Chief Ibibo Obu Dokubo & Anor. V. Chief J. Omoni & Ors. (1999)
LAWGLOBAL HUB Lead Judgment Report
U. ONU, J.S.C.
The two main issues which arose for the consideration of this Court in the appeal herein are firstly, whether the Court of Appeal was right when it held that the learned trial Judge was in error not to have upheld the plea of estoppel per rem judicatam and secondly, whether the Court of Appeal was not in error when it held that the learned trial Judge erred in relying on the evidence that the Appellants’ predecessors obtained the permission of King Amachree IV to settle on the land in dispute since such evidence went to no issue as it was not pleaded by them.
The action itself was commenced by Chief Williams Seleya Big Tom, Chief Ibibo ObaDokubo and Chief Christopher Thompson, for themselves and as representing the Chiefs and people of Abalama Community on March 12, 1979, in the High Court of Rivers State, Degema Judicial Division, claiming against Chief Jonathan Omoni and nine others for themselves and as representing the Chiefs and peope of Tema Community jointly and severally for the following reliefs:-
“(i) A declaration of Plaintiffs’ Right of Occupancy over the piece and parcel of land known as ‘IGI-PIRI’ and the IGA CREEK situate at Abalama.
(ii) A perpetual injunction restraining the defendants and their servants from committing any trespass on the said land and creek and claiming compensation due on the land and creek from Guffanti Nig. Limited, West-minister Dredging Company Limited, or from any other company or persons; or the Degema Local Government Council; and
(iii) N50,000.00 general damages for trespass committed thereon.”
Pleadings were filed and exchanged. The Plaintiffs (herein Appellants) called three witnesses while the Defendants (herein Respondents) called six witnesses. In a reserved judgment delivered on October 12, 1983, the learned trial Judge (Fiberesima, J.) held that the Appellants were entitled to a declaration of customary right of occupancy as claimed. The learned trial Judge in addition ordered the Respondents to refund to the Appellants some money collected by the Respondent in respect of the land from a company. He also made an order of perpetual injunction against the Respondents.
Being dissatisfied with the said decision the Respondents appealed to the Court of Appeal (hereinafter in the rest of this appeal where the con so admits, referred to as the court below). The court below upheld the Respondents’ appeal and in consequence ordered a dismissal of the Appellants’ claims with costs. It is against that judgment that the Appeallants have lodged their appeal to this Court on five grounds contained in their Notice of Appeal dated 26th June, 1991.
The parties formulated issues in their briefs of argument which they duly exchanged in accordance with the Rules of Court. The Appellants submitted three questions as arising for our determinations as follows:-
(a) Whether the lower court was right when it held that the learned trial Judge was in error not to have upheld the plea of estoppel per rem judicatam.
(b) Whether the Court of Appeal was not in error when it held that the learned trial Judge erred in relying on the evidence that the Appellant’ predecessors obtained the permission of Amachree IV to settle on the land in dispute since such evidence went to no issue as they were (sic) nor pleaded by the Appellants.
(c) Whether the Court of Appeal was right in setting aside the findings of the learned trial Judge that the Appellants had proved their ownership of the land and were therefore entitled to the declaration sought.
The two issues which in the Respondents’ view arise for the determination of this appeal are:
(a) Whether the lower court was right when it held that the learned trial Judge was in error not to have upheld the plea of estoppel per rem judicatam.
(b) Whether the Appellants were entitled to a declaration of title having regard to the state of the pleadings and the evidence led before the trial court.
Before embarking on the consideration of the three questions posed at the appellant’s instance which I adopt herein for the disposal of this appeal. I deem it pertinent to state the facts of the case, albeit briefly as follows:-
That the ancestors of the Appellants settled on the land in dispute over a hundred years ago in about 1882. That the head of the Kalabaris, King Amachree, had become so powerful and dreaded that they had to seek and obtain his permission before settling there. That they met no one at the time of their settlement and having informed King Amachree of their settlement, no one else could come there to settle. The Appellants who had claimed that the Respondents settled somewhere else close by, it is their custom not to bury their dead on their soil; hence they used to cross the Appellants’ land to bury their dead on another piece of land. Subsequently, the Respondents asked the Appellants for some land which request was granted. The Respondents then started burying their dead on that land: and it is that land that is now in dispute. It then transpired that the Respondents later exceeded the portion given to them by the. Appellants, In exercise of their right to ownership, the Appellants started to fell trees on the land for purposes of building canoes. However, it was the Respondents belief that felling trees on graves desecrated their dead. In consequence, they took an action in trespass against the Appellants in 1934. The suit terminated in favour of the Respondents. As it indeed transpired at the trial of the suit, there was evidence particularly from the son of King Amachree IV which favoured the Appellants’ claim and which was opposed to the Respondents’ claim in the suit herein.
