Ejemruvwo Oyovbiare & Ors. V. Ted Omamurhomu (1999)

LAWGLOBAL HUB Lead Judgment Report

O. OGWUEGBU, J.S.C.

The appellants who were plaintiffs in the trial court instituted the action leading to this appeal against the respondent who was the defendant claiming as follows:

(a) A declaration that as Owners in possession of the land verged pink within the land verged green in Survey plan No. KP704 at Adeje Village, outside an urban area and in whom the land was vested prior to 1978, the plaintiffs continue to be holders in possession of the said land and are the person (sic) entitled to the Customary Right of Occupancy over the land.

(b) The sum of N10,000.00 (ten thousand Naira) being damages for trespass and nuisance committed on the land.

(c) An order of perpetual injunction restraining the defendant from committing any further acts of trespass and nuisance on the said land:’

Pleadings were ordered, filed and exchanged. At the conclusion of that hearing, the learned trial judge Akenzua, J. in a considered judgment dismissed the claims of the plaintiffs. The plaintiffs dissatisfied with the judgment of the learned trial judge appealed to the Court of Appeal, Benin Division. That court allowed the appeal and ordered a retrial of the case by the High Court of Delta State. Dissatisfied with the order of retrial, the plaintiffs have further appealed to this court.

By their pleadings and oral evidence given on their behalf the plaintiffs claimed that from time immemorial, their ancestor Okoro founded a large parcel of land verged green in Survey Plan No. KP704 (Exhibit “A”), that by Urhobo Native Law and Custom, the land of a founder or owner upon his death passes on to his descendants from generation to generation and that it is through this process that the land in dispute founded by Okoro passed on to them. They also claimed that from the time of its founding, the plaintiffs’ ancestor Okoro and after him his descendants have been in possession of the said land by farming, cultivating economic crops, building houses and granting parcels of it to various persons.

In paragraph 2 of the Statement or Claim the plaintiffs averred:

“2. The defendant is a native of Okwuvo in Okpe Local Government Area. After the death of his father, his mother Ejerha married Akerho Oghoghome (m) of Okwuvo who was the Headmaster of L. A. School Adeje in those days, Defendant’s mother moved to Adeje with defendant to live with her husband Akerho Oghoghome in a house built on the land by the L.A. School Adeje which plaintiffs’ family gave him.”

The defendant’s case is that his mother purchased a piece of land verged brown on Exhibit ‘”G” in 1966 from one Chief Agbi Goba the head of Okoro Family who had since died, that the plaintiffs were present during the transaction, that it was then he first knew the plaintiffs and that there was a written agreement evidencing the sale. That when Chief Agbi died, Avwiakparu family members protested and said that Okoro family had no right alone to sell the piece of land to his mother. Among the members of Avwiakparu family that protested were Chief Oghoro, Ogedegbe, Idisi and Umukoro. The matter was referred to one ldamugolo Erakpotobor who testified as P.W. 5 in this case. A new agreement Exhibit “E” was prepared in the house of P.W. 5 by the 3rd Plaintiff (John Akpome).

On 14-1-68, the defendant bought another piece of land in his own right from one Orherekeraye Edigbor who had also died, This piece of land is verged pink on Exhibit “G”. That an agreement Exhibit “F” was entered into in respect of this transaction and he surveyed the land after the purchase.

He testified that the 3rd plaintitf is the Secretary of Avwiakparu family at the time Exhibit “E” was prepared, he was also the head of Okoro family. The 3rd Plaintiff (John Akpome) also signed Exhibit “E” as Secretary of Avwiakparu family and that the plaintiffs were all present during the transaction.

The case of the defendant was clearly brought out in paragraph 8 of the statement of defence, paragraph 8 reads:-

‘”8 In answer to the Plaintiff’s case the Defendant states as follows:

(i) That the averment in paragraph 2 of the Statement or Claim are correct if the paragraph is intended to mean that Akerho Oghoghorne lived in a house built on the land given to him by the plaintiffs’ family which land shares boundary with L.A. School, Adeje but the size of the land is incorrectly represented on the Plaintiffs’ Plan. The correct size is represented on the Defendant’s plan and verged Green.

