Baro Bajoden & Anor V. Enock Iromwammu & Anor (1995)

LAWGLOBAL HUB Lead Judgment Report

KUTIGI, J.S.C.

The plaintiffs, now respondents, sued the appellants as defendant, in the Ondo State High Court, holden at Ondo and claimed as follows:-

“1. Declaration of title to and possession of all that piece or parcel of land, bush and water called Uba Ikorigho now known as Otumara Mogun Ohen situate, lying and being at Odonla Town in Ugbo area in Okitipupa Division.

2. Perpetual injunction restraining the defendants, their servants, agents and/or all persons claiming through them from entering or doing any act e.g. cutting trees or harvesting fishes in the river upon the said land, bush and water.
3. N1,000 or (500pounds) being General Damages for trespass committed by the defendants upon the piece or parcel of the said land, bush and water.”

After the filing and exchange of pleading the case proceeded to trial. At the trial the respondents called three witnesses while the appellants called two. The facts are straight forward. The respondents claimed that their ancestor – one Tapa, who, originally came from Ile-Ife was the first to settle at IKorigho. He came from Ugbo. Tapa begat Ogunro. Ogunro had three children called Ogunje, Aiyerin and Ehinmosan who were born at Ikorigho about 200 years ago. They said the appellants who are Binis from Bendel State are not related to them by blood. That the ancestors of the appellants met Ogunje, Aiyerin and Ehinmosan on the land in dispute fishing.

The appellants’ ancestors then took permission from Ogunro’s children above to fish in the waters and to build floating houses at Ikorigho which they were permitted to do.The appellants on the other hand said it was their ancestor who first settled at Ikorigho. That their ancestors are Kanikan, Okunbo, Mogun-Ohen, and Bajoden (called Bazuaye or Obazuaye). They said it was their ancestor Bajoden, who permitted plaintiffs/respondents’ ancestorto fish at Ikorigho. Gin a reserved judgment the learned trial judge, Ogunleye J. entered judgment in favour of the respondents for a declaration of title to land in respect of claim (1) above, while claims (2) and (3) were dismissed or refused.

The appellants dissatisfied with the judgment of the High Court appealed to the Court of Appeal holden at Benin-City. Four grounds of appeal were filed and the following issues were submitted for determination –

“(i) Are some of the findings of fact made by the learned trial judge and the conclusions reached on those findings justified by the evidence on record to entitle the plaintiffs/respondents to judgment

(ii) Are the plaintiffs/respondents entitled to judgment for a declaration of title on the strength of the evidence adduced by them in support of their claim as shown on the printed record

(iii) Whether the plaintiffs/respondents have proved their title under customary law as held by the learned trial Judge.

(iv) Whether the learned trial Judge was right in holding that the defendants/appellants sought and obtained the permission of the descendants of Tapa to fish at Ikorigho.”

The Court of Appeal for reasons which cannot be justified on the record preferred to treat the grounds of appeal rather than the issues. Since the issues themselves must and did flow from the grounds of appeal, I find nothing wrong or unfair with that option as contended by appellants’ counsel.

The Court of Appeal carefully considered all the four grounds of appeal (and therefore the four issues above) and came to the conclusion that the appeal failed and dismissed it. Dissatisfied with judgment of the court below the appellants lodged a further appeal to this court.

Both sides filed and exchanged briefs which were adopted at the hearing.

The following issues are set down in the appellants’ brief for determination –

“1. Whether the Court of Appeal was justified in holding that plaintiffs/respondents were entitled to a declaration of title to land on the burden of proof based on their amended pleading or statement of claim and issues joined or stated pleadings

2. Whether the Court of Appeal was correct in holding that the plaintiffs/respondents merely pleading claims, for land ‘under Native Law and Custom” without setting out the terms of the Native Law and Custom relied upon was sufficient to find in favour of the plaintiffs
3. Whether the Court of Appeal was justified in holding that the plaintiffs/respondents on their stated pleading particularly paragraphs 22, 23, and 24 depicting defendants as their Customary Tenants, were absolved from pleading the terms and customary incidents of their assertion.
4. Whether on the settled pleadings and specific claim of plaintiffs that defendants were strangers and got permission to stay on the F land in dispute, the learned Justices of Court of Appeal; were justified in holding that “the respondents have probably not attached any condition or term to the interest they allow the appellants to enjoy. subject of course to their right’ to forfeiture” ,

Issue (1) was argued first. The complaint here was that the respondents having failed to prove the features in their Survey Plan ‘(Exhibit 1) were not entitled to judgment based on such a plan. In addition it was claimed that Exhibit 1 itself was not properly tendered in evidence because the license survey or who prepared it was never called and it was through a layman P.W.1, a non-expert, that the exhibit was tendered. I think this issue of Survey Plan or no Survey Plan can be disposed of quickly once it is realised that it is settled law that where there is no difficulty in identifying the land in dispute a declaration of title may be made without it being based on any plan (see Etiko v. Aroyewun (1959) 4 FSC 129; Ibuluya v. Dikibo (1976) 6 S.C. 97; Akinhanmi v. Daniel (1977) 6 S.C. 12 Garba v. Akacha (1966) NMLR 62).

