Frederick Onagba Oduaran & Ors. V. chief John Asarah & Ors (1972)

LawGlobal-Hub Lead Judgment Report

T. O. ELIAS, C.J.N. 

 In Suit No. W/20/66, an action was commenced by a Writ of Summons taken out on April 27, 1966, in the High Court of the Warri Judicial Division but, upon the creation of the Ughelli Judicial Division, was later transferred to the High Court at Ughelli, Mid-Western State, where it was concluded. The plaintiffs’ claim against the defendants jointly and severally are as follows:

1. Against the 1st and 3rd defendants jointly and severally, a declaration of title to all that piece or parcel of land lying and situate in the neighbourhood of Uwerun, Central Urhobo District, within the jurisdiction of this Honourable Court, which said piece or parcel of land is known as Oyiho and will be shown edged in Pink on the survey plan to be filed by plaintiffs.

2. An order for the payment over to the plaintiffs by the 1st to 3rd defendants jointly and severally of the sum of 997pounds:Os.Od. paid by the 4th defendant as compensation to the 1st to 3rd defendants in respect of the 4th defendants’ oil location known as Oreba I situate on the said plaintiffs’ land known as Oyiho, which said sum the 1st  to 3rd defendants claimed by  falsely and fraudulently representing themselves as owners of Oyiho land.

3. A declaration against the 1st to 3rd defendants jointly and severally that by setting up title adverse to the plaintiffs’ title in relation to the said land called Oyiho, they have forfeited under native law and custom the rights of user conferred on them by the plaintiffs.

4.An injunction restraining the 1st to 3rd defendants from further entering on the said plaintiffs’ land called Oyiho.

5. An order that the plaintiffs as owners of the land called Oyiho are entitled as against the 4th defendant to all compensation due now and in future from the 4th defendant for prospecting for oil on the said land.

Pleadings and plans were ordered on June 24, 1966, and were duly filed. The plaintiffs brought this action as representing themselves and the entire people of Uwerun in the Central Urhobo District against the defendants as representing themselves and the entire people of Ewu in the same Central Urhobo District of the Mid-Western State.

The plaintiffs averred in their Statement of Claim, that the land in dispute is a portion of their land known as Oyiho and is shown edged in green on plan No. JJ.M 9/66 made by Theophilus John, a licensed Surveyor; that the specific area in dispute is shown thereon edged in pink, and that the Oreba I Location granted by the defendants to the Tennessee Inc., is also within the pink area.

The said land known as Oyiho, they further averred, is bounded on the north by land of the Evwreni people, on the south and east by the plaintiffs’ other land not in dispute, and on the west by the land of the defendants and Orere people (who are also Ewu people), the River Urhiewhuru forming a natural boundary on the west. Their plan was later admitted by consent of both sides as Exhibit P1.

The plaintiffs also averred that, since its first settlement by their ancestor, from time immemorial, they had lived and farmed on the land, raised rubber and coconut and palm plantations on the land, put tenants on it, fished in the creeks and ferried people from the Uwerun side of RiveR Urhiewhuru to the Ewu side through the Urhuruigbedi waterside, had jujus on the land and, in fact, exercised maximum acts of ownership on the land without hindrance from the defendants or any other people until the Tennessee Nigeria Inc.,  entered upon the land in search of oil in November, 1965. The five children of the plaintiffs’ ancestor now occupy the five main quarters in Uwerun. It was finally averred that, long after the plaintiffs’ predecessors had settled on the present site, the defendants’ ancestors came and settled at a place called Ewu, which is about 3 miles from the opposite bank of the River Urhiewhuru which, being swampy, led the defendants to beg the plaintiffs to allow them to live with the plaintiffs on their own side of the bank of the river; Oguname was the first place thus granted for settlement by a man whose mother was an Uwerun, but the defendants’ people were in later years given permission to live at other places along the bank on the plaintiffs’ side of the river.