(ii) On 14/6/68 one member of the Plaintiffs’ family by name Orherekerayo Edigbor sold the land in dispute to the Defendant and issued him with a receipt which shall be relied on at the trial. The said Mr. Edigbor sold in his own right as the exclusive owner of that parcel of land. The said portion of land sold is delineated on the Defendant’s Plan filed in this suit and verged Pink.

(iii) The portion of the land verged Brown in the Defendant’s Plan was also sold to the Defendant’s mother by one Chief Agbi Goba the Head of the Okura Family at the time of purchase which was affected in the early sixties. In 1973, the 30th June to be precise, the 3rd Plaintiff who was the Secretary of the Okoro Family reduced the purchase agreement into writing which agreement the Defendant shall rely on at the trial. This agreement surfaced as the result of an agitation by some extended members of Avwiakparu Family and to pacify them, the 3rd plaintiff was commissioned by them to prepare the said agreement to supersede the earlier one also prepared by him.

(iv) The resultant effect of these transactions is that both the Defendant and his mother became owners in fee simple for value of the parcels verged Pink and Brown on the Defendant’s Plan and the one verged Green by Gift to the Defendant’s step father.”

The trial judge (Akenzua, J.) after considering the evidence dismissed the plaintiffs’ claims holding that the defendant did not commit any act of trespass on the land in dispute having been put on the land by the 3rd plaintiff on behalf of the Okoro and Avwiakparu families. Dissatisfied with the judgment, the plaintiffs appealed to the Court of Appeal. The appeal was allowed and a retrial was ordered. The plaintiffs were dissatisfied with the order for retrial and have further appealed to this court. A brief of argument was filed by the appellants and none was filed by the respondent. The time to file the brief had expired and there was no application for enlargement of time to do so.

From the three grounds of appeal filed, the appellants identified one issue for determination in their brief of argument, namely:

“Whether the learned justices of the Court of Appeal were right to have ordered a retrial in this case. In other words, is this a case where a retrial ought to have been orderedChief Okpoko S.A.N. submitted in the brief that the court below in making the order for retrial based its decision on Onobruchere v. Esegine & Or. (1986) 1 NWLR (Pt.19) 799 and in doing so, it did not consider whether the facts of that particular case are on fours with the facts of the case leading to this appeal. He submitted further that the court below clearly understood the complaint brought before it when it held as follows:

“Based upon the above findings, the appellants are contending that having found in the appellants (sic) favour that they owned the land, the learned trial judge was wrong to have put on the appellants the burden of proving that the appellants’ family has not been divested of their title or interest in (the land in dispute), and whether the learned trial judge was also right to have held (sic) that the respondent has acquired the land in dispute by purchase …. From what I have said above and the above passage from the judgment of the learned trial judge, what I now have to determine is whether the learned trial judge’s conclusion that it was for the appellants to prove, not only that the respondent become seised (sic) in dispute were bought from the proper persons in the evidence before the court …. But he was clearly wrong to have thereafter placed the burden of proving that the respondent purchased the land in dispute for value and from the proper persons on the appellants. What the learned trial judge had done in this case is what was frowned upon in the authorities which I have referred to above:’

The learned appellants’ counsel further contended in the brief as follows:

“Plaintiffs humbly submit that the appeal having succeeded on the issue contested, the learned justices sought to have entered judgment for the plaintiffs in line with the reliefs set out in the Statement of Claim. Instead of doing this, their Lordships without affording the parties a hearing proceeded erroneously to make an order remitting the case back to the High Court for retrial. Plaintiffs submit that there was no basis for ordering a retrial and that the Court of Appeal was wrong to make such an order.”

