Dagaci Of Dere & Ors V Dagaci Of Ebwa & Ors (2006)

LAWGLOBAL HUB Lead Judgment Report

OGUNTADE, J.S.C.

The appellants were the plaintiffs at the Minna High Court of Niger State, where as the representatives of the Dere and Eshi communities, they claimed against the respondents and the representatives of the Ebwa community, for the following reliefs:

“(a) A court declaration that the Dere community is at all material times hereto the lawful occupier/possessor of ALL THAT piece or parcel of vast land lying, being and situate at Dere/her immediate environs and its adjoining waters/fish-ponds known as Epemi-Dere (Egbokongbo)/Emmatsa-Aba and is therefore entitled to customary right of occupancy thereto;

(b) A court declaration that the Eshi community is at all material times hereto the lawful occupier/possessor of ALL THAT piece or parcel of vast land lying, being and situate at Eshi/her immediate environs and its adjoining waters/fish-ponds known as Emmatsa and Ebora, and is therefore entitled to customary right of occupancy thereto;

(c) A court declaration that the people of Dere ward as presently constituted are the people entitled to rights of occupancy over ALL THOSE lands and waters situate at Dere/Eshi/Kuchi/Apataku and their immediate environs bounded in the North by Edonni; in the South by River Niger; in the East by Gurara River and in the West by Jamma all these boundaries being natural boundaries;

(d) A court declaration that the Kuchi community is at all material times hereto the lawful occupier/possessor of ALL THAT piece or parcel of vast land lying, being and situate at Kuchi/her immediate environs, and its adjourning waters known as Epemi-Kuchi, and is therefore entitled to customary right of occupancy thereto;

(e) A court declaration that Apataku community is at all material times hereto the lawful occupier/possessor of ALL THAT piece or parcel of vast land lying, being and situate at Apataku/her immediate environs, and its adjoining waters known as Epemi-Kuchi, and is therefore entitled to customary right of occupancy thereto;

(f) A court declaration that the defendants’ entry into and or invasion of Dere ward’s afore-mentioned lands and waters in recent times, especially in 1995 and May 1996, amounted to trespass as it was wrongful, unauthorized and unconstitutional and that such acts of trespass ought to be abated forthwith;

(g) A court order compelling the defendants, their servants, agents, assigns, privies etc to vacate the said plaintiffs’ lands and waters and allow the plaintiffs to remain in exclusive possession thereof forthwith and henceforth;

(h) An order of Interlocutory Injunction restraining the defendants, their servants, assigns, agents, privies and or any person(s) claiming by or through them in any other manner howsoever from committing further acts of trespass on the said Dere/Eshi/Kuchi/ Apataku ‘s lands and waters pending the final determination of this suit and a perpetual injunction in the same terms after delivery of judgment. The plaintiffs also seek such other relief(s) as the justice of this case may demand;

(i) An order awarding the sum of N280,000.00 against the defendants as damages for the said assault, trespass acts, wrongful seizure cum detention of plaintiffs’ fishing nets and boats.

Particulars of damages

(i) Eshi’s 2 fishing boats wrongfully seized and currently being unlawfully detained by the defendants. Each boat costs at least N30,000.00 (Such moneys are to be paid to Eshi community) =N60,000.00

(ii) Eshi’s 4 fishing nets wrongfully seized and currently being unlawfully detained by the defendants. Each fishing net costs at least N12,000.00 -(Such moneys are to be paid to Eshi) =N48,000.00

(iii) Eshi’s 2 fishing nets destroyed by the defendants/their agents. Each fishing net costs at least N12,000.00 – (Such moneys are to be paid to Eshi community) = N24,000.00

(iv) Damages to farm crops e.g. maize worth N25,000.00 (i.e. N 12,500.00 is to be paid to Eshi and N12,500.00 is also payable to Dere community) =N25,000.00

(v) Physical assault to plaintiffs’ people resulting in serious bodily injuries. Some of the victims of the said assault were hospitalised for a considerable period of time. (N50,000.00 is payable to Eshi on this) =N50,000.00

(vi) Damages to plaintiffs’ buildings, anguish, psychological distress and feeling of insecurity now meted to the plaintiffs’ peoples. (Dere community claims N26,500.00; Eshi community claims N26,500.00; Kuchi community claims N10,000.00 whilst Akpata community also claims N10,000.00 under this head of damages.) = N73,000.00 Grand Total of Damages =N280,000.00

The respondents, who were the defendants filed a statement of defence to which was sub-joined a counter-claim which reads:

“3. The defendants claim:

(i) a declaration that the waters Gbokomgbo; Emmatsa and Emmatsa-Aba; Eboro; Egogyali and Epemi-Kuchi together with those admitted in paragraph 8 of the statement of claim are owned by Ebwa community.

(ii) a declaration that all the lands around the said waters bounded in the North of Cigbaga and Ceku villages; in the South by River Niger; in the East by River Gurara and Azo (Kagbodo) and Muye village; in the North-East by Egba village; in the West by River Niger and Arah village; and in the North-West by Achiba and Sokun villages traditionally belong to Ebwa community and who are entitled to the customary rights. And Specifically that the lands called Fokpo lying between Mambe and Obade (to the East), Nku (to the South), Elogi (to the North) and Lugwa (to the West); the Fadama Areas of Batazi Zowu, Che Pan, Ekowasa. Chikangi and Zabe; and the uplands of Ningi, Langbata and Lukongogun belong to Ebwa.

(iii) an order of injunction restraining any further use by the plaintiffs (either by themselves or their agents or any so how) from the use of all the waters and lands without prior consent of Ebwa community through the Etsu Ebwa.

(iv) N280,000.00 as general damages from psychological distress, blocking of pond and unconventional fishing practice.”

After the pleadings had been settled, the suit was heard by Zukogi J. On 4-3-98, the trial Judge gave judgment. At page 136 of the record, the trial Judge in the judgment concluded that the plaintiffs were in possession of the land in dispute when the defendants invaded it and unlawfully detained plaintiffs’ properties. The court said:

“The evidence available before the court all make out convincing and clear case for award of trespass and assault; wrongful seizure and detention of plaintiffs’ properties. There is ample evidence before the court that the defendants invaded the plaintiffs’ communities and beat up their people and one had a miscarriage.”

On the basis of the above finding, the plaintiffs were awarded the sum of N50,000.00 as damages for the injuries which the defendants inflicted on them. Under various other heads, the plaintiffs were awarded additional damages totalling N104,000.00.

