Chief Marcus Ndoro & Ors V.ndeezia Pianwii & Ors (2002)

LawGlobal-Hub Lead Judgment Report

AKPIROROH, J.C.A.

This is an appeal, against the judgment of Opene, J. (as he then was) of the High Court of Rivers State, sitting at Bori, delivered on the 25th day of March, 1993, in suits Nos. BHC/31/85 and BHC/15/87.

The appellants in suit No. BHC/31/85 claimed against the respondents as follows:-

1. “A declaration that the plaintiffs are entitled to the customary rights of occupancy in over and in respect of the piece or parcel of land known as and called “Wii Kpobari” and situate at Nyokua- Okwali in Bori Local Government Area of the Rivers State and within the jurisdiction of this Honourable Court.
2. N10,000.00 damages for trespass.
3. A perpetual injunction restraining the defendants, their servants or agents from further trespass on the said land or in any way interfering with the plaintiffs’ ownership and use of the said land.”

The respondents in suit No. BHC/15/87 claimed against the appellants as follows:-

“(1) Declaration that the plaintiffs are the people entitled to a right of occupancy by virtue of their holding from time out of human memory of that piece or parcel of land known as and called “Wii Kpobari” situate and lying at Nyokua, Okwali within the jurisdiction of this Honourable Court. The said “Wii Kpobari” land as to its true position and boundaries will be shown in the plan to be filed later in court by the plaintiffs. The annual rental value of the land is not more than N500.00.

(2) N15,000.00 (Fifteen thousand Naira) being general damages for trespass in that in or about March, 1985, the defendant well knowing that the plaintiffs are the people entitled to a grant of certificate of occupancy of that parcel of land situate and lying at Wii Kpobari by himself, his servants, and/or agents and without the consent of the plaintiffs first obtaining broke and entered the said piece and parcel of land cleared the vast area destroying economic trees thereon, digging the land indiscriminately, farming portions and distributing other portions to people and committing several other acts of trespass over the said land.

(3) Injunction restraining the defendant by himself, his servants and/or agents from:-

(a) Continuing his acts of trespass,

(b) Ever setting his feet on the plaintiffs’ said land and/or

(c) Doing anything which challenges the rights to possession of the plaintiffs’ over the said land.”

For ease of trial, the two suits were consolidated.

The appellants’ case put briefly in the consolidated suit was that they are the owners of the land in dispute from time immemorial.

It was originally founded by their ancestor, Gbene-Abariwa who left Taaka village to Okwali to found Nyokua village, and was succeeded by Nwigbara Manze, Baridum, Akeke, Ndoro, Nabara and Marcus, the 1st appellant. All these persons and the entire Nyokua community exercised maximum acts of ownership in respect of the land which remained a community land. Sometimes during the reign of Chief Akeke, there were some fights between the neighbouring villages of Luebe, Lueku and Sogho over the land in dispute which the appellants won and re-established their ownership of the land. After this, Chief Ndoro shared portions of the land in dispute to various families and individuals who took part in the prosecution of the wars for their cultivation while the radical title of the land remained communal land.

Later, the defendant’s father migrated to Nyokua from Nuagha, Sogho and settled at Nyokua where he was taken as a servant by Ndoro and later married Ndoro’s sister, Mmue, who begat the 1st defendant. Chief Ndoro gave the defendant’s father a piece of land around the land in dispute for farming as long as their marriage subsisted. In 1982, a construction company (Dumez) dug a burrow pit on part of the land in dispute for which the community and the people whose crops were destroyed were paid compensations. In 1994, the defendants went into the land and forcibly cultivated it despite the plaintiffs’ protests and warnings hence this action.

The respondents’ case was that the land in dispute was founded by their ancestor, Mbari who accompanied Nkara from Okuala to found Nykhua. On the death of Mbari, the land devolved upon his son, Pianwii, the 1st respondent who is the father of the 2nd and 3rd respondents.

As owners, in possession they exercised maximum acts of ownership in respect of the land by pledging and granting portions of it to other persons for farming. There was also a customary arbitration over the land, which went in their favour.

At the end of the trial, the learned trial judge in a reserved judgment, granted all the reliefs claimed by the respondents.

Dissatisfied with the judgment, the appellants have appealed to this court and filed a brief of argument in which they identified three issues for determination:-

“3.1 Whether on the facts and circumstances of this case, the Honourable Court was justified in its findings and conclusion that the traditional histories were inconclusive.

3.2 Whether on the facts and circumstances of this case the Honourable Court was justified in its findings and conclusion with respect to traditional settlement and acts of possession as raised in this case.

