Osayemwenre Amayo V Osayende Erinmwingbovo (2006)

LAWGLOBAL HUB Lead Judgment Report

KATSINA-ALU, J.S.C.

This is an appeal by the defendant Osayemwenre Amayo against the judgment of the Court of Appeal given on 27 July, 1995. Before the trial court, the plaintiff Osayande Erinmwingbovo claimed against the defendant the following reliefs:

(1) Declaration that the plaintiff has possessory title to that piece of land situate at Orio village, Benin City within the Benin Judicial Division and therefore the plaintiff is entitled to obtain a Certificate of Occupancy in respect of the said land shown in plan No. BEC 34.

(2) N1,000.00 (One Thousand Naira) damages for trespass on the said land in that in January 1979, the defendant

broke into the said land and started farming thereon without the plaintiff’s consent.

(3) An order of perpetual injunction restraining the defendant, his servants or agents from entering the said land without the plaintiff’s authority.” The plaintiff in paras. 3,4,5,6,7,8,9,10,12 and 13 of his amended statement of claim pleaded as follows:

(3) The plaintiff’s father was until his death in 1950 the owner of a large farm situate at Ekoken in Orio Village in Benin within Benin Judicial Division. The plaintiff’s grandfather Osagie was the original founder and settler on the land in dispute and the plaintiff’s father inherited the land from the grandfather after his father’s performance of the Bini customary burial rites. His father farmed on this Land and planted rubber trees thereupon.

(4) The plaintiff’s father had 4 surviving children and the plaintiff was the eldest son.

(5) The said farm was mainly rubber plantation with scattered cash crops like kolanut and pear trees.

(6) When the plaintiff’s father died in 1950 the farm land together with the plantation was inherited by the plaintiff after performing the burial customary rites and ceremonies according to Bini custom and he continued to farm on the land.

(7) In 1956 the plaintiff caused the plantation to be surveyed. The area is verged pink on plan No. BEC.34 attached herewith. The said plan will be founded upon at the hearing of this suit.

(8) The plaintiff continued to farm on the land without disturbance until sometime in 1959 when the defendant’s father one David Amayo encroached on the rubber plantation and trespassed on the land.

(9) The plaintiff immediately filed an action against the defendant’s father in the grade ‘A’ customary court holden at Benin City and the plaintiff obtained judgment against the defendant’s father.

(10) The plaintiff avers that the defendant’s father died sometime in 1978.

(11) In 1979 the defendant purportedly claiming through his father broke into the farm land clearing part of it and commenced farming thereon.

(12) The defendant by himself, his servants and agents drove the plaintiff’s workers out of the plantation and farm land. For his part, the defendant pleaded in paras. 4, 5, 6 and the amended statement of defence thus:

“(4) The defendant admits paragraph 9 of the amended statement of claim only to the extent that the plaintiff obtained judgment in grade “A” customary court in suit no. 30/59 delivered on 2nd March, 1960 against the defendant’s father in respect of the land in dispute. When the defendant was not satisfied with the said judgment, he appealed to Benin City High Court in Suit No. 8/6863 and the judgment of grade ‘A’ Customary court in Suit No. 30/59 was set aside on the 16th March, 1964, The said judgment no. B/68A/63 dated 16th March, 1963 will be relied upon at the hearing.

5. The defendant as the eldest surviving son of his father buried the father in accordance with the Benin Native Law and Custom. He then inherited the land in dispute.
6. The plaintiff having sued and lost in Suit No. 8/64A/63 in the subject matter in this suit by a court of competent jurisdiction is estopped from bringing any action for declaration, trespass and injunction against the defendant who is the representative and or privy of David Amayo who was the appellant in Suit No. 8/68A/63. The matter therefore is res-judicata.
7. The defendant reported this matter to the Oba of Benin sometime in 1980 when the plaintiff trespassed on the land in dispute. And in the presence of his chiefs and other persons the Oba after seeing the court’s judgment No. B/68/63 found for the defendant on the 29th October, 1980. At the trial, the plaintiff led evidence in line with his pleadings. In his evidence, he traced how his grandfather deforested the land and settled thereon. He testified that his own father inherited the land on the death of his grandfather. It was also in evidence that the plaintiff’s father farmed on the land in dispute by planting Rubber, Coconut, kolanut and pear trees thereon. He led evidence that he inherited the land in question in 1950 on the death of his father after performing the traditional burial rites and farmed thereon till the defendant trespassed on the said land in 1979. The plaintiff called four witnesses including the surveyor who surveyed the land in 1956 in proof of his claim. The defendant did not testify. He called his mother who tendered exhibit OE4, record of proceedings in proof of his claim. In a considered judgment, the learned trial Judge gave judgment in favour of the plaintiff. He granted all the reliefs claimed by the plaintiff. The defendant’s appeal to the Court of Appeal was unanimously dismissed. This further appeal to this court is against that judgment. The defendant as appellant, raised five issues for determination.

