George Okafor & Ors. V. Eze A.e. Idigo Iii & Ors. (1984)

LawGlobal-Hub Lead Judgment Report

OBASEKI J.S.C. 

The parties to this appeal have been locked in litigation over a piece of land called Otuocha for a period of over 50 years. Since 1933, four actions have been instituted in the superior courts of record in this country. The first was in 1933, the second in 1935, the third in 1950 and this action now on appeal in 1975. The 1933, 1935 and 1950 actions were instituted by the Umuleri people (the appellants herein), while this action was instituted by the Aguleri people (the respondents herein),

The main issue or question for determination in this appeal is whether the ownership to the land in dispute i.e. Otuocha land has been established as required by law to entitle them, i.e. the Aguleri people to the declaration of title granted them by the Court of Appeal, the High Court having held a contrary view.

The genesis of this matter briefly, is as follows:

On the 12th day of June, 1975, the respondents instituted an action suit No. 0/98/1975 against the appellants in the High Court of the East Central State of Nigeria claiming in terms of the writ:

“1. Declaration of title to a piece of land known as Otuocha in this Judicial Division [i.e. Onitsha Judicial Division].

2. Perpetual injunction to restrain the defendants, their agents, servants and assigns from building houses on or trespassing into portions of this land.”

On the order of the court, pleadings were filed and delivered or served and the issue joined came up for hearing before Nnaemeka-Agu, J. Nnaemeka-Agu, J. in the course of the trial, after hearing the evidence of 5 witnesses called by the plaintiffs, was appointed a Justice of the Court of Appeal and had to discontinue the hearing. The matter then came up before Umezinwa, J. He began the trial de novo. He heard the evidence of the parties and their witnesses – 14 witnesses testified at the instance of the plaintiffs while 7 witnesses testified at the instance of the defendants. After the close of the defence, the court inspected the locus in quo, i.e. the land in dispute. At the conclusion of the inspection, the learned trial judge heard the addresses of counsel for the parties and adjourned for judgment. He finally delivered his judgment on the 12th day of June, 1978 dismissing the plaintiffs’ claim in the following terms:

“Waddington, J. in the 1935 case stated as follows –

‘one point should be mentioned on which I do believe Idigo, and that is that for the past 10 years farmers of both villages have used the land, a situation which is consistent with neither possessing exclusive ownership. Those considerations can, in my opinion, lead to only one result and that is that upon this evidence, it is impossible to draw any definite conclusion’.

In the 1950 case, the Privy Council observed thus –

‘Their Lordships do, however, agree with the view to be collected from Hubbard, F. J.’s judgment as a whole that little, if any assistance is to be found in the various acts of ownership on either side which took place between 25th June, 1898, and the abandonment of the land by the Crown.’

Having considered the whole evidence led in this case and submissions made, I have found myself in no better position to draw any definite conclusion. The plaintiffs have not proved to my satisfaction on the balance of probability that they are the exclusive owners of the land in dispute. Plaintiffs’ claims therefore fail and are accordingly dismissed.”

The plaintiffs were dissatisfied with the decision and so appealed to the Federal Court of Appeal against the judgment. Three grounds of appeal were filed. They were, in the main, grounds of fact or of mixed law and fact and briefly are as follows:

“(1) the decision is against the weight of evidence;

(2) the learned trial judge seriously misdirected himself in fact and in law when he held as follows:

whatever the historical reason may be, it is my view that the Otuocha land between the Emu and Akor streams was a vacant piece of land and that it was the Umuleri people who first infiltrated into it in the late 19th century’

because:

there was no evidence of such facts which could support the learned judge’s finding .

(3) The learned trial judge erred in law in treating rather scantily the evidence of the affidavit sworn to by Chief Okoye and Onowu of Umuleri in 1922, and not giving it the weight due to it as a solemn admission by the Umuleri people that the land in dispute belonged to Aguleri, especially as it was made when there was no pending action or when one was in view, and thereby came to a wrong decision.”

The Federal Court of Appeal allowed the appeal. The three Justices of the Court of Appeal (Phil-Ebosie, Olatawura and Belgore, JJ.C.A.) unanimously granted the declaration of title claimed. They were divided on the claim for an order of injunction. Phil-Ebosie and Olatawura, JJ.C.A. limited it to unoccupied land in plaintiffs’ plan No. PO/E360/75 while Belgore, J.C.A. on the other hand, granted the injunction over the area of land known as Otuocha. In his own words, the learned Justice, Belgore, J.C.A. said:

“I shall allow this appeal, and set aside the trial judge’s dismissal of the plaintiff’s/appellant’s case. I enter a verdict of judgment for the plaintiffs/appellants as claimed that the title to the land known as Otuocha in Onitsha Judicial Division belongs to Aguleri people as represented by plaintiffs and perpetual injunction against the defendants/respondents, their agents, servants and assigns from building houses on or trespassing into portions thereof.”

The concluding portion of the judgment of Olatawura, J.C.A. concurred in by Phil-Ebosie, J.C.A. reads:

“It appears to me that by the dismissal of the plaintiffs’ case, the land does not belong to the plaintiffs. This is incongruous. The chequered history of this case reveals these two communities, Aguleris and Umuleris to be claimants.

The order of dismissal certainly means that the land does not belong to Aguleris either. The worst he could have done was to have non-suited their claims.

However, the learned judge has found many acts of ownership in favour of the appellants. I will grant the declaration of title in their favour. The appeal is allowed to the extent that they are the owners of the land in dispute. I cannot grant injunction against the respondents, as this will work great hardship on the Umuleri community. The visit to the locus in quo reveals that there are in existence houses of the Umuleris. The injunction granted is now limited to the unoccupied land in plaintiffs’ plan No. PO/E/360/75. It is to this extent that the appeal succeeds.”

All the Justices of the Court of Appeal reversed the decision of the High Court and granted the declaration of title sought. Two of the Justices, however, felt unable to grant the injunction claimed and limited the order of injunction granted to the unoccupied portions of the land in dispute. The defendants were aggrieved by the decision of the Federal Court of Appeal (as the Court of Appeal was then called) and appealed to this Court on many grounds. They were lengthy grounds and the most important ones are as follows:

“1. Error in Law

The Federal Court of Appeal erred in law and in fact in setting aside the decision of the learned trial judge dismissing the plaintiffs’/respondents’ claim of title to and injunction in respect of the land in dispute as the grounds on which the learned trial judge based his decision were neither wrong in law nor perverse or against the weight of evidence grounds to wit –

(a) that neither side can establish exclusive ownership of the whole of Otuocha land (land in dispute)

(b) that the defendants/appellants are in long and effective occupation of a substantial portion of the land in dispute

(c) that the land in dispute in the present proceedings is larger than the area covered by the 1950 suit exhibits A, Band C and that the defendants/appellants are not estopped from leading evidence of ownership and possession in respect thereof.

2 (A) The learned Federal Court of Appeal judge (Olatawura, J.C.A.) misdirected himself in law and in fact in the following passages of his judgment –

(a) ‘what is the defence open to them

As far as (sic) the record is concerned, it is that they are in effective possession and that they were there without the permission of the other side, i.e. the appellants. This is the finding of the learned trial judge also. This finding appears to me (sic) that the land is a no man’s land.

