His Highness, Alhaji A. G. Momoh .v. His Highness, Alhaji I.m.j. Umoru (2011)

LAWGLOBAL HUB Lead Judgment Report

C. M. CHUKWUMA-ENEH, J.S.C. 

The claim in this matter has been set out in the lead judgment of my learned brother Galadima JSC; I adopt it for this contribution.

This is a difficult case, indeed it is difficult to follow the sequence of the facts and events of the divergent traditional histories of both parties as they seem in places to tail into incoherent stories and this is not made any easier by the fact that this matter is coming to this court on appeal for the second time. The traditional history of the plaintiffs/appellants has ranged from facts and events dating as far back as 500 years ago into history when the plaintiffs/appellants father ancestor i.e. Uchi, the ancestor of Auchi people migrated from Udo in Benin to settle in Auchi with his five children; they comprise the five villages of Auchi to wit: Usogun, Akpekpe (Afekpe), Aibotse, Igbei and Iyekhei. The quarters or villages in which each of the children settled bear the name. The plaintiffs have alleged that when Iyekhei people left the land in dispute for their present abode Igbei people, their relations spread out and occupied the same by exercising acts of possession of erecting buildings and farming thereat.

On the part of the defendants their father ancestor Ibie left Benin migrated to their present abode in South Ibie in the 14th century and at the time their father ancestor arrived from Ugboka in the ancient Benin Kingdom; and as they have alleged, the other communities in Etsako have not come to settle in the area, and particularly he settled at Iyakpi with his children; they founded the villages of Iyakpi, Ibienafe, Ugiede, Iyereku and Ugiekha lying on the old Auchi/Agenebode Road. The land in dispute according to the plaintiffs claim is as known to the parties and as delineated in the plaintiffs/appellants survey plan received in evidence and marked Exhibit ‘A’in this matter. The land in dispute according to the appellants case is encompassed by the lands of Auchi people. The plaintiffs claim the ownership of the land in dispute; the defendants/respondents have not counter-claimed. As found by the trial court and affirmed by the lower court the conflicting traditional histories of the parties are as to “the point of arrival and from where they migrated and also on the boundary between the plaintiffs and the defendants’; ultimately, what is in issue in this case is resolving the extent of the area of occupation of each community. In other words, the issue for determination simply put, is which of the two communities that is, the plaintiffs or the defendants own the land in dispute in this case; and the parties being of different communities, resolving of the boundary between the plaintiffs and the defendants is at the bottom line of this matter.

The plaintiffs as the Auchi Community have put the area in dispute as per their survey plan Exhibit A as 280.385 hectares excluding the Auchi Polytechnic. The defendants have put the area in dispute as 548.97 hectares including the Auchi Polytechnic. The defendants as I have said above have not counter-claimed. The plaintiffs survey plan therefore determines the land in dispute. See Wilfred Okpalaeke & Ors. V. Ben Ume and Ors. (1976) 9-11 SC.269 at 287, Mabiaku Owotaire & Ors. V. Benitie Onokposo & Ors. (1984) 12 SC 19 at 37.

What the plaintiff must prove in a land case consists of one at least of the five ways of proving ownership of land in dispute as decided and adumbrated in the case of Idundun & Ors. V. Okumagba (1976) 9-10 SC.227 at 246-250 and I will come to them anon.

It is settled law and with regard to this case that the onus is on the plaintiffs to prove their case in accordance with their pleadings that they have acquired title to the land in dispute under native law and custom and not merely to show a better title than the defendants and to succeed on the strength of their case based on the preponderance of evidence in the case and they cannot rely on the weakness of the defence case except where such weakness supports their case. It is also settled that in cases as this one the onus does not shift to the defendant until the plaintiff has successfully discharged the onus on him. I think I should state these propositions of the law early enough so as to position the above trial courts findings of fact in the storms eye in this appeal in their proper contexts. See: Echolor v. Osayamde (1992) 8 NWLR (Pt.249) 524 at 526, Kodilinye c. Odu 2 WACA 336, Woluchem v. Gudu & Anor. 5 SC.291; (1981) 12 NSCC 214, also see Ngene v. Igbe (1991) 7 NWLR (pt.203) 358 at 361. The crucial question arising from the trial courts decision is the finding of conflicting traditional histories of the parties, that is, as to the point of arrival and where the parties migrated from also the boundary between the parties i.e. the plaintiffs and the defendants.

