Brigbo & Ors v. Enyin Pessu & Ors (1974)

LawGlobal-Hub Lead Judgment Report

B. A. COKER, J.S.C

CLAIM

The plaintiffs’ claim against defendants jointly and severally is for:

(a) a declaration of title to the Creek known as AROTAGHAN lying and situate at Korokoto in the Warri Division.

(b) and against the 1st to 7th defendants the 1st and 2nd plaintiffs claim jointly and severally the sum of 300 pounds being damages for trespass in that on or about the month of May 1956 without plaintiffs’ consent first obtained the 1st to 7th defendants entered the plaintiffs’ Creek AROTAGHAN and there fished the same and continue to fish the same.

ALTERNATIVELY: The 1st and 2nd plaintiffs claim against 1st to 7th defendants the sum of 300 pounds for use and occupation of the said Creek Arotaghan.

(c) And against the 1st to 7th defendants the plaintiffs seek an order of injunction to restrain the said defendants their servants and/or their agents from fishing the said Creek Arotaghan.

(d) And against the 8th defendant the plaintiffs seek an order of court to restrain the 8th defendant his servants and/or his agents from placing tenants to fish in or otherwise using the said Creek Arotaghan without consent of the plaintiffs.”

In this judgment, the 1st to the 7th defendants named above would be referred to as the “first set of defendants”.

Later in the proceedings, after the order for pleadings had been made, there was an application by one Akuke Awe for himself and on behalf of the entire Ijaw people of Gbekebo, Western Ijaw Division to be joined to defend the action in a representative capacity for himself and the Ijaw people of Gbekebo. The application was granted.

In this judgement this defendant would be referred to as the third set of defendants”. At a later stage in the proceedings, the court was informed that the 8th defendant, i.e. the second set of defendants had died. An application was made to substitute two persons for him, namely, original 8th defendant, as well as the two new substituted persons, were being sued as representatives of the “Numa family of Ogbe-Ijeoh at Aretaghan”.

The parties duly filed their first set of pleadings and the main defence, as appearing on the statements of defence, was that the plaintiffs were asking for a declaration over creeks the ownership of which, by statute, was vested in the State. The plaintiffs then sought leave to amend their writ and their statement of claim. When the application of the plaintiffs to amend their writ was granted, the second set of defendants appealed against the order granting leave to the plaintiffs to amend their writ to the Federal Supreme Court. The appeal was struck out by the Federal Supreme Court and further proceedings in the action continued in the High Court, Warri. It was at this stage that the two persons hereinbefore named were substituted for the 8th defendant or rather the second set of defendants.

On the 14th October, 1963, the first hearing of the case commenced in the Warri High Court before the Honourable Mr. Justice Ekeruche. The 1st plaintiff, Enyi Pessu, gave evidence for four days at the end of which the learned trial judge adjourned the further hearing of the case to a named date. On the date named, the hearing was further adjourned and in themeantime, the coon became differently constituted. The action came before the Honourable Mr. Justice Rhodes- Vivour on the 25th of May, 1964, when he adjourned it fonher on three other occasions. On the 10th November, 1965, when the case came up again before the same judge and counsel for the plaintiffs was not prepared to proceed with the case, the action was struck out with costs. By motion paper dated 13th November, 1965, an application was made to re-list the case and because of the importance attached to this motion, it is expedient to set out the contents of the motion paper in full as follows:

1 Enyi Pessu

2 Akowe Apoh

for themselves and on behalf of Origbo family of Big Warri) PLAINTIFFS/APPLICANTS

AND

1 Brigbo

2 Whandjan

3 Boyi

4 Window

5 Zebri

6 Whawha DEFENDANTS/RESPONDENTS

7 Katika,all of Aretongha Creek

8 Torowe Numa

9 Epebitimi Numa

(for themselves and on behalf of Numa family of Ogbe- Ijoh)

at Aretongha

MOTION ON NOTICE

TAKE NOTICE that this Honourable Court will be moved on Monday the 13th day of December, 1965 at the hour of 9 o’clock in the forenoon or so soon thereafter as counsel can be heard on behalf of the plaintiffs/applicants in the above matter for an order of this Court:

(1) Relisting the said case which was struck out on 10/11/65 by this Honourable Coon

(2) Setting aside the order as to costs made in favour of the defendants/respondents when the said case was struck out on 10th November this year,

And for such further order or orders as to this Honourable Coon may appear just and proper in the circumstance.”

It is to be noted that the name of Erejuwa II, of Warri, which appeared in the original writ as that of the 3rd plaintiff, had been dropped out on this application to re-list. Be that as it may, the application was granted and the second hearing of the case commenced before the Honourable Mr. Justice Rhodes- Vivour on the 23rd May, 1966. Only one witness-the plaintiffs’ surveyor- gave evidence when the hearing was again adjourned and, in the meantime, the court again became differently constituted. The last and actual hearing of the case which proceeded to determination then began before the Honourable Mr. Justice Obaseki on the 19th May, 1967.

As stated before, the plaintiffs filed an amended writ of summons. The amended writ on which the case went for trial reads as follows:

“The plaintiffs’ claim against defendants jointly and severally is for

(a) A Declaration of title to piece or parcel of land known and styled as Okotomu or Irigbo lying and situate at “Krokoto” in the Warri Division together with the Creek Aretongha lying therein and which parcel of land and creeks are shown severally marked in PINK and verged in purple on the plan to be filed in court by plaintiffs.