It should be noted that the Aguleris and Umuleris are two separate communities, one must be the owner. The traditional history was not pursued, the claim and defence are based on acts of ownership.’

(b) ‘It appears to me that by the dismissal of the plaintiffs’ case, the land does not belong to the plaintiffs. This is incongruous. The chequered history of this case reveals these two communities: Aguleris and Umuleris to be claimants. The order of dismissal certainly means that the land does not belong to Agulcris either.

The worst he could have done for them was to have non- suited their claim.’

Particulars of Misdirection

(i) The learned Federal Court of Appeal judge failed to appreciate that a situation where a tract of land between two separate communities may not belong exclusively to either community is a recognised feature of native customary land tenure especially in this case where the plaintiffs/respondents relied exclusively on possession and acts of ownership to prove title to the whole land in dispute. Vincent Okorie v. Philip Udom 19605 F.S.C. 162.

(ii) There is no principle of law which compels the learned trial judge to non-suit the plaintiffs/respondents instead of dismissing their claim in the circumstances of this case where the plaintiffs/respondents failed to prove exclusive ownership of the whole land in dispute.

(iii) x x x

(iv)The reasoning of the learned Federal Court of Appeal judge destroys the well established principle of law that the dismissal of a plaintiff’s claim of title to land does not decree title in the defendants nor relieve the defendant of the burden to prove his title in an action brought by him.

3. The Federal Court of Appeal misdirected itself on the question of number and age of buildings standing on the land covered by the res judicata (exhibit D) and wrongly overruled the learned trial judge who had the opportunity of hearing and seeing the witnesses and of inspecting the locus in quo and by such mis-directions arrived at a wrong conclusion, mis-directions especially manifested in the following passages of the judgments of the learned Federal Court of Appeal judges, to wit –

(a) Olajide Olatawura (J.C.A.)

‘Chief Onyiuke has in my view rightly posed a question which goes to the basis of the claim. It is: how can the appellants now explain how the substantial parts of the land being claimed are in the effective occupation of the respondents The answer must be found in the record. Counsel pointed out that it was not pleaded they were there with the appellants’ consent. During the re-examination of p.w.1 – Eze Alphonsus Ezeudu Idigo III, on page 68 of the record, said –

“Umuleri people are our tenants on the land in dispute. After the 1950 case, Umuleri people without our permission entered the land in dispute and built many houses on the land. That is why we took out this action against them” What did the learned trial judge say about this

He said he did not believe either side in their claim that one is the tenant of the other. It is better to quote him:

“I have earlier stated that I do not believe that it was the defendants who permitted Chief Idigo to settle on a portion of Otuocha land with the members of his family. Neither do I believe the plaintiffs that the defendants settled on any portion of the land in dispute with their permission.” Neither did the learned judge believe that the defendants “flooded” the land in dispute with buildings after the 1950 case…

Again, in another passage of the same judgment, he said:

‘The positions of the deponents should have been considered. It is under these grounds that Chief Onyiuke raised the question of building by each community. Aguleris in the north and Umuleris in the south. If one compares the plan used by the respondents in the 1950 case, i.e. exhibit D and exhibit P used by them in this case on appeal, one can see that there were only few houses of Umuleris in the south.’

Particulars of Misdirection

The learned Federal Court of Appeal judges arrived at their conclusion on the state, number and age of the buildings shown on exhibit D in utter disregard of

(i) the evidence in this case of the very surveyor who made the plan and explained the meaning and significance of the survey symbols he put on the said plan. Josephus Theophilus John (D.w.1) who testified in part as follows:

‘I am a civil engineer and licenced surveyor. I know the defendants. I remember that 1950 case between Umuleri and Aguleri. I made a plan of the land in dispute for Umuleri people I visited the land. That was my second visit I have earlier visited it in 1934. Exhibit D is the plan, I saw all the features I put on the plan As a result of what Umulori showed me, I produced the plan exhibit D and showed the area verged pink. I also showed the area verged green as the Otuocha claimed by the plaintiffs in the 1950 case. The area hatched shows a concentration of buildings. The buildings belong to Umuleri and Umuoba people. I also showed the concentration of Aguleri buildings. The plan was made in 1951.’…

The conclusions of the Federal Court of Appeal judges are at variance and in conflict with the inspection notes of the learned judge especially the following passages thereof:

‘After James Chinwuba’s house on the same side of the tarred road was shown a number of houses of Umuleri people. The houses are not recently built. One of them is a storey building of some long duration. And following a footpath off the tarred road and far inside are houses belonging to Umuleri people, about one or two are of recent construction, the rest being in existence for a long time. Two Aguleri houses within the same vicinity were shown to me. These are old houses.

Conceded by the plaintiffs that from this point along the road facing the Anambra River most of the houses on the left side of the tarred road belong to Umuleri. The houses are quite old and most of them have been in existence for a long time. Along the road on the same left hand side of the road where the houses of the Umuleri people terminate most of the houses are very old. I saw a few buildings in their midst recently constructed.’

4. The Federal Court of Appeal erred in law and in fact to grant declaration of title to the plaintiffs/respondents to the land in dispute in the face of and in spite of the unexplained fact that admittedly substantial portions of the land in dispute are in the long and effective occupation of the defendants/appellants…
5. The learned Federal Court of Appeal judge (Alfa Belgore, J.CA) grossly misdirected himself and/or misread the facts and made wrong assumptions which led him to the unwarranted, unjustified and wrong conclusion that the judgment of the learned trial judge was perverse.”

The question raised in all these grounds of appeal was adroitly and concisely put by Chief F.R.A Williams, SAN. in the brief filed by the appellant. It is:

“Whether there were any (or any adequate) grounds upon which it was justifiable for the Federal Court of Appeal to reverse the findings of the learned trial judge (based on the oral evidence together with the history of the numerous litigations between the two parties) that neither of the 2 parties could lay claim to exclusive ownership of the land in dispute.”

There is no doubt that the decision of the Federal Court of Appeal involved a disturbance of the findings of fact arrived at by the learned trial judge. An examination of the plaintiffs/respondents’ statement of claim reveals that the plaintiffs/respondents set out to establish their title not by evidence of traditional history of ownership but by evidence of positive and numerous acts of ownership spreading over a long period of time. As the amended statement of claim is short, it is, in my view, desirable to set it out for easy reference in this judgment.

It reads:

“1. The plaintiffs are natives of Aguleri in Anambra Division of the East Central State and institute this action for and on behalf of themselves and the people of Aguleri.