The next question to examine, on the trial court having found the traditional histories of the parties conflicting is whether the trial court rightly has resolved the cases of the parties in this matter on the evidence of recent acts of ownership and possession of the land in dispute as expounded in the cases of U.B.A. & Anor. v. Agwuncha & Ors. (1976) 6 SC 83 at 85-87, Ayo Wale v. Ogunbiyi (1986) ANLR 442, Aliniloye A. M.A. & Ors. V. Bello Eyidola & Ors. (1968) NMLR 93, also see Kojo II v. Bonsie (1957) 1 WLR 1223.

More facts of this matter have been clearly stated in the lead judgment of my learned brother Galadima JSC, and I have had the preview of it before now; I adopt them for this contribution.

Being dissatisfied with the trial courts decision the plaintiffs/appellants have appealed to the lower court which also has dismissed their appeal. They have now appealed to this court. They have exchanged their briefs of argument.

On the part of the appellants the issues raised for determination in their brief of argument in this appeal are as follows:

‘(1) Was the lower court right when it upheld the judgment of the learned trial judge and held that the evaluation of evidence by the learned trial judge was not perverse?. (Ground 1)

(2) Whether the lower court was right when it agreed with the learned trial judge that the traditional histories pleaded and given in evidence by the parties as to the point of arrival and from where the parties migrated are conflicting. (Ground 2)

(3) Whether the lower court did not misdirect itself when it held that the learned trial judge was right in his criticism of Exhibit A*. (Ground 3)

(4) Was the lower court right when it upheld the trial courts decision that the Justice Obis Commission of Enquiry report on the on the boundary between the parties in this appeal was binding on the appellants? (Ground 4)

(5) Was the lower court right when it upheld the learned trial judges finding that title to the land in dispute could not be declared in the appellants favour because the payment of compensation to the respondent by Dumez and the establishment of Ekhabhele Primary School, Iyakpi were positive and numerous acts of ownership and possession of the land in dispute by the respondents. (Ground 5)

(6) Was the lower court right in upholding the judgment of the trial court? (Grounds 6 & 7)’

(5) The sole issue formulated by the respondents for determination in their brief of argument is to wit:

‘Whether the learned Justices of the Court of Appeal were right in law and on the facts in holding that the appellants failed to prove their case at the court of first instance’.

If I may repeat the most crucial findings of fact in the trial courts judgment as affirmed by the lower court in this appeal and in regard to the question of the traditional histories of the parties and on the boundary between them is as per its holding as at p.257 LL.4-10 of the record and I quote:

‘Reverting once more to the traditional histories pleaded and given in evidence by the parties to this suit, I hold that the said traditional histories are conflicting as to the point of arrival and from where they migrated and also on the boundary between the plaintiffs and the defendants.’

Earlier, the trial court has also at 248 LL. 12-34 to p.249 Line 1 reached the following conclusion that:

‘The traditional history pleaded on both sides could have been necessary if the founding of each community was relevant to the determination of who owns the land in dispute in this case. There is no doubt in my mind that each community was founded years ago. Whether Auchi community comes from the north or from Benin Kingdom does not for one moment detract from the fact that they now occupy the area now known as Auchi. What is important in this case is the extent of the area of occupation of each community.

Another preliminary observation worth making is that the administration of the communal life of the community of the plaintiffs and the defendants is also not relevant in the determination of the issues joined in this case.

The issue for determination therefore in this case is, which of the two communities, i.e. the plaintiffs or the defendants, own the land in dispute in this case. The parties being different communities, the determination of the boundary between the plaintiffs and the defendants is the hurdle for the determine of the ownership of the land in dispute in this case.’

