Agwam Obioha Vs Chief Nwofor Duru (1994)
LawGlobal-Hub Lead Judgment Report
ONU, JSC
This is an appeal against the decision of the Court of Appeal sitting in Enugu wherein that Court (per Nnaemeka-Agu, JCA, as he then was, Maidama, JCA. and Babalakin, JCA as he then was) on 15th September, 1987 dismissed the appeal of the appellants who were defendants in the High Court of Imo State (per Johnson, J.) holden at Nkwerre.
The suit was commenced at the instance of the respondents who as plaintiffs claimed for a customary right of occupancy or title to apiece or parcel of land called ‘Mbara Nwakwu Umuchioke’, damages for trespass and perpetual injunction. The case which was fought in representative capacities turned mainly on the traditional history of inheritance and possession. Pleadings were ordered, duly filed and exchanged by the parties. Before trial commenced, however, the plaintiffs amended their statement of claim.
It is pertinent first to set out the relevant facts of the case which may briefly be summarised as follows:-
The plaintiffs/respondents (hereinafter in this judgment referred to simply as plaintiffs) who are from Umuchioke of Amaigbo, sued the defendants/appellants (hereinafter referred to as defendants simpliciter) on behalf of themselves and the people of Umueke Nkwerre Nkwoji, for a declaration that they are entitled to the customary right of occupancy over “Mbara Nwakwu” in Orlu judicial Division of the High Court of Into State, N100.00 damages for trespass and a perpetual injunction. Not only did the plaintiffs contend that they were the owners of the land in dispute but that it devolved on them by inheritance from their great ancestor, one Chioke who was one of the many sons of Igbo, the founder of Amaigbo.
They further contend that Chioke had four children, namely, Duruji, Ndimu, Agirisi and Chioke. That on the death of Chioke, the land descended on his four children and on the death of the four children the present plaintiffs inherited the land and that they have been in possession of the land without any disturbance from any quarter.
It is the plaintiffs further contention that that part of the land on which the defendants now live was donated to their ancestors by their (plaintiffs) ancestors. They also claim that an ancient trench (Nkoro) on the eastern side of the land in dispute forms the boundary between the land donated to the ancestors of the s defendants and the rest of their extensive land now trespassed upon by the defendants, adding that the defendants completed their last act of trespass when they not only planted semi-permanent trees such as coconut in place of vegetables and cassava, they had in the past permitted them to grow especially their wives who were their (plaintiffs) daughters to plant thereon, but erected a living house near the trench.
The defendants, for their part, claimed that the said ‘Mbara Nwakwu’ land in dispute belonged to them from time immemorial, having been first occupied by their ancestor, Ezealaodu. That on the death of Ezealaodu, he was succeeded by his sons Okeaka, Ahamonu, Onyemekwe, Egeonu, Esibemi, Obioha, Nwajuba, Chukwendu, Chukwukere, Nwokolo and Uzoho. That each of these ancestors of theirs owned, occupied, possessed and enjoyed the land in dispute without any interference from the plaintiffs or anyone else. They claimed to share a boundary with the plaintiffs on the western side and that this boundary is marked by a footpath that passed the land in dispute linking Eziama and Nkwerre though denying that it was widened into a motorable road with the permission of the plaintiffs.
The defendants further denied the plaintiffs averment that they farm on the land in dispute with the latters permission but however admitted that the cause of action arose when they (defendants) felled some economic trees and cleared part of the land preparatory to building on part of the land in dispute. They also agreed with the plaintiffs that there was an Ogirisi tree on the Western Boundary of the land in dispute but asserted that it was a ritual tree where the two villages of Umunchioke and Umuoke took traditional Ibo oath of peace and harmony known as Igbandu. The defendants not only further claimed that the plaintiffs owned land from the Ogirisi tree to their Village and that they (defendants) owned land from the tree to Umueke Village but that the plaintiffs destroyed the said Ogirisi tree in anticipation of this case.
Finally, they denied that the ancient trench (Nkoro) formed any boundary with the plaintiffs, that the trench was used as a defensive measure in the olden days to protect a village from outside attacks and that there are in fact three trenches between the plaintiffs and their (defendants) village.
The learned trial Judge in a considered judgment found for the plaintiffs, as earlier alluded to while the defendants appeal to the Court below as also stated above, was unsuccessful. Being dissatisfied, the defendants have further appealed to this Court on three grounds contained on a Notice of Appeal dated 4th December, 1987, they were, however, on the 4th June, 1990 granted inter alia, leave to argue additional grounds of mixed law and fact.
Briefs of argument were filed and exchanged by the parties in accordance with the rules of this Court. Three issues were formulated as arising for our determination by the defendants, viz:-
- Whether the Court of Appeal was right in law in confirming the judgment of the trial Court when the trial Judge did not properly direct himself on the proper approach to be adopted in law where there are conflicts in the traditional evidence adduced by the parties in an action for declaration of title.
- Whether the Court of Appeal was right in law in confirming the judgment of the trial Court which granted the plaintiffs a declaration of title to the land in dispute when the pleadings and evidence of traditional history of the plaintiffs were incurably hollow and insufficient in law to support the grant of a declaration of title.