(b) And against the 1st-7th defendants the 1st and 2nd plaintiffs claim jointly and severally the sum of 300 being damages for trespass in that on or about the month of May 1956 without plaintiffs’ consent first obtained the 1st-7th defendants entered the plaintiffs’ creek Aretongha and there fished the same and continue to fish the same.

ALTERNATIVELY: The 1st and 2nd plaintiffs claim against the 1st-7th defendants the sum of 300 pounds for use and occupation of the said Creek Aretongha.

(c) And against the 1st to 7th & 9th defendants the plaintiffs seek an order of injunction to restrain the said defendants their servants and/or their agents from fishing the said Aretongha Creek and/or entering the land Okorotomu or Irigbo aforesaid,

(d) And against the 8th defendant/plaintiffs seek an order to restrain the 8th defendant his servant and/or his agents from placing tenants on the land Okorotomu or Irigbo and the creek Aretongha for fishing purposed or any other purposes without prior consultation and consent of the plaintiffs.”

We did observe that parties duly filed their pleadings. The plaintiffs did file a statement of claim which they later amended. By their amended statement of claim, the plaintiffs aver “that they represent the Irigbo family of Big Warri by whom they are authorised to sue”, that the 3rd plaintiff, Erejuwan, the Olu of Warri is the titular head of all the Itshekiris and that the Aretongha Creek in dispute is situate at “Okotomu also generally known as Korokoto within Tsekiri Division”. The amended statement of claim further avers in paragraphs 4, 5, 6, 7 and 8 as follows:

“4. The area known as Okotomu is the property of the Okotomu people. The head family of the Okotomu people is known as Irigbo. Okotomu is sometime loosely referred to as Okorotomu.

5. Long before the advent of the Olu Giniwa I from Benin in the second half of the 15th Century A.D. to rule over the Tsekiris, there was already in existence amongst the Itsekiris clan of people who spoke a form of Yoruba dialect and the clan was known as Okotomu or Okorotomu Clan.
6. The Okorotomu Clan extended from Okorotomu proper at Ode Itsekiri, Elegue Ofututu to Ijassa and Ikeremu.
7. Olu Giniwa I of Warri came from Benin to rule the Iwerre (Warri)

people but before he could consolidate his rule he died at IJALA-a place where the Portuguese explorers met him 1516 A.D.

8. Olu Giniwa’s son IJIJEN who later became Olu Ogbowuru of Warri removed his headquarters to Okororomu clan where he founded Ode Itsekiri; on his arrival at Okorotomu Clan, the people of the clan in return for his protection surrendered to him i.e. the Olu the overlordship of their land. ”

The amended statement of claim further avers that in course of time people from the neighbouring territories of Ijaws and Urhobos came over to the Itshekiri Kingdom to ask for lands and that during the reign of Chief Apo (or Apoh) of the plaintiffs, one Numa of Ogbejoh from the Ijaw-territory and the progenitor of the second set of defendants of Ogbe-Ijoh, was allowed land on payment of tribute to the plaintiffs’ people. The amended statement of claim then referred to a number of legal actions they had taken and won against the second set of defendants. The amended statement of claim further avers that some time in 1956 the plaintiffs noticed that the original defendants, or the first set of defendants, members of the Ijaw Community, were placed on the creeks by the second set of defendants without the authority of the plaintiffs. With regard to the third set of defendants the plaintiffs’ amended statement of claim avers as follows in paragraphs 17 and 18 thereof:

“17. The 9th defendant Akuke Awe applied to be joined as a defendant for himself and Gbekebo and was so joined by order of court of 7/2/57.

18. The people of Gbekebo in 1942 brought an action against Chief Apoh an ancestor of plaintiff and Subaike Numa in respect of the Creek which they called Tarkwa Creek. This action was brought in the Protectorate Court Warri as Suit W/32/42 The Suit was struck out in 1943 by Mr. Justice Jibowu without liberty to relist. The plaintiffs will plead that the people of Gbekebo are now estopped from claiming ownership of the Creek in the circumstances. The suit is No. W/32/42 Tubobeni VS. Subaike Numa and Apoh. Earlier in suit 152/42 the said Tubobeni of Gbekebo brought another action against Apoh and Subaike Numa regarding Aretongha Creek and it was also struck out with costs to Chief Apoh.”

The defendants also filed statements of defence. The first set of defendants filed a joint or common statement of defence with the second set of defendants. In their statement of defence these defendants aver that Okorotomu or Ogbe-Ijaw is the property of Ijaws and not the property of Irigbo family and that their people had never paid any tribute to the plaintiffs’ people. Paragraphs 7 and 8 of their statement of defence read as follows:

“7. With reference to paragraph 10 of the statement of claim the 8th defendant says that he and members of his family and their ancestors from time immemorial have been in possession of Aretongha Creek and have exercised maximum acts of ownership and possession over the said Aretongha. The 8th defendant further says that from time immemorial he and his family and their ancestors have placed tenants in the said Aretongha as of right, being then owners of the said Aretongha.

8. In further answer to paragraph 10 of the statement of claim, the 1st to 8th defendants say that they and their ancestors never settled on the said Aretongha with the permission of the Irigbo family or anyone else.”