On the defendants’ counter-claim, the trial Judge concluded:

“Finally, I find on the preponderance of evidence before the court the defendants have established ownership of the waters of Gbokongbo, Emmatsa, Egoyari, Epemikuehi and all lands around the said waters, bounded to North by Cigbaga and Ceku villages, to the East by River Gurara and as well as Azo (Kagbogo) and Muye villages, to the West by River Niger and Arah village to the North-East by Egba village and to the North-West by Achiba and Soku villages are owned by the defendants’ community and the court hereby order any further use of the waters and lands should be with the defendants’ consent.”

Dissatisfied with the judgment of the trial court the plaintiffs brought an appeal before the Court of Appeal, Abuja Division (hereinafter referred to as ‘the court below’). The defendants were equally dissatisfied. They brought a cross-appeal. On 16-10-2000, the court below dismissed the plaintiffs’ appeal and struck out the defendants’ cross-appeal. The plaintiffs were dissatisfied with the judgment of the court below. They have come on a further appeal before this court. In their appellants’ brief, they have raised five issues which read thus:

“3.1 Whether the court below was right when it confirmed the decision of the trial court admitting exhibits 7, 10 and other relevant exhibits

3.2 Whether the appellants were under a legal duty to prove or establish more than one root of title or a specific root of title to succeed

3.3 Whether the decision of the trial court dismissing the appellants’ claim for declaration and granting the respondents’ counter-claim which was affirmed by the court below was against the weight of evidence adduced at the trial

3.4 Whether or not the issue of the admissibility of exhibits 8(a) – (g) was a fresh point for which the leave of court was required as held by the Court of Appeal

3.5 Whether the Court of Appeal was correct when it held that exhibits 8 (a) – (g) were evidence of the respondents’ ownership of the waters against the appellants”

The issues which the respondents formulated for determination were:

“1. Whether exhibits 7 and 10 were wrongly admitted in evidence (Grounds 1 and 4).

2. Whether the Court of Appeal was right when it upheld the decision of the trial court that:

(i) the plaintiffs failed to prove how and through whom title devolved to them; and

(ii) that the defendants/respondents had proved better title (Grounds 2 and 3).

3. Whether the Court of Appeal was right when it held:

(1) that the complaint that exhibits 8(a) – (g) were registrable instruments raised a fresh issue; and

(2) that exhibits 8(a) – (g) supported the defendants/respondents’ counter-claim for ownership of the disputed waters (Grounds 5 and 6).”

As the issues formulated by the respondents could be amply accommodated under appellants’ issues, I shall be guided in this judgment by the said appellants’ issues. It needs be said here that the parties in their pleadings conveyed that what was in dispute between them were “waters and land”. I have always understood that parties often dispute the ownership of land. I am not familiar with disputes about ownership of ‘waters’. It is even more difficult to understand, as the parties have not given a description of the ‘waters’ in dispute. Were they disputing ownership of lakes, rivers or ponds Were these waters manmade or natural The position was not made clear on the pleadings. But as the parties have not made an issue of the matter in this appeal, I should allow the matter to rest. See Attorney-General of Anambra State v. C. N. Onuselogu Enterprises Ltd. (1987) 4 NWLR (Pt.66) 547, (1987) All NLR 579 at 595; Chief Ebba v. Chief Ogodo & Anor. (1984) 1 SCNLR 372, (1984) 4 SC 84; Ejowhomu v. Edok-Eter Mamdilas Ltd. (1986) 5 NWLR (Pt. 39) 1 at 3; Overseas Construction Ltd. v. Creek Enterprises Ltd. & Ors. (1985) 3 NWLR (Pt. 13) 407. It suffices here to say that my approach to the matter is to treat reference to ‘waters’ as a reference to land. Before a discussion of the issues, it is necessary to examine carefully the case of the parties as put across in their respective pleadings before the trial court.

The plaintiffs in paragraphs 5, 6, 7, 8, 9,10,11,12,13,14, 21 and 22 of their statement of claim pleaded thus.

“5. The plaintiffs aver that prior to 1993, the Dagaci of Dere was administering and exercising control over all the communities in Dere ward, including their lands and waters. Customarily/traditionally also, all the Zhitsus of all communities in Dere ward were being ordained by the Dagaci of Dere until 1993 when Ebwa community was granted her own ward and hence had a Dagaci of her own since then. Up to now, the Zhitsus of the remaining communities under Dere ward are still accountable to, and being ordained by the Dagaci of Dere.

6. The plaintiffs assert that in those ancient days when the palace of Dagaci of Dere had a thatched roof, the Ebwa community used to send representatives to Dere to re-roof or repair the palace of Dagaci of Dere as and when the need arose.
7. From time immemorial, the Dagaci of Dere used to delegate any of his agents (including Ebwas) to fish in all waters under Dere ward annually and whenever the need arose and nobody would cross all such waters to the other side without the prior approval/permission of the Dagaci of Dere.
8. Upon the excision of Ebwa community from Dere ward in 1993, Ebwa ward had (and still has) the following 18 waters surrounding/adjoining her lands to her exclusive possession and use, to wit:

(1) Tsakanabi; (2) Eperebu; (3) Edeh;

(4) Edoni-Mi-Fubo (5) Edoni-Mi-Egeku;

(6) Edogbayin (7) Eparabu; (8) Enwere;

(9) Akah; (10) Epala; (11) Epashe;

(12) Egboh; (13) Irimi-Alhaji Saidu;

(14) Egbarah; (15) Emu-Aba;

(16) Ozereh; (17) Iwugi and

(18) Epeze.

9. On the other hand, with effect from 1993, Dere ward was left with the following waters for her own exclusive possession and use, viz:-

(i) Egbokongbo/Emmatsa-Aba;

(ii) Emmatsa; (iii) Eboro; (iv) Egogyari and 13 Epemi-Kuchi.

10. The plaintiffs also aver that the Dere community naturally and lawfully possesses the following waters/ fishponds, namely- Egbokongbo (Epemidere) Emmatsa-Aba. Whilst Eshi community naturally and lawfully possesses the following waters/fish-ponds, i.e.

(i) Emmatsa and (ii) Eboro. Kuchi community naturally and lawfully possesses Epemi-Kuchi waters whilst Apataku community naturally and lawfully possesses Egogymi waters. All these 4 communities are now under Dere ward being administered by the 1st plaintiff.

