Francis A. Odiete & Anor. V Omamujewhe Okotie & Ors. (1972)
LawGlobal-Hub Lead Judgment Report
G. B. A. COKER, J.S.C.
In the High Court, Sapele, in the Mid-Western State, Francis Odiete and Stephen Oritsedere on behalf of themselves and on behalf of Oghoghovbe Family of Abraka as plaintiffs had instituted an action against the present respondents who were then defendants claiming, according to the endorsement of their writ of summons, as follows:-
(1) Against the 1st-3rd defendants only a declaration of title to a piece of land at Ekrejeta Quarter in Abraka in Western Urhobo District of Delta Province. The area and situation of the said piece or parcel of land will be more particularly described and shown in the survey plan to be filed later in court by the plaintiffs ‘9197 the annual rent of the said piece of land is ’91’a310.
(2) Against all the defendants, the sum of ’91’a3200 being general damages for trespass committed by the defendants on the said piece of land.
(3) An order of injunction to restrain the defendants and their agents and/or servants from further trespassing on the plaintiffs’ said piece of land with respect to which plaintiffs now seek a declaration of title.”
The plaintiffs’ statement of claim avers that both plaintiffs are members of the Oghoghovbe Family of Ekrejeta Quarter in Abraka; that Ekrejeta is one of the four quarters which make up the Oruarivie Section of Abraka (the other quarters being Urhuake, Urhuogo and Urhuavie), that each quarter had its own separate and defined area of land, that Ekrejeta Quarter itself is made up of 5 families of Oghare, Osori, Ojugo, Evebua and Owherhuo and that the plaintiffs are descendants and members of the Oghera Family branch. The statement of claim further states that Oghare had four children namely, Oghoghovbe, Omokoro, Owa and Uwruvbe and that Oghoghovbe and his children had always farmed the land in the present dispute without any let or hindrance whatsoever until the events that led to the present dispute. The statement of claim also avers that some time ago one Okotie, the ancestor or progenitor of the defendants and a member of the Ehobo Family of Urhuoka Quarter, begged one Chief Okonedo of the plaintiffs’ people “for a piece of land at Ekrejeta Quarter near the river…..where he could do his fishing,” that the said Okotie and his family lived on the area granted to them for some years but that at present his descendants and people have now started to plant economic trees on the said land gradually extending the dimensions of it and indeed had sold a portion thereof to the 4th defendant, Madam Evbesioro Agbuji, who was erecting a building thereon. The defendants’ statement of defence claimed the land as the bona fide property of the 1st-3rd defendants who by themselves and their ancestors had always been possession thereof exercising all acts of ownership including the planting of economic trees, founding settlements thereon and in particular paragraph 10 of the statement of defence reads as follows:-
“10. In further answer to paragraph 6 and 7 of the statement of claim the 1st-3rd defendants say that in so far as the plaintiffs seek to bring this action of behalf of Oghogovbe family (which Oghoghovbe is said to be the child of Oghare) of Ekrejeta Quarter, they are estopped by the decisions in (a) Suit No. 191/38 between J.A. Majoroh, a member of the plaintiff’s family of Ekerejeta and Ataghogho, a member of defendant’s family (Okotie family) given on 28/11/38 by the OLD ABRAKA CLAN COURT, (b) Suit No. 164/39 between Ataghogho a member of defendant’s family (Okotie family) and J.A. Majoroh a member of plaintiff’s family, given on 18/12/39 by the OLD ABRAKA CLAN COURT, (c) The appeal therefrom, Appeal No.7/A/1940 given by I.R.P. Heslop Magistrate full powers on 30/3/43 at Kwale. These actions, Suit Nos. 191/38 and 164/39 and case No. 7/A/1940 will be founded upon at the trial.”
At the trial, the parties gave evidence in support of their pleadings. The plaintiffs by their surveyor produced a plan of the land which, according to them, represents the area in dispute and this was admitted in evidence as Exhibit GOE1 and GOE1A. The defendants through their own surveyor produced their own plan of the land in dispute and this was admitted in evidence as Exhibit OEO1. The plaintiffs called evidence to describe the land which they claimed and the boundaries. One of the witnesses called by the plaintiffs gave evidence touching on the relationship of the lands of the parties to each other. He was David Oghenetueka Dafe the Clan Otota or spokesman at Abraka. He testified, inter alia, thus:
“Each sub-section has its own settlements and farm lands. Coming from Agbor towards Sapele, Ekrejeta is the nearest sub-section to Sapele. Urhuoka is next to Ekrejeta. A tall tree called Patapata marks the boundary between them. A foot path leads from the main road to the Ethiope River. Standing on the foot path and facing the river the land the left hand side belongs to Ekrejeta and that on the right hand side from the Patapata tree belongs to Uruaka. That is on the Agbor side. After that going towards Sapele one gets to Ekrejeta further on another footpath leads to the River, Okotie settlement is within the area enclosed by the two foot paths.”
One of the principal issues canvassed at the trial was the case fought and won by one Majoroh a native of Ekrejeta to whom the plaintiffs said they had given a portion of their land for settlement. Testifying with respect to the case of Majoroh, the 1st plaintiff, Francis Akpovbovbo Odiete said as follows:-
“After Okotie’s death the 1st, 2nd and 3rd defendants and Okotie’s other children entered Chief Majoroh’s land and planted rubber trees there. Majoroh sued them at the Abraka Native Court for trespass. He obtained judgment. Chief Majoroh was a native of Ekrejeta. He is dead.”
