Augustine Amadi V. Jackson Hanetu (2006)
LawGlobal-Hub Lead Judgment Report
VICTOR AIMEPOMO OYELEYE OMAGE, J.C.A.
In the High Court of Rivers State of Nigeria, in the Port Harcourt Judicial Division holden in Port Harcourt in Suit No. PHC/227187 the plaintiff claimed against the defendant
(i) A declaration that the plaintiffs are entitled to the right of occupancy over and in respect of the land known as and called “Eli Wopara” on Ohia Aboyi Wopara situate at Eledo; more particularly shown on plan No.LSAR 07/88,
(ii) N10,000 damages for trespass,
(iii) A perpetual injunction restraining the defendants, their servants/agents from howsoever committing further acts of trespass to the land in dispute.”
The defendant deny the plaintiff’s claim and the matter went for trial before Ichoku, J., the trial Chief Judge of River State, who delivered judgment in the suit on 10th July, 2001.
In the judgment, the trial Chief Judge held that the two parties, the plaintiff and the defendant found their respective claim and defenses on traditional history and possession of the land in dispute. Each party filed a plan in respect of the land in dispute, which is known to both parties. The learned judge preferred the evidence tendered by the defendant and ruled that he found it more cogent and likely to be a true account; and ruled that the history so tendered is more positive and straightforward and unambiguous. The court ruled that the plaintiff did not controvert the evidence as to how Ogoria; or Mgbuchi founded and deforested the land called Ohia Oboi; and the swamp named Okemiri. The court declined and refused to grant the plaintiff’s claim for declaration of title for trespass and injunction. The plaintiff was dissatisfied with the judgment of the court and has filed this appeal. The plaintiffs appeal filed on 21/11/2001 is based on four grounds with copious particulars. From these, one issue is formulated for determination of the appeal. This is “whether the court below properly appreciated the traditional history of the appellant before dismissing their claims.” The respondent in his brief on 7/11/2002, and deemed filed subsequently by order of court submitted that the solitary issue that calls for determination is “whether from the totality of the pleadings and evidence led at the trial, the lower court was right in dismissing the appellant’s case in its entirety.” However before considering the issue involved, it is necessary to relate the traditional history of the land in dispute as deposed to by the witnesses of both parties in the court below. The plaintiff’s four witnesses deposed inter alia thus: Rukpoku or Nkpoku is the founder, and original occupier of the entire land in dispute. He was therefore the titular head of the entire town. Nkpoku had three sons namely Apu, Ordu and Eledo. Nkpoku gave the land to the sons after dividing the land, and each of the village came to be known as Rumuapu, Elikpoku Ordu and Eledo; each named after each of the three sons and each separated from the other. The portion that is currently in dispute is the area granted by Nkpoku to Eledo, called Eledo. During his life time Eledo had five sons named Ehinwo, Iwhechiolu, Uchi, Ojie and Ijima. The sub villages thereby created are Rumu-Ehinwo, Rumu-Iwaechiolu, Mgbu-Uchi, Rumu-Ojie and Rumu-Ijima, each village in turn named after each of the children of Eledo in the village of Eledo. The appellants as the plaintiffs in the court below aver that the present plaintiffs are descendents of Iweachiolu of the Elodo village while the defendants are descendants of Uchi also of Eledo descent.
Iwaechiolu, the history proceeded, is the father of Oduwobiri, Rewha and Oduta and he partitioned his sub division of Eledo land to each of them and each of the three became exclusive owner of each sub-divided village. In this appeal is in the court below, the part of the land in dispute is the land granted to Oduwobiri. Oduwobiri had three children, named Wopara, Zachariah, Worgu Wosu and Onyemachi Wopara. Oduwobiri partitioned the land among his own children, a dispute arose in the land allotted to Wopara. Amadi in this suit, a grandchild of Oduwobiri was the father of the Plaintiff, and Akpunonu, the father of Owhor who fathered Ebenezer who is the father of the 2nd plaintiff; Mbata was the father of Solomon Mbata, the 3rd plaintiff. Here the defendants disagreed with the history of the land in dispute given by the appellants.
The defendant deposed that his ancestor resided in Ohia Oboi the land in dispute. The witness for the defendant said he had heard that Okporo is the former of “our great ancestor – grandfather called Eledo. Okporo he said, is not part of Ohia Oboyi. The defendant’s witness deposed that Mgbuchi people lived in Okporo during the time of late Ogoria, their great grandfather. He said the defendants now live in Ohia Oboi where Ogoria deforested and the defendants now live in his deforested land. Defendant’s witness deposed that Ogoria apportioned the area which he deforested to Rumuolunwola, and Chief Sunday Amadi. He said he had heard of Ezondu and Wobo, the land of Oboi was partitioned to the two families of Mgbuchi to avoid future quarreling. The defendant’s testimony showed that he agreed with the remote ancestor of the founder of the land as being Rokpolunwa who partitioned the entire land, which he did not give any name but whose children, grand children and great grandchildren gave their individual names or stamps when the land is subsdivided to each of them by each child or grand child of Rukpokwu. There is therefore congruity in the history of the land given by both parties up to Oduwobiri.
