Chief C.o. Benebo Omoni & Ors V. Chief Pennington D. Imona Biriyah & Ors (1976)
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SOWEMIMO, JSC.
This appeal is against the judgment of Allagoa, J., in suit PHC/118/72 delivered on 30/4/74 at the High Court of Rivers State sitting at Port Harcourt, in favour of the plaintiffs, who are the respondents before us, against the defendants, the appellants. The nature of the claim as set out by the learned trial judge reads:- “The plaintiffs who sue for themselves and on behalf of the members of the family of Inoma Biriyah claim a declaration that they are entitled according to the Native Law and Custom of Ke to the possession, occupation and full user as owners of the land known and called Okuruso against the defendants who are members of other families and sued as representing the Community of Ke. “£5000 damages for trespass etc. etc. “An order for perpetual injunction”. The learned trial judge concluded his judgment thus: – “Having found that the land in dispute is known to the parties and is Okuruso land which the plaintiffs cleared and occupied after the outbreak of fire and have in addition exercised definite acts of ownership I will make the declaration in their favour. It was wrongful for the defendants to have embarked on a communal development of the land without the consent and approval of the plaintiffs. It is not denied that the houses were erected on the land. Since however they are meant for (the) good of (the) community I will award the plaintiffs a nominal damage of N1000 in the hope that the defendants will make a proper approach. “In order to avoid any misunderstanding of the above suggestion I will grant the plaintiffs the injunction sought.”
On the evidence before the learned trial judge both parties know the land in dispute. They also agreed that after the outbreak of fire in 1905 there was a consultation with an oracle. On the suggestion of the oracle the ten families, including those of plaintiffs and defendants, who altogether comprise the community of Ke, decided to expand. Each family cut out an area of virgin land outside their homestead, and cleared it for development. The Amanyanabo at that time was Omoni V. The areas cut out and cleared were for the occupation and habitation by each individual family. It is not in dispute that the area cut out by the plaintiffs’ ancestors was called Okuruso. The plaintiffs claimed that they gave a portion of the land to a religious sect known as the Three Cross Society. The defendants however claimed, on the contrary, that they granted the land to the Society. The founder of Three Cross Society gave evidence that the land was granted to them by the plaintiffs and there they erected their church and three other houses. This point therefore was resolved in favour of the plaintiffs. The cause of the present dispute arose when the defendants claimed that the plaintiffs had forfeited their right to the land because they placed a harmful juju on the land. The plaintiffs’ version was that their ancestor placed a protective juju on the land, but when it was found, as a result of the investigation by a native doctor, that it was dangerous, they removed the juju from their land. In 1972 however the defendants forcibly entered the land in spite of the protest of the plaintiffs, and erected a dispensary and a maternity house on the land. As a result of this forcible entry the plaintiffs instituted this action against the defendants.
The learned trial judge after a careful evaluation of the evidence came to the conclusion that the plaintiffs’ land was never forfeited to the Ke Community since the plaintiffs had removed the juju, said to be harmful, immediately it was so found by the native doctor. The learned trial judge held, and quite rightly in our view, that the act of the plaintiffs in the circumstances did not constitute any misconduct, and that the consequential claim of forfeiture was unwarranted. There was an assertion that the defendants’ claim to have forfeited the land was in accordance with Ke Native Law and Custom. That custom was never proved. The learned trial judge having held that the plaintiffs did not commit any misconduct and therefore any alleged custom that forfeits the interest of the plaintiffs in the circumstances of this case shall not be observed or endorsed because “it will be repugnant to natural justice, equity and good conscience or incompatible either directly or by its implication, with any law for the time being in force”. See Section 20(1) of the High Court Law of the Rivers State.
The learned trial judge also held, on the evidence before him that the traditional history as given by the plaintiffs “is more in accord with good reason and common sense” as against that put forward by the defendants. It is settled law that where a party admits the title to certain land, which it claims, was originally vested in a rival party, then the onus is on the first party to prove that such rival party had been divested of such title. The issue that arose for consideration has nothing to do with a disputed claim of title between the Ke community and the plaintiffs. They belong to the same community and where communal property is involved the title is vested in the community. The plaintiffs are not setting up a title against the Ke community at all. On a claim for damages for trespass and/or injunction in respect of a community land, which has been partitioned, it is enough that exclusive possession in a party is proved by exclusive occupation and user by such party to whom the community had allocated the land, such exclusive occupation and/or user will support a claim for damages for trespass. Trespass is a violation of a possessory right and does not generally involve title to land.
In this appeal, the learned trial judge found that the ancestors of the respondents cleared the land in dispute and like every other family in the Ke community exclusively occupied and used it. This is a tenure recognised in native law and custom amongst the Ke Community. It does not affect the right of the Ke people to communal ownership, alongside this special tenure. The argument canvassed by the learned counsel for the appellants on ground 1 is inapplicable to the grant made to the respondents by the learned trial judge, which is the customary tenure of use and occupation. He did not confirm them as absolute owners under Ke native law and custom. They only have the exclusive possession and/or user of the land in dispute which they had cleared and upon which they had exercised rights of occupier and user by giving portion of the land to the Three Cross Society and also burying a juju in it. Although the words “owner” and “ownership” were indiscriminately used, on a proper consideration of the evidence before the court, either term does not tantamount to one of absolute ownership as such of the Ke communal land. The first ground of appeal therefore fails.