In this case the respondents pleaded in paragraph 5 of their Amended Statement of Claim thus: –

“5. The plaintiffs and community they represent are owners in possession of the area of land shown in Plan No.L & L/D. 175 I drawn by Laniyonu and Lawson Licensed Surveyors and dated 6/4/75 and the plaintiffs will rely on the said Survey Plan already filed.”

The appellants in their amended statement of defence said they deny paragraph 5 (amongst others) of the amended statement of claim above but proceeded to plead in para. 5 as follows:-

“5. The defendants aver that their ancestors first settled on all the parcels of land (marked as land in dispute and land not in dispute delineated on the Survey Plan attached to the statement of claim) before the plaintiffs’ ancestors arrived from Ehunpen in Ijebu Province/Division to reside thereon with the permission of the defendants’ ancestors.”

It was thus crystal clear that both sides knew the land in dispute. There was no difficulty in identifying it. In addition Mr. Enock Iromwanimu who testified as P.W.1 stated on page 55 of the record thus –

“In support of our claim we engaged licensed surveyors. What plan they gave us is Exhibit I in this case. The area in dispute is marked Green. It is a swampy area. South of it is the Uba Ikorigho. My people have floating houses on the land in dispute. Where these houses are is what we call Uba (camp) Ikorigho. There are two shrines at the said Uba and one (the 3rd) is near it. The ones there are (1) Oju-Olotupa and (2) Ojo-Oruru. The one near the Uba is called Oluagbara shrine. Our ancestors came from Ugbo in Ilaje/Ese-Odo Local Government area of Ondo State and settled at Ikorigho.”

Which evidence of “features” did the appellants want again It was this same P.W.1 who took the respondents’ Surveyor round the land in dispute. He produced from his custody the Survey Plan (Exhibit I herein) which the Surveyors prepared for them and it was through him that it was tendered in evidence without any objection. It is significant to note that the appellants did not produce or tender any counter-Survey Plan of their own throughout the proceedings in the High Court. One therefore finds it difficult to appreciate what the appellants are really complaining about. They admitted the respondents’ plan as shown above and there was no indication that the learned trial Judge misconceived the evidence in the proceedings. I am therefore firmly of the view that the lower courts were right when they granted the declaration of title to the land based on the Survey Plan (Exh. 1) and that Exh. 1 was properly tendered in evidence by consent of the parties for that purpose only. The respondents did properly discharge the burden of proof placed upon them as held by the lower courts.

Issues 2, 3 and 4 were considered next. They were argued together and rightly so in my view. The brief clearly reveal that the only contention here is whether or not the respondents pleaded or ought to have pleaded the applicable customary law and terms upon which they claimed ownership of the land in dispute. It was submitted that it was not sufficient for the respondents to have merely averred that they claimed for a declaration under “native law and custom” without pleading the specific terms of the applicable native law and custom. It was contended also that the respondents equally failed to plead the terms or incidents of customary tenancy to sustain their claim for a declaration of title.

Now paras. 4, 15, 18, 19, 22, 23 & 24 of the Amended Statement of Claim read thus –

“4. The plaintiffs and all members of Ikorigho Town whom they represent i.e. excluding the defendants – are the owners of Ikorigho Town according to Native Law and Custom from time immemorial.

15. The ancestors of the plaintiffs and those they represent are among others, Guge, Aiyerin and Eyinmosan who were (maternal) full brothers by their mother Ogunro and Tapa Ogunro ‘s father born by Alawo ofUgbo and whose parents migrated from Ugbo (an ancient town in IIaje) very many years ago to settle in the present town of Ikorigho – part of which the said Ikorigho’s land is now in dispute.
16. The Tapa referred to in paragraph 15 above as the father of Ogunro who (Ogunro) in turn is the mother of Guge, Aiyerin and Ehinmosan was from Ugbo and the Olugbo was a Prince of the Oni of Ife who migrated from IIe-Ife time out of mind.
17. The ancestors of the plaintiffs namely – Guge, Aiyerin and Eyinmosan were born on the land in dispute and were in possession of the same, exercising all rights of ownership by immemorial settlement and fishing on same according to Native Law and Custom of Ilajes.
18. The defendants are non-Ilajes by tribe and descent but migrated from Benin Area in the Bendel State of Nigeria not many years ago.
19. The defendants during their migration arrived at Ikorigho town then already settled by the ancestors of the plaintiffs; this was during the life time of Ogundere an Ilaje from Ugbo.
20. On their arrival at Ikorigho the defendants asked for permission and concession to reside and fish in Ikorigho Waters as Tenants. This permission and consent were granted. Ever before then Guge, Aiyerin and Eyinmosan had firmly settled on the land and were already in effective occupation and possession of the Ikorigho land’ exercising all rights of ownership and possession without let or hindrance from any source whatsoever.”