3.3 Whether on the facts and circumstances of this case, the Honourable Court was justified in dismissing the appellants’ case and granting that of the respondents.”

The respondents also filed a brief of argument and raised four issues for determination.

At the hearing of the appeal, learned counsel for the respondents abandoned issue three and all the arguments therein at pages 7 and 8 of the brief and they were accordingly struck out. The issues left are:-

“(i) Whether the learned trial Judge adopted the correct procedure in resolving the evidence of the traditional histories as led by the parties.

(ii) Whether the learned trial Judge was correct in relying on the evidence of traditional settlement in resolving the matter between the parties.

(iii) Whether the learned trial Judge evaluated the evidence of the parties properly by or at all before dismissing the appellants’ case and granting the reliefs claimed by the respondents.”

The three issues formulated by the appellants and the three issues formulated by the respondents can be taken together.

On the first issue, learned Counsel for the appellants submitted that the conclusion reached by the learned trial judge that none of the two pieces of traditional history offered by the parties was inconclusive is not tenable on the facts and the evidence before the court. He then referred to the case of the respondents that the land in dispute was founded by Mbari, their ancestor, who accompanied DW1’s ancestor, the founder of Nyokua to Nyokua and deforested the land in dispute. He referred to the clear admission by DW1 that by custom and tradition, the founder of a place becomes the paramount ruler of the place as the traditional stool is hereditary and the evidence of PW1 and PW2 whom DW1 acknowledged, as the paramount ruler of Nyokua are of the family who produced the traditional rulership of Nyokua, a fact which is also admitted by the respondents in paragraph 2 of their statement of defence. He further argued that if the Nkara family whom the respondents alleged founded Nyokua is incapable of producing the headship of Nyokua, it cannot be said to be the founder of the land in dispute. He contented that an appellate court will not interfere with the findings of a trial court except such findings are perverse and do not reflect a dispassionate examination of the evidence before the court, but where it is manifest that evidence has been led in the lower court which establishes a fact, the appellate court is justified to make findings which the lower court has failed to do as in this case. Reliance was placed on the case of Onyemaechi v. Nwaohamuo (1992) 9 NWLR (Pt. 265) 372, Balogun v. Akanji (1988) 1 NWLR (Pt. 70) 301 and Thomas v. Thomas A.C. 484. He further submitted on this issue that the learned trial Judge was wrong in holding that traditional evidence of the appellants was inconclusive, stressing that where traditional evidence is cogent and credible like the appellants’ evidence it will be sufficient to found a claim for declaration of title. Reliance was placed on the cases of Abinabina v. Chief Kojo Enyimadu 12WACA 171 and Aikhionbare v. Omoregie (1976) 12 SC at 11. He finally submitted that the appellants’ case is manifestly sustainable and the learned trial judge was in error when he held that the traditional evidence of the appellants is inconclusive.

In reply, learned Counsel for the respondents submitted that the learned trial judge having rightly applied the rule in Kojo v. Bonsie (1957) 1 WLR 1223, to the traditional evidence of the parties, the attack by counsel of the findings of learned trial judge on the traditional evidence of the parties is not borne out from the traditional evidence led by the parties in respect of the land in dispute. It was also his submission that if judicial discretion is exercised bonafide by a lower court, uninfluenced by irrelevant considerations and not arbitrarily and illegally, the general rule is that an appellate court will not ordinarily interfere and relied on the case of University of Lagos & Drs. v. M. I. Aigoro (1985) 1 NWLR (Pt. 1) 143 SC.

The appellants pleaded their traditional evidence in paragraphs 4-11 of their statement of claim at pages 15-17 of the records and only PW1 testified in Support of them.

The summary of the traditional evidence of the appellants of the land in dispute as given by PW1 was that, it was founded by their ancestor Gbene-Abariwa who left Taaka village in Okwali for Nyokua village. Later the father of the 1st defendant came to stay with Ndoro as a servant and married his sister. He permitted him to farm on a portion of the land around the land in dispute as long as the marriage subsisted. PW2 did not give traditional evidence of the land in dispute so also PW3 who under cross-examination said:

“The only thing that I know about this case is about Nuagha. I don’t know when Pianwii left Nuagha. I do

not know anything about the land owned by Pianwii. I do not know that Pianwii owns a lot of lands in Okwali…”

Equally, PW4 did not give evidence of traditional history of the land in dispute.

In effect, the traditional evidence of the land as given by PW1 was not corroborated by any of the witnesses who testified in the case.

