Dibie Ajuwa & Ors. V. Sebastian Benjamin Odili (1985)

LawGlobal-Hub Lead Judgment Report

O. COKER, J.S.C.

In the High Court of Bendel State, the plaintiff, on behalf of the Arumona Family of Aboh, claimed from the three defendants – .

(1) damages for trespass, in that they entered the land in dispute at a place called and known as Ani Obodo (Uyi-Oji) in the Ndokwa Local Government Area in Bendel State, “and began fishing in the lakes or ponds encompassed by it, namely, Oforboh fishing pond indiscriminately, killing young fish put in there for breeding purposes by the plaintiff,” and

2) an order of injunction restraining them from further acts of trespass on the land and the fishing ponds or lakes.

Pleadings were filed and amended by both parties and the plaintiff filed a plan which was admitted in evidence by consent. The surveyor who prepared it was not called to give evidence as it was common ground that the identity of the lakes was not in issue.

The parties called evidence. The plaintiff himself and another member of his family (P.W.1) gave traditional evidence and of user. In addition, he called three other witnesses who were not natives of Aboh. The 1st and 3rd Defendants testified and, in addition, called one witness who was a member of the Obi of Aboh Council. Both plaintiff and defendants are natives of Aboh and its paramount ruler is the Obi of Aboh, although the 1st P.W. in his testimony said all the natives recognised him as such excepting members of his Arumona Family.

The learned trial judge found that the traditional evidence given by the plaintiff and his witnesses was inconclusive and unconvincing and the evidence as to acts of user, equally unreliable. He found that the plaintiff failed to prove that his ancestor, Eze Iwerie, was the first person to settle on the land on which the lakes are situated or that members of his family were in exclusive possession of the land around them. He found that the surrounding land belonged to the entire Aboh people and reserved for the Obi of Aboh. The traditional head of the Aboh people has the right of exclusive use of all the nine lakes and that he rightfully permitted the defendants to fish in

them, including the Oforboh lake. In support of his findings, he found that the then Obi of Aboh and one other Aboh native, on behalf of the Aboh people in 1950, successfully prosecuted a suit to assert the tide of the Aboh people to own and possess the Oforboh lake against one Joseph Okuguni, a native of Igbuku, who claimed its ownership and right to fish in it. On these findings, he dismissed the plaintiff’s claims.

The plaintiff appealed against this decision to the Court of Appeal, which on the 15th May 1984, reversed the decision and allowed the appeal, entered judgment in favour of the plaintiff for N400.00 damages for trespass and made an order of injunction against the defendants, their agents and servants. It is pertinent that Ikwechegh, J.C.A. wrote a judgment with which Pepple J.C.A., agreed, while Nnaemeka-Agu, J.C.A. wrote a separate judgment concurring. Each gave almost different reasons for coming to his decision. The defendants, with leave of the Court, appealed to this Court. Grounds 1, 2 and 3 of the seven original grounds of appeal, mainly of mixed law and fact, were struck out after they were abandoned and after the Court had given leave to the defendants/appellants to argue three additional grounds.

Mr. Agbamuche first argued grounds 4 and 10 together and the remaining grounds were argued together. I do not propose to set out these grounds, but the points and arguments will be stated and discussed in the course of this judgment.

I propose first to summarise the reasons for reversing the judgment of the trial court given by the two Justices of Appeal in their respective judgment before going into the arguments of learned Counsel for the parties.

Ikwechegh, J.C.A., who wrote the main judgment of the Court gave the following reasons for his decision.

(1) Misdirection by the trial judge on the question of possession of the lake in dispute on the finding that the plaintiff and his people were not in exclusive possession. He accepted the submission of Dr. Enemeri, counsel for the plaintiff/appellant that there was clear undisputed evidence that plaintiff and his people were in possession of the surrounding land and the lake. Also, he accepted the submission of the same Counsel that the trial judge:-

(a) overlooked the testimony of P.W.3 that Oko Bush and Ogodo bush are in the same area as Oko where the plaintiffs ancestor, Eze Iwerie, first settled, after examining the plan, Exhibit A, when the surveyor who prepared it did not testify;

(b) that the lakes were named by his (Plaintiff’s) ancestor, Eze Iwerie (or Iwerie), the evidence of which the defendants did not rebut;

(c) Evidence that Eze Iwerie, and members of his family had special and exclusive traditional rituals to perform during the coronation and on the demise of the Obi of Aboh, whom the plaintiff’s family did not recognise as the paramount head of the Aboh people;

(d) The judgment (Exhibit E) could not constitute estoppel per rem judicata against the plaintiff since the Obi of Aboh and the Aboh people including the plaintiff family were on the same side of the case and were not opposing themselves. In addition, he accepted the submission that the judgment neither decided that the land and lakes were the stool land of the Obi nor did it decide ownership of the surrounding land in favour of the Aboh people.