11. With effect from 1993 when Ebwa was excised from Dere ward, the natural boundaries of Dere/Eshi/Kuchi/ Apataku can now be described thus: all those lands and waters situate at Dere/Eshi/Kuchi /Apataku and their immediate environs bounded in the North by Edonni; in the South by River Niger; in the East by Gurara River and in the West by Jamma.
12. The plaintiffs further state that Eshi is about 3 Kilometres away from Dere/Kuchi/Apataku whilst

Ebwa is over 20 Kilometres away from Dere. Both Dere and Ebwa wards are now accountable locally to Lapai as their Local Government Headquarters and not to each other. Hence, traditionally the Dagaci of Dere has never paid any tribute or traditional dues to Ebwa and nothing of such has ever been requested from Dere.

13. The plaintiffs equally state that the recent tortuous acts of the Ebwa community which now culminate into this legal action are traceable to 1995 and especially May 1996 when some servants/agents/indigenes of Ebwa invaded Dere/Eshi/Kuchi/Apataku and viciously attacked/damaged/injured some persons and properties belonging to the latter communities. The defendants’ main bone of contention being that all lands and waters (afore-said) now remaining under Dere ward, are still vested in Ebwa.
14. The plaintiffs aver that both at law and in equity, in truth and logic, the lands and waters (subject-matter of this action) naturally belong to Dere ward and cannot by any stretch of human imagination be claimed by Ebwa. For instance, Egbokongbo River runs across or passes in front of Dere community, Emmatsa River runs across or passes in front of Eshi community and River Gurara runs into River Niger just a few metres behind Eshi/Dere communities. Likewise Epemi-Kuchi and Egogyari waters are naturally attached to Kuchi and Apataku communities respectively. A visit to the locus-in-quo will further elucidate matters. (The relevant map or sketch-diagram is hereby pleaded and the plaintiffs will found on same at the trial).

The plaintiffs will contend at the trial that in so far as all lands and waters (subject-matter of this suit) are situate in non-urban areas of Lapai Local Government Area of Niger State, any instrument which purports to transfer the said lands and waters from the plaintiffs’ communities (the natural occupiers/possessors) to the defendants (Ebwa community) without any compensation and without the prior consent and or approval of Lapai Local Government Council in accordance to the due process of law, shall be null and void ‘ab initio’ and of no legal effect howsoever/ whatsoever.

It is part of the plaintiffs’ story that during the colonial period, the plaintiffs improved the lands and waters (subject-matter of this action) tremendously, E.g. (a) by cultivating the lands and planting crops such as rice/ maize thereon up to this date;(b) by constructing roads to make the plaintiffs’ communities accessible to motor vehicles; (c) by charting a canal round the plaintiffs’ communities through the natural course thus cutting a hole through the afore-said plaintiffs’ lands and waters/ fish-ponds so as to form artificial fence/boundaries (‘Ebban’) and forestall incessant invasions by the war-lords. The plaintiffs will contend that all their afore-said efforts in this paragraph constitute improvement of the said lands and waters within the purview of the Land Use Act, 1978. The plaintiffs also plead and will rely on the principle of “Quic quid Plantatur solo, solo cedit” …

The defendants in paragraphs 4, 5, 6, 7, 8 and 9 of their joint statement of defence pleaded thus:

“4. In further answer to the paragraphs denied, the defendants aver that:

(a) the people of Ebwa from time immemorial, and before the arrival of all other communities, occupied 5 different areas, namely –

i. Nza

ii. Gyatufo

iii. Kpokpomedi

iv. Atekpabma

v. Equmibwa.

They owned all the lands and fish ponds around the areas.

(b) These areas are located at the South-Eastern end of Niger State and bounded to the North by Cigbaga

And Ceku villages; to the South by River Niger; to the East by River Gurara, Azo (Kagbodo) and Muye;

to the North-East by Egba; to the West by River Niger and Arah village; and to the North-West by Achiba and Sokun.

(c) The Ebwa people were later joined by other people who arrived in the following order-

(i) Reba

(ii) Kuchi

(iii) Apataku

(iv) Gbokungbo who later moved to present day Eshi)

(v) Eshi

(vi) Dere (who arrived from Adabuke In Kogi State) all of whom were accepted by Ebwa people and given land. They have at all times recognised Ebwa as their landlords. Oral tradition relates Dere to Ebwa through intermarriage.

(d) All the settlers paid annual tributes to Ebwa in the form of allowing a fish to be taken from each

canoe on the first fishing day (but this was later changed to payment of N50.00). In respect of produce farmers a bag of rice was paid per farmer. In respect of Reba, only non-indigenes of Reba paid tributes.

5. The defendants aver that the Egbokongbo (variously referred to as Gbokongbo or Bokonbo or Gbongbo or Gbogbongbo or Gbokongbo or Epemidere) had been declared for Ebwa in the following cases:

a) Kwatun Ebwa v. Zhitsun Dere (decided on 7/3/ 50 before the court of Etsu Lapai). This suit upheld the decision of the same on 1/10/37 which it held as amounting to res judicata. Same is pleaded.

(b) Lapai Native Authority letter of 15/5/56 confirming the owner of Bokomgbo on Ebwa. Same is pleaded.

(c) Idrisu Etsu-Ebwa v. Musa Etsu-Dere. (Suit No. 22/CV/72 decided on 16/3/72 before the Area Court and confirming Bokonbo. Same is pleaded.

6. The defendants aver that the Lapai Local Authority and emirate council severally wrote letters confirming inter alia the following waters for Ebwa and appointing their overseers –

(i) Gbongbon

(ii) Amatsa (also called Ematsa or Emmatsa or Amatso)

(iii) Aboro (also called Eboro)

(iv) Kpatan Kuchi (also called Epemi Kuchi)

(v) Gogyari (also called Egogyari)

and also directing the number of times the waters shall be entered. Defendants plead the said letters dated 11/ 4/72, 13/2/96 and 28/5/96.

7. The defendants also aver that they have been paying to the government, and receiving receipts therefore, rates in respect of among others the following waters-

(a) Gbokomgbo

(b) Amatso (including Amatsa-Aba)

(c) Eboro

(d) Egogyari

(e) Epemi-Kuchi

All the receipts are hereby pleaded and shall be relied upon.