The respondents pleaded their traditional history of the land in paragraphs 4-11 of their statement of claim and only DW1 testified in support of it. The summary of the traditional evidence of DW1 was that the land in dispute was founded by their ancestor Mbari, who accompanied Nkara from Okwali to found Nyokua. At page III of the records, the learned trial judge said:-

“I am of the view that none of the two traditional histories is conclusive. The law in this regard has been clearly stated by Dan Ibekwe, J.S.C. (as he then was) in F.M. Alibe v. Lawrence (1975) SC 215 at p. 225 where he observed as follows:-

The first point which we desire to make, and which we think, is generally over-looked is that Webber, J. himself, somehow limited the scope of the rule in ITA’s case, in the concluding sentence of his judgment as follows:-

“…if the evidence of tradition is inclusive, the case must rest on question of fact.”

In other words, Webber, J. quite rightly thought and we agree with him that where the other evidence of title that is, tradition, is inconclusive or entirely lacking, if we may say so, then, it is only then that the onus of proving the facts constituting acts of ownership is thrown upon the plaintiff.”

It is well settled law that finding as to acts of ownership numerous and positive is only relevant where traditional evidence is inconclusive and the case has to be decided on the question of acts of possession. See Onobruchere & Anor. v. Esegine & Anor. (1986) 1NWLR (Pt. 19) at 799. While I agree with the submissions of learned counsel for the appellants that it is trite law that where evidence of traditional history is cogent and credible, it will be sufficient to found a claim for declaration. In the instant case, the traditional evidence led by the parties in respect of the land in dispute falls short of traditional history required to found a claim for a declaration of title. I am therefore, in full agreement with the learned trial judge that the traditional evidence of the parties is inconclusive.

The appellants pleaded their acts of ownership in paragraphs 12 and 13 of their statement of claim at page 17 of the record as follows:-

“12. Plaintiffs will further contend that successive paramount chiefs of the community have been respecting the allocation referred to in paragraph 10 hereof as well as making fresh annual allocations to ready members of the community who have been cultivating the said land without disturbance.

13. Evidence will be led to show that sometime in 1982 or thereabout, a Construction Company (Dumez) engaged in the construction of a road in the area, dug a burrow pit on part of the land in dispute and compensations were paid to the community as well as to the members thereof whose crops on their allocated portions were destroyed thereby.”

PW1 in his evidence in chief testified that a company called Dumez dug a burrow pit in Wii Kpobari, in 1982 and compensations were paid to the community in respect of the land to the members whose crops were destroyed, PW2 corroborated the evidence of PW1 as to the digging of the burrow pit and payment of compensations to the entire community, PW4 said that Wii Kpobari land shares a common boundary with their family land and that Dumez dug a burrow pit in Wii Kpobari land.

The respondents pleaded their acts of ownership and possession in paragraphs 12 and 13 of their statement of claim at page 22 of the records as follows:-

“12. Having redeemed the pledged land after the Civil War in 1972, the plaintiffs began to exercise maximum acts of ownership and possession on the redeemed land by farming upon same and giving out portions to other to farm on rent. Piakabari Nwankwo, Saturday and Chinyere were some of the persons who were allotted portions of the land for planting, but were driven away by the troubles from the defendant.

13.The first plaintiff did not only redeem the land from the defendant but also redeemed other pledged lands at Wii Kpobari from Ntoobe Korkor similarly pledged by the late Pianwii for the sum of forty manilla, In this case too, the plaintiffs continued to exercise maximum acts of ownership on the land by farming upon it and giving our portions on rent to other for farming. The plaintiffs planted cassava, cocoa-yams, plantains and other economic trees and vegetables on the land.”

DW5 and DW6 testified in support of them. I would like to consider the evidence led in support of the pledge and its redemption upon which the respondents predicated their case in the lower court before considering the acts of possession led by them.

On the pledge, DW4 testified as follows at page 72 of the records:

” …I know Marcus Ndoro ’97 1st plaintiff in the consolidated case… My father pledged a land to his father and I redeemed that land. I know Ntoobe Korkor… My father also pledged a land to him and I have also redeemed it When I redeemed the land pledged to Marcus, Marcus’91s father was dead. I took the money to Marcus’91s mother and Marcus was present. The money was ?5.00 and 2 bottles of drinks. In respect of Ntoobe Korkor, I paid some money which is equivalent to N2.00. There was no drink.”

At page 75 under cross-examination he said that the land was pledged to them in Manila which is about 100 Manila. With regards to the pledge, DW5 in his evidence in chief said at pages 75-76 of the records (lines 27-31):-

“The first redemption was from Ntoobe Korkor. It was in 1967. We paid some money. The money was converted to N2.00. We paid ?1.00 and some drinks. In case of Marcus, he was present in 1972. We paid him ?5.00 which is N10.00 and 2 bottles of drinks. My brother, Monday was present. After redeeming the land, we started working on it. We planted yams, cassava, cocoa’97yams and pineapple plantation.”