It is to be observed that the judgment was not pleaded as res judicata. In accepting the said submission, the learning justice relied on Alade v. Aborisade (1960) 5 F.S.C. 167,168, the ratio of which this Court approved and applied in Ibeziako v. Nwagbogwu & ors. (1972) 6 S.C. 5 p.75. He concluded by stating:-

“In this case it is abundantly clear that Exhibit E settled the mind of the trial judge in favour of the ownership of Oforboh lake being in favour of the Obi of Aboh I am of the view that there is nothing that can be covered by judicial notice in the matter of ownership and possession of Oforboh lake. And Exhibit E. is not proof of ownership of the Oforboh land being in the Obi of Aboh. Such proof would be established by the evidence of the Obi, and the matter in any case was not in litigation between the Obi and the appellant’s family.” (Italics mine).

I am of the view that the learned justice of appeal erred in holding that the judgment, in which the obi of Aboh successfully prosecuted the case on behalf of the Aboh people was not evidence establishing the title of his people and the right to use the Oforboh lake. See the decision of Elias, C.J., in James Uluba & Ors. v. Chief Sillo (1973)1 S.C. 37 at pp55-56 where he said:-

“Chief Williams next argued that exhibit “C” cannot operate as an estoppel since the appellants were neither parties nor privies to it. We think that the judgment exhibit “c” is admissible and was rightly admitted by the learned trial judge, to establish acts of poscsession on the part of the plaintiffs and not to sustain a plea of estoppel or res judicata; see Abadi v. Catholic Mission (1935) 2 W.A.C.A. 380, at pp. 381 & 383.”

Similarly he erred in holding the view that the case of Alabi v. Aborisade (supra) applied in the circumstance. For what the judge applied was not the evidence of any witness in the earlier case but the substance of what was decided and the capacity in which the Obi fought the case. The next reason given for reserving the decision of the trial judge was: The trial judge failed to give careful analysis to the evidence in the case on this question of possession of Oforboh lake and the surrounding lands, as well as the other smaller lakes within the surrounding lands”

per Ikwechegh, J.C.A. I am equally of the view that he erred for there was evidence to support his finding.

Nnaemeke-Agu, J .C.A. was equally in error he gave his reasons as follows:

“On the strength of plaintiffs case and the pleadings the defendants did not rely on their own title but that of the Obi of Aboh which they failed to prove a better title in the Obi Iwegwu of Aboh and a grant by him…..(Italics mine).

Further on he stated:

“The Obi is not a party and did not even testify and, as I have shown. Exh. E, did not have the effect of establishing his title as against the appellant. Nor did it establish that it was a stool property. There was not other sufficient evidence to prove this. The evidence of D.W.1 on the grant is, in my view, hearsay, and does not prove either the Obi’s title or his grant to the respondents which D.W.1 admitted he did not witness. There is no confirmation from the Obi that he owned the land or granted it to them. As for the letter and receipt. Exh. C, and D, dated in 1975 and referring to a grant in 1976-78, they do not prove a 1973 three-year grant as pleaded in paragraph 8 of the amended statement of defence and do not relate to any grant on the respondent’s pleadings. It follows that neither the Obi’s title nor the grant they relied upon in justification of their trespass was proved. It does not appear to me also the Dr. Enameri’s complaints about the learned judge’s findings about Oke settlement and his inference therefrom, without any pleading relating thereto, that the appellant is a complete strangers in Aboh is well founded.”

This statement is a complete misdirection of the defence. The defence was that the surrounding land and lakes belong to the entire Aboh people and, that the lakes were reserved for the exclusive use of any incumbent Obi of Aboh and that he had the right to permit any person to fish in any of the lakes.

The opinion of the learned justice of appeal is predicated on a finding that the plaintiff and members of his family were in possession, when in fact, that was not the case. This case was a contest between the plaintiff’s family and the people of Aboh and Obi of Aboh as to the person with a better right to possession of the lakes. See Pius Amakor v. Benedict Obiefuna (1974) 1 All N.L.R. 119, Philip Oladimeji & Anor. v. Madam Oshodi .Anor.(1968) 1 All N.L.R.417, p.423.

In my view, the learned justice of appeal misconstrued the judgment (Exh.E) and nature of the traditional and factual evidence given by the two defendants and 1st D.W. of what they did, and, evidence of what the Obi told D.W.1, that he, the Obi, granted licence to the defendants, which he, (Nnaemeka-Agu) held “were hearsay and inadmissible.” I hold the view that vis-a-vis the plaintiff and the Obi, what the Obi did and what he told D.W.1 are admissible against the Obi. See section 21 of the Evidence Act which provides:-

“Statements made by persons whose position or liability it is necessary to prove as against any party to the suit are admissions if such statements would be relevant as against such persons in relations to such position or liability in a suit brought by or against them and if they made whilst the person making them occupies such position or is subject to such liability.”