2. The said plaintiffs are authorised by the said Aguleri people to institute this action against the defendants.
3. The defendants are natives of Umuleri and are sued personally and for and on behalf of the people of Umuleri.
4. The land in dispute lies on the left bank of the Anambra River which forms its north-western boundary. It is bounded on the north-east by the Emu stream, a tributary flowing into the Anambra River from the south-east and on the south-west by the Amor River, another tributary of the Anambra River which joins it from the south-east at a point further down stream. The southeast boundary consists of an imaginary line joining the two tributaries. The said land in dispute is more clearly shown on the plaintiffs’ plan No. PO/E/360/75 that is exhibit H and therein more particularly verged yellow in exhibit H.
5. The plaintiffs have been owners and have been in possession of the land in dispute either directly or through their agents or tenants from time immemorial.
6. The plaintiffs have always and continuously exercised their rights of ownership over the land in dispute and have even granted customary rights to members of other communities in that vicinity, in the land in dispute.
7. The plaintiffs have always protected their rights, title and interest in the land in dispute at all times.
8. In pursuance of paragraph 7 above, the plaintiffs had protected their rights, title and interest in the land in dispute when the defendants made several attempts to claim ownership of the said land.
9. The said claims of the defendants against the plaintiffs rights, title and interest have been successfully resisted by the plaintiffs in suit 0/48/50 W.A.C.A. 266/1955 and Privy Council NO.4 of 1958 on which plaintiffs will rely in this action.
10. In suit 0/48/50 Idoko Nwabisi and others v. R. A. Idigo and Others instituted by the defendants against the plaintiffs, the defendants claimed ownership and title to the land in dispute and the said action proceeded from the Native Court on appeal to the PriV’1Council and the defendants’ claim of ownership and title to the land in dispute was finally dismissed.
11. In consequence of the facts pleaded in paragraphs 8 – 10 above the defendants cannot now be heard to say that they are the owners or have title to the land in dispute.

The plaintiffs thereby rely on the law of estoppel.

13.The defendants have no right,title or interest in the land in dispute.

14.Whereof the plaintiffs’ claim as per their writ of summons.” (Italics mine)

It is therefore clear, particularly from paragraphs 5, 6 and 7 of the amended statement of claim, that the springboard from which the plaintiffs launched this action for a declaration of title is their continuous exercise of their rights of ownership over the entire area of the land in dispute.

In view of the findings made in the judgments in previous litigations concerning the land in dispute pleaded in paragraphs 8 to 10 of the amended statement of claim which I shall have cause to refer to in detail in this judgment, the burden of proof undertaken by the plaintiffs/respondents therein was an impossible task.

Moreover, the defendants/appellants filed an amended statement of defence to the amended statement of claim and denied categorically the plaintiffs’ acts of possession and ownership over the entire area of land and the plaintiffs’ claim of ownership. In particular, paragraphs 6, 7, 8, 10, 11, 13, 16 and 17 read as follows:

“6. The defendants vigorously deny paragraphs (5) and (6) of the amended statement of claim and put the plaintiffs to the strictest proof.

7. In answer to paragraphs (7) and (8) of the amended statement of claim, the defendants assert that it was they and not the plaintiffs who had all along, in all good faith, asserted their claims to the land in dispute or portions thereof and adjacent lands especially (sic) Onitsha Provincial Court suit 2/1933 and Onitsha High Court suit 0/85/1935.
8. In answer to paragraphs (9) and (10) of the amended statement of claim the defendants admit they instituted the suit 0/48/50 against the present plaintiffs for declaration of title of land and that the said suit went on appeal to the Federal Supreme Court (WACA 266/1955) and to the Privy Council (No. 4 of 1958) and that their claim was dismissed but they vigorously deny that the extent of the land, the subject matter of the said suits and in respect of which their claim was dismissed is the area shown Yellow on the plaintiffs’ amended plan filed in the present proceedings and will put the plaintiffs to strict proof.
9. In answer to paragraph (11) of the amended statement of claim, the defendants admit that their claim for declaration of title was dismissed as they failed to establish that they were exclusive owners thereof. The defendants will rely on acts of ownership and possession of portions of the land to establish they were exclusive owners thereof. The defendants will rely on acts of ownership and possession of portions of the land then in dispute found in their favour in decisions in and Privy Council NO.4 of 1958, and the grounds of the said decisions.
10. In further answer to paragraph (11) of the amended statement of claim, the defendants assert that the plaintiffs are not the owners of the land the subject matter of the said suit 0/48/50, and will put the plaintiffs to the strictest proof of that title.
11. The defendants deny paragraph 13 of the amended statement of claim. In so far as the area covered by suit 0/48/50 is concerned, the defendants assert that they have over a long period of time built numerous houses and other structures on various portions of the said land and established various institutions thereon without let or hinderance from the plaintiffs as established in the decisions in the said case.
12. In answer to paragraph (14) of the amended statement of claim, the defendants vigorously deny that the plaintiffs have title of ownership to the area verged yellow on their plan attached to their amended statement of claim or that they are entitled as per their writ of summons and will put them to the strictest proof thereof.
13. The defendants will plead as against the plaintiffs all legal and equitable defences including –

(a) ownership

(b) long possession

(c) laches and acquiescence

(d) equitable relief.”

(Italics mine).

From the pleadings therefore, issues were joined

(1) as to the ownership of the total area of land in dispute;

(2) as to the effect of the judgments in previous litigations;

(3) as to the acts of ownership carried out; and

(4) as to the area of land in respect of which suit No. 0/48/50 was determined.

In actions for declaration of title to land, certain well settled principles of law which have guided the courts in this country must of necessity be kept constantly in mind. They are:

1. In a claim for a declaration of title, the onus lies on the plaintiff to satisfy the court that he is entitled on the evidence brought by him to a declaration of title. The plaintiff must rely on the strength of his own case and not on the weakness of the defendants’ case. If this onus is not discharged, the weakness of the defendants’ case will not help him and the proper judgment is for the defendant. Such a judgment decrees no title to the defendant he not having sought the declaration.

Lyell v. Kennedy (1882) 20 Ch. D 484 at 490 per Brett, LJ. Kodilinye v. Mbanefo Odu (1935) 2 WA.CA 336 per Webber, CJ. at 337; Lee, CJ. In Martin v. Strachan (1744) 5 Term Rep 107n at 110n,

2. In a claim for a decree of a declaration of title, the onus is on the plaintiff to prove acts of ownership extending over a sufficient length of time numerous and positive enough to warrant the inference that the plaintiffs were owners.

Webber, J. in Notoe Ekpo Eta Ekpo v. Eta Eta Ita 11 N.L.A. 68 at 69;

If the evidence of tradition is inconclusive, the case must rest on a question of fact. Webber, J. in Ekpo’s case (supra). See also Adeniyi v. Aderemi (1961) WN.L.R. 185

3. The court should declare a good title where in the opinion of the court the facts and circumstances of the case are so compelling as to show beyond reasonable doubt that no risk of a successful future incumbrance exists. MEG.P. v. Christian Edwards (1979) 3 W.L.R. 713.
4. Frequent and positive numerous acts within living memory are not essential to justify the inference of exclusive ownership of land under native law and custom where there is conclusive traditional evidence of ownership – Stool of Abinabina v. Eyinmadu (1953) A.C. 207 (1953) 2 W.L.R. 261 (1953) 12 WACA 172.
5. While the plaintiff must succeed on the strength of his own case and not on the weakness of the defendant’s case, the defendant’s case may itself support the plaintiff’s case and contain evidence on which the plaintiff is entitled to rely.
6. Demeanour is not a true test of the truth of the testimony on traditional history. It is little guide to the truth. The best way to test traditional history is by reference to the facts in recent years as established by evidence and by seeing which of two competing histories are more probable.

