared to the twelve Chieftaincy Houses from 1904 to 1917 and about 800 yards away from Oboloma. (Ground 1)
6. Whether the judgment was against the weight of evidence. (Ground 6)”
On the first issue, learned counsel for the appellants submitted that the respondents failed to prove the identity of the land in dispute which was an issue before the Court. He further argued that the learned trial judge was wrong when he treated the land of Yemanain/Karilongha house at Abaku-Piri Ogbolomabiri and bordering the land in dispute ns those at the back bush with common boundary with Ogbari House land when he found that the location of the land in dispute in Exhibits 4 and D4 does not agree with the evidence of D.W.1 and D.w.3 about the sharing of the land at the back bush.
In reply, learned counsel for the respondents referred to Exhibits D4 and 4, the survey plans of the land in dispute and the evidence of P. W.1-P.W.8 who testified as to the boundaries of the land in dispute and the evidence of D.W.2 and D.W.3 and submitted that the land in dispute which had been surveyed, marked with survey pillars and fence is easily ascertainable and a surveyor can produce a plan of it as it was done in Exhibits 4 and D4. Fie relied on the case of UPEZE v. CHIDEBE (1990) 1NWLR (Pt 125) 141 at 159 (supra).
The contention of learned counsel for the appellants on this issue was that the identity of the land in dispute was in issue and the respondents failed to prove it. As to the identity of the land in dispute, the respondents pleaded in paragraph 10 of their amended statement of claim as follows:
“10. The land in dispute is situate at the back of Ogbolomabiri, otherwise known as Oboloma and is the area edged “RED” on the Plan No. FO/34/81 LD attached to this Amended statement of claim and marked ANNEXUITE ‘A’
The respondents filed Plan No. F.O. 34/81 LO which was pleaded in paragraph 10 of the Amended Statement of Claim reproduced above and P. W.1 tendered it as Exhibit 4 and gave evidence in support of it at page 77 of the records lines 20-32 to the effect that the land in dispute is situate at the back of Oboloma otherwise known as Obolomabiri. The evidence that Yemainain/Karitongba House had boundary with the land in dispute was given by P.W.8 at page 142 of the records. At page 149 of the records, lines 3-7, D.W.2 gave evidence that apart from Ikata/Oruwari Houses, they have n common boundary with Chief Karitogha/Yemainain group of Houses. Equally, D. W .2 also gave evidence at page 149 lines 16:-20 of the records, that the land of Yemainain has boundary with the land in dispute. D.W .3 called by the appellants also testified that the land of Yemainain/Karitogha has common boundary with the land in dispute. In view of the pleading and the overwhelming evidence led by the respondents on the identity of the land in dispute, the contention of learned counsel for the appellants in his relief that the respondents failed to prove the identity of the land in dispute is misconceived. This issue is resolved in favour of the respondent against the appellants.
I think issues 2, 4 and 5 in the appellants brief and issue 6 in the respondents brief can be taken together.
On these issues, learned counsel for the appellants submitted that the respondents did not plead and led evidence how Amene came to inherit the land and front which of his parents did the ownership of the land devolve on him and there after to the respondent, were not stated. He relied on the cases of AMAGIDEOGWU v ONONAKU- (1988) 2 NWLR (Pt -78) 614 at 023, and ILARO v TENELO (19.76) 12 S.C. 31.
Learned counsel for the respondents submitted that it is not the law that title to land can only be proved by traditional evidence and relied on the case of IDUNDUN & ORS v DANIEL OKUMAGBA. (1976) 9 – 10 S.C. 227 at 246-250. He further submitted that the Court having declared the respondents traditional evidence incomplete does not preclude it from comparing it with the defendants’ traditional evidence and deciding which is more probable. He then referred to page 215 lines 4-9 of the records where the Court came to the conclusion that the plaintiff’s traditional evidence is much stronger than that of the defendants. It was also his submission that even though the court preferred the traditional evidence of the plaintiffs to that of the defendants, trial court did not award title to the plaintiffs on the strength of their traditional history but on the strength of their evidence of acts of ownership.
