ODOKO & ORS v. EMOSE & ORS (2020)

ODOKO & ORS v. EMOSE & ORS

(2020)LCN/15230(CA)

In The Court Of Appeal

(BENIN JUDICIAL DIVISION)

On Friday, March 13, 2020

CA/B/62/2015

Before Our Lordships:

Philomena Mbua Ekpe Justice of the Court of Appeal

Tunde Oyebanji Awotoye Justice of the Court of Appeal

Moore Aseimo Abraham Adumein Justice of the Court of Appeal

Between

ODIO T.O. ODOKO & ORS 2. MR. PEDRO UDHOMA 3. MR. JOEL ABADA (For Themselves And On Behalf Of OJAIGHO, ODHEGBA, AVAROBE, UGBO-IYEDE, OZOGBERU, EJOBOROKA, ANUBI, OWHOVE, OFIKPOKPO, IKENGA & AGWAGWA FAMILIES OF URUDE Community, Ozoro) APPELANT(S)

And

MR. EFE EMOSE & ORS 2. MR. ANTHONY UGWE 3. MR. JOSEPH IKRE (For Themselves And On Behalf Of AGBON, ETENERO, ONYONOWOMA, OPUTE, OKEIGBO, ERIEME, EVAWOMAHA, IGBAVA, ODHEDU, EPETE, IGHEHO & AWAWA Families Of URUDE Community, Ozoro) 4. SHELL PETROLUEM DEVELOPMENT COMPANY OF NIGERIA LTD. RESPONDENT(S)

RATIO

WHETHER OR NOT AN UNCHALLANGED TRADITIONAL EVIDENCE IS SUFFICIENT TO SUSTAIN A CLAIM OF TITLE

WHETHER OR NOT STATUTE OF LIMITATION CAN BE INVOKED IN RESPECT OF A CONTINUING TRESPASS

TUNDE OYEBAMIJI AWOTOYE, J.C.A. (Delivering the Leading Judgment): This is the judgment in respect of the appeal filed by the appellants against the decision of the Delta State High Court decided on 14/05/2014.

The claim to the appellants at the lower Court read as follows as per paragraph 20 of their Further Amended Statement of Claim.

Wherefore the plaintiffs claim against the Defendants jointly and severally as follows:
a. A declaration that that the Plaintiffs are customary land owners of parts of the land upon which 16 Ogini-Eriemu Delivery line of the 4th defendants passes and thus entitled to payment adequate compensation and any other benefits.
b. An order of perpetual injunction restraining the 4th defendant from excluding the Plaintiffs in the payment of compensation and/or any other benefits for the acquisition and re-acquisition of the 16 Ogini-Eriemu Delivery Line Urude Section Ozoro.
c. An order of Court compelling and/or mandating the 4th Defendant, its Servants agents and/or privies for physical verification to assertion genuine customary land owners in the acquisition of expired leases right of way in respect of the Plaintiffs land where the 4th Defendant 16 Ogini-Eriemu Delivery Line Urude Section Ozoro; a place within the jurisdiction of this Honourable Court.
d. A declaration that the Plaintiffs are entitled to payment of adequate compensation for the re-acquisition of the expired leases in respect of the 4th Defendant’s 16 Ogini-Eriemu Delivery line Lying and situate and passing through the Plaintiff land in Urude Section Ozoro.
e. An order of Court restraining the 4th defendant from paying any sum of money to the 1st to 3rd Defendant to the exclusion of the plaintiffs in respect of the aforementioned delivery line without authentic physical verification to ascertain genuine land owners.
f. An order of Court restraining the 1st to 3rd Defendants from receiving demanding any sums of money from the 4th Defendant, its servants, agents and/or privies without authentic physical verification of customary land owners in respect of the acquisition of expired leases of the 16 Ogini-Eriemu Delivery Line, Urude Section, Ozoro.”

Parties filed and exchanged pleadings. After hearing the parties, the learned trial Judge entered judgment dismissing the plaintiffs claims in the following terms:
“On the whole, the plaintiffs claims fail and are accordingly hereby dismissed in their entirety.
Plaintiffs shall pay cost of N200,000 to 1st – 3rd and N200,000 to the 4th Defendant.”