In a nutshell the foregoing is a succinct analysis of this matter which has thereby dealt with the crucial questions for resolution in the matter vis- à -vis whether the said findings of fact are perverse as canvassed by the appellants. The lower court in the same vein at p.445 lines 10-15 of the record held to the same effect, and I quote:

‘The findings of fact made by the learned trial judge based on both oral as well as documentary evidence cannot be faulted. It is my view that the evaluation of evidence by the learned trial judge is not perverse. It is the primary function of the trial court which saw and heard the witnesses to assess the credibility of those witnesses and to believe or disbelieve any of them’.

I have highlighted the foregoing abstracts of the two lower courts as they constitute the concurrent findings of fact on the issue of the traditional histories of the parties in this matter and the attitude of this court to questions of concurrent findings of fact from the age-old decision in Kofi v. Kofi 1 WACA 284 is not to disturb them unless they are perverse. See Okoya v. Santilli (1994) 4 NWLR (Pt.338) 256 at 307 paragraphs E-G. and Scrimati Bibbabati Devi v. Kumar Ramendro Narayan Roy 62 TC 549 (Privy Council) cited with approval in Etowa Enang & Ors. V. Fidelis Ikor Adu (1981) 11-12 SC.17. The appellants have therefore attacked the above concurrent findings of fact adding that there is otherwise credible evidence on the record to support their contention that the instant findings of fact as per the above abstracts are perverse. For the appellants to meaningfully attack the findings of concurrent fact in this matter they must show the exceptional circumstances to justify this courts intervention to reevaluate the facts afresh and I must observe that it is an uphill task. See: The Stool of Abinabina v. Chief Kojo Enyimadu (1953) 12 WACA 171 at 173, and Kofi v. Kofi (supra).

I have, however, to examine the issues raised for determination in this appeal; they have put on the front burner the questions ranging from the evaluation of evidence of the parties and their witnesses to the ascription of probative value to their evidence as received by the trial court. And as rightly posited by the lower court it is an area in which the trial court has pre-eminence as it has at first hand seen, heard and watched the demeanours of the witnesses (an opportunity which this court hasnt had) and so in a better position to believe or disbelieve them; but as regards documentary evidence this court has as much the same forensic leverage as the trial court to form its own opinion on them. See Okoya v. Santilli (supra), Amayo v. Erinwingbo (2006) 5 SC. (Pt.l) 1 at 11.

Following from the appellants strenuous contention that the two lower courts findings of fact on the above points are perverse, I think I should sort out firstly that question and so examine when is a finding of fact said to be perverse. Thereafter, I will come to the question of whether the trial court rightly has relied on the acts of recent possession in their proper contexts in resolving the instant land dispute; again, I will come to deal with this point later on.

Meanwhile as per the decided authorities, a finding fact is perverse when it runs counter to the evidence and pleadings or where it has been showed that the court has taken into account matters which ought not to have been taken into account or shut its eyes to the obvious or where it has occasioned a miscarriage of justice or when the circumstances of the finding of fact is most unreasonable. See: Kofi v. Kofi (supra) and The Stool of Abinabina & Ors. V. Enyimadu (supra). I have come this far in espousing the plenitude of the principle of concurrent findings of fact in this case so as to define the ambit of the principle in the circumstances to enable an appellate court as this court to determine when to intervene in matters of this nature; as an appellate court ordinarily ought not to intervene as a matter of course. It is a bounden duty on the appellants to bring the instant case within the ambit of one or the other of the grounds as stipulated above otherwise it is a non-starter. In this regard they have particularly challenged the findings of fact as per the decisions of the two lower courts as running counter to the evidence and pleadings and thus leading to a miscarriage of justice in this matter. It is also their specific challenge of the mode of approach of the lower court in failing to decide the critical issue submitted to it that is, as to whether the traditional histories pleaded and given in evidence by the parties as regards the said findings, that is to say whether ‘the point of arrival and from where the parties migrated are conflicting.’ They have contended that the lower court has abdicated its function in this respect by failing to pronounce on this issue properly raised before it as it constitutes a legal duty for a trial court as well as the appellate court to determine all issues properly raised before them. See: Afolayan v. Osunride (1990) 1 NWLR (Pt.127) 369 at 383 paragraph B per Obaseki JSC. It is further their contention that the said issue cannot be resolved simply by the instant lower court denoting with approval the trial courts holdings as at p.248 of the record as replicated in the above abstract of its judgment. I find and observe here that this is a valid point to take as the appellants are saying in other words, that to constitute a legal judgment in the face of the issues raised in this matter before the instant lower court, or any other appellate court for that matter; the court must on its own examine the evidence afresh to satisfy itself that the appeal has been properly tried and that the questions raised by the parties for adjudication before the trial court have been duly considered and resolved. Following from this proposition of settled law, I think it is a matter of legal duty in this judgment as the instant decision of the lower court has been challenged as perverse to duly examine afresh the findings of fact and the reasons thereof for the instant decision on appeal so as to be satisfied that the decision has been properly arrived at. I will come to further deal with the question of the perversity of the said lower courts findings of fact and matters arising therefrom anon. That is to say, not before resolving the issues encompassing other relevant questions as set out hereunder and upon which my reasoning and conclusions in resolving this appeal have to be premised.