The witness was also emphatic that the District Officer did not at any time in the course of the proceedings in that case demarcate the land in dispute between the Ejeta Family as represented by Majoroh and Ataghogho Okotie representing Okotie’s family.
The defendants gave evidence of the settlement on the land by their own ancestor Okotie who had migrated there “from the main Abraka Town”, settled there as of right and without the permission of Chief Okonedo or anyone else. Speaking about Majoroh and the case he had with the defendants’ people, the 2nd defendant, Avwevughware Okotie, testified in part as follows:-
“We once had a dispute over the land in dispute with the plaintiffs’ family, Ekrejeta family. Their family sued Otabobo our half brother. The claim was heard at the Abraka Native Court. My brother lost the case. He appealed to the District Officer’s Court at Kwale. The District Officer inspected the land and demarcated it between the Ekrejeta family. The footpath marking the southern boundary of the land was the line of demarcation. I know Chief Majoroh, he was the spokesman in the Ekrejeta family.”
A witness for the defence, Ataghogho Okotie also testified to the case with Majoroh and produced in evidence as Exhibit A01 and Exhibit A02 the judgments respectively of the Abraka Native Court in that case and of the District Officer, Mr. Heslop, on appeal therefrom.
In the course of his judgment in the case, the learned trial Judge dismissed the plaintiffs’ case against the 4th defendant who in any case was reported dead at the time of the judgment and for whom no substitute was ever asked for or placed. The learned trial Judge held that the plea of estoppel per rem judicata was established by the defendants against the plaintiffs in that Exhibits A01 and A02 were decisions on the land in dispute binding on the parties and he concluded that even if he was wrong in holding that res judicata was established, the plaintiffs’ case was not, on the facts, established as they failed to discharge the onus of proof which the law had placed on them. He then dismissed the plaintiffs’ case with costs.
This appeal is from that judgment and the complaints before us are, firstly, that the learned trial Judge wrongly upheld the plea of estoppel per rem judicatam and secondly, that the findings of facts of the learned trial Judge were not supported by the evidence.
In our view, neither of these complaints is sound. With respect to the findings of facts, the learned trial Judge preferred and accepted, as he was always entitled to do, the evidence of the defence to that of the plaintiffs. It is not enough for a party to a case who has the onus of establishing a particular fact to say that his own evidence is just as good as that of his opponent; for what the law says that he must do in order to discharge the onus of proof on him is to prove by evidence, which convinces the court or tribunal of the probability of his case rather than that of his opponent, the point in issue. It is not an argument that the scales are evenly weighed for evidently in that case he does not discharge the onus. We observe that in the present case learned counsel for the plaintiffs has asked us to enter a non-suit for his clients. We are unwilling to do this for the order of non-suit is not to be employed for affording yet another opportunity to a party who had failed to discharge the onus of proof which lies on him but only when in the interest of justice the plaintiff has only failed to get judgment on account of a hitch of which the defence is not, in the opinion of the court, entitled to take an advantage. See generally the observations of this Court in the case of Craig v. Craig (1967) NMLR 52.
Turning now to the issue of res judicata, we observe that the Judge was at pains to study the records of the Native Court cases relied upon, i.e., Exhibits A01 and A02. The defendant in that case was Majoroh, concerning whom the plaintiffs had a lot to say in this case. A perusal of the proceedings too easily reveals that the principal witnesses for the defence in that case were from the family to which the plaintiffs belong; and indeed the evidence given in defence was tantamount to claiming the land occupied by Majoroh and trespassed upon as the land of the plaintiffs in the present action. The learned trial Judge examined closely the two plans produced before him, i.e., Exhibit GOE1 (and GOE1A) and Exhibit OEO1. He stated and commented upon the description of the land in dispute in that case by the Native Court. After all, the present dispute ranges around the eastern boundary of the plaintiffs’ land for it was never in dispute that the parties to this case are neighbours of each other. The learned trial Judge was able to, and did, identify the settlements of the plaintiffs on their own si de of the Heslop partition or demarcation and rightly, in our view, concluded that the plaintiffs would not have been where they were if it had not been in obedience to or compliance with the boundary marked out by Mr. Heslop, Magistrate Full Powers, in Exhibit A02. Hence, the land litigated both in the present case and in Exhibit A01, is the same. The issue was then, as it is now, that of title and the parties were the same whether by themselves or those to whom they are privies. There is nothing more to complete the defence of estoppel per rem judicatam and the learned trial Judge rightly came to the same conclusion. If the plaintiffs were not in the circumstances estopped by res judicata, they would be and indeed are clearly estopped by conduct and this is as well within the contention of paragraph 21 of the defendants’ statement of defence which states that:-
“The defendants will at the trial plead estoppel, laches, long possession and will contend that the plaintiff’s claim is frivolous, vexatious and speculative and will ask that the same be dismissed with substantial costs.”
We have come to the conclusion that all the grounds of appeal argued on behalf of the plaintiffs must and do fail.
The appeal also fails and it is dismissed. The appellants will pay to the respondents the costs of this appeal fixed at 44 guineas.
SC.245/1969