The statement of defence of these defendants in short, with respect of the several actions referred to by the plaintiffs in their amended statement of claim, denied that they knew anything about those proceedings. In the same way the third set of defendants filed a statement of defence in which the first two paragraphs read as follows:

“1. The 9th defendant in this suit will at the hearing take the preliminary objection that there is no 3rd plaintiff known to the law and will urge the Court to strike out all particulars relating to the said 3rd plaintiff.

2. The 9th defendant will also take the preliminary objection that the entire plaintiffs’ claim in this suit is bad in law as it offends against section 3(1) of the Minerals Ordinance cap. 134 Laws of Nigeria and will urge the Court to dismiss the action.”

The statement of defence of the third set of defendants avers that the lands “bordering on the creeks on either side” is the third set of defendants’ property in possession and avers in substance that the “speculative and misconceived action” of the plaintiffs should be dismissed with costs.

We pointed out before that the case eventually went for trial before the Honourable Mr. Justice Obaseki. At the trial, the first plaintiff, Enyi Pessu, gave evidence and 8 other witnesses were called for the plaintiffs. A surveyor engaged by the plaintiffs produced in evidence as Exhibit A a plan of the lands being claimed by the plaintiffs, including the Aretongha Creek verged yellow. The surveyor also produced in evidence as Exhibit B a similar plan which he had made for and on the instruction of the second set of defendants and testified that where he had shown two Okorotomu Camps in Exhibit A and described them as fishing camps he had, according to the instructions of the second set of defendants, designated those same camps as Igala Camps in the plan Exhibit B. Evidence was given for the plaintiffs depicting the long history of the lands concerned, the collection of rents by the plaintiffs and the intrusion of the defendants. Kolo Akaba (2nd plaintiff’s witness) testified that he was the plaintiff’s agent for collection of rents and taxes from the occupiers of various portions of the land in question and that he collected rents from the first set of defendants for many years before they refused to pay him any longer. A number of other witnesses testified for the plaintiffs to the effect that their ancestors had always owned the land in dispute, for instance Atigolo Okuololo (4th plaintiff’s witness) said, inter alia

“I have heard of Arutengha creek. Building posts are cut from there hence the name. Irigbo owned Arutengha up to Ikerewu or Krokoto. I cut posts from there before. This was when my house got burnt. If I were supposed to take permission it would be from the plaintiffs. I told one Eyin the son of Irigbo. Eyin (identified) is 1st plaintiff. I was not disturbed when I cut the posts. I cannot remember the date I went. It is along time. Many of us went there in a canoe, cut the posts, and returned.”

Ogbeghamikomi Goware (7th plaintiff’s witness) testified that he was an Itshekiri fisherman from Ikpissa and that

“When sailing on Ikpissa River one comes to Irigbo people River which forms the boundary. From Irigbo creek one goes to Ode Itsekiri (Big Warri). There is Elagwe juju shrine at the boundary between Irigbo and Ikpissa. Irigbo people own the juju. We have boundary also with Origbo people on the other sides. At the back Igun (Ogbe Isobo) have boundary with us.”

In the same way, one Koko Abba, a Urhobo trader from Warri (8th plaintiff’s witness) testified, inter alia, as follows:

“I know the land in dispute, Arutengha is the name of the land. It is a creek bursting out on Krokoto River. I went to Arutengha creek some time ago to cut thatches for roofing. I stayed there for 9 years before I left. I left the place 6 years ago. That was how I came to know the place. When I was there I was a labourer to the plaintiffs. I lived in Ubuma village in the area. I was a labourer there for 4 years before I became a head-labourer or leader of the labourers. When I was labourer I was paying 5/- a month to plaintiffs. The plaintiffs own the bush where we cut thatches and that is the money we pay to the owner of the bush every month for allowing us to cut thatches. Everybody who goes there to cut thatches pays.”

This witness also testified that he was evicted from the lands by the second set of defendants and asked by them not to pay rents to the plaintiffs any longer.

The 1st plaintiff also gave evidence of the traditional history of his people. He stated that Irigbo and Okotomu were at Big Warri before any other people came there and that the plaintiffs called the land claimed by them Okotomu Irigbo and that it extended from Big Warri to Forcados and Keremu (Forcados Bar). He gave elaborate and minute geographical details of the wide expanse of land and creek and described and put in evidence the various court actions which his ancestors and predecessors-in-title had taken and won against the second set of defendants. He described the first set of defendants as customary tenants of the plaintiffs’ ancestors who were then in breach of the terms of their customary tenancies.

The 1st plaintiff testified concerning his tenants as follows:

“The defendants are all my tenants. Some of the tenants are fishermen. Some are palm nut collectors. Some cut thatches for roofing. Some cut timber on the land. This is all done at Irigbo land. The defendants used to pay rents but at present they do not. Those that paid to one Apoh were not given receipts as there were not receipts then. After Apoh I did not give defendants receipt for payment of their rent before this case. I know Brigbo, He was paying with oil as he was collecting palm oil. He pays 1/3 share to the landlord and he personally keeps 2/3. Whandjan was a tenant. One Ikolo used to collect rent from him and pays me rent.”

Concerning the third set of defendants who had joined in the action on their own application, the plaintiff said

“Akuke Awe was and is not my tenant. He joined as defendant. I have never seen him on the land or area in dispute. I am asking Court to warn the defendants to keep off the land because they refused.”

Under cross-examination by learned counsel for the first set of defendants, the plaintiff was asked to explain the interest of the third plaintiff, the Olu of Warri, and his connection with the land in dispute. He testified thus on this issue:

“At the time Olu of Warri came to us after he was made Olu. We handed over everything that belonged to us to him. It does not mean that we ceased to occupy where we were occupying before his arrival. I belong to Irigbo and Okotomu family.”