In any event, the direct oral evidence of defendants 1 and 3 that the Obi granted them licence was unchallenged and undisputed. Further, he (Nnaemeka-Agu) said:-

“On the use the learned trial judge made of the previous judgment, Exh. E. he found in effect that Oforboh Lake or pond belonged to Obi Oputa II, and hence the present Obi, and that a grant by the Obi was a justification for the respondents’ presence in Oforboh Lake. Clearly, it was no part of the respondents’ case that the present Obi of Aboh is privy and blood to Obi Oputa II. Rather it does appear from the pleading in paragraphs 5 and 6 of their amended statement of defence that it is their case that Oforboh and the other eight fishing ponds in Aboh are stool property which belong to every reigning Obi by reason (of) that inference (sic). Mbanefo, J., (as he then was) giving the reason for his judgment in that case said:-

“I based my finding that Oforboh Lake belongs to the plaintiffs on their evidence which I accept that the lake was first discovered by their ancestors, and not on any proof of ownership of the land between Aboh town and Asseh Creek, and I wish to emphasise that this judgment does not give the plaintiffs right to any other than the Oforboh Lake in dispute whatever the rights of the parties to the other lakes shown on the defendant’s plan (Exh. “D”) might be.”

“It follows from this that declaration of title to the lake in Obi Oputa II in Exh. E was not due to the fact that he was the Obi but because his ancestors founded the lake. The finding also leaves the ownership of the surrounding lands and other ponds undecided. This cuts at the bottom of the respondents’ case that the present Obi is the owner because the lake, among others, is usually reserved for the use of the reigning Obi.”

This in my humble view is another serious misdirection. The learned justice was perfectly right in using the judgment together with other evidence before him to support his decision on the title and possession of the Obi of the Oforboh lake, now in dispute.

Later he said:-

“The present appellant and his family were not parties to the suit and the appellant testified that he did not know about the proceedings in the case. So, no question of their standing by while their champion fought their fight for them arises. As it is so, I do not see how it could be raised as estoppel against the appellants as pleaded in paragraph 9 of their amended statement of defence. A successful plea of estoppel as a defence could only have been predicated upon the parties, subject matter and issues being the same. At least the parties are different. As to subject matter in the former case it was Oforboh lake, in this, it is land in which the lake is situated. The plea is bound to fail. It is rather, in this case in which the parties are different, res inter alios acta. It would have been relevant only if it was therein declared to be stool property; but, as I have shown, it was not. But then the unchallenged and uncontradicted evidence of the plaintiff in this respect runs thus:-

there are no special land or lakes attached to the office of the Obi of Aboh. The title of the Obi of Aboh does not pass from father to son. The present Obi is not a son of the last Obi. The present Obi of Aboh Imegwu, is a native of Aboh. He is from Ogbo-Uku Quarters in Aboh.”

The learned justice of appeal obviously overlooked the evidence of defendant and his witness together with the issues decided in the earlier case, Exhibit E. These findings were made by the trial judge after a careful review of the entire evidence and the appeal judge was clearly in error for eversing them when these findings were supported by evidence and not shown to be perverse. As regards the complaints against the learned judge’s findings about Oko settlement and his inferences therefrom the learned justice of appeal said:-

“I am faced with a situation in which the appellant (i.e. plaintiff) pleaded and called evidence of his title and possession of the land in dispute of which Oforboh Lake forms part, but the respondents, on the other hand, relied not on their own title but on that of the Obi of Aboh and a grant by him to them. But they proved neither the title they pleaded nor the grant by the Obi to them. I must note that this is a suit in trespass and injunction; a plaintiff succeeds by due proof of possession in such a case. in the instant there is abundant evidence on record that the appellants were in long arid continuous possession of the land in dispute before the respondents came on it in 1977 under the colour of a grant which has not been proved. The respondents should be held liable in trespass: See Kponugle & Ors. v. Kadadja 2 WACA. 23; Amakor v. Obiefuna (1974) NMLR. 331 p. 335. What is more, even if the matter is to be decided on such evidence of title as was before the court, the appellant who pleaded and called evidence of his own title is entitled to succeed as against the respondents who relied on the title of the Obi – a type of jus tertii which was not proved. There was practically nothing on the respondents’ side of the imaginary balance (See Mogaji & Ors. v. Odofin & Ors. (1978) 4 SC. 91, pp. 94-96). The learned judge ought, on the evidence before him, to have found that the appellant proved a better title. He should have ascribed possession to title: See Aromire & Ors. v. Awoyemi (1972) 2 SC. 1, p.10.

