CHIEF OLALIBO OSAIN IBOKOLO & ORS. V. CHIEF SAMBO AYESA TARIAH & ORS.
(2011)LCN/4616(CA)
In The Court of Appeal of Nigeria
On Thursday, the 9th day of June, 2011
CA/PH/164/2008
RATIO
ADMISSION IN PLEADINGS: POSITION OF THE LAW ON THE DUTY OF THE COURT WHEN IT IS ASKED TO DETERMINE WHETHER THERE IS AN ADMISSION IN THE DEFENDANT’S PLEADING
Where a court is asked to determine whether there is an admission in the defendant’s pleading which would entitle the plaintiff to judgment such as was done in the instant case, the court must critically examine the defendant’s statement of defence as a whole and not merely consider the particular paragraph alleged to be the admission in isolation. The practice has grown which requires the court to consider the totality of the paragraphs in the statement of defence conjunctively rather than disjunctively in order to ascertain properly and comprehensively what issues have been joined between the parties. The law, in such circumstances, does not allow fragmentation of the paragraphs in the statement of defence. This is so because the entire statement of defence constitutes the case of the defendants and must necessarily be examined as a whole in order to appreciate where issues are joined and where the defence admits the stated facts contained in the statement of claim. See Nigerian Bottling Co. Plc. v. Oboh (2000) 11 NWLR (PT 677) 212 and Pan Asian African Co. Ltd v. National Insurance Co. (Nig.) Ltd (1932) 9 SC 1 and Eigbe v. N.U.T (supra). PER M. DATTIJO MUHAMMAD, (OFR), J.C.A
ADMISSION: EFFECT OF AN ADMISSION THAT IS UNCLEAR, EQUIVOCAL AND DOUBTFUL
It is trite that where an admission is unclear, equivocal and doubtful such as occur in the instant case, it is never construed against the maker and made the basis of the judgment against him. See Naridex Ltd v. N.I.M.B. LTD. (2001) 10 NWLR (Pt. 721) 321 at 333. PER M. DATTIJO MUHAMMAD, (OFR), J.C.A
ROOT OF TITLE: WHETHER WHERE A CLAIMANT FAILS TO PROVE THE GRANT OR SALE AS HIS ROOT OF TITLE, WILL IT STILL BE NECESSARY TO CONSIDER PLAINTIFF’S ACTS OF POSSESSION WHICH BY THEIR VERY NATURE ARE DERIVABLE FROM THE GRANT OR SALE HE HAD PLEADED
… where the plaintiff pleads a grant or sale as his root of title he succeeds or fails on the basis of the grant or sale. He wins where he succeeds and where he fails his case ought to be dismissed. Having failed to prove the grant or sale he pleaded, it is wrong in law, to turn round to rely on acts of possession or ownership which by their very nature are derivable from the grant or sale he had pleaded. Once the grant or sale the plaintiff pleaded has been proved, acts of possession or ownership resulting from the grant or sale need no longer be considered. They cease to be in issue. Where the grant or sale that has been pleaded is not proved it becomes equally unnecessary to consider plaintiff s acts of possession or ownership which with his failure to establish the root he pleaded becomes acts of trespass. The Supreme Court has put this very succinctly in Da Costa v. Ikomi (1968) 1 ALL NLR 394 and restated the very principle in Fasoro v. Beyioku supra. PER M. DATTIJO MUHAMMAD, (OFR), J.C.A
PROOF OF TITLE: CIRCUMSTANCE IN WHICH THE PRINCIPLE OF LAW AS ENUMERATED IN THE CASE OF KOJO II V. BONSIE WILL APPLY
The principle in Kojo II v. Bonsie establishes that where there is conflict in the traditional histories of both sides, one side or the other must be mistaken, inspite of the honesty in their belief. In such a case, demeanor has been held to be the guide to the truth. The best way is to test the traditional history of each side is by reference to the facts in recent years as established by evidence and see which of the two competing histories is more probable. The principle offers a guideline which the courts use in evaluating the evidence as to which of the evidence on the two conflicting historical accounts is more probable as their source of title. The principle should not be applied, the authorities further state, where a plaintiff relies on acts of ownership spanning several years as his root of title. See Kojo v. Bonsie (supra) Balogun v. Akanji supra and Odofin v. Ayoola (1934) 11 SC 72. In Ajukwara v. Izuoji, (2009) 10 NWLR (PT 1148) 107 one of the issues considered by the Supreme Court deals with the parties traditional histories and the applicability or otherwise of the principle in Kojo v. Bonsie (supra). The court decided inter alia as follows: ” …As for the law involved, it is now settled that there are five ways in which ownership of land may be proved which include proof by traditional evidence as has been done in the case (see Idundun and Ors. v. Okumagbu (1976) 9 – 10 SC).Both parties in this case pleaded and relied on traditional history as their root of title and there is no doubt that a claimant can establish his title solely on the basis of traditional evidence. And since there were competing versions of the traditional evidence led in the case, the principle laid in Kojo v. Bonsie (supra) which is simply that the trial judge should evaluate the competing versions of the traditional evidence led to test the veracity thereof by reference to recent acts and see which is more probable and applicable. I have examined the record myself and the opinion I form is that the learned trial judge properly applied the principle stated in Kojo v. Bonsie to the instant case and made his numerous findings of fact in favour of the plaintiffs including numerous facts of possession and ownership enumerated in the judgment. ” PER M. DATTIJO MUHAMMAD, (OFR), J.C.A
JUSTICES
M. DATTIJO MUHAMMAD Justice of The Court of Appeal of Nigeria
ISTIFANUS THOMAS Justice of The Court of Appeal of Nigeria
TUNDE O. AWOTOYE Justice of The Court of Appeal of Nigeria
Between
1. CHIEF OLALIBO OSAIN IBOKOLO
2, CHIEF ETEI OWEIFA
3. CHIEF JOSEPH I. ISAN
4. CHIEF REGINALD F. AYIBAKURO
5. CHIEF JOSEPH D. IWODO
6. CHIEF CHURCHILL E. AMANAFIA
7. CHIEF OKPARA TINKUMA
8. CHIEF WISDOM S.O. OSAIN
9. ELDER OKPARA O. OSAIN
(For themselves and as representing the Ibokolo Royal Group of
Houses of Dorgu-Ewoama Community Nembe Local Government
Area of Beyelsa State) Appellant(s)
AND
1. CHIEF SAMBO AYESA TARIAH
2. CHIEF A.N. DAKINAM
3. MR. STEPHEN ENETIMU
(For themselves and as representing the
Akinam/Ebede Royal Family of Dorgu-
Ewoama Community in Nembe Local
Government Area, Bayelsa State) Respondent(s)
M. DATTIJO MUHAMMAD, (OFR), J.C.A (Delivering the Leading Judgment): This is an appeal against the judgment of the Bayelsa State High Court dismissing plaintiffs’ entire claim and granting all the declaratory reliefs sought by the defendants. The judgment is dated 27th June 2007.