The case of the Respondent on the other hand, is that the land in dispute is part of a larger piece of land granted to their ancestors by the Amayanabo of Kalabri. King Amachree IV. They claimed that it was not the Appellants who made a gift of the land to them as the Appellants themselves alleged. Rather, they pleaded that the Appellants were estopped from asserting ownership of the land because they the (Appellants) had admitted that they had given the land to the Respondents for nearly 50 years.
Now, to the consideration of the questions raised for our resolution.
QUESTION 1
The question as earlier stated, contends whether the court below was right when it held that the learned trial Judge was in error not to have upheld the plea of estoppel per rem judicatam. It is settled that for the doctrine of estoppel per rem judicatam to apply, it must be shown that the parties, issues and subject matter in the previous action were the same as those in the action in which the plea is raised. See Alashe v. Olori Ilu (1964) 1 All NLR 390 at 394; Balogun v. Adejobi (1995) 2 NWLR (Pt. 376) 131; Ihenacho Nwaneri & ors. v. Nnadikwe Oriuwa (1959) 4 FSC.132 (1959) SCNLR 316: and Faleye v. Otapo (1995) 1 NWLR (Pt.181) 1. Undoubtedly, the parties in the instant appeal and the parties in the native court case i.e. case No.286/34 and the appeal thereon to the District Officer (No.4/35), are the same. The same cannot, in my respectful view, be said as to whether the issues in both cases are the same albeit that when considering the proceedings of a native court due regard must be had to the substance and not to the form of the proceedings. Thus, In the instant case, the learned Justice of Appeal who wrote the leading judgment and concurred in by the other Justices would appear to me to be in error when he said, among others things, that-
“It seems perfectly clear to me from the analysis of the facts of this case the Appellants have succeeded in proving all the essential ingredients of the plea.”
The learned Justice would also appear clearly to have erred when he held that the learned trial Judge had taken too narrow a view of the 1934 Suit. He then went on to say that:-
“In my opinion, the learned trial Judge took a very narrow view of the Native Court judgments, Exhibits B and C. It is well established that when considering native court proceedings, it is the substance and not the mere form that matters. This point was well illustrated by the West Africa Court of Appeal in Akkyin v. Egymah (1936).1 WACA 65.”
With due respect to the learned Justice of Appeal, what is in issue in this case is not a mere matter of form but a matter of substance. Nor can it be suggested that an action in trespass is the same as an action for declaration of title to land as postulated by the Respondents. A claim in trespass is based entirely on possession of the land, not necessarily on ownership of the land. Thus, as was stated by this Court in Christopher Okolo v. Eunice Uzoka (1978) 4 SC 77:
“It is the law and this court has so held times without number that trespass to land is actionable at the suit of the person in possession of the land.
The slightest possession in the plaintiff enables him to maintain trespass if the defendant cannot show a better title,”
See also Oluwi v. Eniola (1967) NMLR 339 and Ogunbambi v. Abowaba 13 WACA 222 at 223.
“In other words, a claim in trespass is based entirely on possession of the land not necessarily on ownership of the land. See Amori v. Akande (1975) 2 WSCA 143: Oyetona v. Ajani (1959 – 60) WNLR 213; Awooner Renner v. Annan 2 WACA 258 and Wallis v. Hands (1893) 2 Ch.75.
A person who has title to a piece of land may be liable in trespass to a person who is in possession if the former’s right to recover possession has not ripened to one immediately exercisable in law .”
See also Adeniji v. Ogunbiyi (1965) NMLR 395 at 397 – 398.
A link further down in his judgment the learned Justice of Appeal went on to say as follows:-
“As I have earlier pointed out the issue before the Native Court in Suit No. 286/34 was not merely one of trespass: both parties claimed ownership of the land in dispute and the Native Courts having established that the land belonged to the present Appellant gave judgment in their favour for damages for trespass. From the facts of the Native Court actions there was certainly a presumption of ownership in favour or the Appellants who were in long and undisturbed possession of the land in dispute. This was clearly illustrated in the findings of the Native Court.”