I am satisfied that the learned trial judge’s approach to the whole case was wrong and that on a proper approach be ought to have held that the appellant proved his case and was entitled to succeed in his claims in trespass and injunction.”

It must be kept in mind that the plaintiff as a native of Aboh was entitled as any native of Aboh to use land belonging to the Aboh people, but the use of the lakes, from the pleading and the evidence is a different matter.

Before further considering the arguments in this appeal, it is necessary to discover the real issues in this case and therefore the basis for the decision of the trial court. Apart from the grounds of appeal, I have had little or no assistance from the sketchy brief filed by Agbamuche, learned senior counsel for the appellants, and the brief and argument of Dr. Enemeri, learned counsel for the respondents, I have found to be misleading. The issues will befound in paragraphs 10, 11, 12, 13, 14, 16, 17 and 18 of the Amended Statement of Claim and paragraphs 3, 4, 5, 6, 8 and 9 of the Amended Statement of Defence. The relevant paragraphs of Amended Statement of Claim read:”

10. The plaintiff’s ancestor, Eze Iwerie of Aboh founded the land and fishing ponds and installed’ juju shrines after which he named each of the ponds, Oforboh, Iyi-Oji, Oshia, Onye-Uku etc. all in that order. These juju (sic) are still being worshipped and in their season by members of the Arumona family to the exclusion of other native residents of Aboh, who in fact, came only subsequently to dwell amongst Eze Iwerie and his descendants.

(b) The said Eze Iwerie, Eze meaning Oba or King had one child Arumona who survived him and succeeded to the Lands and fishing ponds founded by him. Arumona had six children namely: Apah, Agha, Oditi, Olisemeka, Emordi, Masi. The plaintiff is a descendent of Arumona through Apah and brings this action with the concurrence of all the other of Arumona.

11. By Aboh native laws and custom, title or the possessory title to lands and lakes or fishing ponds belong to its founder, in this case, Eze- Iwerie and his descendants through Arumona namely, the plaintiff and members of the Arumona family. The Obiship of Aboh is not hereditary but elective and there are no stool lands, lakes or fishing ponds attached to the title of Obi of Aboh.
12. The present incumbent of the title of Obi of Aboh hails from Issala, where he has his own family lands and fishing ponds as the case may be; he was never in possession pr the owner of the lands and fishing ponds now in dispute nor yet his predecessor on the throne.
13. Oforboh fishing pond which is the largest in the series and which is principally in dispute in this case is itself surrounded by other minor fishing ponds which includes Iyi-Omu, Odachi and Okpuru-Ogwe. The last named, was the subject of a dispute or case between the plaintiff and one Sunday Ogu about eight years ago which dispute or case, ended in plaintiffs favour.
14. The Arumona family is an established family of Aboh as being also in charge of the rituals for serving the land of Aboh by reason of their being a founding family wherefore, at the installation of a new Obi of Aboh, he, the Obi will donate to the plaintiff’s family the necessary things for observing the ritual aforesaid. The Regent before the present Obi was enthroned, one Akpanuka as well as the Obi before him all performed the said ritual at the hands of the Arumona’s family.
15. Similarly, it is the exclusive preserve of the Arumona family to perform the traditional rites of covering a dead Obi with cloth before his burial. These traditional rites and the ownership of the land and fishing ponds in the Arumona family as the first established family in Aboh has also given rise to them, were mentioned in the report of a Commission of Inquiry set up by Government on the Chieftaincy Institution etc, in Aboh or Ndokwa Local Government Area of Bendel State, which the plaintiff had unsuccessfully tried to obtain.

16 (a) The plaintiff and members of the Arumona family whom he represents were and have always been in possession of the land in dispute as well as the fishing ponds or lakes over the years resisting all attempts by individuals or families to encroach thereon. They use same for farming, fishing and other purposes.

(b) The plaintiff on behalf of the Arumona family was the recipient of compensation or series of compensation paid by the Nigerian Agip Oil Company Limited for the land encompassing the fishing ponds mentioned in paragraphs 3, 7, 11 hereof and others besides, when the said company set up oil drilling location on the land. Compensation was also paid to the plaintiff for fishing structures, damage to fishing ponds arising from construction of access roads by the said company and also for damage to economic trees. There were no adverse claims to the compensation paid to the plaintiff for the Arumona Family occupiers of the land and fishing ponds by the said Nigerian Agip Oil Company Limited.