Ground 2 was abandoned and was struck out at the hearing of the appeal. On ground 3, the plaintiffs proved in evidence and a plan of the land was tendered that the land in dispute was allocated to their family and cleared by them. They further proved that they gave a portion of the land to the Three Cross Society and also that they buried a juju on the land. Their traditional history as to how their ancestors came to settle on the land since 1905 was also accepted. The defendants made unsuccessful attempts to establish that they gave the land to the Three Cross Society and that the plaintiffs forfeited the land to the community because of placing a harmful juju on the land. The plaintiffs have clearly discharged the onus of proving their claim. The defendants did not deny the acts of trespass and therefore they are damnable in damages for trespass and injunction. The portion of the judgment complained about should be considered along with others and it will be clearly seen that the plaintiffs established their claim and this ground of appeal therefore lacks merit. Learned counsel for the appellants next argued ground 5, which reads: – “The learned trial judge erred in law in holding that the native laws and customs under which the plaintiffs/respondents land holding was declared forfeited about 100 years ago is void when the plaintiffs did not make illegality of the native laws and customs an issue on their pleadings and the High Court cannot make Section 20(1) of the High Court Law in favour of the respondents who did not canvass it in their pleadings.”
In arguing this ground of appeal, learned counsel submitted that the appellant had pleaded in their defence, that the land in dispute was forfeited to the Ke Community because the juju which the plaintiffs placed on the land had been declared to be harmful, and that the plaintiffs having failed to file a reply to such averment, then the trial judge could not apply Section 20(1) of the relevant High Court Law to the custom asserted by the appellants. With respect the plaintiffs did not plead any illegality and the learned trial judge did not decide the case on the issue of illegality. In his summing up the learned trial judge postulated the following issues as arising from the case which he had to decide: – “Both from the pleadings and evidence led by both parties in support of their case, the issues I have to decide since it is not in dispute that the plaintiffs family like other families in Ke cut and cleared land following the outbreak of fire are as follows:
“(1) Whether the plaintiffs following the complaint of other members the Ke Community about placing harmful juju on the land they cleared understood they were ordered to forfeit their occupation by the Amanyanabe of Kalabari and did so.
(2) Whether if such a decision was made whether such custom is such that the court can enforce.
(3) Who between the two parties were in actual occupation of the land before the erection of the dispensary and maternity home.
The first question seemed to have been answered by the learned trial judge in holding that though the juju on the disputed land was later declared by a native doctor to be harmful the plaintiffs removed the juju in compliance with that declaration and that the Amanayabo of Kalabari did not forfeit their claim to the land. It was not established as a fact that there was a native law and custom governing forfeiture in the circumstances of this instant case. On the second question the learned trial judge held that if such a custom existed it would not be enforced by the court because it is against natural justice equity and good conscience. The appellants’ counsel has questioned this on the ground that unless the plaintiffs had so pleaded it was not open to the court to decide whether a custom is enforceable or not under Section 20 subsection (1) of the relevant High Court Law.
In our view the complaint in this appeal is unnecessary for consideration by us since the learned trial judge had held that there was no evidence that the land in dispute had been forfeited about a hundred years ago. On the third question the learned trial judge held that the plaintiffs were in actual occupation and protested when the community trespassed on the land by the erection of the Dispensary and Maternity Home. Having thus disposed of these three questions in the manner we have pointed out above, the complaint in ground 5 does not arise for consideration at all and therefore fails. Learned counsel for the appellants argued grounds 4 and 8 together and on the basis:-
(1) that no opportunity was given to Graham Oruteme Ekine, a witness of the defendants to explain the inconsistency in his evidence and those made by other members of the family in Exhibit B1 which was tendered by the defendants.
(2) That the decision is against the weight of evidence.
Learned counsel drew our attention to the portion of the judgment where the learned trial judge considered the traditional history given by either side and especially where that of the defendants’ witness conflicts with the documentary evidence Exhibit B1 tendered by the defendants and came to the conclusion that he accepted the version of the traditional history given by the plaintiffs. We do not think there is any justification for the complaint on ground 4 at all.
We are of the view that there is sufficient evidence to support the findings of the learned judge and see no justifiable reasons to disturb the judgment. We did not, for reasons indicated in our conclusions on the grounds of appeal, consider it necessary to call on learned counsel for the respondents to reply to the arguments of learned counsel for the appellants.
The appeal fails and is therefore dismissed. The judgment of the learned trial judge in the lower court, including the award of costs, is hereby upheld. The appellants will pay costs assessed at 122 Naira to the respondents.
Other Citation: (1976) LCN/2295(SC)