In this matter the appellants have copiously pleaded their traditional history in paragraphs 8, 9, 10, 11, 12, 14, 15, 16, 17, 18 and 18a of the 3rd further amended statement of claim at page 129-132 of the record. The defendants on the other hand have also pleaded their traditional history in paragraphs 5 6, 7, and 8 of the 2nd further amended statement of defence at page 397 of the record. Issues inter alia have been joined on the parties traditional history and on the boundary between the two communities.

In order to set out chronologically the traditional histories of both parties in this matter on the backdrop of their arguments in their respective briefs filed in this matter I have taken pains to peruse the parties respective copious pleadings in this matter comprising the 3rd further Amended Statement of Claim and the 2nd further Amended Statement of Defence. I have satisfied myself that the appellants have done a good job of it by the summary of the traditional histories of both parties as set out in paragraph 4.10 at p. 12 to paragraph 4.15 at p. 17 of their brief of argument filed in this matter and I reproduce the same as follows:

‘The appellants pleaded their traditional history in paragraphs 8, 9, 10, 11, 12, 14, 15, 16, 17, 18 and 18a of the 3rd further amended statement of claim at page 129-132.

These paragraphs in a nutshell show the following:

(a) That Uchi was the ancestor of Auchi people who migrated about five hundred years ago from Udo in Benin.

(b) That Uchi migrated with 5 of his sons namely; Usogun, Akpekpe (Afekpe), Aibotse, Igbei and Ekhei.

(c) That the settlements of Uchi and his children became comprehensively known as Auchi meaning ‘the settlement of Uchis children or descendants’. The quarters or villages in which each of them settled were named after them.

(d) That the land in dispute forms part of the land of Igbei village or quarter of Auchi.

(e) That by Auchi native law and custom all lands are communally owned and all such lands are subject to the overriding interest or rights of the community.

(i) The Otaru of Auchi is the traditional trustee of all Auchi lands and he alienates any parcel of land on the recommendation of the land Allocation Committee.

(j) That the land in dispute was originally occupied by Iyekhei people of Igbei quarter or village of Auchi.

(k) That Iyekhei people left the land in dispute for the Present day Iyekhei sub-quarter of Auchi.

(i) After Iyekhei people left the land in dispute, the people of Igbei who are their brothers spread in and occupied same by erecting buildings and farming.

On boundaries, the appellants pleaded in paragraphs 17, 18, and 18a in a nutshell as follows:

(a) The people of Warrake and Ivbiaro to the West, those of Avia to the North, Jattu (Uzairue) to the North-east, those of Ibie-Nafe of South Ibie clan to the East and those of Ugioli (Aviele) to the South.

(b) The land in dispute is encompassed by Auchi land to the West and abuts Auchi Polytechnic land granted to the then Government of Midwestern Region by the Otaru of Auchi on behalf of Auchi community.