There is no doubt’ that the respondents pleaded ownership of the land according to native law and custom from time immemorial as contained in paragraph 4 of the Amended Statement of Claim above. It is direct and clear. The respondents then pleaded in subsequent paragraphs above the type or terms of the native law and custom they relied upon. It is in my view none other than that of “first settlement” by their ancestors. In other words, it was by traditional history. The names of the ancestors and who begat who, were all pleaded. It is not therefore correct to say that the particular customary law or its incidents were not pleaded. They were pleaded and supported by evidence at the trial. I must state here that the appellants themselves relied on the same native law and custom of “first ancestoral settlement or traditional history”. The appellants’ Amended Statement of Defence followed the same pattern with the respondents’ Statement of Claim even though significantly enough the appellants did not make a counter-claim.

There is no doubt that the learned trial Judge found that the appellants sought and obtained permission from the ancestors of the respondents to fish and build floating houses at Ikorigho (see paras. 22, 23 & 24 of the Amended Statement of Claim above and the testimonies of P.W’s 1, 2 & 3). I agree with the Court of Appeal that the word “tenancy” or any word to that effect was not employed by the parties in the pleadings or at anytime throughout the proceedings in the High Court. The respondents were not therefore bound to have pleaded any term or incidents of customary tenancy if indeed there was one.

It is probably appropriate at this stage to reproduce the finding of facts made by the learned trial Judge on page 84 of the record as follows-

“(1) That the owner and first settler at Ikorigho was Tapa; the ancestor of the plaintiffs as well as of the former plaintiff.

(2) That the ancestors of the present defendants sought and obtained the permission of the descendants of Tapa to fish at Ikorigho and build floating houses on the waters there.

(3) That this was over one hundred and fifty years ago (about 1802).

(4) That the plaintiffs’ ancestors originally came from Ile-Ife in Oyo State while the ancestors of the defendants originally came from Benin City in Bendel State of Nigeria.

(5) That Oba Ikorigho and Otumara-Mogun-Ohen are two distinct villages in Ilaje/Ese-Odo Local Government Area of Ondo State of Nigeria.

(6) That there are three shrines at Ikorigho and that the plaintiffs and their people worship at these shrines up till today.

(7) That the pond drilled by Seismograph Service (Nigeria) Ltd., Warri, on Exhibit 1 (one) belongs to the plaintiffs and that in the process of drilling crops on the land (but not houses) were destroyed.

(8) That the plaintiffs live at Ikorigho while the defendants live at Utumara-Mogun-Ohen. That these are separate villages.

(9). That the defendants on 8/9/65 changed the name of Ikorigho to Otumara-Mogun-Ohen but that on 20/1/66 the plaintiffs refuted it in a counter publication in the Daily Times.”

The Court of Appeal did not find it necessary to set aside any of the above findings of fact. I have no reason too to interfere as none has been shown to be perverse or not supported by evidence or unjustified. The learned trial Judge having properly and unquestionably evaluated the evidence and appraised the facts, it is not the business of an appeal court to substitute its own views for the views of the trial court. There was abundant evidence in support of respondents’ claim of ownership of the land in dispute by traditional history.

All the issues having failed, the appeal must be dismissed.

The decisions of the lower courts are affirmed. The respondents are awarded costs, of N1,000 only.

BELGORE, J.S.C.: I agree with the judgment of my learned brother Kutigi, J.S.C. Having had the opportunity of a preview of the judgment I have nothing to add but I adopt the same as mine in dismissing this appeal and making the same consequential orders.

WALI, J.S.C.: I have had a preview of the lead judgment of my learned brother Kutigi, J.S.C. and I entirely agree with him that the appeal lacks merit and must be dismissed.

The two lower courts have meticulously considered the evidence adduced and made findings of fact which are unimpeachable. I also hereby affirm these findings and dismiss the appeal with N 1,000 costs to the respondents.

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SC.297/1990