These are:-

“1. Whether from the available evidence, the plaintiff has proved title to land under Bini native law and custom.

2. Whether the learned Justices of the Court of Appeal failed to make a pronouncement on a canvassed issue (the admissibility of exhibit OEI) and thereby occasioned a miscarriage of justice.
3. Whether the learned Justices of the Court of Appeal were right in affirming the decision of the learned trial Judge that relied on evidence in a previous judicial proceedings (Exhibits OE1 and OE4) when the conditions prescribed by section 34 of the Evidence Act, 1990, do not apply.
4. Whether the Justices of the Court of Appeal were right in affirming the learned trial Judge’s findings of trespass against the defendant.
5. Whether the identity of the land was established.” For his part, the plaintiff submitted two issues for determination which read as follows:

“1. Whether the learned Justices of the Court of Appeal were right in affirming the decision of the learned trial Judge that the respondent had established his claim to possessory title to the land in dispute.

2. Whether the learned Justices of the Court of Appeal were right in affirming the trial Judge’s finding of trespass against the appellant in view of the evidence on record.” This case is not as complicated as the learned counsel for the appellant would want to make it. I have earlier on in the judgment set out the relevant paragraphs of the parties’ pleadings to show on what basis the case was fought. That being so, I would determine this appeal on the two issues submitted by the respondent which I find more germane to the resolution of the dispute. The first issue to be resolved is whether the plaintiff established his claim to possessory title to the land in dispute. I have earlier on laid out the relevant paragraphs of the pleadings of the parties and the evidence in support thereof. Now in the course of his judgment. The learned trial Judge stated as follows:-
3. The defendant’s counsel has submitted that the testimony of the plaintiff as to the inheritance and acquisition of the land does not conform with known procedure for acquisition of land in Benin outskirt before 1960. He said the correct procedure is to plant an Ikhimwin tree after obtaining approval or right to the land from the Oba of Benin. In this suit the plaintiff claim to the root of title relates back to 1950s it is not in dispute that the claim is made prior to the introduction of ward system in Benin. It may be the practice to plant an Ikhimwin tree to identify the area of land claimed by the ancestor of the plaintiff, there is no contradiction of the evidence that the plaintiff’s ancestor deforested the Area of Ekoken, ario where the land resides.

I therefore accept the testimony of the plaintiff as it is unchallenged. See Ikuomola v. Oniwaya (1990) 4 NWLR (Pt. 146) 617. from the testimony of Osagiede in exhibit O. B. 1, the predecessor in title of the defendant had made a claim to a wrong plantation. Evidence shows that the Plaintiff through his predecessors in title had been in long continous uninterrupted succession to the parcel of land now in dispute, the onus is on the defendant to dislodge the claim of the plaintiff by cogent evidence. See Ricketts v. Shote (1960) L.L.R. 201, and Makinmi v. Ladejobi (1960) L.L.R. 233. In this case no cogent evidence has been adduced by the defendant to dislodge the claim of the plaintiff to the land. Specifically on Benin land tenure, the plaintiff has shown a good title to the land than the defendant. This claim is better than that of the defendant. In Atiti Gold v. Osaseren Beatrice 1970, 1 All NLR 125 at 134, Coker J.S.C. observed as follows: which observation I respectively adopt. “The question at all times was which of the parties had made a good title to the land and certainly not which of them first obtained the Oba’s approval … ” In the instant case neither of the parties is possessed of Oba’s approval. By the testimony of the plaintiff he has proved a long continous uninterrupted succession to the land through the plantation derived from the root of the plaintiff claim to the land.

In many respect the facts of this case are not desimilar to those in Arase v. Arase, pg. 33 reported in 1981 5, Supreme Court, where Idigbe J.S.C. as he then was adopted the reasoning in Gold v. Osareren Supra, and held that the proof of a better title to the land in dispute is sufficient to ground a right to a declaration to possessory title over the land. This is so in spite of the fact that the particular procedure for grant of the land by the Oba of Benin had not been followed by the plaintiff. In the instant case, evidence shows that the plaintiff predecessor in title deforested the land in dispute and was the Enogie of the Area in Orio where the land resides. No evidence was given that he planted Ikhimwin tree, or that he obtained the consent of the Oba of Benin in 1953, before he surveyed the land. Evidence however shows that at no time was the predecessor in title of plaintiff challenged on the ownership of the plantation or the land. The defendant has produced no evidence of continuous use of the land, and such evidence or claim to plantation that he tendered derived its root from the ancestor of the

plaintiff even the identity of the plantation is uncertain. I have no hesitation in holding therefore that the plaintiff has produced a better evidence of long continuous uninterrupted possession to the land in dispute, and have no hesitation in awarding to him a right to possessory title to that land situate at Orio village Benin: This was clearly based on a sound appraisal and proper evaluation of the evidence before the learned trial Judge.

