Chief Uriah Akpana Adomba & Ors V. Benjamin Odiese & Ors (1990)

SALIHU MODIGBO ALFE BELGORE. J.S.C.

This is an appeal by the plaintiffs against the judgment of the Court of Appeal, Enugu Division. That Court had allowed an appeal by the defendants against the judgment of Wai Ogosu, J., sitting in a Port Harcourt High Court.

The claim before the High Court was for the following reliefs: “1) A Declaration that they, as persons adjudged in 2 Oloibiri Native Court Suits Nos. 17/58 and 18/58 owners and/or owners in possession of the land known as “EDUMATO-EMENI” alias ‘EDUMANYO’, are entitled to (a) all monies due from and payable by 2nd defendants as compensation for 2nd defendants user, structures, loss of fishing rights and/or occupation of, and their operations on and/or in EDUMATO-EMENI land aforesaid; and (b) All monies and/or sums due from and payable by the 2nd defendants in respect of plaintiffs communally owned economic tree growing on the said land which were destroyed by the 2nd defendants.

(2)   An Order that the sum of N143, 234.28 deposited by the 2nd defendants with the Accountant-General, Rivers State, or any sum or larger sum due from and payable by the 2nd defendants as claimed in (a) and (b) above be paid over to the plaintiffs. (3)   Perpetual Injunction against 2nd defendants, their servants and/or agents paying any monies as claimed by plaintiffs in 1 and 2 above to any person or persons other than the plaintiffs.”

The main plank in the plaintiffs case, as can be seen from their amended statement of claim dated the 28th day of August 1978 is that, they were already, as against the 1st set of defendants, adjudged owners in possession of the ‘Edumato-Emeni’ alias ‘Edumanyo’ land in dispute as shown in plan No. Exh. N (i.e. in Oloibiri Native Court suits Nos. 17/1958 (Exh. ‘U’) and 18/1958 (Exh. ‘V’) in which the 2nd set of defendants’ ‘Nimbe A Location’ lies. So, they are entitled to the compensation of the sum of Nl43, 234.28 due for the acquisition of the Location by the 2nd set of defendants.

Furthermore they pleaded the traditional history of the entire land verged green in Exh. N which according to them was founded by their ancestor, Aghor who was after his death succeeded by his son Emeni, from whom the plaintiffs family took its name, and then by the plaintiffs. They further allege that it was the same piece or parcel of land which the defendants had sued for in the High Court suit No.P/57/58 (Exhs. J, J1-J5) which action they did not prosecute and so it was struck out for want of prosecution. Also the plaintiffs pleaded other acts of possession and ownership which they exercised over the land in dispute.

These included prosecuting certain trespassing members of the defendants community in the Magistrate Court Case No. D/395C/1965 (Exh. C). They were all convicted: and the conviction was confirmed by the High Court. Some members of the plaintiffs kith and kin also prosecuted actions against some members of the defendants community in Oloibiri Native Court suits Nos. 162/57. 163/57, 199/ 57 and 201/57 over portions of the land in dispute. In the 1st set of defendants amended statement of defence dated the 1st day of August, 1979, they claimed to be the owners in possession of the land in dispute and joined issues with the plaintiffs on each of the above averments.

In particular, they vigorously denied that suit Nos. 17/1958 and 18/1958 were fought over any part of the land in dispute. In any event, those judgments were obtained by the plaintiffs in default of the defendants appearance and attempts by the defendants to appeal against them were forestalled by the Registrar of the Native Court through the instrumentality of the plaintiffs. The plaintiffs, they averred, live several hundred kilometres away from he land in dispute. The defendants were in possession of the land in dispute and were so found by the 2nd set of defendants when they entered the ‘Nimbo A Location’ (to be hereinafter referred to as the Location.” As a result, the 2nd set of defendants made interim payments of compensation to them and agreed with them on the quantum of compensation for the Location – long before the plaintiffs came on the scene: hence the compensation was deposited with the Accountant General. They pleaded that the conviction of some of their people in D/395C/1965 was set aside by the Biafran Court of Appeal and both sides have since then respected the judgment. The land in dispute, called ‘Edem Ebela’ or Ebila-Piri’ as shown in defendants plan, Exh. T, is the exclusive property of the defendants. They denied the other Native Court suits pleaded by the plaintiffs. They, too, pleaded that in Nembe Native Court suit No.355/5 of 1915 the 1st set of defendants had judgment against the plaintiffs. Also in suit No.273/28 in the same court, the defendants were found to be in possession of the land. They also pleaded other acts of long possession and ownership from time immemorial.

In his judgment, the learned trial Judge held that for the plaintiffs to succeed in the present suit it is their duty to prove that the lands involved in the Oloibiri Native Court Suits, 17/1958 and 18/1958 (Exhs. U and V) are the same with the land in dispute in the Court Suit No. P/57/58. Relying almost exclusively on the plan and pleadings in the High Court suit, which had been tendered as Exhibit J3-J5, he found that the land in dispute in the instant case includes the areas litigated upon in Exhs. U and V. He regarded the Criminal proceedings, Exh.C as an act of possession. He also came to the conclusion that the defendants had set up conflicting defences on Exh. U and V in that with one breath they attacked them as invalid, but in another, they contended that they relate to other lands.