8. (a) During the reign of Etsu Saba of Ebwa there was a pond dispute over Emmatsa which came before the Divisional Officer at Bara. The people of Dere and Kuchi swore on the Holy Qur’an that the pond belonged to Ebwa while Apataku and Gbokungbo swore on chain.

(b) In the 1970s a dispute that ensued between Dere and Eshi communities went before the Divisional Secretary who invited the Sarkin Ebwa. The latter settled the two communities by showing the portion Ebwa borrowed to both sides.

9. The defendants shall contend that the plaintiffs are not entitled to reliefs claimed and that the suit be dismissed with substantial costs.”

The plaintiffs filed a reply and defence to the counter-claim wherein they denied that there had been any previous cases between parties which decided the ownership of the “waters and lands” in dispute between parties. They also denied that they were ever tenants to the defendants.

It is appropriate that I make some comments on the pleadings of parties. The plaintiffs’ case on the pleadings is in essence that they were entitled to the certificate of a right of occupancy and that they had been the lawful occupier/possessor of land and waters in dispute. They relied on the eminence and paramountcy of the Dagaci of Dere and the fact that the said Dagaci was “administering and exercising authority” over all the communities in Dere ward which before 1993 included the defendants’ Ebwa community. It was further pleaded that before 1993, the said Dagaci of Dere delegated his agents to fish in all the waters under Dere ward, which included the Ebwa community. It was also pleaded by the plaintiffs that following the excision of Ebwa community from Dere ward, Ebwa had under its control 18 waters surrounding her land area whereas Dere (after the excision) had six of such waters.

It would appear from plaintiffs’ pleadings that the plank or cornerstone of their case was the fact that the administrative order or fiat by which the defendants’ Ebwa community was excised from the old Dere ward left the lands and waters now in dispute in the hands of the plaintiffs. An extension of this approach is the reliance placed by the plaintiffs on the fact that the waters in dispute fell within the area apportioned to them under the administrative order, which excised Ebwa community from the old Dere ward. It is to be stressed here that the plaintiffs even on their pleadings did not rely on any traditional history in the form that they were the first settlers on the waters and land in dispute. It is necessary to stress this aspect of plaintiffs’ pleadings as the plaintiffs were on their pleadings seeking a judgment in their favour on the fact that the Dagaci of Dere had once wielded administrative authority over the old Dere ward. It was not pleaded how the authority exercised by the Dagaci of Dere derived from the history concerning who first settled on the waters and land in dispute.

The defendants on the other hand pleaded that their Ebwa community was the first to settle on the waters and land in dispute and that other people including the plaintiffs who were said to have migrated from Adabuke in Kogi State later became their tenants and paid to them annual tributes. The defendants also relied on two judgments, which upheld their title and also a letter from Lapai Native Authority confirming their ownership of the land.

The suit was heard on this state of pleadings. The plaintiffs called six witnesses and tendered exhibits 1 – 4. The defendants called nine witnesses and tendered fifteen exhibits marked 5(a) – (c), 6, 6a, 7, 8(a) – (g), 9 and 10. Parties testified in substantial conformity with the averments on their respective pleadings.

The plaintiffs/appellants under their first issue argued that the court below was wrong to have confirmed the decision of the trial court admitting in evidence exhibits 6, 6A and 7. It was argued that the said exhibits were inadmissible as they purported to be court judgments. They were not certified as they should be as required by sections 109(a)(n), 111(1) and 112 of the Evidence Act. Counsel relied on Minister of Lands, Western Nigeria v. Azikiwe & Ors. (1969) NSCC (vol.6) 31 at 38, Anatogu v. Iweka II (1995) 8 NWLR (Pt.415) 547 at 571. It was further argued that as exhibit 10 was not pleaded, it ought not have been admitted in evidence. Woluchem v. Gudi (1981) 5 SC 291 at 319 – 320; Ajide v. Kelani (1985) 3 NWLR (Pt.l2) 248 – 261; Adimora v. Ajufo (1988) 3 NWLR (Pt.80) 1 at 4; N.I.P.C. v. Thomson Organisation Ltd. (1969) NMLR 104 and Ipinlaiye II v. Olukotun (1996) 6 NWLR (Pt.453) 148 at 167.

The respondents’ Counsel in his reply on issue 1 argued that the plaintiffs/appellants had not raised any issue at the trial court and the court below as to the admissibility of exhibits 6 and 6A and that arguments on the documents could not be raised in this court unless leave was first sought and obtained to raise the issue. Oforkire v. Madiuke (2003) 5 NWLR (Pt.812) 166 at 182. With respect to the admissibility of exhibit 7, it was Counsel’s argument that as the plaintiffs did not in their pleading deny that there had been three previous court decisions in favour of the defendants concerning Egbokongbo water, the fact was to be deemed as admitted and therefore not an issue in the current case. Counsel relied on Broadline Enterprises Ltd. v. Monterey (1995) 9 NWLR (Pt.417) 1 at 29; Lewis & Peat v. Akhimen (1976) 1 All NLR 460 at 465. It was submitted that the plaintiffs having admitted the existence of the said judgment had thereby relieved the defendants the burden of proving them Yesuf v. Oyetunde (1998) 12 NWLR (Pt.579) 483 at 497. It was finally submitted that the plaintiffs bore the burden of proving that the court decisions were not binding on them. Ajao v. Alao (1986) 5 NWLR (Pt.45) 802 at 822; Onobruchere v. Esegine (1986) 1 NWLR (Pt. 19) 799 at 806 – 807; Tsokwa & Sons Co. Ltd. v. U.B.N Ltd. (1996) 10 NWLR (Pt.478) 281 at 299; and Nigerian Maritime Services Ltd. v. Afolabi (1978) 2 SC 79.

It seems to me that the plaintiffs/appellants not having raised objection to the tendering in evidence of exhibits 6 and 6A before the court of trial and not having appealed against the same before the court below could not raise the matter before this court unless leave was first sought and obtained to raise it as a fresh matter on appeal. See Uor v. Loko (1988) 2 NWLR (Pt.77) 430.

Exhibits 6 and 6A were tendered in evidence by DW.7 and the relevant proceedings for 6/11/97 read:

“At the settlement in 1950, the water in question Egbokongbo was given back to us. In 1956, it was the same Egbokongbo and the same river was given us and this was when we put overseers there. For the settlement of 1950 and 1956, I have documents of settlement which are with my lawyer. If I see them, I can identify them from the stamp and signature of the Etsu. These are the two documents of 1950 and 1956.”