Aggrieved by the said decision, the plaintiffs/appellants filed a Notice of Appeal containing two grounds of appeal.

After transmission of record of appeal to this Court, parties filed exchanged briefs of argument.

APPELLANTS BRIEF OF ARGUMENT
Appellant’s brief of argument was deemed filed on the 30th day of April 2018 and the brief was settled by MICHAEL A. ASUQUO ESQ.

Appellants formulated three issues for determination in this appeal to wit;
1. Whether the trial Court was right in holding that the evidence of traditional history led in proof of title by appellants fall short of the requirement of the law for proof of title to land by traditional history OR whether the trial Court properly evaluation the evidence led by the appellant in support of their claim of being the customary land owner of part of the land upon which the 16 Ogini- Eriemu Delivery line of the 4th Defendant passes.
2. Whether the trial Court was right in holding that there was no evidence before it that plaintiff’s land shown in exhibit C is the same land allegedly leased to the 4th Respondent by the 1st – 3rd Respondents.
3. Whether the trial Court was right in holding that it was the duty of the Appellants to tender the lease agreement between the 1st – 3rd and 4th Respondents in order to show that the land in lease is the same as plaintiff’s land shown in exhibit C.

ISSUE ONE
Appellant’s counsel submitted that the law had established five ways of proving title to land which includes proof of traditional evidence Appellants counsel cited AKOLEDODOWO V OJUBUTU (2013) FLWR (PT 692) Pg 1820 @ 1830 – 1831 Paras F – C ratio 6 and IDUNDUN V OKUMAGBA (1976) 9 – 10 SC 227. Which the Appellant’s counsel argued the appellant fulfilled.

Appellant’s counsel argued that the appellants proof of ownership was not in anyway denied by the 4th Respondent aside from their general traverse. He cited ADIKE V OBIARERI (2002) 4 NWLR (PT 758) 537 AND ORS.

Appellants counsel submitted that the implication of admitted facts was that proof of those averments are no longer necessary. He cited OLOGUN V FATAYO (2014) ALL FWLR (PT 749) 1154 at 1167, IGORI V IGORI (2014) ALL FWLR (PT 729) 1154 at 1166.

Appellant’s counsel submitted that trial Court did not properly evaluate the evidence adduced. He cited ANEKWE V NWEKE (2014) ALL FWLR (PT 739) 1154 at 1175 -1177

ISSUE TWO & THREE (2 & 3)
Appellant’s counsel submitted that there was no evidence to show that Plaintiff/Appellants land shown in exhibit C was the same allegedly leased to the 4th Defendant/Respondent by the 1st – 3rd defendant/ Respondent.

Appellant’s counsel submitted that failure of the Defendant/ Respondent to counter exhibit C meant that they admitted its contents as true.

Appellant’s counsel submitted that he that assert must prove; which the appellants did by identifying the land in question. He cited NWAVU V OKOYE (2009) ALL FWLR (PT 451) 815 @ 843 – 844.

Appellant’s counsel submitted that the trial Judge wrongly placed the burden of proof on the appellants to produce the lease argument between 1st – 3rd and 4th Respondents.

1ST TO 3RD RESPONDENT’S BRIEF OF ARGUMENT was filed on the 22/6/17 and deemed filed on 9/1/18 and further deemed 30/4/18. It was settled by Chief M.O. Akoubodo KSM and He formulated three issues for determination to wit;
1. Whether the Lower Court rightly held that the Appellants at the Lower Court failed to lead evidence to show that they are Customary Land Owners of parts of the Land upon which the 16″ Ogini-Eriemu Delivery Line, Ozoro, passes.
2. Whether the Lower Court rightly held that there is no evidence to show that 1st – 3rd Respondents leased Appellants pieces of land to the 4th Respondent, over which the 16″ Ogini-Eriemu Delivery Line, Ozora passes.
3. Whether as at 13/3/2007 when this suit was initiated at the Registry of the High Court of Justice, Ozoro, it was not statute barred.