As to the principle on which an appellate court may order a retrial, the following cases were cited: Ayoola v. Adebayo & 0rs. (1969) 1 All NLR 154 at 157, Okedare v. Adebara (1994) 6 NWLR (Pt. 349) 157, Onobruchere v. Esegine (supra) and Onyeakaonwu v. Ekwubiri (1966) 1 All NLR 32.

It was finally submitted that the defendant having pleaded and admitted that the land is Okoro family land and the trial judge having found that the land is Okoro family land, the burden is on the defendant to prove that Okoro family title has been extinguished by a valid transaction which vested the title in him.

The defendant led evidence in line with his statement of defence and his evidence under cross-examination as to how he came by the piece of land in dispute was not shaken. He stated:

“On the making of Exh. E. the first agreement to (sic) my mother was recovered from her by the people. 3rd plaintiff is a Secretary to Avwiakparu family. At the time on 30/6/73 John Akpome was the Head of the Okoro Family. The 1st plaintiff is next to John Akpome. The 2nd plaintiff is next to the 1st plaintiff. The family gathered together when the Exh. E was being prepared. The plaintiffs did not sign Exh. E. John Akpome from Okoro family signed, as Secretary. John Akpome is also the Secretary to Avwiakparu family. John Akpome was acting for both Okoro family and Avwiakparu family. Ocheghe was present when Orhcrekeraye Edigbo sold the piece of land to me. Godwin Aforome too was present. Iboye Ogban was there too. The members of Okoro family did not tell my mother that Okoro family land has been shared among the children of Okoro.”

The learned trial judge rightly found that there was no dispute as to the ownership of the land verged green in Exhibit “A” having regard to paragraphs 1, 2, 3, 4, 5 and 6 of the statement of defence and that the only questions that called for determination by him were:

“1. Is the defendant in the land of the plaintiffs through a sale of part of it

2. If so is the sale binding on the defendant as well as on the plaintiffs

From the totality of the evidence adduced he made the following findings:

“John Akpome incidentally is the 3rd plaintiff in this case. He did not give evidence …. There is evidence that Ihenajerha Oghoghomen was defendant’s mother. Third plaintiff is said to have signed Exhibit E not only as a member of Okoro Family and as Secretary to it but also as Secretary to Avwiakparu family acting for both that family and Okoro family. This evidence was not rebutted. The evidence was not challenged… There is evidence that 3rd plaintiff is a descendant of Okoro family through one of Okoro’s children called Ezikeme a female…..

I am therefore left with the irresistible conclusion on the facts before me that the piece of land in controversy as shown in Exhibit A was sold to the Defendant’s mother and also to the defendant. …The plaintiff should have been more positive about the defence of sale put forward by the defendant. Mere denial of an averment is not enough …. From the state of the pleadings and the evidence adduced before me I am satisfied that the defendant bought and his mother also bought the piece of land which form the subject matter of this action. The evidence surrounding Exh. E is that the 3rd plaintiff who drew up the agreement both as a Secretary to Avwiakparu family and as a descendant of Okoro Family acted for both Okoro family and Avwiakparu Family (sic) …. The plaintiffs’ claim in this action before me is founded on the trespass as contained in paragraph 9 of the Statement of Claim. In meeting this averment the defendant pleaded that he entered on to the said land not (sic) as a trespasser but as a buyer though not from the plaintiffs directly. This he had substantiated by the production of Exh. E & F which I believe from the totality of the evidence adduced, he had tendered to show how he entered the land in dispute and as a ground of defence to that allegation by the plaintiffs that he had trespassed. … As Exh E is worded (see the reproduction above) I am satisfied that the defendant’s entry into plaintiff’s land is justified and warranted …

The court below reversed the findings of the learned trial judge and ordered a retrial thus:

“From the foregoing averments of the respondent, it is implicit that he has raised as the basis of his claim to the land in dispute the fact that the pieces of land were sold to him by those who were entitled so to do. Now ought he not establish these averments’! Learned Senior Counsel’s contention that the onus lies on the respondent is in my view right. For the justification of my view that the onus rests squarely on the respondent, I refer to the case of Onubruchere v. Esegine (1986) 1 NWLR (Pt.19) 779 …. But he was clearly wrong to have thereafter placed the burden of proving that the respondent purchased the land in dispute for value and from proper persons on the appellants …. The effect of what I have said therefore is that this appeal must be allowed by me. The judgment and orders of the Lower Court are hereby set aside. The case is sent back herewith for retrial before another judge of the High Court of Delta State … ”

I think the court below misconceived the findings of the learned trial judge and was in error when it ordered a retrial. There was no misdirection by the learned trial judge as to the onus of proof In this case. He had a clear view of the provisions of section 137(1) and (2) of the Evidence Act. Cap. 112, Laws of the Federation of Nigeria, 1990. The plaintiffs claimed a declaration of entitlement to customary right of occupancy, damages for trespass and an order of perpetual injunction in respect of the land in dispute verged pink in Exhibit “A” which is within the larger area verged green in the said Exhibit “A”. The defendant pleaded purchase of the said parcel of land. He admitted that the plaintiffs’ family are the owners of the larger area of land verged green in Exhibit “A” and that the portion verged pink comprised portion of land sold to his mother and himself. He led evidence in proof of the purchase which made his entry on the land lawful. This evidence which was uncontradicted was believed by the learned trial judge after evaluating the evidence led by both parties. He came to the conclusion that the defendant satisfactorily proved the purchase and that his entry on the piece of land verged pink on Exhibit “A” was not unlawful.

The plaintiffs throughout the proceedings made no effort to challenge the claim by the defendant in the statement of defence and in evidence at the trial that he bought the parcel of land in dispute. It was not even the plaintiffs’ case that the defendant did not buy from their accredited representatives in which case the sale could be void or voidable. The comment made by the learned trial judge on their silence was a mere observation. He nonetheless evaluated the evidence and was satisfied that there was infact a sale of the piece of land in dispute to the defendant and his mother. After the defendant led evidence of purchase, the plaintiffs adduced no evidence at all in rebuttal.

In civil cases, the general rule is that the burden of proof rests upon that party, whether plaintiff or defendant who substantially asserts the affirmative before evidence is gone into. This rule is clearly stated by Eso, JSC in Tewogbade v. Akande (1968) NMLR 404 at 408 thus:

“The position therefore is this, in a civil case, the burden of proof lies on the person who would fail, assuming no evidence had been adduced on either side. Further, in respect of particular facts, the burden rests on the party against whom judgment would be given if no evidence were produced in respect of those facts. Once that party produces the evidence that would satisfy a jury then the burden shifts on the party against whom judgment would be given if no more evidence were adduced.”

See also Are v. Adisa & Or. (1967) NMLR 304.

It is also an established rule that once it is proved that the original ownership of property is in a party the burden of proving that party has been divested of the ownership rests on the other party. See Isiba & Ors. v. Hanson & Or. (1967) 1 All NLR 8 at 10. The defendant, in my view, which accords with that of the learned trial judge successfully, discharged the burden of proof that the plaintiffs had been divested of the ownership of the portion of land verged pink in Exhibit “A”. See Thomas v. Holder (1946) 12 WACA 78.

As I stated earlier, there was no misapprehension as to the onus of proof by the learned trial judge and there was also no misdirection casting the onus on the plaintiffs. Rather, the court below was in error when it misconceived the clear findings of fact made by the learned trial judge. We should constantly remind ourselves that an appellate court should be slow to disturb a finding of fact made by a trial court which is supported by evidence unless it is satisfied that such finding is unsound. That is not the case in the present proceedings. In view’ of the conclusion reached by the learned trial judge which I hereby affirm, the court below was in error to have ordered a retrial. To that extent, I allow the appeal and set aside the judgment of the court below dated 12-12-91. I make no order as to costs, the respondent did not file his brief of argument and was not heard in oral argument at the hearing of the appeal.

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SC.65/1993