If by the above extract the learned Justice in effect meant that the Native Court judgments gave title to the land to the present Respondents, then he was, with utmost due respect,in error. This is because the claim of the Respondents before the Native Court in Suit No. 286/34, Exhibit “B” in this case, was for “‘a350 damages for trespass in its bush by interfering and cutting and felling tress.” The Respondents could easily have framed their claim for a declaration of title to the land, but they were content with claiming damages for trespass. Surely, they did this to avoid having to establish their title to the land in accordance with what the law laid down for such a claim. See Ogbuokwelu v. Umeanafunkwa (1994) 4 NWLR (Pt. 341) 676: (1994) 5 SCNJ 24.
A cursory look at the findings of the Native Court in Exhibit “B” and those of the District Officer (Exhibit “C”) on appeal therefrom, are illuminating in this respect. The Native Court in Exhibit “B” held inter alia as follows:-
“1, That considering the position of the bush or land in dispute; there is no doubt that the Defendants are aware of the Plaintiffs using there as their cemetery.
- That if even the Defendants’ ancestors gave the land to Plaintiffs ancestors for burial purposes for over fifty years the Plaintiffs are justified to sue Defendants for trespass on the land in cutting and felling trees on their graves. The Defendants have no more right on the land.
- That according to the Plaintiffs Statement that Amachree IV gave them the piece of land in dispute the Defendants must have to consult with or take permission from the Plaintiffs before any work on the land.
- That the land (cemetery) in dispute should remain entirely for the Plaintiffs/Defendants long years ago. Under the above circumstances we enter judgment for the Plaintiffs.”
No doubt, it is clearly far-fetched for the learned Justice of Appeal to suggest that one can read from these findings that the Native Court decision is one which can be held to amount to a declaration of title in favour or the Respondent, then the Plaintiffs, or to hold that such findings foreclosed the Appellants, then the Defendants, from contesting the ownership of the whole piece of land which they have contested in this Suit. It is palpable from the findings that it was the Appellants herein who permitted the Respondents to make use of a piece of land as cemetery only. What the court was in effect saying is that the present Appellants should permit the Respondents to continue to use the land as cemetery. This is made all the more glaring by the judgment (Exhibit C) by the District Officer who sat over the case on appeal. Said in Exhibit ‘C’:
The Court finds that the trees seen by the court were felled by the Appellants and are well within the area which was granted by appellants to respondents.” (Underlining is for emphasis by me.)
What all these mean is that the 1934 Native Court Suit (Exhibit ‘B’) was neither more nor less an action in trespass. No declaration of title was in effect in that case sought; neither could the judgment of the court of first instance (Exhibit “B”) be held to have decreed such declaration. From the foregoing, it is abundantly clear that all the courts were concerned with was that the present Appellants should not disturb the Respondents from continuing to bury their dead on the portion of land previously given to them by the Appellants for that purpose. In contrast, in the case of Okiji v. Adejobi ((1960) SCNLR 133; (1960) 5 FSC 44, the Federal Supreme Court held that the fact that a person has acquired rights of possession over parts of a piece of land in dispute will not affect the right of any other person to seek a declaration of title to the whole piece of land.
From the foregoing, the plea of estoppel ought not to have been allowed by the court below for any reason whatsoever. This is because, the Respondents failed to prove that the piece of land in respect of which the Appellants sought a declaration of title is the same as the piece of land in respect of which Exhibit “B” was decided in the 1934 Suit. See Morinatu Oduka & Ors. v. Kasumu & Anor. (1968) NMLR 28 and Ezenwani v. Onwordi (1986) 4 NWLR (Pt.33) 27, In Bakare Ibiyemi & Ors. v. Lawan Olusoji & Anor. (1957) WRNLR 25, the Plaintiffs there sued the Defendants for a declaration to title to a piece of land, The said piece of land, included another piece of land part of which had already been adjudicated upon. It was held that the plea of estoppel failed.