After the end of the plaintiffs’ case, the first and the second sets of defendants made a common or joint defence and told the story of the original ownership of the land in dispute by the progenitors of the second set of defendants one Numa of Arutengha. One of the witnesses called by these defendants was Serigbene Palanaowei, a retired Ijaw fisherman of Obogebo town. He testified that he was born before the white-man came to that part of Nigeria and that

“I know Arutengha creek, the surrounding water and land. Oduo is the 1st owner of Arutengha to my knowledge. He was the 1st person to settle there. He is a native of Ogbe-Ijaw, Warri. Oduo died long ago. After Oduo died one Kuro took over and settled in Arutengha. Kuro was the son of Oduo. I knew and saw Kuro but I did not grow to see Oduo. I was grown up before I saw Kuro. After Kuro died Naifeyei and Numa took over Arutengha. Naifeyei and Numa were children of Kuro. I knew Numa very well. He was a young boy to me. Numa is dead. Torowe Numa 8th defendant and other belonging to Numa family are the owners of Arutengha today. Obotebo people are Ijaw people. Obotebo people have common boundary with Arutengha people.”

In the same way the 1st, 2nd and 4th of the first set of defendants testified that they were Urhobo fishermen fishing in the Arutengha Creeks with the permission of the second set of defendants to whom they paid rents. They did not know the plaintiffs before although they had heard of one Apoh who had a case with the ancestors of the second set of defendants. Towei (or Torowei) Numa gave evidence for the second set of defendants as representing the “whole of Numa family”. He stated, in the course of his evidence, as follows:

“I have heard of the name Okrotomu. It is the name of a person at Ogbe Ijoh. Okrotomu is an Ijaw man, Okrotomu is also the name of a place. Ogbe people founded Okrotomu. Okrotomu was the 1st person who went and settled at Ode-Itsekiri (Big Warri). I know Ewin. I mean I have heard of him. He was the 1st person to settle in Warri. Ewin had children. Those I know are Oduo, Okrotomu (Okrotimi), Amobene, Kabasain. Ewin and his children lived in Warri. Oduo later left Warri for Arutengha to settle. When he got there he met nobody. There was not a human soul around. There were wild vegetation and wild animals around. The creeks were also there. When he got there, he cleared the wild vegetation and built houses for himself and his people that went with him. Arutengha is the name given to the creeks and surrounding land. Oduo named the area Arutengha. When a canoe gets out from its mooring it is carried away, it flows back to the left side of the creek but it is later brought back by the return tide. Canoe in Ijaw is termed Aro, tengha means never gets lost.”

He further stated that no Itshekiri man lived in the lands in dispute and that only “Ijaw people of Numa family and some Ijaws from Ogbe-Ijo inhabit Arutengha village”. He claimed that the original or the first set of dependants were his rent-paying tenants although some of them were, for one reason or the other exempted from further payment of rents. Concerning the advent of the Itshekiri people to Big Warri, he testified as follows:

“Oduo the founder of the village is the owner of the village and surrounding creek. We are not the tenants or the plaintiffs. There is no single Itsekiri man along Arutengha. No other person or persons have tenants on that land. Okrotomu left Warri for Big Warri when Oduo left for Arutengha. Okrotomu settled at Big Warri. He did not meet anybody in Big Warri. Later Itsekiri people came in a box or canoe. It was Ginuwa. The box was a very big box. It floated from Benin. Ginuwa was in the box with many other people from Benin. When the box arrived at Big Warri they (people) opened the box and landed at the Big Warri. Ginuwa went to Okrotomu and asked for permission. He begged Okrotomu to allow him to settle on the land with him. Okrotomu agreed. He gave them the playground where they play, Sekiri, was always performed by himself and his children.

They are now called Itsekiri after the name of the play performed on that playground.”

Cross-examined about the various court judgments against his predecessors-in-title, he was indifferent and very often did not know about these cases. He stated that whilst the Ijaws has always had dealings with the Urhobos they had no dealings whatsoever with the Itshekiri people.

The third set of defendants also gave evidence in defence and called four witnesses. They amended their statement of defence to plead that the land in dispute has always been known as Tarkwa Creek and that it belonged to the people of the second set of defendants. Their witnesses testified to using the creeks and paying rents to their people of Gbekebor. One of the witnesses for the third set of defendants, Saturday Oruware, stated in the course’ of his evidence that he simply followed “the tenants in my village to Keramane the eldest person in Gbekebor and paid their rents to him” and that he did not know the actual founder of the place. Akuke Awe himself also gave evidence and stated that he was defending the action “on behalf of Gbekebor community”. He gave the history of the land in dispute as follows:

“Leilei and Gbesa founded Gbekebor.

Ongolo came to meet them later.

Ogbolu is the father of Leilei, Gbesa and Ongolo.

Ogbolu had six children-(l) Agbodobri (m), (2) Ugodo (f), (3) Angalagala (m), (4) Leilei (m), (5) Gbesa (m), (6) Ongolo (m), Ogbolo came from Ogobiri village. He came to settle at Ogbodobri creek. After he settled at Ogodobri three of his children namely Gbesa, Leilei and Ongolo left him and settled at the site now called Gbekebor. Gbekebor means a place where people pay before they pass. The natives blocked the stream at the place and only open the gate for those who pay to pass to and from Burotu. When Gbesa, Leilei and Ongolo arrived at the place now called Gbekebor they met no one there.”