The plaintiffs, the appellants herein, by a writ of summons filed on 20th December, 1999 commenced Suit No. YHC/87/1999 against the defendants and by their statement of claim dated 8th May, 2001 sought the following declaratory and injunctive reliefs.
“(a) A declaration that the Ibokolo Royal Group of Houses are the Traditional and customary owners occupant and entitled to produce the Obenema (Amayanaba), the head and paramount ruler of Dorgu Ewoama Community in the Okorema clan, Okoroma/Teneke Local Government Area Bayelsa State.
(b) An order of perpetual injunction restraining the defendant by himself, his agents, allies, associates, supporters, servants and howsoever described from parading himself as the Obenema (Amayanabo) or head or under any guise as the paramount ruler of Dorgu Ewoama Community, Okoroma clan in Bayelsa State and
(c) An order of perpetual injunction restraining the defendant by himself his agents, allies, associates supporters, servants and howsoever described from dealing with, tempering and or interfering with Dorgu Ewoama Community Properties”
The original defendant in the suit joined statement of defence dated and filed on 26th March 2003. Two other persons, the 2nd and 3rd respondents were, pursuant to the lower court’s leave, joined as co-defendants.
The 1st defendant subsequently took out a writ against the 1st, 2nd and 4th plaintiffs in Suit No. YHC/87/99 and the Nigerian Agip Oil Co. Ltd to commence Suit No. YHC/25/2000 seeking the following reliefs:
“1. A DECLARATION THAT under traditional customs of Okoroma clan as applicable to Dogu (Ewoama in Nembe now Okoroma/Tereke) Local Government Area of Bayelsa State the plaintiff was duly installed coronated as OBENEMA (Amanyanabo/king) of Dogu Ewoama on 26/10/96 by the lawful King makers of Ologoama traditional headquarters of Okoroma clan.
2. A DECLARATION THAT the Royal Stool of Dogu Ewoama is the absolute and exclusive preserve of the AKINAM-EBEDE ROYAL HOUSE of Dogu Ewoama.
3. A DECLARATION THAT the 1st – 3rd defendant not being members or representation of eth Royal House of Dogu Ewoama cannot represent and obtain Community/Royal contract from NOAC.
4. AN ORDER OF PERTETUAL INJUNCTION restrain the first, second and third defendants, their servants agents and privies from carrying out or continuing to carryout any act or omission or doing anything or continue to do anything under the guise of being representatives or members of the Royal House of Dogu Ewoama and on that basis obtain or continue to obtain contractual benefits of any kind from Nigerian Agip Oil Co. Ltd. (NAOC).
5. AN ORDER OF PERPETUAL INJUNCTION restraining the 4th defendant its servants agents or privies from howsoever dealing or continuing to deal with the first, second and third defendants as being or in the name of the first, second and third defendants being representatives or members of the Royal family of Dogu Ewoama in contracts or other communal representations of any kind to come or now ongoing.”
The 1st, 2nd and 4th appellants as defendants in the subsequent Suit No. YHC/25/2000 filed their statement of defence on 18th November 2003. The two suits were consolidated by order of court dated 27th January, 2005. The plaintiffs in Suit No. YHC/87/1999 became the plaintiffs in the consolidated suit while the defendants in the said suit became the defendant in the consolidated suit with their claim in Suit No. YHC/25/2000 being treated as a counter claim.
Pleadings were filed and exchanged. Plaintiffs’ case as can be gathered from their statement of claim is that they head the various houses within the Ibokolo ruling group of houses in Dorgu Ewoama Community of the Okoro-Ama clan in Bayelsa State. They aver that their group of houses is the customary and traditional owners of all the parcel of land that comprises Dorgu Ewoama within Okoroma in the Okoroma/Teneke Local Government Area of Bayelsa State. They claim ownership of the land having inherited same from generation to generation through their ancestors. King Ibokolo was their original ancestor. It is their further case that their Royal group of houses granted land to subsequent settlers at Dorgu Ewoama including the defendants. The reliefs they seek in paragraph 27 of their statement of claim are predicated on these facts.
The defendants disputed plaintiffs’ claim of ownership of Dorgu Ewoama tracing their lineage to Akinam/Ebede Royal house of Dorgu. It is their case that Ebede Igwe was the founder of the land after subduing some people at Oloibiri. The land he so founded was known then as Seipiri, an evil forest. Ebede with the help of his Uncle Akiribe, a native doctor appeased the spirits of the evil forest thereby sanctifying the land and making it habitable for his people.