In paragraph 11 of their statement of claim the respondents pleaded:

11. “Upon the death of Pianwii and Chief Ndoro to whom the land at Wii Kpobari was pledged, the son Ndeezia then went to redeem the pledged land from the 4 sons of Chief Ndoro. The four sons Marcus Ndoro, Bakoro Ndoro, Barikera Ndoro and Benson Ndoro, received from the 1st plaintiff in the presence of the 2nd and 3rd plaintiffs, the sum of ?5.00 and two bottles of gin in the house of the defendants. The two bottles of gin were provided by Benson Ndoro as a fee. It was the defendant who took the money and the drinks from the 1st plaintiff.”

At paragraph 13 of their statement of claim, they pleaded as follows:

“The first plaintiff did not only redeem the land from the defendant but also redeemed other pledged lands at Wii Kpobari from Ntoobe Korkor similarly pledged by the late Pianwii for the sum of forty Manila.”

It is quite clear from the pleadings that the evidence led by the respondents in support of the pledge is at variance with paragraphs 11 and 13 of their statement of claim reproduced above. While it was pleaded that the land was pledged for 40 Manila and redeemed with ?5.00 and two bottles of drink provided by Benson Ndoro, DW4 said under cross’97examination that it was pledged for about 100 Manila. DW5 said that the other land was redeemed from Ntoobe Korkor with some drinks while DW4 said that there were no drinks. Still under cross’97examination, DW4 said at page 24 lines 23’9724 of the records that it is the custom that before you redeem any land, there must be some drinks. It is trite law that to prove a pledge, the person pledging it must first prove his title to the land, then the pledge itself, the parties to the pledge, the witnesses, time and circumstance of the pledge and the consideration, see Onobruchere v. Esegine (1986) 1 NMLR (Pt. 19) 799 and Akuchie v. Nwamadi (1992) 8 NWLR (Pt. 258) 214 at 226. None of these ingredients was proved by the respondents in this case.

The evidence led in support of the pledge and its redemption is at variance with the pleadings and therefore, goes to no issue.

See Okadigbo v. Emegokwue (1973) 4 SC 113. Let me now turn to the evidence led in support of the pledge itself. DW1, DW4 and DW6 testified in support of it. At page 66 of the records, DW1 testified as follows:-

“I know of a pledge of land between the defendants and the plaintiffs’ father… I was not present at the time of that pledge. It was when they started the case that they told me about the pledge. The plaintiff Ndeezia Pianwii told me about it.” At page 78 of the records, DW6 said:

“The land was pledged to Ntoobe Korkor once. The pledge had been redeemed by Ndeezia who pledged it. I do not know when the land was pledged to Marcus Ndoro… Ndeezia told me that he had redeemed it…”

Under cross-examination, he said that he heard that the land was redeemed from Marcus, but that did not know the amount for which it was redeemed. It is quite clear from their evidence that they were only told about the pledge and its redemption. Infact, DW1 said that he was told when the case started. In effect, their evidence is hearsay. If the learned trial judge had properly evaluated the evidence led in support of the pledge of the land and its redemption by the respondents, he could have come to the irresistible conclusion that the land was not pledged by the appellants to the respondents.

In Imah v. Okogbe (1993) 9 NWLR (Pt. 316) 159 at 178 paragraph A, Adio, J.S.C. said:

“In the event of a trial court failing to consider and evaluate the evidence adduced by both parties to a dispute in certain relevant issues, there is a duty on the appellate court to consider and evaluate such evidence and make a proper findings so long as the issue of credibility of witness is not involved.”

See also the case of Balogun v. Akanji & 9 Ors. (1988) 1 NWLR (Pt. 70) 310. Since the respondents predicated their ownership of the land on its redemption from the appellants, the learned trial judge was therefore wrong in holding at page 114 of the records as follows that:-

“They led evidence that the land was pledged by Pianwii to Chief Ndora and another part of it was pledged to Ntoobe Korkor and that those two portions of the land were redeemed by Ndeezia Pii and his children.”

The pledge was not proved let alone its redemption.

I think this issue of pledge and its redemption which the respondents relied on heavily in asserting their ownership to the land in dispute, which they failed woefully to prove, to my mind is sufficient to dispose of this appeal.