It is glaring that in the land concerned in the 1934 Suit vide Exhibit “B”, it is only the cemetery that was involved, whilst the subject-matter of the present Suit is a much larger piece of land on which a burrow put far away from the cemetery and whose excavation led to a demand for the payment of compensation as depicted on the plans (Exhibits “A” and “E”) and amply described in the evidence of D.W.6 at pages 73 to 74 of the Record, is what we are here concerned. In Exhibit “B” (the 1934 Suit) the parties were only concerned with the felling of trees on the grave yard of the Respondents which they regarded as a desecration of the grave yard. The District Officer sitting as a Court of Appeal visited the locus on June 9, 1936, and made a note that he was only concerned with the land where trees were felled. He (the District Officer) emphasised that the whole matter rested on where the actual felling of trees took place. He then proceeded to hold that the felled trees were “well within the area which was granted by Appellants to Respondents.”
Admittedly, the grant was for a limited purpose. Namely to be used as a grave yard, and could never ripen to an absolute ownership of the land adverse to the ownership of the grantor. See Alhaji B. A, Suleman & Anor. v. Hannibal Johnson 13 WACA 213 at 215; Atunrase v. Sunmola (1985) 1 NWLR (Pt. 1) 105; Odubeko v. Fowler (1993) 7 NWLR (Pt. 308) 637 at 677 and Olayioye v. Oso (supra) and Agboola v. Abimbola (1969) 1 All NLR 287. This finding ipso facto created a strong presumption by virtue of Section 46 of the Evidence Act that the present Appellants as grantors of the graveyard land to the Respondents are the owners of the land now in dispute which adjoins the grave yard and not otherwise. See Ekwere & Ors. v. Nakmakosi Iyiegbu (1972) 6 SC. 116 at 130.
From the foregoing, the Court below, in my view, was clearly wrong to hold that ‘from the facts of the Native Court actions there was certainly presumption of ownership in favour of the Appellants” (now Respondents) by reasons of the fact that they (Respondents) had been in long and undisturbed possession of only a portion of it, when the judgment in the Native Court suit were to the effect that they were granted a small piece of the land for the sole purpose of burying their dead. It is for these reasons that I am of the firm view that the facts in Ajayi v. Aina (1942) 16 NLR 67 are clearly distinguishable from the facts of the case in hand. In that case, the claim as pleaded was for “the return of the Plaintiff’s farm land.” At page 71 of the Report, Francis J., held as follows:-
“As regards Mr. Lambrou’s argument that the action in the Native Court being for trespass does not bar these proceedings I am unable to agree, it must be obvious that in the case of proceedings in a Native Court in which members of the legal profession as such have no audience, great latitude must be given and a broad interpretation placed on the proceedings and judgment so that in a case of this kind it is necessary in my view, to look at the whole of the proceedings, that is, that evidence of the parties and the judgment in order to arrive at a correct conclusions as to what the case was about.”
In this case, it is clear from the evidence and the judgment of the Native Court and of the District Officer’s Court, that the earliest case was trespass by felling trees on a small piece of the land now in dispute. Therefore, in my respectful view, the plea of estoppel should not have been upheld by the court below. In the case of Eboha v. Anakwenze (1967) NMLR 140, a case of land dispute, the people of Akanato Ikem Nando instituted an action against the people of Dagoma Ikem Nando for declaration of title to a piece of land known as Agu Ofufe, damages for trespass and an injunction to restrain the defendants from further trespass on the land.
As pleaded in paragraph 8 of the amended statement of claim this piece of land was the subject of a court action in 1954 when the defendants in the present case, that is to say the Dagoma sued the Akanato people (present plaintiffs) for a declaration of title. The action was dismissed. It is the same land which was in dispute in the case on appeal thereof.
The identity of the land was not in dispute in the case. What was in dispute was the area of the land which the plaintiffs said was granted to the defendants. The plaintiffs’ plan was tendered as Exhibit “D”.
The learned Judge preferred the traditional history given by the plaintiffs to that of the defendants and said that he was satisfied that the plaintiffs showed the defendants an area “in the centre” of the land to live on. He was not satisfied however that the area so given was clearly marked as the plaintiffs had tried to establish. He however, awarded the plaintiffs declaration of title, 50 pounds damages for trespass and the injunction sought. The defendants appealed.