The two sides relied on traditional history and called two witnesses each to prove their respective cases. In a considered judgment dated 27th June, 2007, the court dismissed the plaintiffs’ entire case and granted the defendants all the reliefs they sought. Aggrieved by the decision, the plaintiffs have appealed vide their Notice dated 14th but filed 15th August 2007 as amended.
Parties have filed and exchanged their briefs of argument. Same were adopted and relied upon at the hearing of the appeal. The three issues formulated in the appellants brief as calling for determination in the appeal are:
“(i) Whether having due regard to the state of pleadings the trial court was right in holding that the plaintiffs/appellants admitted paragraphs 2 and 3 of the Amended Statement of Claim in Suit No. YHC/25/2000 and to have relied on the alleged admission to grant all the declaratory reliefs sought by the respondents (Distilled from grounds 1 and 11 of the grounds of appeal)
(2) Was the learned trial judge right when he held that based on the conflicting and competing evidence of traditional history the evidence of the respondents was more believable and satisfactory thereby reading to the conclusion that the respondents and not the appellants were entitled to judgment. (Distilled from Ground 2, 3, 5, 6, 9, and 12 of the grounds of appeal).
(3) Whether upon a proper evaluation of the evidence before the trial court the plaintiffs/appellants were not entitled to judgment in their favours based on their statement of claim (Distilled from grounds 4, 7, 8 and 10 of the grounds of appeal).” The two issues distilled in the respondents brief for the determination of the appeal read:
“(i) Whether what is admitted in the pleadings needs to be further proved.
(ii) Whether the court below properly appraised the traditional evidence proffered by the parties before finding and deciding in favour of the respondent to this appeal.”
On their first issue, learned appellants counsel contends that the lower court is wrong to have found that appellants had, given the state of pleadings and the reliefs sought by the respondents, admitted paragraphs 2 and 3 of the latters statement of claim and granted reliefs on the basis of the admission. It is argued that judicial admission as defined in the 8th edition of the Black’s Law Dictionary, decided cases and indeed under section 75 of the Evidence Act connotes an agreement between the parties on that which is admitted obviating the necessity of proof of the admitted fact. Relying on the decisions in National Bank v. Guthrle (1993) 4 SCNJ 1 at 15 and Edokpolo & Co. Ltd v. Oheneren (1994) 7 NWLR (PT 358) 511, learned counsel submits that the lower court’s finding on the issue at page 302 of the record is perverse since the facts on the basis of which the admission is inferred are not specific, clear and categorical. Besides, it has become trite too that in determining whether or not a party has admitted some facts in his adversary’s pleadings, the party’s entire pleading must be considered rather than the particular paragraphs that allegedly constitute the admission. Had the court done so in the instant case it would have concluded that appellants did not infact admit the facts in paragraph 2 and 3 of respondents’ statement of claim. Counsel supports his submission with Seismograph v. Eyuage (1976) 9-10 SC 135 at 148; PAAC Ltd. v. NIC LTD (1982) 9 SC lat 48 Mobil Producing Nig. Unlimited v. Asuah (2002) FWLR (PT 107) 1196 and Tititoye v. Olupu (1991) 1 – 10 SC SCNJ I22 at 146. Where an admission is doubtful as in the instant case, learned counsel submits, it is never considered against its maker and should not constitute the basis of judgment against the appellants’.
Also, by virtue of the proviso to S.75 of the Evidence Act, the court’s powers in determining whether or not to dispense with proof of admitted facts, submits counsel, are discretionary. These powers need to be exercised judicially and judiciously. The powers are wrongly exercised in the instant case where doing so leads to miscarriage of justice. He relies on Narindex Ltd v. NIMB Ltd (2001) 4 SCNJ 208 at 220.
Finally, it is argued that the reliefs the respondents seek by virtue of paragraphs 2 and 3 of their statement of claim which the court held were admitted by the appellants are all declarations of rights. The law, learned counsel submits, is settled that such rights are never granted on the basis of admission. Respondents must prove their entitlement to the declarations sought by cogent and compelling evidence. Learned counsel calls in aid: Bello v. Eweka (1981) 1 SC at 101 – 102 and 103; Woluchem v. Gudi (1931) 5 SC 291 at 294 Kalio v. Woluchem (1935) 1 NWLR (PT. 4) 610 at 623-624 and further submits that the court having proceeded on wrong footing ended up with a decision that is not based on the evidence of parties. Had the court followed the laid down principles pertaining pleadings and admissions, argues learned counsel, it would have reached a different and just decision. He urges that the issue be resolved in their favour.
The respondents argue their two issues jointly in their brief. Their arguments on their 2nd issue, appellants first, commence at page 23 of their brief. Learned counsel submits that the fact that appellants had admitted paragraphs 2 and 3 of the respondents’ statement of claim in suit No. YHC/25/2000 is not in doubt. The function of pleadings in litigation, they further submit is to ascertain with as much certainty as possible the matters in controversy between the parties as distinct from those over which they agree. It is also settled, learned counsel contends, that parties who are strictly bound by their pleadings are not allowed to make a case which is at variance with their pleadings. Above all it is part of the rules of pleadings that what has been admitted needs no further proof as same must be taken as established. For all these principles, learned counsel variously rely on Oshodi v. Eyifunm (2000) 7 SC (PT 11) 145, Makinde v. Akinwale (2000) 1 SC 89; Ito v. Ekpe (2000) 2 SC 98; Agbanelo v. Union Bank of Nigeria Ltd. (2000) 4 SC (Pt. 1) 233, Ohibode v. Oyesina (1977) 5 SC 79 and Veritas Insurance Co. Ltd. v. Citi Trust Investments Ltd (1993) 3 NWLR (PT. 381) 349. Applying all the principles to the case at hand, learned respondents counsel contends that appellants must not allowed to approbate and reprobates. Appellants must not be allowed to make a case different from what they pleaded. If the appellants feel very strongly about what had happened, their counsel’s mistake as to what they pleaded, they can sue the counsel for negligence. Appellants have admitted without equivocation in their pleadings that the respondents are from the Roval House/Family of Dorgu Ewoama and that settles the issue.