17. In or around May/June, 1977 however, the defendants without the consent or authority of the plaintiff or any member of the Arumona family who were in exclusive possession, broke and entered the land in dispute and began fishing in the fishing lakes or ponds encompassed by it namely Oforboh fishing pond, indiscriminately, killing young fish put in there for breeding purposes by the plaintiff.
18. The defendants’ acts of trespass as above described are continuing and threaten to do so unless restrained by the court wherefore, the plaintiff for himself and on behalf of the Arumona family of Aboh, claims from the defendants jointly and severally as follows:-

(i) N10,000.00 being general damages for trespass to plaintiff’s land and/or fishing ponds or lakes notably Oforboh as shown and delineated in the survey plan number NWC/2971/78 filed herewith and which trespass, was committed by the defendants during May/June, 1977.

(ii). As order of Perpetual Injunction to restrain the defendants their servants or agents or whosoever from further acts of trespass as aforesaid on the land and the fishing ponds or lakes encompassed by it.”

At the trial, the plaintiff did not give any evidence to prove the averments of the various acts of ownership pleaded in paragraphs 4, 5, 6, 7, 15 and 16 or that the defendants or any other person on their authority entered upon or otherwise trespass on the land surrounding the lakes as indicated on the plan, Exhibit A. The evidence in the case as to the cause of action as given by the plaintiff and his witnesses, D.W.1 and the 1st and 3rd defendants was the entry on the Oforboh lake and the other eight lakes by licence of the Obi of Aboh. It was common ground that the defendants were on the lakes by licence of the Obi of Aboh. See paragraphs 2 of the Statement of Claim and 3 of the Statement of Defence. Plaintiff in his testimony said:

“I sued the defendants because they went into my fishing lakes and fished there…..They fished only in Oforboh lake. That was where I met them fishing. These lakes are on my land. These lakes belong to Arumona family of which I am acting head. They are no lakes on Arumona land reserved for the Obi of Aboh…..There are no special land or lakes attached to the office of the Obi of Aboh….When the three defendants came and fished in our lake. I saw them and sued them to Court. At the first time I saw them fishing in the lake, I got the police to arrest them.

The defendants told me that they were authorised by the Obi of Aboh. Iwogu II to enter into the land and fish in the lake…..Before the defendants went and fished in our lake, Obi Iwogu II never laid claim to any of the lakes on our family land….I brought the defendant to court because they have been disturbing me in my fishing lakes.” Under cross-examination, the plaintiff said: “Sometime ago, when members of my family went to Oforboh pond to fish, they met some people fishing there. They got the men they met fishing in the pond arrested. When they were asked how they got there they said the defendants placed them there. We sued the defendants to Court. We want them to pay us for disturbing us in the fishing pond and we are also asking the Court to stop them from disturbing us on the pond.”

That the cause of action was the right to fish in the ponds or lakes is made even clearer in the Amended Statement of Defence; paragraphs 5, 6, 8 and 9:-

In further answer to paragraphs 3, 4, 9, 11, 12, 14, 16 and 17 of the Statement of Claim the defendants aver that the lands/lakes which are the subject matter of this case were originally founded by the ancestors and have since been property of the Aboh people or Community. The Obi of Aboh is the trustee thereof.

This has been the position from time immemorial, in accordance with Aboh custom and native law.

6. The defendants further aver that among the lands and lakes of the Aboh people there are 9 (nine) lakes, including OFORBOH lake, which are usually reserved for the use of the reigning Obi.
7. The defendants deny the contents of paragraphs 5, 6, 7, 8, 9 and 18 of the Statement of Claim and will at the trial require the strictest proof of the averments therein
8. The defendants further state with regard to paragraphs 2 and 13 of the statement of claim that OFORBOH lake was leased out to them by the Obi of Aboh in 1973 for three years to fish in and the tenancy has since expired. Defendants will rely on relevant documents in that regard.
9. Furthermore OFORBOH lake aforesaid was litigated upon in a suit between Obi Oputa II and Anor. representing Aboh Community versus Joseph Okuguni also of Aboh vide suit No. W/12/1950 in which the High Court decided infavour of the Obi as being the owner thereof and which judgment was confirmed by the West African Court of Appeal in suit No. WACA 143/1954. The defendants will found on the said judgments and contend that the judgments estop or preclude the plaintiff from claiming title to the said lake. (Italics mine)

Another important feature of the case which is a common ground is that all the parties are natives of Aboh and not strangers. The evidence given by the plaintiff and P.W.1 are partly traditional and partly acts in recent times. The evidence of 1st and 3rd defendants, was equally partly traditional and partly facts within their personal knowledge. D.W.1, also a native of Aboh, gave evidence which was partly traditional, partly what he knew and partly what the Obi of Aboh mandated him to do and what he, the Obi of Aboh confessed or admitted he did or told him (the Obi) or what some other person said he did. The statement was an admission of an act of the Obi himself, and not that of some other person.

His evidence was:-

“I knew that Obi hired the pond to the 1st and 3rd defendants…….I was not present when Oforboh lake was hired out to the 1st and 3rd defendants. It was the Obi himself who told me he hired the lake out.”