He stated further that the ancestors of the Itshkiri people begged his own people to settle at their present site and that it is the same creek called by his people Tarkwa that the plaintiffs had now called Arutengha. He did not know Numa but he knew that Numa was allowed by his own people to settle in Tarkwa. He claimed that the first set of defendants are his own tenants. He was cross-examined as to the several cases between him and the fIrst set of defendants and he said that he did not know about them although he knew that the plaintiffs do not own any village in Tarkwa Creek and that the people of the second set of defendants had no lands whatsoever. He conceded that his people were friendly with the Itshekiris but he had never asked the plaintiffs whether or not they ever demanded rents from the first set of defendants. He testified further thus:

“I have no common boundary with Ogbe people. Ogbe people have no land. I do not know who owned the land known as Ogbe-Ijaw or Ogbe-Ijoh. I was not told that Itsekiris first settled there. Brigbo and Whandjan and Window are still paying to us. We give them receipts. We retained the counterfoil. I have not brought them. The plaintiffs came to tell me that they have taken action.

It was not 1st plaintiff or 2nd plaintiff who came to tell me. Our tenants whom they sued came to tell us. They did not tell me that they were also tenants of 8th and 9th defendants in respect of the same creek Tarkwa. ”

After the address of learned counsel on all sides, the learned trial judge adjourned for judgment and later, in the course of a reserved judgment, he gave in favour of the plaintiffs. At the beginning of his judgment, the learned trial judge dealt with the third plaintiff on the original writ-Erejuwa II, the Olu of Warri. He stated concerning him thus:

“Erejuwa II, the Olu of Warri was the 3rd plaintiff when this suit was filed but after the case was struck out for non-prosecution on 10/11/65 his name was dropped from all processes subsequently filed following a successful application by 1st and 2nd plaintiffs for relisting the case on 17/1/66 and I take it that he was deliberately left out of the suit having regard to the objection of the 10th defendant in paragraph 1 of his statement of defence and the fact that at that time he had been deposed and deported. When, however, the Order of Deposition and Deportation was revoked and he was reinstated in December 1966 he did not seek to have his name back on the processes and never appeared throughout the subsequent proceedings till judgment. It is doubtful if he can be regarded as struck out of the suit without an order of court ”

The learned trial judge then exhaustively reviewed the evidence in the case and minutely considered such evidence against the background of the respective pleadings of the parties. With respect to the issues raised by the pleadings, the learned trial judge directed himself as follows:

“The issues raised by the pleadings which I have to decide are

(1) Whether or not the plaintiffs are the owners of the land in dispute including Aretongha creek;

(2) Whether or not the plaintiffs are entitled to restrain the 8th or 9th defendants from putting tenants on the land and or Aretongha creek;

(3) Whether or not plaintiffs are entitled to damages from the 1st to the 7th defendants for trespass, or use and occupation of the creek and if so,the quantum of damages;

(4) Whether or not plaintiffs are entitled to injunction restraining the 1st to the 7th defendants and 10th defendant from fishing Aretongha creek and or entering the said Okorotomu or Irigbo.”

After reviewing the evidence, he found as a fact that it was the same creek that the plaintiffs claim and call Aretongha that the third set of defendants claim and call Tarkwa or Etakwa; and that the lands claimed by the plaintiffs are called Okotomuand Irigbo land are verged pink and purple on the plaintiffs’ plan Exhibit A. The learned trial judge severally appraised the evidence given by the several witnesses in respect of or in favour of the parties; he referred to the cases put in evidence before him and the decisions contained therein and which he described as “the ding-dong battle that has raged between Akpoh and Numa families”. He considered the judgement admitted in evidence as Exhibit M (case between the ancestors of the third set of defendants (as plaintiffs) and the ancestors of the present plaintiffs (as defendants) in 1949) and concluded that on the face of Exhibit M he was “at a loss” to see the purpose of the third set of defendants joining as defendants to the present proceedings. With respect to the second set of defendants, the learned trial judge rejected their case in the entirety. He observed concerning them as follows:

“It is clear from the evidence before me that the friendly intercourse between the Itsekiris and Ijaws extends backwards over very many generations. With regard to the case put up by 8th and 9th defendants, I find that I cannot accept the traditional evidence given by the 8th defendant and his witness as true. I think it is a deliberate fabrication to deny plaintiffs’ title (1) to the land and (2) right to put tenants on the land and creek in dispute.

It is a matter of regret that the title which 8th defendant’s grandfather Numa never disputed is now being disputed by the 8th defendant Torowei Numa. It is only the title which a father has that passes on to his son. It is clear from the past cases that Numa was only averse to the idea of money rent payment. He acknowledged that the title of ownership resided in the Olu and that he gave part of his catch of fished to the Olu’s son Egbegbe.”

The learned trial judge found the plaintiffs’ case proved by its strength to the landmass which they had claimed though not, in virtue of the provisions of section 3 (1) of the Minerals Act, cap. 121, to the Aretongha Creek itself. With respect to the claim for declaration of title he made in favour of the plaintiffs the following award

“The 1st and 2nd plaintiffs are however entitled to a declaration of possessory title to the land, excluding rivers, streams and watercourses including Arutengha creek, described in Exhibit “A”. The 3rd plaintiff is entitled to the radical title to the land.”