It was held, allowing the appeal (1) that on the evidence and the plan (Exhibit ‘D’), a declaration of title could not with fairness and propriety be granted the plaintiffs: (2) the fact that the defendants (then plaintiffs) lost in their claim for title to the land in a previous suit, does not help the plaintiffs, upon whom lies the onus to prove their case (3). The plaintiffs failed to discharge this onus and on the authority of Kodilinye v. Mbanefo Odu 2 WACA 336, the proper judgment was one of dismissal. In other words, in that case like the one in hand, the Defendants were not able to rely on the previous judgment to estop plaintiffs from seeking a declaration of title to the land which they had to establish according to law.
For all I have been saying, this question is resolved against the Respondents and in the Appellants’ favour.
Question 2 asks whether the court below was in error when it held that the learned trial judge erred in relying on the evidence that the Appellants’ predecessors obtained the permission of Amachree IV to settle on the land in dispute since according to the court such evidence went to no issue as it was not pleaded by the Appellants.
In answering this question, it is necessary to advert, firstly, to what the learned Justice who wrote the leading judgment of the court below said. Said he:-
“The principle which has been restated time and time again is that evidence of a party on a point which departs from his pleading goes to no issue. In the instant case, the evidence of PW2 that the Abalama people obtained the permission of Amachree IV to settle on the land in dispute at Iga-Piri and Iga creek went to no issue the facts not having been pleaded.”
After citing the cases of Entegokwue v. Okadigbo (1973) 4 SC. 113, 117 and Ogunleye v. Oni (1990) 2 NWLR (Pt. 135) 745 at 767 to buttress his argument, he went on to say much later down in his judgment as follows:
“The effect of the evidence given which goes to no issue is that although the respondents pleaded the custom by which the amanyanabo granted land to the Kalabari people, there is no averment of any grant of land to the Abalama people. There is therefore no proof of law how they came to own Iga-piri and Iga creek. The law is well settled that if a person bases his title on a grant according to a custom by a particular person, family or community, that party must go further and prove the origin of that particular person, family or community unless that title has been admitted. But in the instant case, the respondents did not plead any grant to them by King Amachree upon which they led evidence.”
Be it noted that there is clearly a difference between a grant and a settlement. A grant comes from a previous title holder to a subsequent one called a grantee; whereas settlement does not recognize a previous title holder. See Adedibu & Anor. v. Olofo (1968) NMLR 462. In the case in hand with due respect, it appears that there was a misunderstanding of the case put forward by the Appellants, namely, that their ancestors settled down on land which included the piece of land in dispute, and that they only obtained the permission of Amachree IV. It was never their case that it was Amachree IV that made a grant of the land to them. This is clear from their pleading and from the evidence of PW2 (Chief Christopher Thomspon). The relevant portion of the pleading at page 15 line 19 to page 17 line 17 of the Record is as follows:
“(i) …
The Plaintiffs, Abalama Community, came to their present settlement in 1882 two years earlier than Buguma the acknowledged capital of Kalabari.
(ii) It is a peculiar maxim or saying that all land and sea belong to King Amachree the Head of the Kalabasris. Thus the permission for settlement at a particular point is usually sought from King Amachree…
V(a) Abalama came to their present settlement before King Amachree IV moved to the present Buguma. On arrival they met no one on the virgin forest land. They settled on one end of it and continued to farm and cut timber and…
(e) Having settled on the land and (Iga-piri) King Amachree was traditionally informed and therefore no other group will be granted right of occupancy in respect of this same land.”