(c) On the north-west of the Auchi Polytechnic land is the Igbei quarter or village of Auchi

(d) Also in boundary with the land in dispute on the South is the land of the Ugioli (Aviele) people, on the East-north is the Ibie-Nafe people and to the far North is the otaru Grammar School, Auchi.

(e) The intelligence Report of Mr. H. Spottiswood boundaries settlement ordinance enquiry between Auchi and Uzairue clans and that of Mr. S. J. Henry between Auchi and Aviele clans.

The appellants pleaded the traditional history of the respondents in paragraphs 19 and 20 in a nutshell, as follows:

(i) That Akpi is the ancestor of Iyakpi people of South Ibie.

(ii) That the original home of Atse was Ibie-Nafe (meaning the Ibie people at the place where all the Ibies once settled).

(iii) That Atse begat Akpi and other sons.

(vii) That Akpi like other sons of Atse broke away from their Father.

(viii) That Akpi, after breaking away, settled on part of Ibie-Nafe land to the East and South-east of Auchi known as Iyakpi.

(ix) That the Native Authority School was established on a small portion of the land in dispute.

(x) The land on which the school was sited which was later taken in by Sabo quarters turn out to be the land in dispute as a result of the acts of trespass carried out by Iyakpi people who squatted and built houses on part of the land which they nicknamed Sabo.

(viii) This initial act of trespass by Iyakpi people was accommodated by the Auchi people who before the advent of the 1st respondent as the Aidonogie of South Ibie clan acknowledged the over lordship of the Otaru of Auchi, assumed an alarming proportion in the wake of 1964 – 1965.

(ix) As a result of this alarming rate of trespass, there became a threat of violent clashes and this led to three (3) inconclusive Government Commissions of Inquiries.

On their parts the respondents pleaded their traditional history in paragraphs 5, 6, 7 and 8 of the 2nd further amended statement of defence which are reproduced at pages 397 line 1 – 53 and page 398 line 1-38.

In a nutshell, the traditional history as pleaded by the defendant can be summed up as follows:

(a) That South-Ibie was original settlement of one Ibie from Ugboka in ancient Benin Kingdom.

(b) That he and his followers settled at Iyakpi where the shrines of Erua and Iyua, which situates on the spot where Ibie and his wife lived, commemorates their names.

(c) After the death of Ibie, his first son by name Akpi remarried at Iyuakpi (the original place where Ibie settled). His second son by name Atse moved to other places with his children.

(d) Atses children founded Ibie-Nafe and Iyerekhu.

(e) Other followers of Ibie and their successors founded Ugiede and Ugiekha.

(f) All the villages of Iyuakpi, Ibienafe, Ugiede, Iyereku and Ugiekha lie on old Auchi/Agenebode Road.

(g) That at the time that South-Ibie was founded by Ibie, Auchi was part of the land of Uzairue.

Still on traditional history, the respondents by their paragraphs 7 and 8 put the traditional history of the appellants thus:

(a) That at the time that South-Ibie was founded by Ibie, Auchi was part of the land of Uzairue.

(b) That palm-wine sellers were the first people that settled in Auchi.

(c) That Abhitsi centre is the name of the place where the settlers sold their palm wine.

(d) That at this Abhitsi centre, the people of Uzairue and South-Ibie sold palm wine and slaves to Nupe people from the Northern part of Nigeria.

(e) That Abhitsi was corrupted to Auchi by Colonial masters who could not pronounce Abhitsi in Nupe dialect.

(f) That Uzairue people granted the settlers permission to trade on slaves around the palm wine food centre and settled thereon.

(g) That the area granted to them became too small to accommodate them and as a result they started boundary disputes with all their neighbours namely; Warrake, Uzairue, South-Ibie and Aviele.’

At the close of pleadings in this matter the foregoing resume as culled from the appellants brief of argument represents the state of the parties averments in their pleadings in this matter and on which they have joined issues for resolution before the trial court.