He also granted in favour of the plaintiffs an injunction to restrain the 1st and 3rd set of defendants “from entering Okotomu and Irigbo land without trust and 2nd plaintiffs’ permission”, and an injunction against the second set of defendants from putting any tenants on the land without the permission of the 1st and 2nd plaintiffs”.

All the defendants have now appealed to this Court against the judgment. At the hearing before us, the 1st and 2nd plaintiffs are jointly represented whilst the 3rd plaintiff-Erejuwa II-was separately represented. The first and second set of defendants were separately represented. The main complaints of the appellants before us are, firstly, that the judgment is against the weight of evidence and, secondly that the learned trial judge wrongly granted to the plaintiffs a declaration of “possessory title” when (a) they did not claim such a title; and (b) the nature of their title without the Olu of Warri who was originally but not subsequently a party to the case was not described by evidence or by law.

Before us, learned counsel for the defendants, now appellants, submitted that the findings of the learned trial judge were not supported by the evidence. He also submitted that the plaintiffs, now respondents, did not ask for a declaration of possessory title and that the learned trial judge was not entitled so to decree in their favour. Learned counsel for the appellants further submitted that the learned trial judge had apparently concluded that without the 3rd plaintiff, Erejuwa II, the Olu of Warri, in the case the plaintiffs could not make out any title under Native Law and Custom or, any other type of absolute title and that he should thereupon have dismissed the plaintiffs’ case and not declare a possessory title which is both unasked for and also unknown to law.

In reply to this argument, learned counsel for the respondents submitted that the respondents did not make out a case for a declaration of title according to Native Law and Custom and that in any case the court was entitled, as it did, to award to the plaintiffs a declaration to whatsoever title they had proved, despite what they asked for in their writ or their statement of claim. Learned counsel for the 3rd plaintiff, Erejuwa II, the Olu of Warri, associated himself with the submission on behalf of the 1st and 2nd plaintiffs and added that in law the 3rd plaintiff was always a party to the case until the end of it all. Learned counsel for the 3rd plaintiff conceded that after the case was struck out the 3rd plaintiff was not included as one of those applying for the case to be relisted but he contended that he had at no time been lawfully struck out of the case, the learned trial judge himself had referred to him as the 3rd plaintiff. Both counsel for the respondents submit, therefore, that if we hold that Erejuwa II, the Olu of Warri, was and remained as the 3rd plaintiff throughout the case, we should award to the respondents a declaration of absolute title under Native Law and Custom; but that if we concluded that the Erejuwa II, the 3rd plaintiff, has since the case was struck out ceased to be party to the case, we should affirm the declaration awarded by the learned trial judge in favour of the respondents and, all the same, dismiss the appellants’ appeals.

The issues of fact in this case are of immense importance and we have heard elaborate arguments as to why the evidence of one side should have been preferred to the other. We think it right to point out that we are satisfied that the learned trial judge who tried the case dispassionately examined the case in all its ramifications. He was at considerable pains to consider the various contentions of the several parties and he fully set out in his judgment his reasons for preferring one piece of evidence to the other in respect of the several issues of fact. We ourselves had earlier on in this judgment extensively reviewed the large mass of evidence in the case and we do not think that the argument is tenable that the conclusions at which the learned trial judge had arrived were not supported by the evidence.

These findings took into account the consistency which characterised the cogent evidence of the 1st and 2nd plaintiffs as regards their traditional history and the more recent acts of possession in respect of the areas described in Exhibit A. The learned trial judge found the defences inconsistent and it is difficult to quarrel with this finding when it is manifest on the evidence that each of the second and third set of defendants were claiming the first set of defendants as its own tenants on the areas concerned and also when it is manifest that the second and third set of defendants were not truthful with respect to the existence of the many court cases which they, or their progenitors, had fought and lose to the plaintiffs on the same lands. We have no doubt that the ground of appeal which contends that the judgment is not supported by the weight of evidence must and does fail.

It was contended further by learned counsel for the defendants that the learned trial judge was wrong in law to give the third plaintiff the radical title to the land; firstly, because he never did ask for it and, secondly, because he was no more a party to the case since it was struck out by the court on the 10th November, 1965. Learned counsel argued that when the court was later moved to relist the case, it was at this instance of the 1st and 2nd plaintiffs only who did not include the name of their 3rd plaintiff on their motion paper and, indeed, on their statement of claim. Learned counsel for the respondents contended in answer to this argument that the 3rd plaintiff, Erejuwa II, the Olu of Warri, was never at any time struck out of the case by order of court and that under no circumstances could a party without being struck out discharge himself from a case.

Obviously the question was and is whether the 3rd plaintiff, the Olu of Warri, was and continued to be party to this case. It is not in dispute that the application to relist the case after it was struck out did not include the 3rd plaintiff’s name on the motion paper. With respect to that motion, after hearing argument on all sides, the learned trial judge made an order in these terms-

“RULING: This action was struck out on the 19/11/65 when junior counsel for plaintiffs asked for adjournment. Having considered the present application and the replies made by counsel I have decided to order the relisting of this action. I have taken this step because it involves title to land and the fault was not that of the plaintiffs. I accordingly order that this case be relisted. The order of costs stands. Each set of defendants/respondents will have 10:10 costs. Adjourned to 23/5/66 for hearing.”