It is my respectful view, therefore, the evidence of this witness is not hearsay, but a direct evidence of what he heard and perceived and what the Obi of Aboh admitted he did. It was evidence of an admission by the Obi against himself. In the same manner, the oral evidence of the 1st and 3rd defendants that the Obi granted them licence to fish in the ponds is a direct evidence of the transaction between them and the Obi and is therefore admissible.

The crucial question in the case however is whether there was evidence to support the finding of the trial judge as regard the traditional evidence and or evidence of acts in recent times as to the ownership of these lakes.

In this connection, the plaintiff pleaded that his ancestor Eze Iwerie, was the first immigrant from Benin to found or settle on the land and by Aboh native custom, he and his descendants, after his death, have exclusive right to fish in the ponds. He pleaded also that by virtue of being the first settler, he and his descendants established juju shrines by the lakes, named them and worshipped the fetish and in addition, performed certain exclusive rituals at the enthronement of the Obi and at his demise. These facts which the trial judge did not accept, are irrelevant since the plaintiff’s witness said his family did not recognise the Obi as the paramount head of the Aboh people. And no evidence was led whatsoever that his ancestor introduced fish into the ponds. He pleaded also that the present Obi is from Issala, which meant that he was not a native of Aboh, but in evidence, he (plaintiff) admitted that he was a native of Aboh from Ogbe-Uku Quarters in Aboh. His witness, P.W.1 testified that the present Obi was not a native of Aboh but a native of Igbuku. “Igbuku people are more or less Isoko people.” This witness testified that “Arumona family does not regard the Obi of Aboh as their head. We recognise the Okpala of Ewerie as our head. He lives at Umu-Ossai. Ewerie built a house which was his palace. Where he lived was at Oko, our old settlement. This Oko is not part of Umu Ossai village – Oko is situate at a point after Asaba-Ashaka. The Oko is between Asaba-Ashaka Band Igbuku.” He pleaded a number of court judgments to support his case, but failed to produce any of them. He never called any Aboh native to support the traditional evidence in support that his ancestor founded Oko or when or how the Okpala of his family moved from Oko to Umu-Ossai in Aboh. In Exh. E, Mbanefo, J. found: “I am satisfied on the evidence that Oko village is an Igbuku settlement… I based my finding that Oforboh belongs to the Plaintiffs – the lake was first discovered by their ancestor.” Reviewing the evidence on which he based his judgment, Mbanefo, J., stated “the 1st plaintiff was made the Obi about 38 years ago and since then he has enjoyed the exclusive use of Oforboh lake ….. The eight other lakes which with Oforboh were reserved for his exclusive use as the Obi of Aboh.” Exhibit E shows clearly together with the uncontroverted evidence that the present Obi claimed, as did his predecessor in office, that the lakes belong to the entire Aboh community and were reserved for the exclusive use of the incumbent Obi and that in that capacity, he successfully evicted Joseph Okuguni, a stranger and trespasser. The reasonable inference is that all the Aboh people actually own and have been always in possession of Oforboh lake.

The 3rd defendant, a 69 year old pensioner and a native of Aboh, from the same Umu Ossai village as the plaintiff, gave traditional evidence derived from his parents and from his knowledge of Aboh native law. He testified that Oko bush is not the same as Aboh bush but the Oforboh lake is in Aboh bush. He testified that he fished at Oforboh when he was a young boy along with others and that it is not true that Oforboh lake and the other big lakes belong to the Arumona family but that “the whole Aboh land belongs to Aboh Community. Although it is true to say that individual Aboh citizen have small holdings in Aboh land for farming, the lakes belong to the Obi of Aboh. Individuals can have small fishing ponds on Aboh land.” Earlier in his evidence, he testified that “from time immemorial land around Oforboh, Iyi Oji and Oshia lakes belong to the people of Aboh but the lakes were given to the Obi of Aboh – that is – to whoever becomes the Obi of Aboh…….From history, the founders of Aboh came in group from Benin. The lakes were given by the Community to the first Obi of Aboh. The lakes for the community are those I use. According to history, when the people came from Benin they did not come with a king but they later appointed one by themselves. The Obi of Aboh is not appointed from one Aboh family….Anybody who fishes in Oforboh lakes does so with the consent of the Obi of Aboh. Anybody who fishes in the lake without the Obi’s consent would be in trouble….I went there because I hired the lake from the Obi of Aboh.” Earlier in his testimony he said “the Obi of Aboh hired out Oforboh lake to me for the period 1976 to 1978. It was hired out to me for fishing. The Obi gave me a document in respect of the hire Oforboh lake to me. I have the paper with me here. I paid 1,200pounds for the three year term….The 1,200pounds was paid by three of us that is the 1st and 2nd defendants and myself ……” The two papers (exhibits C and D) said to have been received from the Obi were tendered and received in evidence without objection. These documents were pleaded in paragraph 8 of the Amended Statement of Defence. The 1st Defendant, also a native of Aboh, also supported his evidence, that he and the other defendants entered the lake after they hired the lake from the Obi of Aboh. He testified further:

“I was born in Aboh I have been fishing in Oforboh lake before we hired it from the Obi of Aboh. When someone hires the lake from the Obi of Aboh and throws it open, we fished there. When I fished there under the licence of the person who hired it from the Obi of Aboh, but this time, we hired it from the Obi of Aboh.”