ISSUES ONE & TWO
1st to 3rd Respondents counsel submitted that issues were properly joined and evidence was led as to the main issue raised by the Appellants.

1st to 3rd Respondents counsel further submitted that legal burden was on him who asserts to prove; and as such the Appellants failed to prove that the land leased to the 4th Respondents included their own piece of land.

1st to 3rd Respondents argued that from the evidence adduced during the trial, the appellants failed to show with certainty the piece/pieces of land in question.

1st – 3rd Respondents counsel submitted that when the land was acquired by the 4th Respondent, Appellants people around made no objection. There was no credible evidence as to root of title 1st to 3rd Respondents submitted.

ISSUE THREE
1st to 3rd Respondents counsel relied on Section 3 of the LIMITATION LAW, CAP L11; LAWS OF DELTA STATE and submitted that Relief 1 of the Writ of Summons falls within and there based the institution of this action. He further submitted that a cause of action arose from the date of the alleged trespass complained of by the Appellant. He cited P.N. UDDOH TRADING CO.LTD V ABERE AND A.G. RIVERS (1996) 8 NWLR PT 467, 479.

SECTION 16 of the above LAW provides to the effect that at the expiration of the period within which an action can be brought, the title of the person complaining extinguishes.

4TH RESPONDENT’S BREIF OF ARGUMENT
The fourth Respondent’s brief of argument was filed on the 13th of November 2017 and deemed filed on the 30th of April 2018.

The 4th Respondent’s brief was settled by V.O.GRANT ESQ and he formulated three issues of for determination to wit;
1. WHETHER THE TRIAL COURT WAS NOT RIGHT in holding that non- proof of unbroken chain of devolution of land from the Origin through the successive ancestors to the present descendants for a claim in traditional title to land, falls short of
the requirement for a conclusive proof of title to land by traditional history?
2. WHETHER the 4th Respondent entered into any contract relationship with the Appellants considering that Plaintiffs were not part or listed in Exhibit D?
3. WHETHER mere tendering of Exhibit C/survey plan, by Appellants without linking it by evidence to the land covered by the list along the delivery line of the 4th Respondent, is conclusive proof of Plaintiffs claim?

ISSUE ONE
Counsel submitted that non-proof of unbroken claim of devolution of land from the origin through the successive ancestors of the present descendant for a claim in traditional title to land falls short of the requirement for a traditional proof of title to land. He cited ARUM V NWOBODO (2013) 10 NWLR (PT 1362) PG 374 @ PG 408 -409 Para H – C.

ISSUE TWO
4TH Respondent’s counsel submitted that the appellants could not show that they entered an agreement with the 4th Respondent to be entitled to any form of compensation. He cited MICMERAH INT’L VA- Z PET PRODUCTS LTD (2012) 2NWLR PT (1285) PG 564@ Pg 588 Paras B – C.

4th Respondent counsel relied on DUNLOP PNEUMATIC TYRE CO V SEIFRIDGE LTD (1915) AC 79 to submit that it was trite that only parties to a contract can be affected by their contractual agreements/obligation.

ISSUE THREE
Counsel submitted that mere tendering of a survey plan of a certain piece of land without sufficient proof would not grant ownership of land.

He submitted that Appellants were unable to prove that their land was part of the land were the 4th Respondent Delivery line traversed. He further submitted that the inability of the Appellants to identify their own land in Exhibit C therefore defected Appellants claim of having their land as part of the lands traversed by 4th Respondent.

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Appellant’s counsel identified three issues for determination to wit.
“ISSUES FOR DETERMINATION
From the Four (4) Grounds of Appeal filed in this appeal as contained in the Appellants’ Notice of Appeal, Appellants humbly contend that three (3) issues for determination can be distilled as follows:
1. Whether the trial Court was right in holding that the evidence of traditional history led in proof of title by Appellants falls short of the requirement of the law for proof of title to land by traditional history. OR
Whether the trial Court properly evaluated the evidence led by the Appellants in support of their claim of being the customary land owners of part of the land upon which the 16 Ogini- Eriemu Delivery Line of the 4th Defendant passes.
2. Whether the trial Court was right in holding that there was evidence before it that plaintiffs’ land shown in Exhibit C is the same land allegedly leased the 4th Respondent by the 1st to 3rd Respondents
3. Whether the trial Court was right in holding that it was the duty of the Appellants to tender the lease agreement between the 1st to 3rd and 4th Respondents in order to show that the land in the lease is the same as Plaintiffs’ land show in Exhibit C.”