Be that as it may, I would like to consider the acts of ownership and possession relied on by the respondents. In paragraphs 12 and 13 of their statement of claim, which I have earlier reproduced above, DW5 and DW6 who testified in support of the averments stated that they planted cassava, cocoa-yams, plantains and other economic crops and vegetable on the land and that they showed them to their surveyor, who inserted them on their survey plan, exhibits D2 and D3. No economic crops are shown in their survey plans. Besides, none of the portions of the land they gave to people to farm are also not shown on them. What is more, none of the people to whom they gave portions of the land to farm was called to testify for them and no reason was given for not calling any of them. See section 149 of the Evidence Act.

At page 114 of the records in considering the evidence of acts of ownership and possession led by the parties, the learned trial judge said:-

“The evidence of acts of ownership led by the plaintiffs are in respect of the burrow pit dug by Dumez for which compensation was paid but the defendants’ case is that the burrow pit is outside the land in dispute. In respect of the people that were allocated farming land by the plaintiffs in the land in dispute, the defendants stated that his (this) was done after they had redeemed the land. No doubt, if the plaintiffs’ case and that of the defendant are weighed in an imaginary scale, it can be easily seen that the scale tilts much more heavily in the defendants’ favour.”

If the learned trial judge properly evaluated the evidence of ownership and possession, he would have come to the conclusion that the respondents failed to prove their acts of ownership and possession which they pleaded in paragraphs 12 and 13 of their statement of claim reproduced. Suffice it to say that the learned trial judge did not evaluate the evidence of ownership and possession led by the respondents in support of their case and he was therefore wrong in giving judgment to them in suit No. BHC/15/87 and dismissing the appellants’ suit No. BHC/31/85.

On the issue of arbitration or settlements, the respondents relied heavily on exhibit D1. At page 113 lines 20-25 of the records, the learned trial judge said:-

“The important issue raised by these two settlements before the two Chiefs is not simply that they both gave decisions in the defendants’ favour but that the two panels have completely knocked out the bottom of the plaintiffs’ case which is that Wii Kpobari is a community land and that families do not own lands in Nyokua.”

A close look at exhibit D1 which was not signed by all the parties does not show that the land belongs to the respondents. Paragraph (ii) of it reads as follows:-

“(ii) From observations and findings also, since they could not give him any oath as they supposed if the piece of farmland were really theirs, we resolved that there should be no further quarrel over the said farmland. And that both Ndeezia and Chief Marcus’ faction should stay and clear their farm as they have been doing over since.”

The above by any stretch of the imagination does not show that the decision was in favour of the respondents and the learned trial judge was wrong in relying on it to give judgment in favour of the respondents. The other settlement by His Royal Highness Chief Walter Wiri, was rightly rejected by the learned trial judge and as such he cannot turn round to rely on it in giving judgment in favour of the respondents.

On the issue whether the land is a communal land as claimed by the appellants or family land as claimed by the respondents to my mind is of no moment since the pledge and its redemption upon which the respondents predicated their ownership of the land was not proved by them.

As I said earlier in this judgment that the issue of a pledge and its redemption upon which the respondents predicated their ownership of the land in dispute was not proved and as such, they are not entitled to the judgment of the court in suit No. BHC/15/87. The appellants maintained in their pleadings and evidence in court that the respondents did not pledge the land in dispute to them, let alone, redeeming it from them.

At page 114 of the records lines 21- 25, the learned trial judge said:

“In respect of BHC/31/85, I have well and carefully considered all the evidence adduced by the plaintiffs in support of their case and I am fully of the view that the plaintiff have failed to prove their case on the balance of probabilities and I therefore dismiss their action. In respect of BHC/15/87, the plaintiffs have adduced evidence of acts of ownership numerous and positive to show that “the land in dispute belongs to them…”

These findings are not supported by the evidence led before the court.

In conclusion, there is merit in this appeal. I hereby allow it and set aside the judgments of the lower court in suit No. BHC/31/85 and suit No. BHC/15/87. In its place, I dismiss suit No. BHC/15/87 and enter judgment for the appellants in suit No. BHC/31/85 as follows:

1. Declaration that the appellants are entitled to right of occupancy over the piece or parcel of land, known as Wii Kpobari and lying in Nyokua which is shown in the appellants’ plan exhibit 1.
2. N2,000.00 (Two thousand Naira) being general damages for trespass.
3. Perpetual injunction restraining the respondents, their servants or agents from further trespass on the land or in any way, interfering with the appellants’ ownership and use of the land.

The appellants are entitled to costs assessed at N3,000.00 in the court below and N5,000.00 in this court against the respondents.

---

Other Citations: (2002)LCN/1074(CA)