Evidently it was the whole case that was relisted and it is not disputed,nor can it be disputed, that the order for costs ensures to the defendants against all the plaintiffs and not just plaintiffs Nos. 1 and 2 who had only applied for the case to be relisted. Besides this, however, learned counsel for all the defendants conceded that by their several notices of appeal they had made the 3rd plaintiff a party to the appeal and it is clear that at no time was the 3rd plaintiff legally struck out of the case by the court. In Comfort Asaboro vs. M.G.D. Aruwaji & Anor. (s.c. 86n3 decided on the 11th June, 1974), this Court in dealing with a similar point observed as follows:

“A party is not allowed to be in and out of the case as he likes and once one is properly made a party to legal proceedings, unless and until an order striking out such one out of the proceedings is made by competent court, such a one remains a party to the proceedings.”

In the circumstances of this case therefore we do not agree that the 3rd plaintiff who was not at any time during the trial struck out of the case ceased to be party thereto: we conclude that the argument that Erejuwa II, the Olu of Warri, was always a party to these proceedings is well founded. This disposes of this point and, incidentally, as well of the point that the Itshekiri Communal Lands Trustees should have been substituted for the Olu of Warri if it was intended to claim an absolute title to the land concerned. The Itshekiri Communal Lands Trusts (as well as the trustees thereof) were instituted as form the 26th February, 1959 (vide Western Region Legal Notice No. 96 of 1959). The original writ in this case was issued in October, 1956. Surely in those circumstances the plaintiffs could not, at the inception of this action, include the Itshekiri Communal Lands Trustees in their writ, although manifestly they could, if they were so advised, have amended same in the course of the trial. This however is not a point on which to found an appeal for the changed circumstances may themselves prescribe the manner in which the existing circumstances would be accommodated and, if they do, it would be improper to amend the existing proceedings otherwise. See section 5 of W.R.L.N. No. 96 of 1959, supra, also W.N.L.N. No. 203 of 1963. With respect to dealing with changed circumstances the comments of Buckley, J. in Gibson vs. Union of Shop Distributive & Allied Workers (1968) 2 All E.R 252 at pp. 253,254 are apposite. We do not think that the failure or omission of the plaintiffs to amend their writ in this connection has any significant effect on the constitution of the plaintiffs’ case.

The other ground of appeal canvassed involves a point of considerable importance in relation to customary land tenures. The learned trial judge awarded the plaintiffs a declaration of “possessory title”, apparently on the basis that they had proved their entitlement to the lands concerned by virtue of their possessory rights over those areas. It should be remembered that in paragraph 8 of their amended statement of claim (copied supra) the plaintiffs aver that although they originally owned the lands absolutely yet when Olu Ginuwa’s son Ijijen became Olu of Warri they “the people of the clan in return for his protection surrendered to him i.e. the Olu, the overlordship of their land”. Evidence to the same effect was indeed given in the course of his testimony by the 1st plaintiff Enyi Pessu who however stated that did not mean they ceased to occupy the lands and carry on their normal business on and over the lands, which they originally owned. In the case in hand the learned trial judge took the view that as plaintiffs by their writ and pleadings always claimed title jointly with the Olu of Warri (i.e. the 3rd plaintiff) they were not entitled without the Olu of Warri to any more than their possessory rights. In this respect the learned. trial judge followed the comparatively recent line of cases which the decision of the Court in Uluba & Ors. vs. Chief Silo (1973) 1 S.C. 37 spot-lighted. In that case, the plaintiffs had sued for inter alia, a declaration of possessory title of ownership. The learned trial judge, after reviewing the evidence in the case, came to the conclusion that the plaintiffs had proved the rights of themselves and their ancestors before them to the exclusive possession of the lands concerned. Concerning the declaration of “possessory title” which the learned trial judge granted to the plaintiffs in that case, this Court observed as follows at p.63 of the Report.

“In his ruling, the learned trial judge used the expressions ‘acts of ownership and possession exercised by the plaintiffs’ and ‘ a declaration of possessory title of ownership’. It thus seems clear that the use of the expression ‘possessory title’ in their writ of summons was employed by the plaintiffs either because they had already conceded the radical title to the Olu or because they were really pre-occupied with asserting their claim under customary law to receive the rent or profit there from. We are of the view that neither the wording or the relief sought nor the learned trial judge’s use of the expression ‘possessory title’ is apt, and that the declaration should not have been granted in those terms. We think that all the learned trial judge wanted to grant was a re-affirmation of the ownership and possession of the plaintiffs to the land which he found to have been granted in at least one previous judgement. We will accordingly dismiss this appeal and affirm the judgement of Obaseki, J. in the High Court Warn, in Suit No. W/30/1962 delivered on October 3rd, 1969, except that the declaration will not be one for ‘possessory title’. We award costs assess at N125 to the respondents in this appeal.”

It will be easily seen therefore that in that case this Court frowned at the award of a declaration of ‘possessory title’ but gave its reasons for what it considered to be the operative factors or circumstances which led the plaintiffs in that case to characterise the nature of their interests as a possessory title.