Kojo II v. Bonsie (1957) 1 WL.R. 1225 at 1226 per Lord Denning; Privy Council judgments 1841-1933 by Chukwurah p.668 at 671.

7. The dismissal of the plaintiffs’ claim in an action for a declaration of title does not mean that the land belongs to the defendant [Nwankwo Udegbe v. Anachuma Nwokafor (1963) 1 All N.L.A. 417; Privy Council judgments by Olisa Chukwurah page 994. Eboha v. Anakwenze (1967) N.M.L.A. 140.] Unless there is a finding on the evidence that the defendant had established his ownership of the land. Duedu v. Yiboe (1961) 1 WL.R. 1040; Amos Ogbesusi Aro v. Salami Fabolude (1983) 2 S.C. 75.
8. Failure to prove title does not affect any rights of possession acquired over parts of the areas in dispute Okije v. Adejobi (1960) 5 F.S.C. 44.
9. Before the plaintiffs can get a declaration of title in their favour they must prove acts of ownership numerous and positive enough and of sufficient duration to warrant the inference that the plaintiffs are exclusive owners. It is not enough to prove that there is a valid and subsisting judgment which had denied title to the defendants as against the plaintiff Ekpo v. Ita M.N.L.R. 68 Olisedoze Nwokeleke & 2 Ors. v. Lesele of Onicha and 10 Others (1955-56) W.R.N.L.R. 87.
10. In questions of disputed ownership of lands occupation and possession of portions of the disputed area are not relevant evidence of title for the whole area unless it can be reasonably attributed to a right to the whole area Omanhene Foli v. Chief Obeng Akesse (1934) 2 WACA 46 P.C.

Chief Williams, SAN. who argued the appeal as counsel for the appellants made the point and I agree with him that the appeal involves, in the main, questions of fact. He therefore took us through the record of proceedings indicating the findings of facts made by the learned trial judge and the disturbance of those findings by the learned Justices of the Court of Appeal. He predicated his arguments with 3 propositions. These are:

(1) A judgment dismissing plaintiff’s claim for declaration of title is a bar to any future action by the plaintiff or his privy against the defendant or his privy for the same relief to the same land but such a judgment does not necessarily mean that the defendant is adjudged to have title to such disputed land as against the unsuccessful plaintiff.

(2) To determine whether or not a judgment dismissing plaintiff’s claim for declaration of title means that the defendant is adjudged to have title it is necessary to examine the proceedings and judgment in order to ascertain the reasons for the dismissal.

(3) Where in an action between two communities for declaration of title each of the parties proved acts of ownership to the disputed lands or distinct portions thereof so that the court is not prepared to draw the inference that either of the communities is the exclusive owner, the action will be dismissed.

These propositions are well founded in law and I approve of them.

Putting the cases of the parties briefly before the court, Chief Williams contended that the respondents’ case is that the appellant claimed a declaration of title to the land in 1950 and lost and therefore they were entitled to the declaration of title. He then submitted that the evidence led in the case was equally insufficient to establish that the respondents were exclusive owners. The court was entitled to examine the reasons for judgment and ascertain the issues decided. He contended that the respondents are not the owners of the land in dispute and have led no evidence to strengthen their claim of title to the land in this action now on appeal before this Court.

G.N.A Okafor, Esq., who appeared as counsel for the respondents, agreed with the 3 propositions put forward by Chief Williams, SAN.

He submitted that the respondents were not relitigating the 1950 case. He also conceded that they did not contest or disapprove of the primary findings of fact made by the learned trial judge. Their case, he submitted, is that having made these brilliant findings, the learned trial judge failed to draw the necessary conclusions that the respondents were exclusive owners and failed to proceed, i.e. to grant the declaration of title claimed by the respondents. He conceded that the acts of ownership by the Aguleris are concentrated in the north of the land in dispute while the acts of ownership by the Umuleris are concentrated in the south. This appeal, therefore, in my view, turns on the proper inferences to be drawn from the findings made and the evidence accepted by the learned trial judge.

What, I may ask, were the findings of fact made by the learned trial judge which were upset by the Court of Appeal It does appear from the judgments of the Justices of the Court of Appeal that they accepted most of the findings of fact made by the learned trial judge. It is the order of dismissal of the plaintiffs’ case based on those findings the learned Justices of the Court of Appeal found unacceptable. In other words, the inference drawn from those findings of fact, i.e. that the plaintiffs were not exclusive owners of the entire area of land in dispute, was not acceptable to the learned Justice, Olatawura, J.C.A. who, in his judgment, observed and commented as follows:

“A careful reading of the record shows the cause of action. During the re-examination of p.w.1 – Eze Alphonsus Ezeadu Idigo ilion page 68 of the record said-

‘Umuleri people are our tenants of the land in dispute. After the 1950 case, Umuleri people, without our permission, entered the land in dispute and built many houses on the land. That is why we took out this action against them. What did the learned trial judge say about this He said he did not believe either side in their claim that one is the tenant of the other. It is better to quote him’.

That is true. What is the defence open to them As far as the record is concerned, it is that they are in effective possession and that they were there without the permission of the other side, i.e. the appellants. This is the finding of the judge also. This finding appears to me [to mean] that the land is a no man’s land. It should be noted that Aguleris and Umuleris are two separate communities. One must be the owner. The traditional history was not pursued, the claim and defence were based on acts of ownership…

The main complaint on grounds 9 and 10 is the failure of the learned trial judge to come to a definite conclusion.

If as concluded, he is unable to come to a definite conclusion, learned counsel submitted he should have non-suited. Learned counsel has urged the court, in view of the evidence before the learned trial judge to give judgment for the plaintiffs. Counsel pointed out that it was the duty of the learned judge to make his own findings and ignore the findings of fact in a former case…

I do not think that this is a case where a non-suit should be ordered as there is enough evidence on record to justify a finding in favour of the plaintiffs.

If, as the learned trial judge said in his consideration of the earlier attempts made by the defendants that –

‘there is no doubt whatsoever that with the reverses they suffered in the previous actions, the defendants have been placed in some tight corner in the conduct of their defence in this case. They cannot be heard to say that the land in dispute belongs to them this issue having been decided against them in the 1950 case’.

it appears to me that by the dismissal of the plaintiffs’ case, the land does not belong to the plaintiffs. This is incongrous! The chequered history of this case reveals these two communities: Aguleris and Umuleris to be the claimants. The order of dismissal certainly means that the land does not belong to Aguleris either. The least he could have done was to have non-suited their claims.” (Italics mine).