Mr. Isyaku: The documents are identified and I seek to tender them in evidence but they are in Hausa and my colleague might not be able to read them. We undertake to translate them into English language .

Mr. Olushola: No objection.

Court: Mark the 1950 document as exhibit 6 and the 1956 one as exhibit 6A”

It is apparent that the Counsel who appeared for the plaintiffs/ appellants at the trial court had not opposed the tendering in evidence of exhibits 6 and 6A. Further, in their appeal before the court below, the plaintiffs had not complained about the admission in evidence of the exhibits. The plaintiffs/appellants are disabled from raising the matter which is a fresh one before this court without first seeking and obtaining the requisite leave.

The tendering in evidence of exhibit 7 is a different matter. Plaintiffs’ Counsel opposed the tendering of exhibit 7 on the ground that only a certified copy of it was receivable in evidence since it was purported to be a court record. The trial court notwithstanding the objection received it in evidence. Before the court below, the plaintiffs/appellants raised the issue and the court below at page 255 of the record said:

“Learned Counsel referred to the arguments of the appellants’ Counsel in paragraph 6.1 of his brief and conceded that exhibit 7 (supra) is a public document but submits that since the facts that the case was decided between the present parties (or their privies) and that the decision over title was in defendants’ favour were both not in dispute before the trial court, exhibit 7 was therefore not tendered in proof of its existence or condition under section 97(1) of the Evidence Act. Rather what was sought to be established was that the parties (or their privies); the issues; and the subject matter had been decided upon previously and not appealed against. Indeed appellants are not denying that the trial took place. The trial High Court also confirmed that in his findings at p.13 lines 17 – 27 of the record.

It was clear as held by the trial court that Eghokongbo is therefore caught up by the doctrine of res judicata. Again, learned Counsel for the respondents further contended, the above decision of the trial court did not deal with the admissibility or not of exhibit 7 because that was not the issue as the fact of the decision of Ebbo Area Court was never disputed. The appellants did not appeal against the findings of the trial High Court and particularly against the finding that the plaintiffs claim over Egbokongbo water is res judicata. This court cannot interfere with the decision of the trial court vis-a-vis exhibit 7. It cannot be taken as an inadmissible exhibit as there was no cause for so holding.”

I think, with respect to their Lordships of the court below that they were in palpable error in their conclusion that exhibit 7 was receivable in evidence. Exhibit 7 was tendered to support the plea of estoppel per res judicata, which the defendants raised. The plaintiffs pleaded in paragraph 1 of their reply and defence to the counter-claim that there were no binding cases previously decided between parties which settled the ownership of the waters and lands in dispute. In Ihenacho Nwaneri & Ors. v. Oriuwa & Ors. (1959) 4 FSC 132, (1959) SCNLR 316, the court considering the nature of the doctrine of estoppel per rem judicatam observed:

“It is well known that before this doctrine can operate, it must be shown that the parties, issues and subject-matter were the same in the previous case as those in the action in which the plea of res judicata is raised.”

In New Brunswich Rail Co. v. British and French Trust Corporation Ltd. (1939) AC at pp. 19 – 20, the court said:

“The doctrine of estoppel (per rem judicatam) is only founded on considerations of justice and good sense. If an issue, has been distinctly raised and decided in any action in which the parties are represented, it is unjust and unreasonable to permit the same issue to be litigated afresh between the same parties or persons claiming under them.”

In Dzungwe v. Gbishe (1985) 2 NWLR (Pt.8) 528 at 539, this court per Aniagolu JSC observed:

“The principle of res judicata decided in (1843) Henderson v. Henderson (1843) 67 ER 313 at 319 was adopted in this country in Fabunmi v. Delegan (1965) NMLR 369 at 373 and was amplified by the pronouncement of Diplock, LJ, in Mills v. Cooper (1967) 2 All ER 100 at 104 who said:

“The doctrine of issue estoppel in civil proceedings is of fairly recent and sporadic development, though non the worse for that. Although Hoystead v. Taxation Commissioner did not purport to break new ground, it can be regarded as the starting point of the modern common law doctrine, the application of which to different kinds of civil actions is currently being worked out in the courts.

This doctrine, so far as it affects civil proceedings, may be stated thus: a party to civil proceedings is not entitled to make, as against the other party, an assertion, whether of fact or of the legal consequences of facts, the correctness of which is an essential element in his previous cause of action or defense, if the same assertion was an essential element in his cause of action or defense in previous civil proceedings between the same parties or their predecessors in title and was found by a court of competent jurisdiction in such previous civil proceeding to be incorrect, unless further material which is relevant to the correctness or incorrectness of the assertion and could not by reasonable diligence have been adduced by that party in the previous proceedings has since become available to him.

The sound reasoning behind this principle is that a litigant is not permitted to nibble at his claims, breaking them down and taking them piecemeal. He is expected to bring all his claims, belonging to the same subject matter, at one and the same time. If he chooses to bring them piecemeal he may be met by the doctrine of res judicata or where appropriate, issue estoppel, as happened in Fidelitals Shipping Co. Ltd. v. VIO Exportchleb (1966) 1 QB 630 and also recently McIlkenny v. Chief Constable of The West Midlands & Anor. (1980) 2 WLR 689. This court in Lawal v. Chief Dawodu & Anor. adopted the reasoning in Fidelitals Shipping Co. Ltd.”

The defendants pleaded and relied on previous cases as having finally decided the ownership of the waters and land in dispute as between them and the plaintiffs. The plaintiffs denied that there were any such binding cases. Since estoppel per rem judicatam would only apply when parties, issues and subject-matter in the previous and the current case are the same, it is incontestible that a party who pleaded that there were no such binding case was in fact disputing the applicability of the doctrine. The doctrine is like a package. It is sufficient for a person resisting the applicability of the doctrine to raise the absence of just one of the ingredients; and the person raising it must in that event bear the burden that such a judgment in far existed. It is my firm view that the plaintiffs having denied the existence of any binding judgment between them and the defendants had sufficiently raised a distinct issue as to the existence of such judgment. The defendants who raised the plea therefore bore the burden of tendering judgments wherein the issue of ownership of the water and land in dispute had been decided between the parties by a court of competent jurisdiction. This then brings into consideration the question whether or not exhibit 7 in the form it was could be tendered in proof of a plea of estoppel per res judicata.