The 1st, 2nd and 3rd defendants, on the other hand, denied in their Statement of Defence that the land in dispute is at Uwerun or that it belongs to the plaintiffs or their ancestors. They admitted that it was by their permission and authority that the Tennessee Nigeria Inc. was in occupation of a portion of the land edged pink on the plaintiffs’ plan. They also admitted that they own the land lying to the West of the land claimed by the plaintiffs in this action, and averred that their land lies on both sides of the Ewu River (otherwise known as the River Urhiewu); they denied that the river was known as Erhiewhuru. They averred that part of the Eastern boundary of their land extends across the river to a boundary demarcated in yellow on their Plan (later admitted as Exhibit D.1) and consisting of trees, lakes and creeks extending from a point near Arhejo Fishing Fence in its northern part to Ogboro River in the south.

The defendants averred that their own ancestors were the first to settle on the land in the area, that from time immemorial they had been in effective control of it up to their boundary with the Ewhen community, and that their ancestors gave a portion of the land west of the land of the Ewhen people to the plaintiffs’ ancestors up to their present boundary at Oreba village. They also asserted numerous acts of ownership exercised by them, including farming, planting economic trees and other crops, fishing in the creeks and granting permission to various people (including members of the plaintiffs’ community) to use portions of the land.

Their most important averment in this respect was that various members of their community had founded ten villages, including Anvwo on the border of their land as shown on Plan D.1. Finally, the defendants stated that the plaintiffs had never had claim to the portion of the land in dispute until the discovery of oil made the plaintiffs bring the present “speculative claim”.

After a hearing which lasted some ten weeks and following extensive addresses by counsel on both sides, a reserved judgment was delivered on June 25, 1968. The learned trial Judge, quite rightly in our view, dismissed the action against the Tennessee Nigeria Inc., as mis-conceived, since there was no evidence that the company had resisted any claim made on it by the plaintiffs or that there was any likelihood that further compensation would be payable by the company in respect of the same subject-matter. The learned trial Judge then proceeded

“There will be judgment for the plaintiffs as follows:

(1)    A declaration of title to a portion of the land known as OYIHO land delineated and verged PINK on the plaintiffs’ Plan No.JJM 9/66 tendered in evidence in this case and marked Exhibit ‘P’;

(2)    An Order that the 1st to 3rd defendants refund to the plaintiffs the sum of 997 pounds received by them from the 4th defendant in respect of the land in dispute;

(3)    An Order for forfeiture against the 1st to 3rd defendants and their people, the Ewu people, in respect of all rights and privileges hitherto enjoyed by them on the land in dispute;

(4)    An injunction restraining the defendants and the Ewu people from further trespassing on the land in dispute.”

Against this judgment of Arthur Prest, J., but excluding the dismissal of the fourth defendant company, the defendants have now appealed to this court on the following grounds:

1.     The learned trial Judge erred in law in finding for the plaintiffs when the traditional evidence given by the plaintiffs in support of their case was neither supported by the Statement of Claim nor by any other evidence of existing facts.

2.     The learned trial Judge erred in law in making an order for forfeiture and injunction when the said order or judgment was not supported by any evidence.

3.     The learned trial Judge erred in law in failing to consider the legal and equitable defences raised in the case, and if such defence were so considered the judge would not have found for the plaintiffs.

4.     The learned trial Judge erroneously imported into the judgment matters which were not given in evidence, and thus came to a wrong decision in law and on the facts of the case.

5.     The costs awarded against the defendants were grossly excessive.

By leave of the court, the following two additional grounds of appeal were allowed at the hearing at the instance of learned counsel for the defendants/appellants;

6.     Judgment is against the weight of evidence.

7.     The learned trial Judge wrongly rejected Exhibits “A” and “B” and thereby came to a wrong decision by failing to consider the said Exhibits in evaluating the weight of the case for the defence

Chief F.R.A. Williams sought and was granted permission to argue all the grounds of appeal (except ground 4) together, which he did. At the close of his case, he had omitted to argue ground 5 as to the issue of costs, while as regards ground 7, he argued only the question of wrongful rejection of Exhibit A. Grounds 4, 5, and the part of 7 in respect of Exhibit B were accordingly struck out.
As regards the claim for a declaration of title, Chief Williams argued that the pink area is the one for which a declaration was made by the learned trial Judge, but that the injunction was in respect of the whole of the green area. The respondents, he submitted, have failed to prove their title to the green area, since there is no satisfactory evidence of the northern boundary between the Evwreni and the Uwerun.