Chief M.O. Akoubodo on behalf of the 1st – 3rd Respondents formulated three issues for determination as follows:
ISSUES FOR DETERMINATION.
1) Whether the Lower Court rightly held that the Appellants at the Lower Court failed to lead evidence to show that they are Customary Land Owners of parts of the Land upon which the 16″ Ogini-Eriemu Delivery Line, Ozoro, passes.
2) Whether the Lower Court rightly held that there is no evidence to show that 1st – 3rd Respondents leased Appellants pieces of land to the 4th Respondent, over which the 16″ Ogini-Eriemu Delivery Line, Ozora passes.
3) Whether as at 13/3/2007 when this suit was initiated at the Registry of the High Court of Justice, Ozoro, it was not statute barred.

Learned counsel for the 4th Respondent V.O. GRANT, postulated 3 issues for determination as follows:
4TH RESPONDENT’S ISSUES FOR DETERMINATION
1) WHETHER THE TRIAL COURT WAS NOT RIGHT in holding that non- proof of unbroken chain of devolution of land from the Origin through the successive ancestors to the present descendants for a claim in traditional title to land, falls short of the requirement for a conclusive proof of title to land by traditional history?
2) WHETHER the 4th Respondent entered into any contract relationship with the Appellants considering that Plaintiffs were not part or listed in Exhibit D?
3) WHETHER mere tendering of Exhibit C/survey plan, by Appellants without linking it by evidence to the land covered by the list along the delivery line of the 4th Respondent, is conclusive proof of Plaintiffs claim?

I have carefully considered the issues formulated by the parties in this appeal, I shall adopt the three issues postulated by the counsel to the 1st – 3rd Respondents in his brief as I consider them wide and apt enough for the just determination of this appeal.

I have carefully considered the submissions of learned counsel as well the contents of the record of appeal. I shall proceed to resolve the three issues adopted above.

ISSUE 1
Whether the Lower Court rightly held that the Appellants at the lower Court failed to lead evidence to show that they are Customary Land Owners of parts of the Land upon which the 16 Ogini-Eriemu Delivery Line, Ozoro, passes.

The appellants at the lower Court placed much emphasis on traditional history to prove their case.

According to 3rd plaintiff his ancestor Ugbo founded the land by deforestation and planted yams and cassava on the land. 3rd plaintiff said that his Ugbo Iyede family land was between Agwagwa family land and land of the Araighero family and that the 4th defendants said delivery line passed through the family. The witnesses for the plaintiff gave evidence of their various family parties founded by their various ancestors who deforested the various parties of land and performed act of possession and ownership on same.

The plaintiff called a surveyor O.T. Dabur who gave evidence and tendered a survey plan showing portions of land owned by the plaintiffs on the 4th defendants Ogini-Eriemu delivery line at Urude Ozoro.

None of the defendants adduced evidence of traditional history to challenge that of the plaintiffs. The Plaintiffs evidence claiming Ugbo-Iyede family land and after portions of land were not challenged by the defendants.

The evidence of PW6, the surveyor was also not challenged Exhibit C the surveyor plan was admitted without any objection. The contention of the defendants was that the defendants sat on their right for 30 years. This to my mind is the substance of their defence.