Phil-Ebosie agreed with the conclusions reached by Olatawura, J.C.A., Belgore, J.C.A. in his judgment observed and commented as follows:

“It was the judges’ view that no act of possession and ownership had been shown by the Aguleris to justify the inference that they have title over the land. The learned judge’s decision was therefore based on previous decisions that, no definite conclusion could be shown as to who has title to Otuocha land. Curiously enough, the parties threw aside the traditional history in this case but relied on what was available in previous cases. But I must restate that appellate court will interfere with findings of fact of trial court if such findings are perverse in view of the evidence before the trial court, Kodilinye v. Mbanefo Odu 2 W.A.C.A. 336…

The learned judge never found any act of ownership exercised by the defendants to rely upon except their recent settlements which were (sic) sudden phenomenon on exhibit P in this case.

…The defendants’ case has been so discredited by all previous judgments and as the learned trial judge himself in a passage quoted above found several acts of ownership in favour of the plaintiffs and disbelieved the claim of the defendants on these acts of ownership, his conclusion is perverse.” (Italics mine)

A court of appeal must in the absence of compelling evidence indicating erroneous appraisal of facts and erroneous conclusion, show the utmost restraint and reject any temptation to interfere with well considered findings made by the learned trial judge in the court of first instance. The restraint should be more firmly applied where, as in this case, the learned trial judge, after hearing evidence of witnesses, went on inspection of the locus in quo and saw with his own eyes the land and what were on it in the search for truth in the testimonies of witnesses.

This court has recently, in the case of Chief Frank Ebba v. Chief Warri Ogodo & Anor. SC. 79/1982 delivered on the 13th day of April, 1984, given certain guidelines in applying the well settled principles of law on reversal of trial court findings of fact by a court of appeal.

Kayode Eso, J.S.C. in his judgment observed and advised at pp.11 to 14.

“As in the Court of Appeal, the appeal here is mainly on facts. I have set out already the duty of an appeal court when dealing with the issue of findings of fact by a trial court. I would like to add that, in my respectful view, the normal error which a Court of appeal falls into in this regard is in its application of the legal principles. The legal principles are now so well entrenched and courts of appeal refer to them with utmost ease and correctness. I think, with respect, that a practical stance should be adopted in the application of these principles, otherwise the principles may become a mere academic statement when in fact it is the practical stance that is essential. It is herein a court of appeal usually misses the road.

An appeal court, in applying these. principles should I venture to suggest,

(a) start with an attitude to the trial court, as the only court which has, principally, the duty to make findings of fact from the evidence – oral and or documentary – before it, also that the trial court is a court that has been specially suited, by its peculiar constitution, set up and rules, so to do.

[The trial judge sees the witnesses and has the exclusive advantage to observe their demeanour];

(b) then find out whether the conclusion which has been arrived at by the trial court is justifiable, when it is re- examined against the very premise and or controversy vel non which formed the basis of the conclusion arrived at by the trial court;

(c) where the conclusion is arrived at without any real controversy, e.g. in the case of documentary evidence, or where it does involve a controversy the controversy is limited only to number, complexity or contradiction or interpretation of document or further where there is oral evidence but it involves merely an admission by the adversary or there is an unchallenged piece of oral evidence, the court of appeal should consider itself to be in as good a position as the trial court, in so far as the evaluation of such evidence as aforesaid in this paragraph is concerned;

(d) where the decision arrived at, after there has been an examination of a controversy (and this is the commonest aspect) as where the opposing parties produce witnesses in the case to contradict each other by oral evidence, then the court of appeal should appreciate that the following will be relevant –

(i) Credibility of witnesses based on demeanour of the witnesses only – Here, the trial court is the sole judge as the observation of the demeanour of witnesses has to be peculiar and exclusive to the trial court which advantage is not and can never be available to the appellate court.

(ii) Credibility of witnesses based on factors other than demeanour – The court of appeal should examine those factors which the trial court examined as a result of which it made the inference which led to its findings and determine whether that trial court has made use of its singular advantage of seeing and hearing the witnesses before making its finding especially having regard to the inference that could reasonably be made by a just and reasonable tribunal from the same factors.” (Italics mine)

Obaseki, J.S.C. in his judgment in the same case, Chief Frank Ebba v. Chief Warri Ogodo & Anor. (supra) supporting those guidelines said at page 5 of his judgment:

“This Court has times without number emphasised that it is no business of the appeal court to substitute its view of the evidence for that of the learned trial judge and I find it again necessary to point out that miscarriage of justice will definitely result from adopting such a course of action when it is unwarranted.

The need to ensure that justice is not miscarried should always dominate the attitude and thinking of appeal courts when dealing with appeals raising questions of fact. See Victor Woluchem & Ors. v. Chief Simeon Gudi & Ors. (1981) 5 S.C. 219 at 326; Akinloye v. Eyiyola (1968) N.M.L.R. 92 at 95 S.C.; Obisanya v. Nwoko (1974) 6 S.C. 69 at 80 S.C.; Lawal v. Dawodu (1972) 1 All N.L.R. (Part 2) 270 at 286; Kakareh v. /monikhe (1974) 4 S.C. 153; Mogaji v. Odofin (1978) 4 S.C. 91”.

As already stated above, 14 witnesses testified at the instance of the plaintiffs/respondents while 7 witnesses testified at the instance of the defendants/appellants herein.

After hearing the evidence and addresses of counsel, the learned trial judge delivered, in my view, a well considered judgment in which he considered all the submissions made by counsel and examined, assessed and evaluated the evidence of acts of ownership led by the parties to ascertain whether they were positive and numerous and spread over a sufficient length of time to warrant the inference that the plaintiffs were exclusive owners. His findings of fact in favour of the plaintiffs were very clear and read:

“(1) For the plaintiffs, I find established the following acts of ownership. In 1894, they made a grant of the Ofiamwagbogho beach which is on the west bank of Anambra River within the land in dispute to the Roman Catholic Mission.

(2) On the defendants’ own admitted evidence, Chief Idigo, the King of Aguleri moved to settle on a portion of the land in dispute with his retinue as a king and members of his family in 1915. I do not believe the defendants that Chief Idigo Aguleri settled on the land in dispute with their permission.

(3) From 1924 onwards the plaintiffs made numerous open disposition of parts of the disputed lands without opposition from the defendants. In 1924, they leased a plot to the Royal Niger Company. In 1926 and 1932 they leased plots to John Holt and to CFAO in 1931. All these companies have abandoned their holdings and the present occupants of the former business parties hold the premises as tenants of the plaintiffs.

(4) Then there were the various grants of portions along the bank of Anambra River to stranger elements comprising the Hausas, Yorubas, Ijaws and Nupe communities.

(5) In addition to those various acts of ownership plaintiffs live and farm on portions of Otuocha land. Both their plan exhibit E and defendants’ plan exhibit P show a heavy concentration of their settlement north of the tarred road leading from Oye Agu Abagana to the Otuocha waterside.

(6) There is the Umuaba Anam settlement on the land which took place in 1910…

Similarly, he made very clear findings of fact on the question of acts of ownership in favour of the defendants/appellants in the following terms:

“(1) For the defendants on the other hand, I find established as far back as 1898 they were on the west bank of Anambra River. Hurley, J. in the 1950 case found that they had two ferry stations on the left bank and that they used these ferry stations for the purpose of going over to the other bank of the river to farm there;

(2) In 1898 they made a grant of Otuocha land marked PINK in exhibits E and D to the Royal Niger Company. Of this grant to the Royal Niger Company the Federal Supreme Court had this to say –

‘I am inclined to think that the Aguleris must have known of the 1898 grant by the appellants to the Royal Niger Company. The company was active that year along the Anambra River.