The respondents should accordingly have been non-suited by the trial Judge. He referred to Dele & Family v. Adelabu & Family SC. 226/ 64 delivered on March 25, 1966; in that case, however, the Judge entered a non-suit because he was “unable to prefer one case to the other’ after hearing the competing claims of both parties. So also with respect to the north-west corner of the green area; both the Ewerun and Evwreni own the Edorare village which the learned trial Judge held to be in the exclusive ownership of the Ewerun. The respondents did not produce a plan showing the boundary of the land to which they were claiming title and there is no finding by the learned trial Judge on this point.

As regards the Western boundary, Oguname is an Ewu village, not Ewerun. He said that the appellant had sought to put in Exhibit A, a 1952 case between the Ewu and the Orere, which would have established their claim, but that the learned trial Judge had wrongly disallowed it. But it was tendered as a public document under Section 111 of the Evidence Act.

Chief Williams reply to Mr. J. A. Cole, the learned counsel for the respondents, as to why the judgment had not been specifically pleaded was that judgments need only be pleaded when relied upon as res judicata. He cited Udo & Ors. v. Eko & Ors. F.S.C. 216/61 delivered on June 8,
1962, unreported, in support of his contention. It seems to us that Exhibit A was on the appellants’ own admission put in not to contradict their witness but only to prove paragraph 8 of their Statement of Defence. Mr. Cole, the learned counsel for the respondents, argued that in any case Section 226 of the Evidence Act supports the judgment appealed from since its rejection of Exhibit A has not materially affected the appellants’ interests. Also, Exhibit A was properly rejected because the document was irrelevant to the proceedings before the court since it relates to Orere land which was not in dispute. We think that the learned trial Judge rightly rejected the admission of Exhibit A on the grounds of irrelevancy.
Again, Chief Williams submitted that the appellants had by both their pleadings and evidence in court shown that they are in possession. The learned trial Judge took only 5 villages, only one or two of which are in the pink area, and held that, because they belonged to the Ewerun, therefore the whole of the green area belongs to them. The appellants were not shown by the respondents to have been put in possession of the land as customary tenants. He cited Onyekaonwu & Ors. v. Ewkubiri & Ors. (1966)1 All NLR 32, at p, 34 and Adenla v. Oyegbade (1967) NMLR 136, at p. 139. But the learned trial Judge gave the following explanations:

“I  have chosen these five villages because they appear to be conclusive of the ownership of the land in dispute. As I have indicated, they are villages in the East, West and centre of the land in dispute.

Be this as it may, both sides claim several villages alleged to be existing on the land, but which either side say do not in fact exist, particularly the villages or camps mentioned in paragraph 11 of the defendants’ Statement of Defence. The best way of resolving this issue would have been to inspect the land, but counsel on both sides agree that the land is not easily accessible as there are no roads.

The only alternative would have been to send a referee, but in view of a recent decision of the Federal Supreme Court, which frowns at such a procedure as being most irregular, I do not propose to adopt this course. However, there are indications from the evidence which lead me to the probable conclusion that all but two of the villages mentioned in paragraph 11 of the defendants’ Statement of Defence may not in fact exist.”

It is clear that, on the issue of title, where a plaintiff claims that a defendant is his customary tenant on a piece of land while the defendant; on the other hand, also claims to own the land, the question before the court is whether the defendant’s possession was by the plaintiff’s permission. It is for the plaintiff to show that he put the defendant there. The learned trial Judge found that, in the instant case, although traditional evidence was  relied upon by both sides, the respondents had established that they put the appellants on parts of the land in dispute.

We find ourselves in agreement with the learned trial Judge when he said:

“It is settled law that in a land case, the plaintiff must rely on the strength of his own case and not on the weakness of the defendant’s case, but where the case of the defendant lends support to the case of the plaintiff, the court cannot ignore it in arriving at a conclusion as to which side is to be believed.