In further argument under the issue, counsel concedes that ordinarily the totality of appellants’ pleadings must be considered in determining whether or not there is admission therein. Having however specifically and disjunctively put their case into two in paragraph 3 of their statement of defence dated 18th November 2003 by the first clear compartment, appellants have relieved the respondents from proof of the admitted fact. What remain for parties to prove is as to the second compartments which relate to paragraphs 4-55 of the respondents statement of claim the appellants denied. This scenario, counsel contends, makes the lower court’s finding that paragraph 3 of appellants statement of claim is an admission unimpeachable. In any event, learned counsel concludes, there is abundant evidence on record from the testimonies of DW1 and DW2 on the issue against the appellants. The issue all the same, contends the counsel, should be resolved against the appellants.
In the instant case, the respondents filed their statement of claim in suit No. YHC/25/2000 in the court below on the 8th December 2000. Paragraphs 2 and 3 of the said statement of claim read:
“(2) The 1st – 4th defendants are descendants of Ibokolo in Dogu Ewoama.
(s) The 5th defendant is a company incorporated in Nigeria and engaged in oil exploration and exploitation in Nigeria and particularly in Dogu Ewoama. ”
In response to the foregoing, the appellants filed their statement of defence on 18th November 2003. Paragraphs 3 of the statement of defence read:
“3. Paragraphs 2 and 3 of the statement of claim are admitted paragraphs 4 – 55 of the statement of claim are particularly denied as complete falsehood.”
However, the respondents with the leave of court on 23rd April 2004, see page 222 – 223 of the supplementary record vol. 2, filed an amended statement of claim dated 29th April 2004 paragraphs 2 and 3 of which read:
“2. The 2nd and 3rd plaintiffs are members of Akinam/Ebede Royal House of Dorgu Iwooma being descendants of Akinam/Ebede.
3. The 1st – 3rd defendants are descendants of Ibokolo in Dorgu Iwoama ”
The courts findings at page 301 of the record in relation to the state of pleadings on the issue of appellants’ admission in respect of paragraphs 2 and 3 of the respondents’ statement of claim read:
“It is trite law that parties Are bound by their pleadings. Also trite that admitted facts do not require proof, It is also trite that admissions must be clearly stated and not capable of any ambiguity in the meaning or likely interpretation of the paragraphs referred to by the learned Defence counsel. Defendants said they are from the Royal family of Akinam/Ebede of Dorgu Ewoama and the plaintiffs admitted that sentence. I do not see any other meaning to be read into that except what it says. Unless the plaintiffs say they were speaking in equivocation. The court and other party would not know that unless expressly stated in the same pleading.
I therefore hold that the plaintiffs admitted paragraphs 2 & 3 of the statement of claim in NHC/25/2000 in their paragraph 3 of the statement of defence in the some suit, which is regarded as a counter claim in the consolidated suits. The evidence of the witnesses for the playoffs which are in conflict with their pleadings above will go to no issue as a party is not permitted to approbate and reprobate in law. Ofondu v. Niweigha (supra) 255 ratio 4. To avoid surprises parties are bound by pleadings Okoromaka v. Odiri (1995) 7 NWLR 411 at 418 ratio 12. “See page 302 of the record of Appeal.
Whether or not the foregoing finding as to whether or not paragraph 3 of appellants statement of defence is an admission of paragraphs 2 and 3 of respondents statement of claim is correct depends on whether the finding satisfies both S.75 of the evidence Act as well as order 19 of the Bayelsa State High Court (civil procedure) rules. The two adjectival provisions vest in the court the discretionary powers on the basis of which it determines whether or not averments in pleadings constitute an admission. Over the years, the two have received authoritative consideration in this court as well as the Supreme Court.
Whereas the appellants argue that the finding being contrary to the decisions of this court and the Supreme Court is perverse, the respondents urge that appellants must not be allowed to make a case different from the one they pleaded. Given the arguments learned appellants counsel advances and the authorities he relies or, he seems to be on a very firm terrain. Where a court is asked to determine whether there is an admission in the defendant’s pleading which would entitle the plaintiff to judgment such as was done in the instant case, the court must critically examine the defendant’s statement of defence as a whole and not merely consider the particular paragraph alleged to be the admission in isolation. The practice has grown which requires the court to consider the totality of the paragraphs in the statement of defence conjunctively rather than disjunctively in order to ascertain properly and comprehensively what issues have been joined between the parties. The law, in such circumstances, does not allow fragmentation of the paragraphs in the statement of defence. This is so because the entire statement of defence constitutes the case of the defendants and must necessarily be examined as a whole in order to appreciate where issues are joined and where the defence admits the stated facts contained in the statement of claim. See Nigerian Bottling Co. Plc. v. Oboh (2000) 11 NWLR (PT 677) 212 and Pan Asian African Co. Ltd v. National Insurance Co. (Nig.) Ltd (1932) 9 SC 1 and Eigbe v. N.U.T (supra).
In the instant case what the lower court did in determining whether the appellants had admitted respondents pleading is to isolate paragraph 3 of the latter’s statement of claim and conclude after a disjunctive examination of the particular paragraph that there is an admission. This, the various decisions of this court and the Supreme Court hold is a wrong approach. As rightly submitted by learned appellants counsel, had the lower court appreciated the need to construe the pleading as a whole it would have realized that the purported admission is violently inconsistent with particularly paragraphs 2, 4,5, 11, 15, 19 and 28 of appellants pleading.