On the appellants traditional history and the evidence proferred in support thereof relating to their ancestral place Udo in Benin and the point of time of arrival from Benin as well as the boundary between the two communities have been given by PW l – the licensed surveyor and PW2 i.e. the 3rd plaintiff from Igbei village in Afighagu and also the PW3 i.e. the 4th plaintiff, he also has testified on the traditional history and so also the PW4; they have testified and have been cross-examined in this matter. On their traditional history the appellants in sum, have in their pleading and evidence stated that their ancestor father Uchi migrated from Udo in Benin and arrived with his 5 children to settle in the present place now known as Auchi. As for the defendants, they allege that Akpi migrated from Benin to Ibie-Nafe i.e. their first settlement or the home of the Ibies and later settled on Ibie-Nafe land at a place called Iyakpi towards Auchi. The traditional boundary between the parties, they have alleged, is marked by a mound or a heap of earth in which an Albino is said to have been buried. Iyakpi is situated on Ibie-Nafe land to the East and South-East of Auchi. The foregoing narrative in a nutshell has represented the traditional evidence of the respondents. The appellants have called PW1, PW2, PW3 and PW4, if I may repeat, to establish by their testimonies the traditional history and the boundary between the parties. On documentary evidence: Apart from Exhibit ‘A’ i.e. the appellants survey plan, the appellants have tendered and also relied on Exhibits C – a boundary document prepared by Spottiswood and it shows the boundary between Auchi and Uzairue; Exhibit D. is also a boundary document between Aviele and Auchi clans prepared by Mr. S.J. Henry (District Officer under the then Kukuruku Native Authority) under the Inter tribal boundary settlement Ordinance. The appellants further have relied on Exhibits E & El i.e. the Dentons Intelligence Report of 1936 and Exhibit G – a short history of Benin by Dr. Egharevba to buttress their case in this matter.

The respondents on the other hand have established according to their traditional history that Ibie their ancestor father founded the South Ibie and that he migrated from Benin to South Ibie in the 14th century at the time none of the other communities has come to settle at Etsako. And that at his death he left his children at Iyakpi where he first settled on arrival from Benin. And that his son Atse then left Iyakpi and founded Ibie-Nafe whilst his other son Akpi remained at Iyakpi. The respondents called DW1, DW2 and DW3 to establish their case.

The appellants and respondents have adverted to the above mentioned exhibits to support their respective cases in this appeal. Let me examine the exhibits further. It has to be so as the appellants have taken serious exception to the pronouncement by the lower court to the effect that the findings of fact made by the trial court on both the oral as well as documentary evidence in this matter cannot be faulted. I will marry my discussion of the documentary evidence to my findings on the oral testimonies of the parties later on in this judgment. On exhibit A i.e. the appellants survey plan of the land in dispute on which the judgment ought to be tied has been severely faulted and the trial court has unleashed scathing remarks although substantiated to the effect, that it is at variance with paragraph 18 of the 3rd further amended statement of claim for failing to show that the land in dispute is not encompassed i.e. encircled by Auchi lands contrary to their pleading and that it has not showed the position of Iyakpi as a boundary neighbour to Auchi as has been averred by the appellants. In short as the most crucial document in the matter that exhibit ‘A’ i.e. the survey plan of the appellants has not represented the correct positions of things on the ground. Even more ominously that it has not showed the numerous acts of ownership as buildings and farms properly exercised by the defendants within the land in dispute; and therefore it is not a credible documentary evidence to be relied on. And the trial court has rightly so found.

On exhibits C and D, the trial court in my view rightly has found that they do not relate to the land in dispute and of no help in demarcating the boundary between the plaintiffs and defendants vis- à -vis the land in dispute. As regards Exhibits F and F1 the trial court has again rightly found that they cannot be relied upon as constituting an authority on the subject matter of the book that is, as regards the traditional histories of the parties in this matter and therefore has to be discountenanced.

Coming to the report of the Commission of Enquiry on the boundary between the plaintiffs and the defendants by Justice Obi. Without belabouring the issue I entirely agree with the findings of the trial court in this respect as at p.257 LL.1-7 and I quote.

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SC.63/2004