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
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 cemetry for a long time to the knowledge of the defendants.” (p.111 lines 3-6, p.112 lines 3-6).
PARTICULARS OF ERROR
(i) The case of the plaintiffs was that they settled on the land in dispute as shown in the plaintiffs’ plan about 450 years ago and remained in continuous possession from the original settler (Asega) till now (p. 33 lines 10-24). Once the court found that the plaintiffs made out a case of ownership by settlement on part of the land in dispute the learned trial Judge ought to have held further under Section 45 and Section 145 of the Evidence Act that what is true of that area on which title by settlement was established is likely to be true of the entire land in dispute.
(ii) the court also found that the appellants obtained judgment in 1942, in Exhibit 1 (p. 115 lines 30-32 and p. 116 lines 34-35) against the respondents in respect of Iyigba an Eginigine in the North-Western part of the land in dispute and far away from the area over which title by settlement was found in favour of the appellants in (i) above.
The learned trial Judge, in portions which we have earlier on quoted, believed that the traditional evidence of the plaintiffs had been established. He also held that the plaintiffs had proved acts of user and occupation. On the question of compensation paid to the plaintiffs by the Shell B.P. for portions of the Onuoto Cemetry, on which an access road was constructed and a camp erected, the learned trial Judge held that he was not satisfied that this act of receipt of compensation constituted “satisfactory” basis for ownership. With respect to the learned trial Judge, we are at a loss to reconcile this finding of his with his previous findings of fact on traditional evidence as well as user and occupation. There was no evidence before him that any payment of compensation had been made to the defendants on their alleged claim that they rented some portions of the land in dispute to some farmers and that they had put up a claim for compensation, which for reasons stated in the record had not been paid out to them. On the totality of the evidence before the learned trial Judge, the plaintiffs had established by evidence their title to the whole portion of the land in dispute, except of course the payment of compensation on the “Onuoto Cemetry”.
On the pleadings of the defendants themselves, apart from the allegation that they allowed some people to farm on the land, the learned trial Judge had held that they had not proved either by traditional evidence or by user and occupation their title to the land in dispute. We must express our surprise at the way the learned trial Judge had dealt with this matter; he did not rely on the pleadings or the issues joined before him, but on a supposed lack of satisfaction of himself, or the non-acceptance of the payment of compensation to the plaintiffs on the portion of Onuoto Cemetry paid by the Shell B.P. for the acquisition and erection of an access road and a camp site on the cemetry as evidence of ownership. We are of the view that, having accepted the traditional evidence as well as evidence of user and occupation of the land in dispute in favour of the plaintiffs, the claim of the plaintiffs must be upheld. His reasoning regarding the payment of compensation cannot be reconciled with his previous findings. In our view, ground 2 of the appeal was well taken and is hereby sustained.
On ground 3 of appeal the appellants complained:-
“The learned trial Judge erred in law in not entering judgment in favour of the Plaintiffs and in holding:-
“In my view the area verged Green in Plaintiffs’ Plan has not been satisfactorily shown to be within the land in dispute.”
PARTICULARS OF ERROR:
(i) The 1st Defendants’ Witness (Head of the Defendants Community) admitted (p.74 lines 1-3) that Iyigba and Eginegine are situate on the present land in dispute;
(ii) The case presented by the Plaintiffs is that the area verged “Green” in Exhibit 9 was the area in dispute in Exhibit 1 and called Iyigba and Eginegine;
(iii) The Plaintiffs who make the claim say the area in dispute is as shown on Exhibit 9 and the 1st Defendants’ Witness (Head of the Defendant’s Community) admitted that he knew the land in dispute (P. 73 line 6);
(iv) The Defendants’ Surveyor (2nd D.W.) admitted (p.75 lines 20-24) that Exhibits 9 and 22 (the two plans) are alike with little differences and that Iyigba and Eginegine on the plaintiffs plan are within portions of the land in dispute.
(v) The Judge admitted that judgment for plaintiffs in Exhibit 1 meant judgment for title over those portions of Eyigba and Eginegine which ponds were dug by the defendants (p.115 lines 30-31; p. 116 lines 34-35).
We have read the judgment as a whole and we have come to the conclusion that the matters complained about in this ground show that the learned trial Judge did not make use of this earlier finding of facts to reflect his subsequent observations which seem to contradict such earlier findings of fact.
The real dispute in this case arose as a result of the Shell B. P. erecting an access road and a camp in Onuoto Cemetry. The case was fought out on the basis of the ownership of Onuoto Cemetry. The learned trial Judge had held and found as a fact that, on both the traditional history and the evidence of acts of user and occupation, the plaintiffs had proved both; that should have been an end of the claim before him because if he had properly considered the pleadings, he would have decided the issue raised in favour of the plaintiffs. We are of the view, therefore, that the complaint of learned counsel for appellants on this ground was also well founded.
On ground 4 the learned counsel for the appellants complained:-
“The learned trial Judge erred in law in not entering judgment in favour of the plaintiffs when the defendants in Exhibit 22 (Survey Plan and Exhibit 13 p. 131 par.2), both tendered by the defence) maintained that “EDKUKUNO OGBOMAN” (the name assigned to the land in dispute in paragraph 2 of the Amended Statement of Defence) belongs to an individual family in Imiringi and the defendants are claiming the land in dispute as the property of the entire Imiringi community. The defendants insert boldly on Exhibit 22: “OTOKOPIRI FAMILY LAND known as EKUKUNOGBAM”.
After hearing counsel we are of the view that the learned trial Judge misconstrued the effect of the judgment of 1942. The learned trial Judge, instead of giving effect to it, embarked on an examination and analysis of the judgment and came to a different conclusion from that reached by that court. When a judgement is pleaded and tendered as determining a particular issue between the parties, a trial court is entitled to examine the judgment and say whether it decided the issue pleaded. In a judgment of a Native Court, the court may look at the claim, the notes of inspection wherever made, and the judgment. If the learned trial Judge had limited himself to these, that being the purpose for which 1942 case was tendered, the learned trial Judge would not have got himself confused in determining some other issues which were never raised before him. We are quite satisfied that the learned counsel for the appellants was indeed right and justified in the complaint made on this ground.
On the 5th ground, which sets out that the plaintiffs have discharged the onus placed on them to prove their claim by the preponderance of evidence, we are in complete agreement that, once the learned trial Judge had found proved as facts before him the traditional history and acts of user and occupation coupled with the compensation paid to the plaintiff, he should have entered judgment in favour of the plaintiffs.
Before ending this judgment we wish to note that, where pleadings have been filed by both parties in a case, the judgment of the court for trial must be based both on the facts and on the law on issues joined by the parties on their pleadings. A court should not embark on dealing with issues not raised in the pleadings nor should it give judgment on issues on which either counsel had not been called upon to address the court.
In the circumstances the appeal succeeds and it is allowed. The judgment of the learned trial Judge Douglas, J., dated 15th October, 1973 is hereby set aside. We hereby enter judgment for the plaintiffs in the terms of their writ of summons. The cost of 300pounds awarded to the defendants in the lower court is hereby set aside. We hereby order that plaintiffs/ appellants be awarded costs of N300 in the lower court and N240 in this court.
This shall be the judgment of the court.
Other Citation: (1975) LCN/2102(SC)
