Chief Dokubo Akile Aseimo & Ors. V. Chief Anthony Amos & Ors. (1975)

LawGlobal-Hub Lead Judgment Report

SOWEMIMO, J.S.C. 

This is an appeal against the judgment of Douglas J., delivered on the 15th of October, 1973 at the Port Harcourt High Court in the Rivers State. The claim before that court is for “a declaration of title to a piece of land known and called Onuoto of about 482.8 acres in the Kolo Creek between Otuasega and Imiringi villages in Ogbia in Brass Division”. For reasons best known to him, the learned trial Judge, after hearing the case and the address by counsel, non-suited plaintiffs’ claim, without giving an opportunity to the counsel of either party to address him on the propriety of ordering a non-suit. The learned trial Judge in his judgment stated as follows:

“The plaintiffs’ case is based on three main matters namely, Traditional evidence of ownership; acts of possession and Exhibit 1 (the 1942 Native Court Suit) being judgment over certain portions of land on the land in dispute. I shall now deal with these matters.”

After examining the evidence led before him, on the basis of the plaintiffs’ claim as mentioned in the portion cited above, the learned trial Judge resolved the issue thus:- “The traditional evidence of the plaintiffs is that they bury their Chiefs and Elders in the forest which is called “Oruoto Cemetry”. This thick forest had remained the burial ground for their chiefs and elders from the time of their settlement.” (underlining ours)

This finding of fact is to the effect that the learned trial Judge accepted the traditional evidence in support of plaintiffs claim. With regard to the second item referred to in respect of acts of possession, the learned trial Judge had this to say::- “The evidence of occupation and user of the area known and called “Onuoto Cemetery” by the plaintiffs have not satisfactorily been challenged by the defendants. Exhibit 22 (Defendants’ Plan) has not even borne out their contention. Which is the area granted by Otokoto to Odibo, first for settlement Which is the other land given to him at the downside of the Onuoto Creek to bury his people Defendants have not shown this. Indeed, “Onuoto Cemetery is the real cause of action since that was the portion of land Shell B.P. had proposed to acquire and had written for consent from the owners. Certainly the defendants know that there is such a cemetry at the southern end of the Onoto Creek even though they have failed to insert it on their plan. In Exhibit 7, their letter to the Divisional Officer consenting to the acquisition by Shell B. P. this is clearly indicated. The letter reads as follows:-

“Reference to your letter of 18th June, 1970 inquiring about our agreement with Shell B.P. concerning our Burial Ground, we the chief, the elders and entire community of Imiringi write this to confirm that we have already agreed that the Shell B.P. is free to occupy the said land (Burial Ground), as Camp site.

“The only trouble is that Otuasega people always like to encroach on this our piece of ground. Since Shell B.P. is not concerned in that, they can freely occupy the land, even when we are going on with them.”

“It was quite plain that there was a Burial Ground on the land in dispute. In the present Suit the defendants merely referred to it in the sense that it no longer existed since the days of Odibo. Defendants 3rd witness stated that Odibo was granted a piece of land on the land in dispute to bury his people. After the death of Odibo no one else was buried there. They denied that the Otuasega people bury their Amayanabos, Chiefs and Elders there”.

“The evidence of user and occupation of this Burial Ground by the plaintiffs is well founded. I believe that they have been in occupation of this Cemetery for a long time to the knowledge of the defendants. Exhibits 3 and 10 are clear proofs supporting this. There are also the evidence of Justus Okirinye (4th P.W.) who was allowed to cut timber at the “Onuoto Cemetery” on the permission of the plaintiff; of Janny Ibulu (6th P/W) who had a farm near the “Onuoto Cemetry” and of Ogidi Igboasi (9th P/W) who was the defendant in the criminal case in Exhibit 10.” (underlining ours).

On the third ground which the learned trial Judge set out namely, that the plaintifsf must prove on the basis of the judgment in Exhibit 1, the findings of the learned trial Judge read:- “Evidence of exclusive occupation of other portions of land outside this particular area of the “Onuoto Cemetry” are not quite satisfactory. The plaintiffs say they have farm lands spreading through the whole length from South to the North of the land in dispute and have been paid compensation in Exhibit 12a’97s by Shell B.P. As I have already stated these payments could not be proofs of ownership of land. I agree that Shell B. P. pays the owners for the crops but I am not prepared to hold that Shell B.P. had exhausted payment to all owners of crops on the land in dispute. Both plans of plaintiffs and defendants have shown names of several farmers spread throughout the land in dispute. Plaintiffs have not satisfied me that I should hold that they are in exclusive possession of all portions of the whole land in dispute.”

On appeal before us Mr. Akinjide, learned counsel for the appellants was granted leave to argue four additional grounds of appeal and, as the fifth, the original ground filed with the notice of appeal, the other grounds having been abandoned. On ground 1, it was not disputed by the learned counsel for the respondent, Mr. Graham – Douglas, that the complaint was justified. It was contended that the learned trial Judge erred in law in failing to observe the principle of law laid down in previous cases decided in this court, that counsel must be asked to address the court before a trial court decides whether to non-suit a plaintiff’s claim. In our view, this ground of appeal was well taken and there does not seem, to be any justification for the learned trial Judge in entering a non-suit in this case. With respect, we wish to draw attention to the fact that, in cases in which pleadings have been filed and issues joined, the learned trial Judge is expected to arrive at a decision based on the pleadings and the evidence before him; neither party in this case ever asked for a non-suit. On the contrary, the contention between the parties was clear, and this was to determine which of the parties, either by traditional evidence or by acts of user and occupation, are entitled to the ownership of the land in dispute. That was what the trial Judge was called upon to decide, and he quite rightly stated in the opening portion of this judgment, which we have earlier on referred to, as to what the plaintiffs should prove before him. On the views which he expressed in his judgment and his findings of fact, one finds it difficult to see any justification for the order of non-suit of plaintiffs’ claim as had been done in this case. In our view, learned counsel for appellants must succeed in the complaint contained in ground 1 of his appeal.

On the second ground, the appellants complained as follows:

“The learned trial Judged erred in law in not finding for the plaintiffs after holding:

“The traditional evidence of the plaintiffs is that they bury their Chiefs and Elders in the forest which is called “Onuoto Cemetry”. This thick forest had remained the burial ground for their chiefs and elders from the time of their settlement