It seems to me that the traditional evidence of the plaintiff was unchallenged no contrary traditional evidence having been adduced. It also appears to me that the plaintiffs contention that the pipeline of Shell, the 4th Defendant passed through their family land was not contested at the lower Court. I am of the firm view that the traditional evidence of the plaintiffs was cogent and unchallenged and was sufficient to sustain a claim of title. See OLU IJEBU OF IJEBU V OSO, THE ELEDA OF EDA (1972) 5S.C. 143; AKUNYILI V EJIDIKE (1996) 5NWLR (PT 449) 381 AT 417; BALOGUN.V AKANJI (1988) 1 NWLR (PT 70) 301 DIKE & ORS V OKOLO EDO & ORS (1999) SC (PT 3) 35.
With due respect to the learned trial Judge, I am of the view that the appellants led cogent evidence to show that they are customary land owners of parts of the land upon which the 16 Ogini-Eriemu Delivery line Ozoro passes. The plaintiffs presented a survey plan to the above effect. The defendants did not tender any counter plan to controvert the plan of the appellants. The defendants are deemed to have admitted its contents therefore. See ARCHIBONG V ITA (2004) 2NWLR PART 858 page 590 at 629 -630; OMOREGIE V IDUGIE WANYE (1985) 2NWLR PT 5 41.

I resolve this issue in the circumstance in favour of the appellant.

ISSUE 2
Whether the Lower Court rightly held that there is no evidence to show that 1st – 3rd Respondents leased Appellants pieces of land to the 4th Respondent, over which the 16″ Ogini-Eriemu Delivery Line, Ozora passes.

On this issue, I have combed through the record of appeal especially the evidence of the witnesses for the plaintiff. I am with due respect unable to see any cogent evidence of any lease agreement between the 4th Respondent and the 1st to 3rd Respondents. The plaintiff (the appellant) who so contended ought to have adduced evidence in support. He who asserts must prove. See ANDONG ADAKE & ANOR V ADAMU AKUN (2003) 14NWLR PT 840 p 418. I therefore agree with the learned trial judge that the plaintiffs failed to lead evidence in respect of the above. I therefore resolve this issue against the appellants.

ISSUE THREE
Whether as at 13/3/2007 when this suit was initiated at the Registry of this High Court of Justice Ozoro it was not statute barred.

As at 13/3/1007, the claim of the plaintiffs was and is still in respect of a continuing trespass. The pipeline of the 4th Respondent is still on their land. The Statute of Limitation cannot be invoked in the circumstance, see ONAGORUWA V AKINREMI (2001) 13 NWLR (PT 729) page 38 at 61; see also ADEPOJU V OKE (1999) 3NWLR (PT 594) 154 AT 163; CHRISTOPHER OBUEKE & ORS V. N.N. NNAMCHI & ORS (2012) LPELR 7810. This issue is contending that the claim of the plaintiffs should have been filed about 30 years before 13/3/2007. This is in view of the evidence of 3rd plaintiff that the 4th Defendant had been on the land for over 30 years. However the contention falls flat in the face of the settled position of the law on cases of continuing trespass. I therefore resolve this issue against the Respondents.

In the circumstance this appeals succeeds.

The judgment of the Delta State High Court delivered on 14/5/2014 in Suit No. HCZ/12/2007 is hereby set aside Relief (f) being sought against the 1st – 3rd Defendants is hereby dismissed. However, Reliefs 20(a-e) of the plaintiffs Further Amended Statement of Claim are hereby granted. For the avoidance of doubt, it is hereby ordered as follows:
Claims 20(a–e) of the plaintiffs’ Further Amended Statement of Claim are granted, claim 20(e) of the said Further Amended Statement of Claim is hereby dismissed.

Parties are to bear their respective costs.

PHILOMENA MBUA EKPE, J.C.A.: I have read in draft the lead Judgment just delivered by my learned brother, TUNDE OYEBAMIJI AWOTOYE, JCA.

I am in total agreement with the reasoning and conclusion reached in the lead judgment.

Parties are to bear their respective costs.

MOORE ASEIMO ABRAHAM ADUMEIN, J.C.A.: I had a preview of the judgment just delivered by my I learned brother, Tunde Oyebamiji Awotoye, JCA; I agree that the appeal succeeds and I also allow it in the manner set out in the leading judgment.

Appearances:

MICHAEL A ASOGO For Appellant(s)

G.N. OSUNDE – for 1st to 3rd Respondents

A.E. EFOLE for 4th Respondent For Respondent(s)