The paragraphs are hereunder reproduced for ease of reference:
“2. The 1st to 3rd defendants admit paragraph 1 of the statement of claim to the extent that the plaintiff is an indigene of Dorgu Ewoamo but deny that he is the paramount ruler, occupant q {the Dorgu Ewoama traditional chieftaincy stool or the Obenema (Amayanabo) of Dorgu Ewoama. He had never been one.
4 The defendants state that the 3rd defendant is the current paramount traditional ruler and occupant of the chieftaincy, the Obenema of Dorgu Ewoama (the VII in the series).
5. Further to the above, the Dorgu Ewoama as a community or town was founded by king Ibokolo 1 by first settlement.
11. Ibokolo was unanimously selected and installed the Obenema 1 of Dorgu Ewoema as founder and owner of the Dorgu Ewoama community.
15. The 1st to 3rd defendants aver that all lands occupied by the Ebede/Akinam family were allocated to them by King Ibokolo 1 and his successors as owners of the land.
19. The 1st and 3rd Defendants aver that no member of the plaintiff’s Akinam/Ebede family have ever ascended to the throne of Obenema of Dorgu Ewoama or reigned as such.
28. The 1st to 3rd defendants aver that s owners and ruling family of Dorgu Ewoama the Ibokolo Royal family had been dealing with the 4th defendant for over 30 years as of right.”
Inspite of the purported admission in paragraph 3 of appellant’s statement of defence, the dispute between parties remains which family between the appellants’ and respondents’ is the actual Royal family of Dorgu Ewoama Community entitled to the land and rulership rights given the foregoing pleadings. A judicial and judicious exercise of discretionary powers of the lower court by its wholesome consideration of the appellants pleading would have forced the conclusion that the appellants by paragraph 3 of their statement of defence never intended to admit paragraphs 2 and 3 of the respondents’ statement of claim. It is certainly illogical for the appellants to plead in all these paragraphs that Ibokolo is the sole Royal family only to admit by default of filing consequential amendments that the 2nd and 3rd respondents are members of Akinam/Ebede Royal House of Dorgu Ewoama. The equivocation in appellants purported admission which the court failed to notice is indeed manifestly blatant. It is trite that where an admission is unclear, equivocal and doubtful such as occur in the instant case, it is never construed against the maker and made the basis of the judgment against him. See Naridex Ltd v. N.I.M.B. LTD. (2001) 10 NWLR (Pt. 721) 321 at 333. Lastly, all the reliefs sought by the respondents by virtue of their claim are undeniably declaratory. Learned appellants’ counsel cannot be faulted in his submission that courts do not grant declaratory reliefs either on admission or in default of defence without hearing evidence. The portion of the Supreme Court’s decision in Bello v. Eweka supra appositely referred to by learned appellants’ counsel is hereunder reproduced for its relevance:
“Where the court is called upon to make a declaration of right, it is incumbent on the party claiming to be entitled to the declaration to satisfy the court by evidence, not by admission in the pleadings of the defendants that he is entitled. The necessity for this arises from the fact that the court has discretion to grant or refuse the declaration and the success of claimant in such an action depends entirely on the strength of his own case and not on the weakness of the defence” See also Woukhem v. Gudi (1981) 5 SC 291, Chemiron Int. Ltd. v. Egbujuonuma (2007) All FWLR (395) and U.B.A v. Jimba (2001) 12 NWLR (Pt.27) 505 at 518.
It is for all these reasons that I resolve the 1st issue in favour of the appellants.
Appellants 2nd issue queries the lower court’s preference of the respondents’ traditional history inspite of the overwhelming acts of possession established by the appellants. It is true, learned appellants counsel submits, there are five ways of seeking declaration of title to land and each sufficient to obtain the declaratory relief. However, learned counsel argues, proof of acts of possession by either party to the claim has been held to be the best guide for the court in determining whose traditional account it should prefer. The finding of the lower court at page 308 of the record of appeal that ignored this principle is perverse and should be reviewed by this court.
Further arguing the issue, learned counsel contends that appellants have led both oral and documentary evidence through their two witnesses in proof of their various acts of possession as contained in paragraphs 12, 13, 14 and 21 of their statement of claim inspite of respondents’ admission of the averments in paragraphs 15 and 22 of their statement of defence. These acts include granting land for respondents ancestors to settle on, collection of rents, royalties and compensation from Nigeria Agip Oil company since 1973 and the fact of the many cases the appellants either prosecuted or defended as contained in exhibits A, B, C, E and F, judgments of competent courts. There is also the uncontradicted evidence of PW2 that the 1st appellant is the only recognized Obemene/Amanayabo of Dorgu Ewoama and a member of the highest traditional governing body of the Okoroma clam. All these should have entitled the appellants to the declarations they sought. Assuming the respondents had any right, the fact of various acts of possession established by the appellants would have defeated such rights and it is inequitable that the lower court has held to the contrary. That decision which stands in breach of trite principles particularly enunciated in Kojo v. Bonsie (1975) 1 WLR, as well, being perverse, should be reviewed by this court. Learned counsel refers and relies on Sanusi v. Emeyogun (1992) 4 NWLR (PT.237) 527 at 548 and Elegush v. Oseni (2005) 14 NWLR (PT 945) 348 at 366, Maskak v. Silli (2002) 12 NWLR (PT 784) 216 at 229 Fasoro v. Beyioku (1988) 2 NWLR (PT 76) 263 at 271 and urges us to resolve the issue against the respondents.