The above was the case as pleaded by the Appellant; a settlement followed by notification to King Amachree. Thus, when the learned Justice of the court below held that the case of the Appellants was that of a grant from King Amachree and that they faield to prove such a grant, he was in error. Thus, the Appellants’ position in the instant case cannot be likened to what this Court decided in the case of Balogun v. Akanji (1988) 1 NWLR (Pt. 70) 301 at 322 wherein it was held that a defendant who having pleaded settlement and establishes a grant of land in dispute, cannot be said to have proved his title. Not conversely, is the Appellant case synonymous with that of a plaintiff who asserts exclusive grant to family land and who has the onus to establish same vide Kadunu Ajeya v. Ezekiel Ajayi & Anor. (1969) 1 ALL 72 at 75 – 75. The evidence given by PW2 was in no way different from this and it neither added anything to nor contradicted the pleading set out above. As a matter of fact, the Respondents pleaded in paragraph 4 of their Statement of Defence that they denied that the Appellants ever settled on the land in dispute or that they traditionally informed King Amachree IV of their settlement thereon. They went on to plead that they also obtained the permission of the same Amachree IV. That being so, whether the Appellants or the Respondents or both took permission of King Amachree was clearly an issue in respect of which both parties were free to lead evidence. And this emanates from the proposition of law that a plaintiff is entitled to lead evidence on any point raised in the defendant’s pleading. Thus, as this Court had occasion to decide in Amos Bamgboye & Ors. v. Raimi Olarenwaju (1991) 4 NWLR (Pt. 184) 132 at 155, following Emegokwue v. Okadigbo (supra), although the rule is that a party may not be allowed to lead evidence outside his pleadings, a plaintiff will be entitled to lead evidence on a point raised in the defendant’s pleadings. I am therefore of the firm view, that the court below was in error in allowing the appeal against the judgment of the learned trial Judge on the allegation that the evidence of settlement led before him by the Appellants was inadmissible because such evidence was not pleaded. This issue is also accordingly resolved in the Appellants’ favour.
Finally, is the third issue which poses the question as to whether the court below was right in setting aside the finding of the learned trial Judge that the Appellants had proved their ownership of the land in dispute and were therefore entitled to the declaration sought.
In giving an answer to this question, it is pertinent to say that the learned Justice of Appeal who wrote the leading judgment having come to the erroneous conclusion that the evidence of settlement was wrongly admitted and therefore, ought to have been excluded from consideration, was then left with practically no evidence in support of the Appellants’ case of settlement. While emphasizing that the claim of the Appellants at the High Court was a declaration that they were entitled to a right of occupancy over the piece of land in dispute. it is common ground that the learned trial Judge accepted the evidence of the Appellants as to their settlement on the land. Said he:
“The story of the Abalama people that, as an act of kindness based on customary belief they permitted Tema people to use part of Abalama land for burial and that there was not outright grant of the area to Tema people is a very true story,”
On the other hand, the learned trial Judge came to the conclusion that “the whole defence is a fabrication, fabrication of evidence, fabrication of plan.” With due respect to the court below, it failed to consider this aspect of the trial Judge’s judgment simply because it had come to the conclusion which erroneously led it to arrive at the view that the plea of estoppel availed the Respondents and also because that court felt, wrongly in my view, that the evidence given by the Appellants was at variance with their pleadings. The learned Justice of Appeal who delivered the leading judgment dealt with the matter thus:
“In as much as the evidence adduced by the Respondents (now Appellants) is completely at variance with the Statement of Claim reproduced above, the effect is that the Respondents have failed to prove that they were original settlers of the land in dispute. They have therefore failed to prove ownership of the land in dispute by traditional history.”
I therefore take the view that had the learned Justice of Appeal not fallen into the above serious error, he would have had no justification in overturning the finding of the learned trial Judge that the Appellants had established their claim to a right of occupancy. A fortiori, the court below by the same token, would not have been entitled to substitute its own views of the evidence for those of the learned trial Judge. See Egiri v. Ukperi (1974) 1 NMLR 22; Lucy 0nowan & Anor. v. Iserhien (1976) 1 NMLR 263; Akinloye v. Eyiyola (1968) NMLR 92 and Woluchem v. Gudi (1981) 5 Sc. 2 I9 at 326. As this Court has held times without number, a Court of Appeal has no right to substitute its own view of the facts for those of the trial Judge who heard and saw the witnesses perform. See Balogun & Ors. v. Alimi Agboola and Lawal v. Dawodu (1972) 1 All NLR (Pt.2) 270 at 272.
In this case, there was the evidence of settlement by the ancestors of the Appellants of a large piece of land in dispute in this area (including the burial ground). This piece of evidence the learned trial Judge believed as he was indeed entitled to do, more especially when he found that the case of the Respondents was based on the fabrication of evidence and fabrication of the plan. As demonstrated, the Respondents fabricated the plan in order to be able to set up a plea of estoppel and they fabricated evidence in order to show that they were the first to settle on the land. However, nowhere in the judgment of the court below was it shown how the learned trial Judge was wrong in these findings and why.
The result is that I find the appeal meritorious and it is accordingly allowed by me with costs assessed in Appellants’ favour in the sum of N10, 000.00.
SC.175/1992