The point of disagreement in the testimonies of Noli the plaintiff now appellant and the defendant now the respondent is the allegation of the defendant’s witness that Ogoria, a hunter and farmer deforested a portion of land; founded originally by Rukpokwu; while the plaintiff deposed that Ogoria, a great, great grandchild of Rukpokwu did not deforest any land, and that there was no land to be deforested, while the area was swampy or not. The appellant in his brief has submitted that there is inconsistency in the pleadings of the defendant which recorded that Ogoria deforested a area, which he called Ohia Oboi; which Ogiria divided between his two sons Okea and Orlu; whereas in the evidence, the witness said Ogina being the sole founder, fathered Elendu and Wobe not Okea and Orlu. Consequently the later testimony is not substantiated. The appellant urged the court to rule that the traditional history presented by the Respondent is contradictory and unreliable.
From the submission of the appellant which is not denied by the respondent on the issue of departure of evidence tendered by the defendant in the court below from his pleading, it is the law that a party is bound by his pleadings; where therefore there is a digression, from and variance in the testimony from the pleading the evidence given go to no issue, and the pleading not supported by evidence is discountenanced. See NKANU MU V. ADGIUN (1993) 7 NWLR (PT.221); WOLUCHEM V. GUID (1981) 5 SC 291.
In the instant appeal, there is such confusion and wooly submission by the respondent as defendant in the court below, in the later part of the historical rendering of the defendant’s version concerning Ogoria that it is baffling to read that the court below found the version cogent’ acceptable and preferable to the plaintiff/appellant’s version. Simply put if the Defendants accept and they did see their submission on page 7 of the Respondent’s brief; that Rumuokpolu is the founder of the entire land, which he subdivided to his children, who gave each portion of the village to his children, each subsequent child subdivided his portion to the number of children he had; and the grandchildren of Rumuokpolu also following the tradition started by their grandfather subdivided the village allotted to them and gave it their name, up to Ohia Oboyi or Eli Wopora descendant of Edo at Eledo. The testimony of the defendant that Rukpoku their ancestor lived in Okporo is a variation that has no significance since Rukpowu is not shown in the history to have given any name to the land he founded. On page 7 of the Respondent’s brief, par. 607 last sentence, Respondent wrote: “I have heard of Okporo, Okporo is the former abode of our great grand father called Edo. The respondent did not say who the father of Edo was; or how Edo came to be the owner of the land which he allocated. It is common ground between the two parties that Ikwerre custom and tradition allows a person to whom a village or parcel of land is allotted to give the area his name. It is pertinent in this appeal to observe that the same person called Mgbuchi, the grandson of Nkpokwu is the same person called Ogoria, who is the child of Edo. It is permissible at law to acquire title, nowadays described as declaration of traditional right of occupancy by presentation of traditional evidence. See (i) BARRIKO V. EDEH-OGWULE (2001) 12 NWLR (PT.726) AT 235-265; (ii) AKUNYILI v. EJIDIKE (1996) 5 NWLR (PT.449) AT P.381. Such traditional evidence must be cogent, and likely to be true. That the evidence tendered by the plaintiff/appellant in the court below is positive and straightforward and unambiguous.
In this appeal, the issue considered and determined is the historical foundation of right to the land in dispute. In my view the story given on evidence by the plaintiff in the court below is cogent and direct without any ambiguity whereas it appears to me that the defendant created a different story to avoid giving and relying on the historical origin given by the plaintiff. The court below is in error in failing to see the obvious error. In GBANIYI OSAFILE V. ODI (1990) 3 NWLR (PT.137) at 108, the Supreme Court ruled that the mistake of the lower court upon which the court on appeal will allow an appeal must be substantial sufficiently to influence the decision of the court below. Such is the error of the court below in my view, that I deem it right to intervene and reverse the division in order to do justice in the appeal; and avoid a miscarriage of justice See LINUS ONWUKA v. R. J. OMOGIN (1992) 9 Law Reports of Court of Nigeria. In the light of the above, I set aside the decision of the court below, and in its place I make an order awarding to the Plaintiff/Appellant:
(a) A declaration that the plaintiffs are entitled to the right of occupancy over and in respect of the land known as and called Eli Wopara or Ohia Wopara situate at Eledo, as shown in Plan No.LSA/R07/88.
Evidence given by both parties in the court below, now considered in the record of proceedings on appeal show that the Appellants and Respondents derive from the same ancestor; an award of damages to one side for a historical wrongful occupation of the land in dispute will not make for future amity between the parties who are descended from the same ancestor. The reliefs sought by the Plaintiff/Appellants for injunction will be allowed. It is hereby ordered that the Defendants/Respondents are perpetually restrained by themselves, servants/agents from further acts of trespass on the plaintiff/appellant.
There will be costs in favour of the appellant in the sum of Five Thousand Naira Only.
Other Citations: (2006)LCN/2023(CA)