The Court of Appeal rightly, in my view, affirmed the decision of the learned trial Judge. That court held inter alia thus: “the learned trial Judge in my humble opinion properly considered the case of the parties. It is a case where the case of one party has weight while the other has no weight at all. In my view, the learned trial Judge was right in his conclusion as the only witness, the mother of the appellant was unable to give any credible evidence particularly regarding the source of ownership of the land in dispute”

The plaintiff, it must be remembered pleaded traditional history. He led evidence in line with his pleadings. Particularly, it was in evidence that his grandfather Osagie was the original founder and settler on the land in question and that he deforested same. It was also his evidence that the said land devolved on his father on the death of his own grandfather. His father, he said, planted rubber, coconut, pears and kolanut trees on the land. The plaintiff’s father died in 1950 and thereafter the plaintiff inherited the land. Soon thereafter he caused a survey plan to be made of the said land which was admitted in evidence without any objection as exhibit D.E. 2. This evidence was not challenged by the defendant. The trial court rightly, in my view, accepted the plaintiff’s evidence of original settlement and inheritance by his grandfather and father. There was really no contest. Plaintiff clearly established his claim to possesory title. It is plain to me that from the evidence on record, the plaintiff established by traditional evidence, numerous acts of ownership and long possession by his ancestor and himself. In a claim for title to land, the plaintiff may adopt one or more of the ways of proving ownership, for example, traditional evidence or by means of evidence of acts of ownership or possession. The one or two of them may be sufficient to sustain the claim: See Akunyili v.Ejidike (1996) 5 NWLR (Pt.449) 381; Idundun v. Okumagba (1976) 9-10 SC 227. Where traditional evidence is not contradicted or in conflict, it can support a claim for declaration of title. See Aikhionbare & Ors. v. Omoregie (1976) 12 SC 11. As I have already pointed out the plaintiff gave evidence of traditional history as to how his family land in question was established. The defendant on the other hand, gave no evidence of traditional history. The Court of Appeal as I have already stated, affirmed the judgment of the trial court. That court per Ba’aba JCA said: “It is a case where the case of one party has weight while the other has no weight at all. In my view the learned trial Judge was right in his conclusion as the only witness, the mother of the appellant was unable to give any credible evidence particularly regarding the source of ownership of the land in dispute “Land in Benin is rested in the Oba of Benin under customary law. This however was not the law before 1950. In any event the question in land claims has always been which of the parties had made a good title to the land and not which of them obtained the Obas title. See Atiti Gold v. Beatrice Osaseren (1970) All NLR 125. This observation is particularly more relevant in the present case where neither of the parties is possessed of Oba’s approval. I answer issue No.1 in the affirmative.

I go now to issue No.2 which deals with the finding of trespass. Generally speaking, a claim to trespass to land is rooted in exclusive possession. The onus on the plaintiff is to prove by credible evidence that he has exclusive possession, or he has the right to such possession of the land in dispute. Where however a defendant claims to be the owner of the land in question, title to it is put in issue. In order to succeed therefore, the plaintiff must show a better title than that of the defendant. See Amakor v. Obiefuna (1974) ALL NLR (Pt.1) 119; Akinyili v. Ejidike (supra).

I have already shown that the plaintiff had adduced uncontroverted evidence as regards his root of title. The trial Judge found that: “Plaintiff’s claim to the root of title relates back to 1950’s. It is not in dispute that the claim is made prior to the introduction of ward systems in Benin . there is no contradiction of the evidence that the plaintiff’s ancestor deforested the area of Ekoken – Grio where the land resides. I therefore accept the testimony of the plaintiff as unchallenged.”

The Court of Appeal affirmed this finding. It said: “It should be noted that the title of the respondent’s grandfather and father was never challenged by anybody. I therefore resolve the sole issue against the appellant.” The question to answer now is whether the defendant trespassed unto the plaintiff’s land. The plaintiff testified that the defendant with his servants and agents entered the land in 1979 and while therein drove away the plaintiff’s workers on the land. This was in line with his paras. 12 and 13 of the amended statement of claim. This piece of evidence was not challenged. The trial court accepted this evidence of trespass by the defendant to the land in dispute. The Court of Appeal was equally right in affirming it. One last thing. This appeal is on concurrent findings by the trial court and the Court of Appeal. The attitude of this court where there are concurrent findings of fact by the lower courts is that it will not disturb such findings unless they are shown to be perverse. The defendant has not shown before this court that the findings on original settlement and inheritance by the plaintiff’s grandfather and father as well as the finding on trespass are perverse – See Ayorinde v.A. -G.. Oyo State (1996) 3 NWLR (Pt.434) 20; Lawal v. Olufowobi (1996) 10 NWLR (Pt.477) 177. Clearly therefore, this court has no reason whatsoever to interfere with the findings. This appeal is devoid of merit. In the result I dismiss it with N10,000.00 costs in favour of the plaintiff/respondent against the defendant.

SC.323/2001