- Whether the Court of Appeal was right in law in holding that the appellants were liable as trespassers on the land in dispute by reason of the fact that they had started to use the land for purpose other that the one for which they were permitted to use it.
The plaintiffs proffered three similar issues for our determination which I do not consider necessary to set down here since they in fact overlap those of the defendants.
At the hearing of those appeal on 18th July, 1994 learned counsel on their side each adopted his brief of argument and rested his case without any further oral expatiation thereto.
I will now proceed to consider the issues seriatim as argued.
Issue No. 1 which is related to additional ground 4, is to the effect that, it having been clearly settled that where there is a conflict of traditional history, demeanour of the witnesses who testify on such traditional history is little guide to the truth and that the best way to resolve the conflict, is to test such history by reference to the facts in recent years as established by evidence and seeing which of the two conflicting histories is the more probable. Reliance was placed on the Privy Council case of Kojo 11 v. Bonsie (1957) 1 WLR 1223, followed by such other cases as Okiji v. Adejobi (1960) 5 FSC 44; (1960) SCNLR 133; Adenle v. Oyegbade (1967) NMLR 136 and Aikhionbare v. Omoregie (1976) 12 S.C 1. In applying the test laid down in Kojo 11 v. Bonsie (supra), it is argued, it becomes mandatory of the trial Judge faced with conflicting traditional histories, to show or state in his judgment on its face, that he had properly directed his mind before reaching the conclusion he arrives at or else he would either be guilty of a misdirection or non-direction. The cases of Chidiak v. Laguda (1964) NMLR 123 at 125 and Udeze v. Chedebe (1990) 1 NWLR (Part 125) 141 at 162, were called maid. After we were referred to several passages in the Record, it was submitted on defendants behalf that the learned trial Judge in this case having relied heavily on the demeanour of the witnesses incoming to his conclusion on the conflicting traditional histories, the Court below ought not to have affirmed his decision since there was a non-direction or misdirection on his part as to the correct test to be adopted.
The applicable principle as eloquently stated by Lord Denning, inter alia in Kojo 11 v. Bonsie (supra) at page 1226 is:-
“Witnesses of the utmost veracity may speak honestly but erroneously as to what took place a hundred years or more ago. Where there is a conflict of traditional history, one side or the other must be mistaken, yet both may be honest in their belief. In such a case demeanour is little guide to the truth. The best way is to test the traditional history by reference to the facts in recent years as established by evidence and by seeing which of Iwo competing histories is the more probable.”
In the instant case, the learned trial Judge found as a fact that the traditional histories of the plaintiffs and defendants as to ownership of the land in dispute were conflicting. It is not the law that once there are conflicts in the traditional histories, given by the two parties in a suit the trial Judge must promptly declare them inconclusive and thereupon proceed to consider recent acts. What indeed happens, and that is why the principle in Kojo II v. Bonsue (supra) was enunciated, is that the case itself being one fought on hearsay upon hearsay, the trial Judge has a duty to find which of the two histories is more probable by testing it against other evidence in the case. It is when he can neither find any of the two histories probable nor conclusive (see Sunmonu Agedegudu v. Sanni Ajenifuja & Ors. (1963) 1 All NLR. 109) that he would declare both inconclusive (see Oyibo Iriri v. Eseroraye Erhurhobara & Anor. (1991) 2 NWLR (Part 173) 252; P.M. Alade v. Lawrence Awo (1975) 4 S.C. 215 and proceed to decide the case on the basis of numerous and positive acts of possession and ownership – see Ekpo v. Ira (1932) 11 NLR 68; Chief Alhaji K.O.S. Are & Anor. v. Rap Ipaye & Ors. (1990) 2 NWLR (Pt. 132) 298 and Chief Oyelakin Balogun & Ors v. Oladodu Akanji & Anor. (1988) 1 NWLR (Pt. 70) 301.
Indeed, in the case of Y.A. Lawal v. Chief Yakubu Dawodu & Anor. (1972) 8-9 S.C. 83, this Court put it succinctly thus:
“In a case of declaration of title to land the onus is on the plaintiff to prove by traditional evidence or actual acts of possession or both, that he is the owner of the land in dispute. If the evidence of tradition failed and indeed if it is proposed to test the probability of such traditional evidence, recourse must be had to the evidence of actual user and possession of the land in dispute.”
See also Mogaji v. Cadbury (Nig.) Ltd. (1985) 2 NWLR (Pt. 7) 393 and Kasali v. Lawal (1986) 3 NWLR (Pt. 28) 305.
Now, it is the contention of the defendants in their Brief in which they demonstrated from several passages in the Record, that not only did the learned trial Judge rely on the demeanour of the witnesses but rather went ahead to engage in the evaluation of those witnesses evidence wherein the use of such hackneyed words as ‘I believe’, ‘I am satisfied’ had been applied in coming to his conclusion on the conflicting traditional evidence.
It is true that the learned trial Judge employed such words in the following passages after evaluating the evidence and making deductions thus%
Other Citation: (1994) LCN/2594(SC)