He did not think much of those defences. On the whole he concluded that as the Native Court had in Exhs. V and U awarded to the plaintiffs the land in dispute, they were entitled to succeed in this suit. On appeal to the Court of Appeal, that Court, coram Aseme, Aikawa and Katsina-Alu, JJ.C.A., allowed the appeal. Their Lordships held:

1. That in view of the decision in Kodilinye v. Mbanefo Odu (1935)2 WA. C.A. 136, p.337-8 the onus was on the plaintiffs in this case of declaration of title to adduce evidence in proof of the issues joined on the pleadings. But in the instant case, the plaintiffs have failed to discharge the onus. 2. That the learned trial Judges judgment was an indistinguishable amalgamation of the pleadings and evidence in this suit and Exh. J, J1-J5 with the result that pleadings were treated as if they were evidence before the court. 3. That that amalgam also affected the learned Judges treatment of the pleadings in Suit No. P/57/58, which, were tendered as Exhs. ‘J2’ and ‘J3’ as if they were evidence before him in this case and which established the truth of what were contained in them. 4.    

He also wrongly used the same erroneous approach to resolve the vital issue of the identity of the land in dispute in the Native Court Suit, Exhs. ‘U’ and ‘V’, vis-a-vis the land in dispute in this case. Aggrieved by the judgment of the Court of Appeal, the plaintiff (hereinafter called the appellants) has appealed to this Court. The three issues for determination set out by learned counsel in his brief on behalf of the appellants were as follows: “(i)   What is the nature of the Claim before the trial Court? Whether it is a claim for Declaration of Title and ownership to land, in the view of the Court of Appeal OR for a Declaration that P1aintiffs adjudged by the Oloibiri Native Court in two judgments (Exhibits U & V) to be the owners of the land in dispute are the persons entitled to receive the compensation paid by Agip Nigeria Ltd., in the view of the learned trial Judge. (Ground 2 of the Grounds of Appeal).

(ii)    What is the burden of proof on the plaintiffs on their claim and if plaintiffs discharged such burden? Is the Court of Appeal right that the plaintiffs have an onus to discharge a burden of proof as if the claim is a fresh action for declaration of title to land e.g. proof by acts of possession or ownership, by traditional history, proof of boundary to support a declaration to certain identity of land etc, if not, is the Court of Appeal justified in re-assessing and re-evaluating the evidence and concluding that plaintiffs did not discharge the burden of proof to support a declaration of title, to land or concluding differently from the trial courts that acts of possession given by defendants are irrelevant to establish title against the true owner. (Ground 2, 5 & 6 of the Grounds of Appeal). (iii)  Whether the Native Court judgments (Exhibits U & V) estopped the defendants in relitigating the title of the plaintiffs by bringing the present suit;

What is the principle to establish estoppel as to identity of the subject matter and is the Court of Appeal right that to establish estoppel the land in dispute in the Native Court case in plan Exhibit K (defendants plan in Suit P/57/58) must be shown to have same description and features to satisfy the ‘acid test’ and to establish the identity of the land. (Ground 1,3 & 4 of the Grounds of Appeal)”. The formulation of these issues is diffuse. The learned counsel for the defendants (hereinafter called the respondents) had a better formulation of the issues thus:

“3.2(a)   Was the Court of Appeal correct in dealing with the case on the footing that title to the disputed land was in issue at the trial? (b) If so, is the Court of Appeal also correct in holding that the onus of proof rested with the plaintiffs? (c)    And if so, did the plaintiffs adduce at the trial, enough legal evidence (duly accepted by the trial court) in proof of their case so as not to warrant interference by the appellate court with the primary function of the trial court in fact – finding? The learned counsel for the appellants, Mr. Peters, conceded it that no plans were used in the Native Court suits, Exh. U and V. But, he pointed out, that when the respondents failed to have the suits transferred to the High Court, they took out a fresh action, suit No. P/57/58 (Exhs. J, J1 – J5), in the High Court.

They filed a plan, Exh. O with their statement of claim Exh. J2. Appellants also filed a plan, Exh. K, with their statement of defence. Exh. J3. The respondents did not proceed with the case, which was struck out on 20/3/67. He pointed out that the appellants plan, Exh. M in this suit, is only a reproduction of their plan, Exh K in the 1958 suit, the only difference being that they have now shown the position of 2nd set of defendants ‘Nimbe A Location’ as being inside the area covered by Exhs. K and N. Also respondents Exh. T in this suit is only a reproduction of Exh. O in the 1958 suit, with the position of the Location now shown.  

From the above facts, learned counsel on behalf of the appellants submitted that the learned Justices of the Court of Appeal were wrong when they approached the appeal from the footing that the appellants were

Other Citation: (1990) LCN/2417(SC)