Respondents’ arguments in reply on this issue though terse are in my considered view very potent. Learned respondents counsel submits that appellants’ case is rooted in traditional history and once it fails their claim as well fails. The law does not allow appellants whose traditional history in proof of their claim is improbable to rely on recent acts of possession to prove a claim founded on the history that had failed. Their failure to establish the fact of the founding of Dorgu Ewoama determines the fate of their claim and disentitles them from relying on any fact or event subsequent to that initial act. The fact of granting part of the land Ibokolo their progenitor purportedly founded occurred only after the fact of founding the land being founded by Ibokolo who owned same by virtue of that act. Exhibits E, F, G, H, C and D, the judgments in respect of the land in dispute, the rent, royalties etc allegedly collected from Agip Oil Nigeria Ltd. and 1st appellant’s title being facts subsequent, accessory and consequential to Ibokolo’s founding of the land and title in dispute would not therefore avail the appellants. Learned counsel prays in aid Balogun v. Akanji (1998) 1 NWLR (Pt. 70) 301, Uchendu V. Ogboni (1999) 5 NWLR (PT 603) 337 Eze v. Atasie (2000) 6 SC (Pt.1) 214 and Etim v. Ekpe (1983) 1 SC NLR 120 at 132 and urges the resolution of the issue against the appellants.
I find the arguments of learned respondents counsel totally disarming and completely subduing. The various cases relied upon by both sides for and against their positions are helpful indeed.
Firstly, there is no running away from the decision of the Supreme Court in Idundun v. Okumagba (supra) that there are five ways in which ownership of land may be proved. These are: (a) by traditional evidence (b) by production of documents of title (c) by acts of long possession (d) acts of person claiming land such as selling, leasing or renting out and (e) proof of possession of connected or adjacent. Each of these five ways is sufficient by itself once pleaded and proved to justify the grant by the court of the declaration of title the claimant seeks. Any of the five ways once resorted to by the plaintiff stands or falls on its own merit and does not necessarily need the support of another way not directly and independently pleaded as a separate root of title. Thus for example where the plaintiff pleads a grant or sale as his root of title he succeeds or fails on the basis of the grant or sale. He wins where he succeeds and where he fails his case ought to be dismissed. Having failed to prove the grant or sale he pleaded, it is wrong in law, to turn round to rely on acts of possession or ownership which by their very nature are derivable from the grant or sale he had pleaded. Once the grant or sale the plaintiff pleaded has been proved, acts of possession or ownership resulting from the grant or sale need no longer be considered. They cease to be in issue. Where the grant or sale that has been pleaded is not proved it becomes equally unnecessary to consider plaintiff s acts of possession or ownership which with his failure to establish the root he pleaded becomes acts of trespass. The Supreme Court has put this very succinctly in Da Costa v. Ikomi (1968) 1 ALL NLR 394 and restated the very principle in Fasoro v. Beyioku supra.
In the instant case both parties pleaded traditional history as their root of title to the land and stool in dispute. They called their witnesses to prove their respective cases and at the end of trial the lower court found in respect of appellants claim at page 308 of the record thus:
“The plaintiffs have not proved their traditional history of 1st settlement. The acts of possession and claim of rulership rights cannot therefore stand.”
The court consequently dismissed appellants’ claim. The appellants insist under their 2nd issue that their acts of possession and rulership rights contrary to the decision in Da costa v. Ikomi (supra) and Fasoro v. Beyioko supra should further be considered by the court, a step which if taken would have informed a different decision from the one arrived at by the court. Learned appellants’ counsel is certainly wrong on this point. He clearly misconceives the principle enunciated in Kojo II v. Bonsie (supra) the application of which he believes should make their day. Resort is had to the principle in Kojo v. Bonsie (supra) only where a conflict between the traditional accounts of both sides in the case persists. Where no such conflict exists between the two accounts, as rightly found by the trial court in the instant case, the principle becomes inapplicable.
Respondents resort to the Supreme Court’s decision in Adeleke v. Asani (1994) 1 NWLR (PT 322) 536 at 554 – 555 in this regard is well informed. The principle in Kojo II v. Bonsie establishes that where there is conflict in the traditional histories of both sides, one side or the other must be mistaken, inspite of the honesty in their belief. In such a case, demeanor has been held to be the guide to the truth. The best way is to test the traditional history of each side is by reference to the facts in recent years as established by evidence and see which of the two competing histories is more probable. The principle offers a guideline which the courts use in evaluating the evidence as to which of the evidence on the two conflicting historical accounts is more probable as their source of title. The principle should not be applied, the authorities further state, where a plaintiff relies on acts of ownership spanning several years as his root of title. See Kojo v. Bonsie (supra) Balogun v. Akanji supra and Odofin v. Ayoola (1934) 11 SC 72.
In Ajukwara v. Izuoji, (2009) 10 NWLR (PT 1148) 107 one of the issues considered by the Supreme Court deals with the parties traditional histories and the applicability or otherwise of the principle in Kojo v. Bonsie (supra). The court decided inter alia as follows:
” …As for the law involved, it is now settled that there are five ways in which ownership of land may be proved which include proof by traditional evidence as has been done in the case (see Idundun and Ors. v. Okumagbu (1976) 9 – 10 SC).Both parties in this case pleaded and relied on traditional history as their root of title and there is no doubt that a claimant can establish his title solely on the basis of traditional evidence. And since there were competing versions of the traditional evidence led in the case, the principle laid in Kojo v. Bonsie (supra) which is simply that the trial judge should evaluate the competing versions of the traditional evidence led to test the veracity thereof by reference to recent acts and see which is more probable and applicable. I have examined the record myself and the opinion I form is that the learned trial judge properly applied the principle stated in Kojo v. Bonsie to the instant case and made his numerous findings of fact in favour of the plaintiffs including numerous facts of possession and ownership enumerated in the judgment. ”
In the instant case the learned trial judge’s finding on the traditional history of the appellants at page 308 of the record dismissing appellants claim for their failure to prove their claim through their pleaded root of title is right and unassailable. He could only resort to appellant’s acts of possession and claim to rulership rights if there had been conflict between their traditional history and that of the respondents, which is not in the instant case found by the court to be such, or if such possession and acts of rulership have been pleaded as a separate and alternative root of title. Having pleaded and relied solely on traditional history as root of their title, their claim fails and the lower court is right to have dismissed the claim with appellants’ failure to prove the traditional history they pleaded. See Da costa v. Ikoni (supra). Whether or not the lower court is right in the finding that appellants have not proved their case on the basis of the sole root of title, the traditional history they pleaded and relied upon forms the basis of appellants 3rd issue consideration of which ensues at once. For now I resolve appellants 2nd issue against them.