The propriety of granting that type of declaration is again called in question in the appeal before us and learned counsel for the defendants argued strenuously that there was no evidence before the learned trial judge in the case in hand of the nature of a possessory title and that in case the plaintiffs never gave any evidence of its content. In Pastor S.G. Adegboyega & Ors. VS. Peter O. Igbinosun & Ors. S.C. 207/68, decided on the 10th January, 1969 (referred to by the learned counsel for the defendants), this Court observed with respect to the question of evidence of the nature of title thus:

“In the case for a declaration of title, the onus is upon the plaintiff to adduce sufficient evidence to show that he is entitled to the type of estate or interest sought and that a declaration in his favour for the quantum of interest is justified. In the present case before the learned trial judge, the plaintiffs sought a declaration that the land in dispute ‘is the property of the Apostolic Church, Benin City’. The judge gave them a ‘possessory title under Bini Customary Law. We have come to the conclusion that the plaintiffs did not discharge the onus of proof placed on them by law so as to justify the declaration granted them: the plaintiffs’ claim for declaration and with it the other claims which are ancillary should have been dismissed.”

That case concerns land in Benin City and involves issues of Bini Customary Law. The case did not involve a claim by an original owner, for the plaintiffs therein claimed to have purchased the land in accordance with Bini Customary Law and to have obtained a conveyance of same from the Oba of Benin, as the trustee of all lands in Benin. The plaintiffs in that case led no evidence whatsoever of the nature of their acquisition under Bini Customary Law and whatever interest they could and did purchase. In addition to this, there was in Adegboyega’s case the added confusion as to whether the Oba of Benin was indeed a trustee of all lands of Benin or whether all Benin lands belonged to the Oba and people of Benin. We do not think that the reference to this case is apt and the position in the present case is different, for quite apart from everything else, the title that is being litigated in the present proceedings is the original or radical title.

The term ‘possessory title’ seems to have found its way into Nigerian land law from the dictum of the Privy Council in Amodu Tijani vs. Secretary, Southern Nigeria (1921) 2 A.C. 399, in the course of which Viscount Haldane, in a passage bristling with erudition and singular industry at p. 402 of the Report, observed concerning the terms under which the appellants in that case held their lands as follows:

“Their Lordships make the preliminary observation that in interpreting the native title to land, not only in Southern Nigeria but other parts of the British Empire, much caution is essential. There is a tendency operating at times unconsciously, to render that tile conceptual in terms, which are appropriate only to systems which have grown up under English law. But this tendency has to be held in check closely. As a rule, in the various systems or native jurisprudence throughout the Empire there is no such full division between property and possession as English lawyers are familiar with In India, as in Southern Nigeria, there is yet another feature of the fundamental nature of title to land which must be borne in mind. The title, such as it is, may not be that of the individual, as in this country it nearly always is in some form, but may be that of a community. Such a community may have the possessory title to the common enjoyment of a usufruct, with customs under which its individual members are admitted to enjoyment, and even to a right of transmitting the individual enjoyment as members by assignment inter vivos or by succession. To ascertain how far this latter development of right has progressed involved the study of the history of the particular community and its usages in each case. Abstract principles fashioned a priori are of but little assistance, and are often as not misleading.”

The above passage manifestly describes pictorially the nature of the system of land-holding to the effect that it is possessory since the “owners” could only claim to have always by themselves and their progenitors been in possession of the lands concerned. As a term of art however “possessory title” can only generically describe what is not more than one of the important incidents of many of the various types of usufructs which characterise customary tenurial systems. Viscount Haldane perhaps stood too near the extraordinary and indisputably bewildering facade of the system, so that although he saw the full appearances he could not and did not see its intrinsic peculiarities. Possession may be an incident of the tenure under which a people hold but their title must be a species of customary title or title according to native law and custom as it generally is designated, but it is to be borne in mind that possession per se in only an incident of it.

Learned counsel for the defendants have submitted in this case that there is nothing like possessory title known to customary law or indeed to any law, that only a title according to native law and custom is conceivable and that in any case as we pointed out before, the 1st and 2nd plaintiffs neither asked for a possessory title nor gave evidence of the nature and content of the customary title which they claimed. In those circumstances, learned counsel submitted that the learned trial judge should have dismissed the plaintiffs’ case.

We cannot accede to these submissions. We have already decided that the 3rd plaintiff, Erejuwa II, was and is always a party to these proceedings. In those circumstances, it is conceded in effect by the appellants themselves that the learned trial judge would have been justified in granting to the plaintiffs a declaration of title under Native Law and Custom simpliciter. In Jemi Alade v. Aborishade (1960) 5 ES.C. 167, the Federal Supreme Court decided in effect that a court, indeed a High Court, is entitled to grant to a plaintiff the type of title, which by his evidence he has proved in awarding him a declaration.

In the case in hand, the plaintiffs by their amended writ claimed a declaration of title simpliciter. If they had in those circumstances, as indeed that was the case here, established a particular type of title, then the learned trial judge would have been entitled so to characterise the title which he had declared in their favour. We are in no doubt whatsoever that the plaintiffs in the court below did establish their claim to a declaration of title under Native Law and Custom. They should have got that.

These observations dispose of all the points argued on these appeals and all the grounds of appeal fail. The appeals also fail and are dismissed. We affirm in all respects the judgment of the High Court in this case, except that instead of the declaration of “possessory title” awarded, we substitute a declaration of title under Native Law and Custom.

The appellants will pay to the respondents the costs of these appeals which we fix as follows:

(a) 1st and 2nd sets of defendants will pay costs of N140 to the 1st and 2nd plaintiffs;

(b) 3rd set of defendants will pay costs of N140 to the 1st and 2nd plaintiffs;

(c) 1st and 2nd sets of defendants will pay costs of N140 to the 3rd plaintiff;

(d) 3rd set of defendants will pay costs of N140 to the 3rd plaintiff.

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SC.134/71