… All they would have known would have been that the Umuleris made a grant to the company but would have no reason to suppose it extended beyond the land effectively occupied by the appellants which at that date were these two ferry stations at one of which they had a juju’.

(3) This brings me to the rival claims by the parties of the Odakpa juju situate on the land in dispute and shown by the Umuleri people in their plans exhibits D, O and P respectively. The defendants have consistently claimed ownership of the juju …. Plaintiffs for the first time claimed ownership of the juju in the 1950 case Hubbard, F.J. observed that the antiquity of the juju was not challenged by the Aguleri people in the court below but its ownership. He found that it was the Umuleri people who own the juju Before me the plaintiffs still claim that the Odakpa juju belongs to them. I do not believe them. I am satisfied and find as a fact that the juju belongs to the defendants.

(4) The defendants as was established in the 1950 case between 1910 and 1920 allowed the Church Missionary Society to build a Church near Akor stream apparently without objection from the plaintiffs.

(5) In 1925 or 1926 they allowed the Church Missionary Society to build a Church and a school on a new site, again without objection from the plaintiffs.

(6) Again like the plaintiffs, the defendants live and farm on the land in dispute with their settlement heavily concentrated in the south of the tarred road.” (Italics mine)

The learned trial judge then proceeded to ask himself the question ‘can I from the acts of ownership which the plaintiffs have established rightly draw the inference that the plaintiffs are the exclusive owners of the land in dispute’ He answered this question quite clearly in the negative, for he had held that the defendants’ established acts of ownership cannot be ignored and in giving further consideration to the question he said:

“Each party claims to have permitted the other to settle on the land as its tenant. I have earlier stated that I do not believe that it was the defendants who permitted Chief Idigo to settle on a portion of the Otuocha land with members of his family. Neither do I believe the plaintiffs that the defendants settled on any portion of the land in dispute with their permission”. (Italics mine)

These are findings of fact with far reaching consequences. In reality they are fatal to the plaintiffs’ claim for a declaration of title to the land in dispute. They can only mean that each party occupies his own portion as of right or in exercise of his own right so that the claim by the other party to own the land in his opponent’s occupation has no foundation. The claim of the plaintiffs to be exclusive owners of the land in dispute cannot therefore stand.

The learned trial judge then went on to consider the evidential value of the affidavit sworn to by Chief Okoye and Onowu of Umuleri in 1922 when the lease of 1924 to the Niger Company was in contemplation in which they deposed that the Aguleris were the rightful owners of a portion of the land in dispute and said:

“In my view that in itself is not conclusive evidence that plaintiffs are the exclusive owners of the land in dispute. Although it was found established that the Umuleris were in occupation of two ferry stations in Ofianwegbo and have their Odakpa juju there, the Federal Supreme Court in 1950 case did not consider these to warrant the inference that Umuleri people were the exclusive owners of Otuocha land.”

The learned trial judge rejected the contention of the plaintiffs that after the defendants lost the 1950 case, they flooded the land in dispute with their buildings. On this contention, he observed.

“I do not agree with this contention. In the 1950 case the plaintiffs filed their plan of the land in dispute. It is plan No. CC58/51 which was admitted as exhibit K in this proceedings. On this plan was shown by the plaintiffs many Umuleri houses, scattered farms and huts of Aguleri and Umuleri, mixed farms and farm huts of Aguleri and Umuleri. There is no doubt that since then many more houses have been built on land by the defendants. The plaintiffs themselves have done the same.”

On the question of whether any inference of ownership of Otuocha land can be drawn in favour of the plaintiffs, the learned trial judge held:

“In Omanhene Kobina Foli v. Chief Obeng Akesse (supra) Lord Thankertan delivering the judgment of the Privy Council, stated thus:

‘In questions of disputed ownership of land, occupation and possession of portions of the disputed area is not relevant evidence of title to the whole area unless it can be reasonably attributed to a right to the whole area, the portions so occupied may be so numerous and so closely adjoining that they practically cover the whole area …Alternatively, the occupation of a portion may be reasonably attributed to a right or ownership in a larger area, as, for instance, occupation of a portion of a field.’

It is my view that no such consideration exist in the present case for the purpose of raising the inference of ownership of the whole of Otuocha land claimed by the plaintiffs.”

On the issue of estoppel by reason of the defendants having lost the 1950 case, the learned trial judge observed:

“I accept the submission of Chief Fani-Kayode that having lost their claim in the 1950 case the defendants cannot be heard to say that the land in dispute belongs to them. This, however, will be in respect of the area of land marked pink in exhibit C which was the subject matter of the 1950 case. The area verged yellow beyond the pink verge in my view is still at large. I also accept the submission of Mr. Onyiuke that notwithstanding that the defendants lost the 1950 case, they can strenuously dispute plaintiffs’ claim of ownership of the land in dispute. Uzonwanne Nwakuche v. Mathew Akweze & Ors. (supra) relied upon by the plaintiffs would not apply to the facts of this case.”

I have, in the above, pages, examined and commented on the findings made by the learned trial judge to show that the Federal Court of Appeal was very much in error in holding that the judgment of the learned trial judge rested mainly on the findings made in the 1950 case.

Since both parties were involved in the 1950 case with the defendants claiming a declaration of title to the pink area in exhibits D and E, it was the duty of the learned trial judge to examine the judgments in that case in close detail so as to ascertain the findings made and the issues decided in that case. It would have been of great value to the respondent if despite the absence of a counter-claim in the 1950 case the court had made a finding on the evidence that the plaintiffs/respondents herein were the owners of the land in dispute. However, that was not the case for the Privy Council observed:

“Their Lordships do, however, agree with the view to be collected from Hubbard F.J.’s judgment as a whole that little, if any, assistance is to be found in the various acts of ownership on either side which took place between 25th June, 1898 and the abandonment of the land by the Crown.”

In other words, the plaintiffs herein would not have succeeded if they had counter-claimed for a declaration of title in 1950. It does not appear that any evidence was proffered in this instant case on appeal to improve the chances of the plaintiffs and ensure their success in the claim for declaration of title and the learned trial judge was perfectly justified in his findings that the plaintiffs’ claim fails and in making the order dismissing it.

A further reflection on the facts of this case reveals that the historical development of this case dates back to 25th June, 1898. In that year, the appellants conveyed the portion of land verged pink in the plans exhibit D and exhibit E to the Royal Niger Company Chartered and Limited. It was a grant made for valuable consideration. A certified true copy of the deed headed Agreement for Purchase of Land – exhibit R – was produced in evidence. The title of the Royal Niger Company to the land was transferred to the British Crown by the Niger Lands Transfer Ordinance of 1916 Cap 149 Laws of Nigeria. Pursuant to a provision of the Ordinance’ the Crown in 1950 relinquished or abandoned its title to the land. Before then, in 1933 the Umuleris by suit No.2 of 1933 in Onitsha had instituted an action against the Aguleris claiming a declaration of title to the pink area of the land in dispute. This is clear from the judgment of Graham Paul, J. exhibit G which reads “it is also noted that both parties adrnit that the land in question in this suit is precisely the same land as that covered by the Royal Niger Company Agreement”.