Sections 54, 111(1) & (2) and 112 of the Evidence Act provide:

“54. Every judgment is conclusive proof as against parties and privies, of facts directly in issue in the case, actually decided by the court and appearing from the judgment itself to be the ground on which it was based; unless evidence was admitted in the action in which the judgment was delivered which is excluded in the action in which that judgment is intended to be proved.”

111 (1) Every public officer having the custody of a public document which any person has a right to inspect shall give that person on demand a copy of it on payment of the legal fees therefore, together with a certificate written at the foot of such copy that it is a true copy of such document or part thereof, as the case may be, and such certificate shall be dated and subscribed by such officer with his name and his official title, and shall be sealed, whenever such officer is authorised by law to make use of a seal, and such copies so certified shall be called certified copies.

(2) Any officer who, by the ordinary course of official duty, is authorised to deliver such copies, shall be deemed to have the custody of such documents within the meaning of this section.

112. Such certified copies maybe produced in proof of the contents of the public documents or parts of the public documents of which they purport to be copies.”

Exhibit 7, not being a certified copy ought not have been received in evidence. In Ipinlaiye II v. Olukotun (1996) 6 NWLR (Pt.453) 148, this court per Iguh JSC at 167 said:

“If a document is unlawfully received in evidence in the trial court, an appellate court has inherent jurisdiction to exclude and discountenance the document even though learned Counsel at the trial court did not object to its going into evidence. See Mallam Yaya v.Mogaga (1947) 12 WACA 132 at 133.”

I must in the consideration of evidence in this appeal discountenance exhibit 7 which was wrongly received in evidence. I now consider the admissibility in evidence of exhibit 10. This was tendered in evidence on 12-12-97 by DW9. The evidence relevant to the tendering of exhibit 10 is to be found on page 99 of the record and reads:

“The Zitsu of Ebwa was never turbaned in Dere. I am 41 years old and since I was born I have witnessed the turbaning of one Zitsu which took place at Muye and he was Etsu Isdris Cerba. The evidence I have of this turbaning of the Zitsu at Muye we have some documents on that from Muye and one paper too from case treated by former CJ. Muazu and those papers are with my Counsel. If I see the decision of High Court 1 on that issue I can identify it.

Mr. Isyaku – We seek to tender the judgment of High Court 1 in evidence.

Mr. Olushola – We wish to observe on record that this document is nowhere pleaded but if document is deemed material, then we have no objection.

Mr. Isyaku -An issue has been made that the people of Ebwa are virtually subjects of Dere as their Zitsus were also turbaned in Dere. This issue we have denied in paragraph 3 of our joint statement of defence and in furtherance of the denial we are tendering the judgment of High Court 1 which found that the Zitsus of Ebwa were never turbaned in Dere. On question of not having pleaded the judgment, the S.C. (Supreme Court) has ruled in Monier Construction Company v. Azubuike (Pt.136) NWLR, that documents are evidence and evidences are not to be pleaded in pleadings as long as they are tendered in proof of issues in controversy. Since this is an issue, we are tendering the document and we say the court should overrule the objection more so the Counsel has said the court can admit if it’s material to the case.

Court -The document no doubt is material to the case at hand and since the plaintiffs’ Counsel has said they were not objection if it was material to the case at hand, the objection is hereby over-ruled and that document is accepted in evidence and should be marked as exhibit 10.

Exhibit 10 taken as read.”

In this court, plaintiffs/appellants’Counsel has argued that the fact in support of which exhibit 10 was tendered was not pleaded and that therefore the exhibit was inadmissible. Respondents’ Counsel has argued that although the fact in support of which exhibit 10 was tendered was not pleaded by the defendants, the exhibit was tendered to counter the averment in plaintiffs’ statement of claim that the turbaning of the Chiefs from the Ebwa community i.e. the Zitsus was always done by the Dagaci of Dere. Respondents’ Counsel relied on Monier Construction Co. Ltd. v. Azubuike (1990) 3 NWLR (Pt.136) 74 at 88.

In paragraph 5 of their amended statement of claim, the plaintiffs pleaded:

“The plaintiffs aver that prior to 1993, the Degaci of Dere was administering and exercising control over all the communities in Dere ward, including their lands and waters. Customarily/traditionally also, all the Zhitsus of all communities in Dere were being ordained by the Degaci of Dere until 1993 when Egba Community was granted her own ward and hence had a Dagaci of her own since then. Up to now, the Zhitsus of the remaining communities under Dere ward are still accourttable to, and being ordained by the Dagaci of Dere.”

There is no doubt that the defendants had the right to call evidence in order to deny the fact pleaded by plaintiffs in paragraph 5 of their amended statement of claim. Viewed from this perspective one readily sees that, exhibit 10 if it possessed the requisite quality as required by law, was admissible. However, exhibit 10, which purported to be a court judgment, was not certified as it should be. It is by law inadmissible. In Olukade v. Alade (1976) I All NLR 67 this court said:

“2. It is however the duty of the opposite party or his Counsel to object immediately to the admissibility of such evidence but if the opposite party fails to object:

(a) the trial court in civil cases may (and in criminal cases must) reject such evidence ex proprio motu; but

(b) On appeal, and provided the evidence is one which is, by law, admissible under certain conditions, then since the opposite party failed to object to its admissibility at the court of trial or by implication consented to its admissibility (although the conditions precedent have not been shown to have occurred) he cannot be allowed to raise the objection in the appeal court.

(c) Where, however, evidence is by law inadmissible in any event, it ought never to be acted upon in court (whether of first instance or of appeal), and it is immaterial that its admission evidence was as a result of consent of the opposite party or that party’s default (in failing to make objection at the proper time.)”

I am satisfied that exhibits 7 and 10 ought not have been received in evidence by the trial court and that the court below was wrong not to have rejected them in evidence. In this court, the two must and will be discountenanced.

