J. E. Ehimare & Anor V. Okaka Emhonyon (1985)

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A. OPUTA, J.S.C. 

This is an appeal against the judgment of the Court of Appeal, Benin Division (the judgment of Agbaje, J.C.A., Ete and Okagbue, JJ.C.A. concurring), allowing the appeal of the plaintiff against the judgment of Aluyi, J. sitting in the Ubiaja Judicial Division of the Bendel State High Court. The trial court dismissed the plaintiffs claim for a Declaration of Title, Damages for Trespass and Perpetual Injunction.

The court below allowed the plaintiffs appeal, set aside the judgment of the court of first instance; and “entered judgment for the plaintiff against the defendants for a declaration of title to customary occupancy of the land in dispute.” It also “granted an injunction restraining the defendants, their servants and/or agents from coming on the land in dispute.” It is against this judgment of the court below that the present appellants, who were defendants in the original suit, have now appealed to this Court.

Counsel on both sides filed and relied on their respective briefs. Mr. Ajayi, S.A.N. for the defendants/appellants, in his oral arguments in the court concentrated all his fire-power against the case of the plaintiff as pleaded and submitted that the plaintiff should not only succeed on the strength of his case but also on the strength of that case as pleaded and no more. He then referred the court to the case of Ochonma v. Unosi (1985) N.M.L.R. 321 relied upon by the court below and distinguished the facts of that case from the facts of the present case on appeal.

In this case, continued Mr. Ajayi, the plaintiff pleaded his own original title but averred that his father and predecessor in title “gave” the land in dispute to the 2nd defendant’s father. The plaintiff then proceeded to plead “abandonment” by the defendants and claimed ownership by virtue of that abandonment. The learned counsel, Mr. Ajayi, then referred the courtto paragraphs 12, 24 and 25 of the plaintiff’s Amended Statement of Claim and forcefully submitted that the onus lies heavily on the plaintiff to prove “abandonment” or “Surrender.’”

So far so good and I entirely agree. But leaving the sphere of academic speculation and concentrating on the practical realities, one soon discovers that it takes two to quarrel; it takes two to be “at issue”; it takes two to have a dispute. In other words, in any given case, the pleadings of both parties will have to be considered before deciding what the dispute is all about. In Josiah Akinola & another v. Fatoyinbo Oluwo & Ors. (1962) W.N.L.R. 133 at p.134 the Federal Supreme Court held:

“The trial judge held that the plaintiff had failed to establish his case and said that the plaintiff must succeed on the strength of his own case and not on the weakness of the defendants’ case. This is true, subject of course, to the important point that the defendant’s case may itself support the plaintiffs case and contain evidence on which the plaintiff is entitled to rely.”

The above observation dealt with the evidence from the defence going to support the plaintiffs case. I will venture to go farther and humbly say that the pleadings of the defendants in answer to the plaintiff’s statement of claim “may radically affect the live issues in the case and ultimately the onus of proof.

“In this case on appeal, Mr. Ajayi would have been on a very strong wicket if the appellants’ Statement of Defence admitted the “gift or “grant”, by the respondent’s predecessor in title, of the land in dispute and then pleaded that there had been no abandonment as they (the defendants) have been in continuous possession. Then abandonment would have been the central issue, if not the only issue in this case. I believe that it was in that spirit that the court asked Mr. Ajayi:-

Court:- “What did you plead as your root of title – Gift of the land from the Plaintiffs father

Ans:- “We did not plead a “gift” from the plaintiff’s father Question:- “What is abandonment”

In answer, Mr. Ajayi referred to the evidence of the plaintiffs witnesses who testified that the defendants/appellants have been in possession of the land in dispute for over 40 years and then arguing that the defendants’ case is rooted in their possession, Mr. Ajayi was quickly reminded that possession was not pleaded as the appellants’ root of title.

What was pleaded was “that on his application to the elders of Idumun Eghae Quarters to build and live, the 2nd defendant’s father was given part of the burial ground of Idumun Eghae Quarters of Ivue, on which he built and settled about 50 years ago.” All these show how important pleadings are and that learned counsel should be very careful, thorough, and circumspect in settling their pleadings. I will discuss the pleadings filed in this case more fully later on in this judgment.

With regard to the appellants’ alleged long possession of the land, could the appellants rely on prescription Mr. Ajayi was quick to answer, and I agree with him, that there is no prescription under the customary law. As “abandonment” naturally implied an original grant, Mr. Ajayi conceded, and rightly in my view, that confining himself to the plaintiff/respondent’s Statement of Claim as he has done, he has no option but to accept that radical title must reside in the plaintiff/respondent’s predecessor in title before he could have made the grant whose abandonment is now in dispute. He submitted finally that the appeal be allowed at least, with regard to trespass and injunction.