Graham Paul, J. went on to hold:

“In my opinion, the court below in giving the plaintiffs/respondents a declaration of title failed to appreciate the real effect of the agreement of June, 1898. Whatever right or title the plaintiffs/respondents had in that land was by the agreement sold to the Royal Niger Company and being by that agreement completely divested of their rights or title to the land the plaintiffs/respondents had nothing left to justify the court giving them a declaration of title.”

In 1935, the Umuleri people instituted an action suit No.085/1935 against the Aguleri people claiming a declaration of title to the land called Aguakor. This is outside the creek strip claimed in 1933. Waddington, J. entered a judgment of non-suit against the plaintiffs saying:

“I find it impossible to hold that the plaintiffs have succeeded in discharging the onus, and the declarations they seek must accordingly be refused … Much reliance is placed on the evidence of the defendant Idigo, he has a competent knowledge of English and is a man of considerable personality. However, I come to the conclusion after seeing him in the witness-box that he is too deeply concerned for the success of his side to be accepted with anything but caution. Nor do I think the remainder of the evidence for the defendants established a case in anyway more convincing than that of the plaintiffs. Had the former claimed relief, they would have been in no better position to have obtained it on their present case, than the latter.

One point should be mentioned on which I do believe Idigo, and that is that for the past ten years, farmers of both villages have used the land, a situation which is consistent with neither possessing exclusive rights of ownership.” (Italics mine)

Part of Aguakor land is included in the land in dispute in this case. It is the triangular portion verged green in exhibit D. In November, 1950, the Crown surrendered the creek strip and this set off this second series of ligitagion with the Umuleris claiming a declaration of title in 1950 to that creek strip in the Onitsha High Court suit 0/48/50. They failed to obtain the declaration all the way to the Privy Council. Their failure more or less encouraged the Aguleris to institute the same claim for a declaration of title to the same piece of land and more in 1975 in Onitsha High Court suit 0/98/75. That is the action now on appeal.

The Aguleris lost in the High Court but succeeded in obtaining the declaration in the Federal Court of Appeal. As the 1950 case was fought on the claims of each side to ownership of the land, it appears to me that the 1975 exercise would hardly be expected to be fought on a different basis save that the loud claim of the Umuleri’s to the ownership of the creek strip would be much subdued.

The trial of the 1950 case, suit 0/48/50, was by Hurley, J. He was unable to reach any conclusion on the question of ownership from the evidence of traditional history and decided to seek an answer to the question from the evidence of acts of ownership. His judgment is in evidence as exhibit A. In his own words, quoting from exhibit A, the learned judge observed and commented:

“It is impossible to find anything certain or even reasonably probable from all this traditional legendary or purely fictional material about genealogy and origins; all that can be said is that the effect of it on the whole is rather against the plaintiffs and in favour of the defendants. Neither side has established anything definite from it and the plaintiffs have failed to established that the defendants are strangers to them and to the left bank of the Anambra River, on which Otuocha stands. But this does not put them out of court; it does not show that they do not own the land or that the defendants do. On that issue, the parties are back where they stood when the case was begun and the issue remains to be decided on the rest of the evidence as if the particular questions about the traditional origins had not been raised, for from the evidence that has been produced on the question, I find it impossible to reach any conclusions about them. That leaves me with the evidence provided by acts of ownership consisting of dispositions of the land; and with the evidence about the Odakpa juju which, as I find, the plaintiffs now maintain on the land. The defendants have no juju on the land and have never … to have one until the present case in which the 1st defendant has said that the Odakpa juju is neither Umuleri’s nor communal, but belongs to an old man at Aguleri who has not given evidence.”

On the acts of ownership, the learned trial judge said:

“The evidence afforded by the dealings with the land by the parties and by the existence on the land of a juju now tendered by the plaintiffs, in my judgment, falls short of establishing the fact that the plaintiffs are owners of the land.” The Umuleri people appealed to the Federal Supreme Court and lost. They further appealed to the Privy Council. Although they lost, the view of their Lordships of the acts of ownership was not in favour of the Aguleri people for as Lord Jenkins, delivering the judgment of the Privy Council said:

”Their Lordships are content to accept as the more favourable to the plaintiffs, Mr. Dingle Foot’s submission that this was a case of concurrent inferences from facts rather than concurrent findings of fact. Even so they find it impossible to hold that the courts below were wrong in concluding as they did that the plaintiffs, on whom the onus lay, had failed to make out their claim to the declaration sought.

On the contrary, it appears to their Lordships that such evidence of ownership as existed immediately after the execution of the agreement of 25th June, 1898, was wholly inconclusive either way and that if and so far as subsequent acts and events are to be regarded as having any evidential value at all that (sic) do not on the balance, afford any further support for the plaintiffs’ claim. As to the reliance placed by the plaintiffs to (sic) any physical occupation by the Umuleri of parts of the disputed strip before 1898, their Lordships would refer to Omanhene Foli v. Chief Obeng Akesse 1934 AC 340, which in circumstances such as those of the present case to say the least, casts doubt on the evidential value of such partial occupation for the purpose of raising the inference of ownership of the whole of the area claimed.” (Italics mine).

Earlier on, Lord Jenkins, said:

”Their Lordships do, however, agree with the view to be collected from Hubbard, FJ.’s judgment as a whole that little, if any, assistance is to be found in the various acts of ownership on either side which took place between 25th June, 1898 and the abandonment of the land by the Crown.”

Stating clearly their reasons for this view, Lord Jenkins said:

‘The essence of the plaintiffs’ case is that the Umuleris being then owners of the land, made over the ownership of it to the company on the 25th June, 1898.

They must therefore be taken as having believed from the 25th June, 1898 onwards that they had no interest in the land, and cannot rely on any acts of ownership on their part after the 25th June, 1898 as assertions of their title against that of the Aguleri. According to their own case, such acts of ownership, at the time they took place, could only constitute assertions of their title in the first instance against that of the company and latterly against the Crown. Similarly, the acts of ownership from the 25th June, 1898 onwards relied on by the Aguleris as assertions of their title against that of the Umuleris could, according to the Umuleris’ case, only amount to assertion of the Aguleris’ title against the company in the first instance and latterly against that of the Crown, which the Umuleris, having parted with the whole of their interest, were neither concerned nor able to contest.” (Italics mine)

The Privy Council’s decision was delivered on the 28th day of July, 1959. Rather than being deterred, the Aguleri people considered themselves well armed by the decision for a fight. However, the Aguleri people did not rush to court immediately, they waited for about 16 years before filing their claim in the instant appeal on the 12th of June, 1975.