I now consider together issues 2 and 3 raised by the plaintiffs/ appellants. These issues boil down to whether or not there was enough reason for the decision by the court below to uphold the conclusion on the evidence of the court of trial. The trial court at page 133 of the record expressed views on the evidence called thus:

“The plaintiffs rest their claim on possession of these waters and use by proximity of the waters to their respective villages but could not state how they came into possession especially in view of paragraphs 4(a) (c) (d), 6 and 6 of statement of claim and counter-claim which states as Mr. Isyaku stated, that the defendants owned waters and allowed them use of the same in return for tribute. DW Nos. 3, 4, 5 and 6 from the neighbouring villages of Achiba, Egba, Azo and Arah said the Ebwas owned the waters and that they usually invited them to fish in them and remove 2 fish from them as tribute and this form of tribute was later changed to N50.00. These witnesses were not discredited. DW.7 corroborated these testimonies and tendered exhibits 8A – Q and exhibit 9 which are receipts and permits paid to government by Ebwa over the Gbokongbo, Emmatsa, Emmatsa-Aba, Eboro, Egoyari, Kuchi waters. An exhibit 9 is a list of waters and its overseers. From that exhibit, waters in dispute are overseen by Ebwa and those not in dispute are overseen by its owners. That exhibit which is in Hausa language is translated to read ‘Land area of the village Head of Dere’ and it opens with ‘these are the names of Zitsu Ebwa’s waters and their respective caretakers, etc.’ From the list, it shows that the Ebwa own the first five waters in dispute on that list. These are Gbokoingbo, Amatsa, Aboro, Kpatan-Kuchi, Gogyari. From the bits of evidence shown above it’s clear therefore that these waters all belong to the Ebwas with the exception of Emmatsa-Aba, which they did not lead any evidence on.” And in respect of the evidence called by the defendants in support of the defendants’ counterclaim the trial court said at page 138:

“Finally, I find on the preponderance of evidence before the court the defendants have established ownership of the waters of Gbokongbo, Emmatsa, Egoyari, Epemikuchi and all lands around the said waters, bounded to the North by Cigbaga and Ceku villages, to the East by River Gurara and as well Azo (Kagbogo) and Muye villages, to the West by River Niger and Arah village to the North-East by Egba village and to the North-West by Achiba and Soku villages, are owned by the defendants’ community and the court hereby order any further use of the waters and lands should be with defendants’ consent.”

The court below in affirming the judgment of the trial court said at pages 253 to 254:

“Having considered the submissions of both Counsel on this issue together with reply brief I am of the view that the findings and the position taken by the trial court cannot be faulted. The findings are never perverse and we cannot disturb the said findings. The evidence adduced was in line with the pleadings in the counter claim the issue is hereby answered negatively.”

Earlier in this judgment, I held that exhibits 7 and 10 should not have been admitted in evidence. When evidence, which is inherently inadmissible, is improperly let into the proceedings, an appellate court will discountenanced the evidence wrongly let into the proceedings. See Olukade v. Alade (supra).

In the instant case however, there was sufficient evidence on record to sustain the conclusions on evidence of the trial Court and the court below even when exhibits 7 and 10 are discountenanced

by this court. The two courts below did not rely on exhibits 7 and 10 to arrive at their conclusion on the evidence. The result is that the judgments of the two courts will remain unaffected even when exhibits 7 and 10 are discountenanced, as they should be. In this court, I am confronted by the concurrent findings of fact by the two courts below. In Enang v. Adu (1981) 11-12 SC 25 at pp. 41 – 42, this court per Nnamani JSC said concerning concurrent findings of fact:

The task of the appellants on this ground of appeal is made more difficult by the fact that there are before us concurrent findings of fact by both the learned trial Chief Judge and the learned Justices of the Court of Appeal. It is settled law that such concurrent findings where there is sufficient evidence to support them should not be disturbed. Kofi v. Kofi 1 WACA 284.”

This rule of practice can only be obviated if there is some miscarriage of justice and violation of some principle of law or procedure. The Privy Council in The Stool of Abinabina v. Chief Kojo Enyimadu (1953) 12 WACA 171 at 173 quoted with approval a definition of the miscarriage of justice necessary for such a purpose previously given by Lord Thankerton in Srimatti Devi v. Kumar Ramendre Narayan Roy 62 FLR 549. This is that:

“The violation of some principle of law or procedure must be such an erroneous proposition of law that if that proposition be corrected the findings cannot stand or it may be the neglect of some principle of law or procedure, whose application will have the same effect.”

See also Chief Kweku Serbeh v. Ohene Kobina Karikari (1938) 5 WACA 34; Chinwedu v. Mbamali (1980) 3-4 SC 31 and Ibodo v. Enarofia (1980) 5/7 SC 42.

A close examination of the record and judgment of the court of trial abundantly reveals that it unquestionably evaluated the evidence and appraised the facts. The court below did the right thing by affirming such findings of the trial court. See Fabumiyi & Anor. v. Obaje & Anor. (1968) NMLR 242 at 247; Akinola v. Fatoyinbo Oluwo & Ors. (1962) 1 All NLR 224 and Lawal Braimoh Fatoyinbo & Ors. v. Atake Williams (1956) SCNLR 274, (1956) 1 FSC 67. Before us in this Court, we are confronted with two concurrent findings by the two courts below. The plaintiffs/appellants have not directed my attention to any erroneous proposition of law or neglect of some principle of law by the two courts below which would lead me to disturb their concurrent findings.

I shall now consider the appellants issue 4. The Court below at pages 256 – 257 of the record held that trial court did not rely in its judgment on exhibits 8(a) -(g) and that the attempt by the plaintiffs/appellants to raise an issue on the exhibits amounted to raising a fresh issue on appeal. The court below refused to consider the issue relying on Akpene v. Barclays Bank of Nigeria (1977) 1 SC 47; Ejiofodomi v. Okonkwo (1982) 11 SC 74 and Attorney- General of Oyo State v. Fairlakes Hotels Ltd. (1988) 5 NWLR (Pt.92) 1 at 49.

I think with respect to the plaintiffs/appellants’ counsel that he did not sufficiently bear in mind that the trial court did not place any reliance on exhibits 8(a) to (g) in its judgment. The record of court at pages 91 – 92 on 6/11/97 where DW7 tendered exhibits 8(a) to (g) read:

“Witness – I also referred to license and receipt. If I see the same I can identify them. There are the 17 papers.

Mr. Isyaku – We seek to tender the 17 papers in evidence.

Mr. Olushola – We are raising the following objection to the admissibility of these documents – First on the license t – the licenses have not been duly signed and stamped by the officer deemed to have made them but rather somebody just inserted a signature for the officer supposed to have been signed. The person failed to write his name, his position and no stamp. The date the document was signed was not indicated. The witness not being the maker cannot explain how the document was made. A careful perusal shows various persons signing for the officer without the person’s name. We say all these discrepancies of the documents render them valueless and of no evidential value and that being the case, it’s of no use in the case. We urge the court to reject the document in evidence. On the receipts, we are not seriously objecting but will address the court as to weight.