In arguing their 3rd issue for determination, learned appellants’ counsel adopts their arguments under the 1st and 2nd issues as well and submits that the lower court’s finding that respondents’ traditional history is more probable is perverse. The appellant, learned counsel submits, had predicated their case on traditional history of first settlement by their ancestor Ibokolo and on numerous acts of ownership and possession over the years. PW1 and PW11 gave evidence in line with appellants’ pleadings. In evaluating the evidence as led, learned counsel contends, the court at page 297 of the record proceeded on the wrong notion that the evidence is contradictory and so discrediting same. The approach has undermined the laid down rule for the evaluation of competing evidence of traditional history as laid down in Kojo v. Bonsie (supra). The court also failed to take into account the frailty of human memory as stated in Fatoba v. Ogundahunsi (2003) FWLR (PT 154) 561 AT 580. The courts failure to resolve the effect of the contradictions in appellants’ case thereby destroying their case is fatal. Relying on Ojukwu v. Obasanjo (2003) FWLR (Pt 182) 1766 and Emegokwe v. Okadigbo (1973) 4 SC 113 at 117, learned appellant counsel asks that we reevaluate the evidence led and arrive at the right decision.
Responding, learned counsel to the respondents submits that appellants had pleaded the facts by virtue of which they led witnesses to prove same. The contradictions in the testimonies of appellants’ witnesses are very glaring. The evidence again is very much at variance with appellants’ pleadings. With all these shortcomings no reasonable court would believe the appellants evidence that is not only at variance with their pleadings but also internally contradictory. Relying on Onamede v. A.C.B. Ltd. (1997) 1 NWLR (PT 480) 123 at 145 Njoku v. Eme (1973) 5 SC 293 Okafor v. Okitiakpe (1973) 2 SC 49 and Ezemba v. Ibeneme (2000) 10 NWLR (PT 674) 61, learned counsel submits that the lower court’s decision that is unimpeachable be upheld.
Appellants’ traditional history is as contained in paragraphs 5, 6 and 7 and 20 of their statement of claim. The paragraphs are hereunder reproduced for ease of reference:
“Paragraph 5 (a).; The plaintiffs aver that their Ibokolo Royal Group q {Houses which comprise of 7 units are the customary and traditional owners of all that parcel of land comprised in Dorgu-Ewoama, within the Okoroma clan in the Okoroma/Teneke Local Government Area qt Bayelsa State.
Paragraph 5 (b): The Dorgu Ewoama parcel of land (community) stretches .from the Obama.4ow station at its northern axis to a common boundary with Akakumana and Okoroma communities in the southern and western axis.
Paragraph 6: The plaintiffs became owners of the said parcel of land through their ancestors by first settlement. The same has devolved by inheritance from generation to generation to date.
Paragraph 7: Further to the above the plaintiffs aver that that have traditional linkages from Akakumama Communitv from which the founder of the Dorgu Ewoama, King Ibokolo came.” See page 59 of the Record of Appeal Vol. 1.
Further to paragraph 18 and 19 above the order of succession to the Dorgu Ewoama Obenema Stool has been DAUFA III, TOM IV, FESTUS (IKIO) V. S.B. OWEIFA VI and OLALIBO OSAIN VII (the incumbent and 1st plaintiff).”
Testifying on their traditional history as to the founding of Dorgu Ewoama and the kingship by their ancestor Ibokolo, PW1 told the court at page 167 of the record as follows:
“Our ancestor settled at Akakuma and moved down to Dorgu Ewoama. Dorgu Ewoama was a forbidden area with no body staying there when Ibokolo got there. He was the first person to settle there. The effect of this first settlement is that .he became the owner of the land….. my ancestor played a very major role at the Akasa raid of 1889. He went with his men to the war. He returned successfully from the war and people came and settled with him. These were Ebede, Akinama and Yamainain. They went of Ibokolo at Dorgu Ewoama and he apportioned parcels of land to them…… Ibokolo moved from Alkakumama to Dorgu Ewoama after the death of Akinan.”
On the stool, PW1, (see page 196-lines 18 – 25 of the record) said:
The stool of Obenema title, Chief Ibokolo called his kinmen and created it. King Ibokolo occupied the stool first. The stool is still being maintained by the Ibokolo Royal Group of houses. The Obenema stool is the overall ruler in charge of the community – the paramount ruler.”
As to the origin of the stool the witness testified further at page 177 lines 15 – 18 thus:
“There was no relationship between Ibokolo and Ebede. There was also no relationship between Ibokolo and Akiman. Daufa had no relationship with Ibokolo.”
As to the native law and custom of Nembe or Ogbia on the burial place of the founders of communities and their kings, PW11 as admitted at page 237 lines 1 – 6 and page 238 lines 1 – 7 of the record thus:
“Under Nembe or Ogbia native law and custom people are buried on their own land. I heard of regent Dorfo. His tomb is still in Dorgu. Ewoama I do not know where in particular but Ibokolo died outside Dorgu Ewoama it is true that Ibokolo was not buried in Dorgu Ewoama.”
An examination of the record of appeal readily reveals that the respondents’ two witnesses testified completely in line with their pleadings. The evidence of their two witnesses is consistent and very coherent.