It appears to me that a careful reading and study of the judgment of the Privy Council was not undertaken by the parties as this case was fought in the High Court with almost the same material as the 1950 case, suit 0/48/50. The evidence differed only in minor details.

It was made abundantly clear in that Privy Council’s judgment, that, between the years 1898 and 1950 any act of ownership by the Aguleris could not be considered as a challenge to the title of the Umuleris to the land in dispute. Projecting the devolution of title to the land on the Crown and highlighting the true legal position, Lord Jenkins said:

”Their Lordships would next refer to the Niger Land Transfer Ordinance 1916 (Ch 149 of the Laws of Nigeria). By section 2 of that Ordinance, all the lands and rights within the southern provinces belonging to the Niger Company on the 1st January, 1900 and specified or referred to in the agreements and instruments mentioned in the First Schedule (which included as No.110 the agreement between Umutshezi and the Niger Company) were vested as from the 1st January, 1900 in the Governor in Trust for His Majesty, his heirs, and successors. In 1945, the Ordinance was amended by inserting a new section 10, by subsection (1) of which it was provided in relation to any vested trust lands (i.e. any of the lands and interest vested in the Governor in Trust as aforesaid) (sic) the Governor considered it desirable so to do, he might by order published in the Gazette declare that with effect from a date to be specified in such an order he abandoned all the right,title or interest vested in him by virtue of the Ordinance in the whole or any part of such vested trust lands as might be mentioned therein. By a further amendment of the same date, a new section 14 was inserted in the Ordinance stating in these terms the effect of any abandonment by the Governor under section 10(1) –

‘where the governor abandons all the right, title or interest vested in him by virtue of this Ordinance in any vested trust lands or part thereof in accordance with the provisions of this Ordinance then such abandonment shall have effect as if such vested trust lands or part thereof had never been included in the instrument, agreement or document, as the case may be by which the same were originally transferred to the company’.

By an order made under this Ordinance (No. 38 of 1950), and published in the Nigerian Gazette of the 2nd November, 1950, the Crown abandoned all right, title and interest in the land in dispute except for a small area edged yellow on the plan exhibit P.

On the strength of this abandonment by the Crown, which reinstated the plaintiffs as owners of the disputed strip if they had in truth been owners of it before the execution of the agreement of 25th June, 1898, the plaintiffs on the 6th November, 1950 commenced the present suit in the Native Court, from which it was transferred to the Supreme Court.”

It is clear therefore that it was only from the 6th day of November, 1950 when the Umuleris were reinstated to the position they occupied before 25th June, 1898 as owners of the land that any assertion of acts of ownership can operate as a challenge to their title.

I am in sympathy with the concern of the learned Justices of the Court of Appeal over the impression which a dismissal of the plaintiffs’ claim for a declaration of title would convey to the unlearned minds. Olatawura, J.C.A. seemed to have given little thought to the matter when he held that such an order would mean that the land in dispute is a no-man’s land. I can find no justification for that view. The learned trial judge’s findings that the parties occupy different portions of the land in dispute – the Aguleris concentrated in the north and the Umuleris concentrated in the south of the land in dispute – do not, in my view, indicate that the land in dispute is a no-man’s land.

A claim for a declaration of title does not succeed by the proof of the fact that one party, the defendant, had lost in his bid for a declaration of title to the same land before a court of competent jurisdiction. It has to be established by credible, cogent and overwhelming evidence that the party seeking the declaration of title has exercised complete unchallenged dominion over the entire area of land claimed for a long time before the court can be persuaded to exercise its discretion to grant the declaration. It appears that Olatawura, J.CA overlooked the burden of proof to be discharged by the Aguleri people and the fact that the learned trial judge did come to definite conclusion on the evidence, the attraction, use and adoption of the language of Waddington J. in the 1935 case and of their Lordships in the Privy Council in their judgments in the 1950 case, notwithstanding. There is nothing incongruous about an order of dismissal of a claim for a declaration of title if the burden of proof is not discharged. The time hallowed principle of law on the standard of proof required to be satisfied in such a case, i.e. that the plaintiff must succeed on the strength of his own case and not on the weakness of the defence, shows the necessity of proof of the plaintiff’s case by evidence even in the absence of any opposition to the claim by the defence. The burden is not made any lighter where the evidence of traditional history of ownership is inconclusive, scanty or non-existent or abandoned as in this case, and as in this case where there is abundant evidence of acts of ownership by either side dating back to the closing years of the last century, i.e. 19th century. Exclusive ownership of the entire area of the land in dispute by either party in such circumstances is impossible to establish and it is little wonder that the appellants failed in their bid in 1950. This is more so where the findings of fact is that each party’s acts of ownership and possession do not derive authority from the other party. Olatawura, J.C.A was therefore in error when he held that there was enough evidence on record to justify a finding in favour of the plaintiffs. If, as established, the appellants have exercised acts of ownership over the land in dispute since 1898 without let or hinderance from the respondents, it is flying in the face of concrete and impregnable facts to infer and hold that the respondents were exclusive owners of the entire area of the land in dispute.

Belgore, J.CA’s observation, that the learned trial judge’s view that no act of possession and ownership had been shown by the Aguleris to justify the inference that they have title over the land was based on previous decisions that no definite conclusion could be drawn as to who has title to Otuocha land, is not justified by the findings made by the learned trial judge. Admittedly, the issues decided in the previous action touching the land in dispute cannot be overlooked. Their probative value is enormous and if the judgments are in evidence as indeed they are, having been pleaded and tendered by both parties, their use is perfectly justified in law. Indeed, it would be erroneous not to consider them and use them as issue estoppel or estoppel per rem judicatam as the case may be.

Belgore, J.CA made another startling observation, which is not borne out by the record. It is that ‘the learned [trial] judge never found any act of ownership exercised by the defendants to rely upon except their recent settlements which were (sic) sudden phenomenon on exhibit P in this case’. This amounts to a grossly erroneous misdirection on the facts. I have set out earlier on in this judgment the learned trial judge’s findings of acts of ownership and would repeat with emphasis that they span a period of 86 years – 1898 till date. Of the utmost significance is the grant they made of the larger portion of the area of land in dispute to the Royal Niger Company in 1898. The grant to the Royal Niger Company is an exercise of the right of ownership. It amounted to an act of ownership and until the Crown abandoned the land in 1950, the Aguleris never once challenged the grant in court.

On the whole, the Court of Appeal misdirected itself seriously on the facts and the law and came to an erroneous decision. The appeal succeeds and is hereby allowed. The decision of the Court of Appeal in Appeal No. F/231/78 delivered on 24th day of June, 1981 is hereby set aside and in its stead the order of dismissal entered against the respondents by the High Court is hereby restored.

If, as the evidence shows, the Aguleris and Umuleris lived side by side together, farmed side by side together and built and lived on the land in peace and harmony before divisive forces entered their midst, there is no reason why they should not recapture the peace and harmony that has been lost to them over these years of litigation now that neither the Aguleris nor the Umuleris have been able to establish that they are exclusive owners.

The respondents shall pay the appellants costs of this appeal in this Court fixed at N300.00 and in the Court of Appeal fixed at N200.00

---

SC.65/1982