Mr. Isyaku -I am surprised that the Counsel is talking of witness not being a maker. When the learned friend sought to tender exhibits 1 and 2, we raised the issue of witness not being a maker and he argued and the court sustained him but that objection on that ground will not hold water. In respect of all objection, they all go to the weight to be attached and not to the admissibility of the document. We urge the court to disregard the objection.

Court – The objections are baseless as they deal with weight and not admissibility. So, the documents are all accepted in evidence and should be marked as exhibits 8A – G.”.

Plaintiffs/appellants Counsel objected to tendering of the licences. Form F which formed parts of exhibits 8(a) to (g). Counsel did not however object to the tendering of the receipts which were a part of exhibits 8(a) to (g). All that the trial Judge said concerning the exhibits is to be seen at pages 134 – 135 of the record. The court said:

“In addition to the above fact the defendants had licence and permit to fish in those waters (even though permit is not sufficient as evidence of ownership). They had exhibit 9 too which was a document on their right to oversee waters. It sounds more logical for the owner of property to be asked to oversee it as others might not really have the interest of that property at heart.”

A trial court before which parties to a dispute have led evidence has the duty to determine which of the versions to accept of the evidence called. Obviously, it does this based on the advantage which it has of seeing and hearing the witnesses testify. An appellate court has not that advantage. This explains why an appellate court does not and should not readily disturb the findings of fact made by the court of trial.

The plaintiffs/appellants and their Counsel are justifiably displeased with the fact that the court of trial preferred the defendants case to theirs. But that is in the nature of all adjudications whether formal or informal. It is immaterial in this case whether or not the trial court had been wrong in receiving in evidence exhibits 8(a) – (g). This is because, the final judgment of the court of trial was not based on the said exhibits. The court below made the same point explicitly when it reproduced the statement by Iguh JSC in Okoro v. The State (1998) 14 NWLR (Pt.584) 181 at 219 that:

“The law is well settled that the wrongful admission of evidence shall not of itself be a ground for the reversal of a decision where it appears on appeal that such evidence cannot reasonably be held to have affected the decision and that such decision would have been the same if such evidence had not been admitted. See Ezeoke v. Nwagbo (1990) 1 NWLR (Pt.72) 616 at 630; Umeojiako v. Ezenamuo (1990) 1 NWLR (Pt. 126) 253 at 270 and Monier Construction Company Ltd. v. Azubuike (1990) 3 NWLR (Pt.136) 74 at 88.”

The reasoning of Iguh JSC above flows from the provisions of section 227( 1) of the Evidence Act, which reads:

“The wrongful admission of evidence shall not of itself be a ground for the reversal of any decision in any case where it shall appear to the court on appeal that the evidence so admitted cannot reasonably be held to have affected the decision and that such decision would have been the same if such evidence had not been admitted.”

The conclusion I arrive at is that exhibits 8(a) to (g) played no part in the conclusion arrived by the trial court. It is therefore immaterial that the court below had not considered whether or not exhibits 8(a) to (g) was wrongly received in evidence.

Under issue No.5 appellants’ Counsel argued that the court below was in error to have said at page 255 of the record as follows:

“On the issue of exhibit 8(a) – (g) the fact was that the defendants therein tendered through DW7 yearly fishing licenses issued to them by the Niger State Government upon payment of fees. The licences not only gave them right over the waters specified therein but supported their claim of ownership.”

Counsel argued that at common law, a licensee has no estate in a property and that in a licence the owner does not part with possession of the property but merely allows the licensee the use of same for a certain purpose. Counsel relied on Akpiri v. W.A.A.C. (1952) 14 WACA 195 and Chukwunah v. Shell Pet. Dev. Co. Nig. Ltd. (1993) 4 NWLR (Pt.289) 512.

I think that the court below was in error to have said that the licences supported the defendants’ claim of ownership of the land in dispute. The trial court knew enough to state at page 134 of the record that “permit is not sufficient as evidence of ownership.”

The error of the court below on the point however is not enough a reason to reverse its conclusion in the case. I am satisfied that there was sufficient evidence before the court other than exhibits 8(a) to (g) which could sustain the conclusion arrived at.

The respondents/cross-appellants did not put across any argument in support of their cross-appeal. At page 25 of the respondents/cross-appellants’ brief, Counsel stated:

“The question whether or not appellants’counsel had been served with the respondents cross-appeal had been laid to rest following the order of the lower court that he should be so served as evidenced by the fact that the said Counsel thereafter filed his brief of argument in respect of the cross-appeal. At pp. 195 – 199 is respondents/cross-appellants brief and at pp. 204 – 208 is the appellants/cross-respondents’ brief. The later brief displaced their earlier brief at pp. 200 – 203.”

Now at page 268 of the record of proceedings, the court below in its lead judgment concluded thus:

“It is surprising for this court to observe that the record of this court filed contains pages 1-3 as addendum. It is correct that the last page of the record is p. 149. None of the Counsel in court not even the appellants’ counsel, raised this issue when the appeal was being argued on 30/5/2000 and last on 18/7/2000 when this court heard the Counsel on issue of jurisdiction of the trial court.

When I searched the courts file there was no indication that the notice of cross-appeal has been duly served on the appellants or their Counsel. The Index does not contain or refer to the said notice of cross-appeal. Since the appellants Counsel was not duly served with the said notice of cross-appeal he cannot be blamed for not responding to it. The said notice stands struck out. On the whole the appeal is dismissed. The decision of the trial court is affirmed. The respondents are entitled to costs which I assessed at N5,000.00 (Five thousand naira) against the appellants.”

The court below struck out the cross-appeal in the belief that it was not served on the plaintiffs/appellants. The respondents/cross-appellants’counsel has argued that the cross-appeal was duly served on the plaintiffs and that briefs were filed. That may well be so. It seems to me that since by a mistake of the court below, the cross-appeal instead of being heard was struck out, it is open to the respondents/cross-appellants to bring before the court below an application that the cross-appeal erroneously struck out be re-listed for hearing. As the cross-appeal was never heard by the court below, it is not a right course to bring the cross-appeal before this court.

The said cross-appeal is accordingly struck out.

In the final conclusion, this appeal fails. It is dismissed with N10,000.0 costs in favour of the defendants/ respondents.

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SC.188/2001