On the basis of the plea-dings and evidence of both sides the court at page 308 lines 12 – 36 and 307 summarized their evidence and rationalized, as follows:
“The plaintiffs’ case is that Ibokolo was the son of Eperegha the son of Ovoh. In evidence PW1 said IbokoloAkinam/Ebede were not related. PW11 said they were only in-laws as Ibokolo’s 1st wife Eto was Akinam’s daughter and Ebede’s niece. The Defendants however gave a wider picture of their lineage which the plaintiffs in evidence said they could not deny. Okoroma begat – Ovoh, begat Akomu, and Eperegha, Akomu begat-Igwe-begat Akinam/Ebede. Eperegha was therefore the uncle of Igwe. Eperegha’s son is the cousin of Igwe the father of Akinam. Ibokolo was therefore a cousin or brother in the African palance to Igwe. Is it normal for him to marry the granddaughter of his brother or cousin? I do not think so. Infact under cross-examination on 8/4/205 PW1 was asked: “Under Nembe custom do relations marry themselves and he answered; No relations do not marry themselves. From the above, it is either Ibokolo was not Eperegha’s son or Eto/Ibi was not Akinam’s daughter. DW2 gave the answer in his evidence that Ibokolo family was not allowed to bury his father late King of Akakumama Ovoh 1I as the Ovoh family knew that their ancestor Ibokolo was not the grandson of Ovoh – he was not a blood relation to Eperegha. This happened after the decision of the clan head of Okoroma that Ikoni and Ibokolo were sons of Eperegha.”
The court then inferred from the foregoing thus:
“Ibokolo was therefore not descendant of Ovoh. It would therefore not have been possible for Ibokolo to deforest an evil forest which belonged to the people of Akakumama.
Secondly, it was Ebede’s elder brother King Akinam who died. It was Ebede who caused the crisis by going to Oloibiri to retaliate. Would he not therefore be the one to run to safety first? I hold the view that the defendants’ traditional history is more believable than that of the plaintiffs. On the gap between Daufa’s reign and the incumbent, the two defence witnesses stated that there were regents and gave their names.
On the contention or plaintiffs’ counsel that Akinam cannot have 2 dynasties, the evidence is clear that Akinam was a king under the dynasty of Ovoh his ancestor not his dynasty.”
The court concluded as follows:
“The plaintiffs have not proved their traditional history of 1st settlement. The acts of possession and claim to rulership rights cannot therefore stand. The plaintiffs’ claims are hereby dismissed.”
The appellants stand no chance in respect of this issue. The lower court’s findings would only be tampered with if same are perverse. And they would be perverse only if they do not draw from the evidence as pleaded or where in making such findings the court had applied wrong principles or considered extraneous matters’ There is no doubt that there are serious contradictions in the testimonies of the two witnesses the appellants relied on to prove their case. The different positions the two took as to when Ibokolo moved to found Dorgu Ewoama from Akakumama and apportioned parcels of land to Ebede, Akinam and Yamalnain; the witnesses’ inability to explain why their progenitor who founded the land and stool in dispute was not buried on the very land he founded as the native law and custom of his people require as well as how Duafa became a king inspite of the fact that he was not of the Ibokolo stock all leave yawning gaps in the traditional history of the appellants which gaps entitle the lower court to reject the account. The effect of these contradictions which the court dwelt on are very obvious. They justifiably result in the failure of the appellants’ case thereby leaving the case of the respondents more solid, probable and reliable. The inconsistencies in the testimonies of these witnesses rendered their evidence incredible undeserving of reliance by any reasonable tribunal. The reference by the respondents to Akanmu v. Adigun (1993) 7 NWLR (PT 304) 218 at 235 and Abatan v. Dr. Dawudu (2005) 2 CLRN 56, 66 in support of this principle is quite apposite.
Finally, it is the principle that a claimant to title to land and/or stool who relies on traditional history must plead and prove not only the original founder of the land and stool but also the manner same was founded, the devolution of the interest in the land or stool, and the persons on whom the land or stool devolved successively to the very incumbent who now asserts his rights. The claimant must never leave any unexplained gaps in the history he pleads and proves. Where he does, and that is the lots of the appellants in the instant case, who could not explain convincingly when Ibokolo founded Dorgu-Ewoama and how Duafa came to be the ruler of Dorgu Ewoama even though he is not from the Ibokolo royal group of houses, their claim must be dismissed. See Ezinwa v. Agu (2004) 3 NWLR (Pt. 861) 431 and Adebo v. Omisola (2005) 2 NWLR (Pt. 909) 149. The decision of the lower court has obeyed all these principles and makes it impossible for us to interfere. This conclusion resolves appellants 3rd issue against them.
As a whole, the appeal which is allowed in part is all the same dismissed for being unmeritorious. Respondents are entitled to cost which I put at N60,000 and order against the appellants.
ISTIFANUS THOMAS, J.C.A: I had the honour of reading in advance the lead judgment of my learned brother, M. D, Muhammad [OFR], JCA, just delivered.
I am in full agreement that, once the pleadings and the traditional history of the land in dispute is distorted the claim must be dismissed, see Ezenwa vs. Agu (2004) 3 MWLR (Pt.861) 431.
I therefore dismiss the appeal and abide with consequential orders made in the lead judgment.
T. O. AWOTOYE J.C.A: I have had the preview of the judgment just delivered by my learned brother M. D. MUHAMMAD (OFR) JCA.
I am in total agreement with him. I have nothing useful to add.
I abide by the consequential orders (including costs) made in the lead judgment.
Appearances
E.C. Ukala SAN;
Dike UdennaFor Appellant
AND
F.A. Oso SAN;
A.R. AbdulrahmanFor Respondent