It is well settled law that in a claim for a decree of declaration of title, the onus is on the plaintiff to prove acts of ownership extending over sufficient length or time numerous and positive enough to warrant the inference that the plaintiffs were the exclusive owners. If the evidence of traditional evidence is inconclusive, the case must rest on the question of facts. See EKPO v. ITA 11 N.L.R. 68 at 69 and ADEREMI v. ADEDIRE (1966) NMLR 398 where Idigbe JSC of blessed memory delivering the judgment of the Court said at page 402-403.
“……….We are unable to accede to that submission and we take the view that as decided in EKPO’s case (supra),in a claim where as in the case I in hand,the evidence of traditional history, given by the Plaintiffs in an attempt to establish their ownership of the land in dispute is inconclusive, a Court may yet ownership of determine the disputed land in their favour if they succeed in establishing acts of ownership, numerous and positive enough to warrant the inference that, their possession of the land is to the exclusion of the defendants.”
At page 207 lines 3-8 of the records, the Learned Trial Judge to say about the traditional evidence of the respondents:
“………this is a very important point in Nembe history and I must observe that the plaintiffs have completely left out this portion of Nembe history and their traditional history cannot be complete without giving evidence on account of the dispassion and the return of the people to Opupugu………
As to the traditional evidence of the appellants, the Learned Trial Judge having reviewed it at pages 214-215 of the records and at page 215 lines 4-10 said:
“it can be seen that the traditional evidence of the defendants is not better than that of the plaintiffs and in fact that of the plaintiffs is much stronger than the defendants, traditional history, however it is the duty of the defendant only to defend.”
In effect, the Learned Trial Judge rejected the traditional of the appellants and the respondent’s even  though that of the respondents is stronger but did not declaration of title to the land in dispute to them on their traditional history but on acts of ownership as enunciated in the ease of ADEREMI V. ADEDIRE (supra).
I will now proceed to examine the acts of ownership of the land relied on ‘by the appellants and the respondents. The appellants pleaded their acts of possession of the land in dispute in paragraph 28 of their statement of defence as follows:
28…….Mr. Kemeiruo had built a house on the land in dispute. Gogo Tenji planted coconut trees on the land, -members of the families of the defendants planted cassava and sugarcane on the land.  They have also upon the land trespassed as shown in Exhibit “A” attached to this statement of defence.”
D.W.1 testified in support of it. The respondents pleaded their acts of ownership in paragraphs 12, 16-26 of their Amended statement of claim and P.W.1, P.W.2, P.W.5 and P.W.6 testified in support. At Pages 233-228 of the records the learned trial Judge evaluated the evidence of acts of ownership led by them as follows:
“. .. ..As regards the acts of ownership the plaintiffs led evidence to show that their ancestors planted specie of banana called “Amakuro Idu” on the land in dispute and that in time of Amene that he cultivated on the land raffia palm tree in the place of Banana and Ibibios tapped palm wine from the raffia palm trees…. (to be lifted from pages 234-236 underlined in blue)
These findings are amply supported by the evidence led before the court. It is well settled law that it is not the function of the court of Appeal to substitute its own view for those of the trial judge who has dispassionately made findings of fact unless such findings of fact are perverse or not based on the evidence before the trial court. See AKTNTOYE v. EYIYILA NWLR 92, BUA v. DAUDU (1999) 12 NWLR (Pt 269) 59.
The Appellants also complained that since the respondents traditional evidence was inconclusive and the learned trial judge having rejected it, he should not have taken it into consideration in granting title to the respondents. This complaint is totally misconceived because the learned trial judge tested the traditional evidence adduced on both sides by reference to facts in recent years as established by evidence and came to the conclusion that the respondents’ traditional evidence is more probable than that of the appellants. At page 226 lines 23-31 and page 227 lines 1-9 he said:
“If the traditional evidence adduced on both sides are tested by reference to the facts in recent years as established by evidence, it can be seen that the plaintiffs’ traditional history is much more probable than that of the defendants.