The Urhiewiru or Urhiewu river appears to me to be the natural  boundary  between the two communities,  and in this regard I prefer the evidence of the plaintiffs and their witnesses to that of the defendants and their witnesses. On the evidence as a whole therefore, I come to the conclusion that the plaintiffs are the owners of the land in dispute and I grant them a declaration of title accordingly.”

Chief  Williams further argued that the learned trial Judge was wrong to have disbelieved the witnesses called by the appellants and to have held that the village probably did not exist. We are, however, of the opinion
that the learned trial Judge after making an extensive review of the evidence, rightly rejected the evidence of the witnesses who failed to produce their tax receipts to show that they lived in the several places they claimed as their villages; we also share his views that the appellants’ surveyor probably
never went on the land before making Plan (Exhibit D.1), as the various locations shown on it would appear to be contrary to the proved facts in
respect of the area. We think the learned trial Judge rightly drew the logical inference as to the respondents’ ownership of the land in the light of all the evidence before him.

In respect of the respondents’ claim to forfeiture, Chief Williams argued that there is no proof of any pre-trial misconduct on the part of the appellants which would warrant forfeiture under customary land tenure. He referred to Ashogbon v. Odunsi 1 NLR 7 and Ogbakumanwu & Ors. v. Chiabolo 19 NLR 107 as having established that customary tenants should not suffer forfeiture for trite acts of misbehaviours and that the courts are loath to order forfeiture except in the most exceptional circumstances. We may observe in passing that Ashogbon v. Odunsi was essentially a case of an insult to the Chief as head of the family, while the court in Ogbakumanwu case refused to order forfeiture because the defendants at the pre-trial stage honestly believed that they were joint owners with the plaintiffs.

The learned counsel for the respondents replied that the appellants’ misconduct in leasing or letting the land in question to the oil company was such a gross act of misconduct as to warrant forfeiture and he cited Onisiwo v. Fagbenro 21 NLR 3, in which the court ordered forfeiture where customary tenants purported to grant a lease of part of the land. It may be pointed out that there was a specific plea for relief against forfeiture by the defendants, but there was not in the present case.

It is to be noted that in almost all the reported cases in which the courts have been disposed to grant relief against forfeiture by a community of immigrant customary tenants, it has been on the ground that to order forfeiture would work great hardship on such tenants who might otherwise have nowhere else to go. That is, however, not the case here, where the appellants’ own homeland is adjacent to the respondents’ and is not shown throughout the proceedings to be already overcrowded or uninhabitable.

With regard to the claim for 997 pounds from the appellants, the respondents based their claim for this amount on false and a fraudulent representation by the appellants, but they have failed to prove fraud. We, therefore, allow the appeal under this head and the respondents’ claim for this amount is hereby dismissed. The respondents are entitled to the injunction sought once they succeed in their claim to ownership of the disputed land. The learned trial Judge was right to have held as follows:

“The issue appears to me therefore a perfectly simple one and counsel for the parties are agreed that it is a question of whose side of the story the court believes. A mass of evidence had been adduced on both sides, and the question I have to decide is, what is the boundary between the two neighbouring communities The plaintiffs say it is the river on the Western boundary of the land in dispute. The defendants say it is the line shown on the Eastern boundary on their plan Exhibit ‘D1′ verged Pink, Green and Yellow with the village Oreba and Anvwo, and the Utosiosio and Edjuto streams, Ereba river and Ovhion pond on the boundary. It is interesting to note that the plaintiffs’ Surveyor says in evidence that this alleged boundary line is merely a trace cut through the bush for the purpose of the survey.

The defendants have failed  woefully to substantiate their claim to the ownership of all the land trom Ewu town to Uwerun town, and as I shall show from the evidence, I have no difficulty in arriving at the conclusion that all land East of Uwerun town up to the river Urhiewuru or Urhiewu in the West belongs to the plaintiffs.”

In the result, we have arrived at the conclusion that the learned trial Judge came to the right decisions on the claims of the respondents save as to the claim for the refund of 997 pounds, and we would accordingly dismiss this appeal with costs to the respondents assessed at 53 guineas.

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SC.143/1969