The trial judge accepted his evidence and rejected that of the plaintiff and his witness. It has not been suggested that the evidence given by this defendant is inadmissible or irrelevant. As I have earlier observed, the 1st D.W., one of the Obi’s Councillors testified that he was mandated by the Obi to represent him and to give evidence admitting that he, the Obi of Aboh, permitted the defendants to fish in the lakes including the Oforboh lake.

In addition, he testified as to his own knowledge of Aboh custom:-

“I know that Aboh land is owned by the whole Aboh people which the Obi holds in trust. I know Oforboh lake. I know it is one of the nine lakes reserved exclusively for the use of the Obi of Aboh. When an Obi vacates the throne, the hike reverts to the whole community along with others. As soon as a new Obi is installed the Aboh Community takes off their hands from the nine lakes which are reserved for the Obi. With the present day fishermen, the Obi gives out Oforboh lake on hire. I know the Obi hired the pond to 1st and 3rd defendants…….To my knowledge not a simple ( single) citizen of Aboh has ever challenged the right of the Obi to use the lake as such before this action.” The evidence of this witness is, in my view, admissible. From the above evidence and those of the other witnesses called by the plaintiff, the trial judge found, inter alia:-

1. “It is inconceivable that the two witnesses (3rd and 4th P.Ws.) told the truth that they fished occasionally in Oforboh lake and he gave reasons for rejecting their evidence.

He rejected plaintiff’s evidence of the traditional history that his ancestor, Eze Iwezie, first settled in the area when the Abohs left Benin. He observed that “the most startling evidence from P.W.1 is that it is only the Arumona family of the four or five families in Umu-Ossai that does not recognise the Obi of Aboh as their head and that it is Okpala Ewerie that they recognise.”

Yet in the amended statement of claim, the plaintiff pleaded of traditional rituals which were the exclusive prerogative of the Arumona family at the coronation of the Obi and at his demise. All that the trial judge said were reasons for finding the traditional evidence of the plaintiff unreliable. He observed the evidence was inconsistent unreliable. The appraisal of the evidence was principally the function of the trial judge and not that of appeal court, unless and except such findings are clearly wrong and perverse. See Balogun & Ors. v. Alimi Babalola (1974) 1 All NLR. 66 at p. 77 and Chief Frank Ebba v. Chief Warri Ogodo (1984) 4 Sc. 84, p. 90.

It was also the plaintiff that has to prove either prior possession or better right to possession, since title to the lakes was in dispute. Anachuna Nwakafor & Ors. v. Nwankwo Udeghe & Ors. (1963) 1 All NLR. 417, p.418 Mogo Chiwendu v. Nwanegbo Mbamali & Anor. (1980) 3/4 SC. 31.

It is therefore difficult to appreciate how the learned justices of appeal came to the decision that the trial judge’s approach was wrong and that on a proper appraisal of the evidence he ought to have held that the plaintiff proved his case in the face of the evidence in support of his findings. Besides, the earlier judgment Exhibit E, was not pleaded in paragraph 9 of the Amended Statement of Defence as estoppel per rem judicata but for the sole purpose of strengthening their defence of the right or title of the Obi of Aboh to the fish lakes and particularly Oforboh lake as his predecessor Oputa II, who successfully prosecuted the suit on behalf of the Aboh people against a stranger who claimed ownership and trespassed on the Oforboh lake. It seems to me that the learned justice of Appeal misdirected themselves when they held that paragraph 8 of the defence raised the plea of estoppel per rem judicatam when it did not. Ikwechegh, J.C.A., clearly misdirected himself that Exhibit E was irrelevant and worthless on the principle of Alade v. Aborisade (1960) 5 FSC. 167. To my mind the case is irrelevant to the point. The trial judge did not use the evidence of any witness in the trial before Mbanefo, J. What the trial judge did was to use the judgment along with other evidence before him, as a recent act of ownership of Oforboh lake by the Obi. The judgment clearly established the fact that the then reigning Obi of Aboh on behalf of the Aboh people successfully established the title of the entire Aboh Community against a stranger. Similarly, Nnaemeka-Agu, J.C.A., was equally in error in that he misconceived what Mbanefo, J., said in Exhibit E and what the case actually decided when he held that the present Obi of Aboh was not privy of Obi Oputa II. His views was “the declaration of title to the lake in Obi because his ancestors founded the lake.” The “ancestors” in the above con could have no other meaning besides the ancestors of the Aboh people, on whose behalf the two plaintiffs’ were prosecuting the case against the stranger.