In view of this, I will accept the traditional evidence of the plaintiffs that the land in dispute is called “KORO DAB KIRI”, that Obolo first settled at OBOLOMA with his family, that the Atubu, the plaintiffs ancestor is descendant of OBOLO, that they had been cultivating a specie of Banana on the land till Amene converted the land to raffia palm plantation and that after his death that his descendants inherited the land and that ever since then that the plaintiffs’ family have been occupying the land and the other adjacent land Obolomabiri and that the land in dispute is their land and that it is a part of the back bush that was shared to their families between 1904 to 1917″
In testing the traditional evidence of both sides by reference facts in recent years’ the learned trial judge was in my view on firm ground with the law as laid down in the case of KARIMU v FAJUGBE (1966) NMLR 151 at 152 and ADEREMI V. ADEDIRE ( supra ) . These issues are resolved in favour of the respondents against the appellants.
The complaints on issue one is that the respondents and their witnesses did not at any time rely on Exhibits 4 and D4 to show that the land in dispute is between the lands of Yemain/Karitongba and Ogbari houses. He also relied on the evidence of D.w.1 and D.w.3 to show that the land in dispute is not part of the Ogbolomabiri (backbush) which the appellants claimed it was.
At page 21 of the records, lines 7-12, the learned trial judge after reviewing the evidence led by the parties as to the identity of the land said:
“…….It appears to me that the most important issue to be decided in that matter is whether the land in dispute is situated at Oboloma as claimed by the plaintiffs or it is part of Ogbolomabiri Obua sKiri back bush. It has been agreed on both sides that Ogbolomabiri back bush stretches on both sides that Ogbolomabiri back bush stretches from Tombi to Amasara Polo.”
It is clear from the evidence of the surveyor who visited and produced Exhibit 4 that Oboloma is not only near to the land in dispute but only separated from it by a it foot path and this piece of evidence was confirmed by DW3 who said under cross examination that the land in dispute and Obolomabiri are separated by a foot path. The learned trial judge having found as a fact on the evidence before him that the land in dispute situates at Oboloma and not at the back bush of Ogbolomabiri, the respondents have proved the identity of the land in dispute. This issue is also resolved in favour of the respondents against the appellants.
The appellants’ contention on issue three is that the respondent have not proved their link with Atubu and therefore cannot represent Atubu family in this action, even though there is an admission by the appellants that all the respondents except the 1st respondent are members of the Atubu family and relies on the case of VINCENT BELLO v. EWEKA (1981) 1 S.C, 101. In reply, learned counsel for the respondents referred to paragraph 5 of the Amended Statement of Claim at page 93 of the records where they pleaded their membership of Atubu family and that they brought the action as representatives of the Atubu family and the evidence led in support was not challenged under cross-examination. It was also his submission that the learned trial judge reviewed the evidence and came to the conclusion that the appellants having admitted that the 2nd, 3rd and 4th respondents are members of the Atubu family, they cannot challenge the representative capacity of the respondents.
I agree entirely with the submission of learned counsel for the respondents that the appellants having admitted that the 2nd, 3rd and 4th respondents are members of the Atubu family; they cannot turn round and challenge the capacity of the respondents. Besides, having admitted that they are members of Atubu family, there is no need for evidence to prove it.
In any event, the respondents in their evidence in Court proved that they are members of the Atubu family which was accepted by the learned trial judge. This issue is also resolved in favour of the respondents against the appellants.
In conclusion, this appeal lacks merit and it is dismissed.
The judgment of the lower court is hereby affirmed.
The respondents are entitled to costs assessed at N10, 000.00 against the appellants.

JAMES OGENYI OGEBE, J.C.A: I agree with the lead judgment of my learned brother, Akpiroroh, JCA just delivered. I have nothing useful to add. I adopt the judgment as mine.

SYLVANUS ADIEWERE NSOFOR, J.C.A: I agree.

 

Appearances

Boma Peter-Kio,For Appellant

 

AND

For Respondent

 

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