The judgment (Exh. E) went further to explain:

“Since then, they say the lake has been in the undisputed possession and ownership of the Aboh people.” Nnaemeka-Agu, J.C.A. seems to believe that the present Obi, as his successor in office and in that capacity, had the same right to the Oforboh lake as the demised Obi, his predecessor. Extract from Exh. E reads:-

“The 1st plaintiff was made the Obi about 38 years ago and then he has enjoyed the exclusive use of Oforboh lake …..The first plaintiff says he does not fish in the Oforboh lake himself. He has tenants whom he lets the lake to and they pay him rent or tribute.”

In Mogo Chinwendu & Anor. v. Nwanegbo Mbamali & Anor. (1980) 3/4 SC. 31 Aniagolu, J.S.C. stated the principle to be appiled where a Judgment is pleaded not as estoppel per rem judicatam and binding the parties or their privies to the proceedings. Such judgment as Exh. E could be used as a defence that the Aboh people, as a community, through their Obi successfully asserted the right to the use and possession of the Oforboh lake, and that was what the incumbent Obi of Aboh did in this case to support the fact pleaded by the defendants. In other words, the judgment although not binding on the plaintiffs as estoppel by record, strengthened the case of the defence that the entire Aboh people owned the Oforboh lake, and it has consistently been in their possession through an incumbent Obi of Aboh and reserved for his exclusive use. It further supported his claim of right to grant licence to any person to fish in it.

In this case the learned trial judge specifically rejected the traditional evidence given by the plaintiff and his witnesses and found that the plaintiff failed to prove exclusive possession of the fishing lake. He cannot in the circumstance successfully sue the defendants in trespass particularly when there was no finding that he or any member of his family was ever in possession of the lake.

Mr. Agbamuche has argued that it was wrong for the learned justices of appeal to reverse the judgment of the trial court on the ground that it had made a wrong use of Exhibit E. I agree for the reasons which I have given that his contention is well founded.

It was also contended by him that the court below was in error in holding that the testimony of D.W.1 has no evidential value. I have earlier expressed the view that his evidence to the effect that the Obi admitted to him that he permitted defendants to fish in the lake was not hearsay, but evidence against the Obi himself that he permitted the defendants to fish in the Oforboh lake. Likewise, his evidence of the Aboh native custom regarding the reservation of the nine lakes for the exclusive use of the reigning Obi is clearly admissible both as a traditional piece of evidence and as a matter within his knowledge. Plaintiff failed to prove a better right to possession and his claim for trespass must therefore fail. See K. Nwosu v. J. Otunola (1974) 1 All NLR. (Part 1) 533.

As regards the two documents Exhibits C and D, said to have been issued by the Obi to the 1st and 3rd defendants, Dr. Enemeri, learned counsel for the plaintiff/respondent agreed they were rightly admitted in evidence but said that the strictures made by Nnaemeka-Agu, J.C.A. are justified. I do not agree. The question of what weight to place on them was clearly the function of the trial judge. I cannot see any reason to disagree with the trial judge on the weight he placed on them.

The Obi of Aboh who issued the receipt for reasons best known to himself sent the 1st D.W. as his delegate to confirm before the court at the hearing that he permitted the defendants to fish in the Oforboh lake. In my view, the evidence of the 1st and 3rd defendants coupled with that of D.W.1, supported the two documents alleged to have been made by the Obi. The plaintiff did not lead evidence to contradict or challenge the fact. The suggestion to the 3rd defendant, who tendered them in evidence, was that the Obi of Aboh antedated them to bloster up the case for the defence.

In conclusion, I am of the view that the justices of appeal went far beyond their competence by re-evaluating the evidence which was the function of the trial judge, and their approach to the case as a whole was misconceived. In my view, the learned trial judge dealt adequately with the issues and evidence adduced before him and in his judgment he applied the law correctly. The Court of Appeal was therefore in error to have interfered and substituted its own view on the evidence when those findings were not pervert. See Chief Frank Ebba v. Washi Ogodo & Ors. (1984) 1 SCNLR. 372.

In the result, I will allow the appeal, set aside the judgment and order for costs of the lower court and restore the judgment of Idahosa, J., given in the High Court of Bendel State in the Kwale Judicial Division on the 15th day July, 1981.

The defendants/appellants are entitled to costs both in the lower court and in this Court fixed at N250.00 and N300.00 respectively.

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SC.209/1984