George Okegbe & Ors Vs Nnadi Chikere & Ors (2000)

LAWGLOBAL HUB Lead Judgment Report

AYOOLA, J.S.C.

In the Orlu Judicial Division of the High Court of Imo State, there were two suits. One, suit No. HOR/24/76, was by one George Okegbe and others, suing as representatives of the Okwu kindred of Umuokpo village, against one Nnadi Chikere and others, sued as representatives of the Umuodudu village. Both villages are in Nkume, in Nkwere Division. The other, suit No. HOR/48/82, was by one Nwashigwalam Okoroemume and others, suing as representatives of Umuodudu family in ‘Oriri Umueze Nkume’, against one Achikamuonye Ike and others, as representatives of ‘the people of Umuokpo Okwu’. The two actions were consolidated. The Okwu kindred, plaintiffs in HOR/24/82 (“the first suit”) became the plaintiffs in the consolidated suits, while the “Umuodudu kindred” who were the plaintiffs in HOR/48/82, (“the cross action”) became the defendants in those suits. The plaintiffs’ claim was for a declaration that they were entitled to the customary right of occupancy in respect of a piece of land “known as and called ‘UHU OKWARA OHONAOBI’ situate at Umuokpo village Nkume”, damages for trespass, possession and injunction. By their cross-action the defendants sought a similar declaration in respect of the same land which they described as ‘Uhu Umuodudu’ situate at Umuodudu in Nkume”, damages for trespass and injunction. The trial Judge, Ononuju, J., on April 27 , 1990, dismissed the cross-action and non-suited the plaintiffs. The plaintiffs did not appeal from the decision of the learned Judge whereby they were non-suited. However, the defendants appealed to the Court of Appeal who on June 2, 1994 dismissed their appeal. This is an appeal from the decision of the Court of Appeal. In this judgment, for convenience, the plaintiffs in the High Court, who are respondents in this appeal, will be referred to as “the plaintiffs”, and the defendants in the High Court, who are appellants in this appeal, will be referred to as “the defendants”.

The plaintiffs’ case, in a nutshell, was that the land in dispute was a portion of a large area of land called ‘Uhu Okwara Ohonaobi’ which, is owned by the plaintiffs by successive descent from their ancestor, one Okwu, from whom it had descended successively to the members of their kindred. They claimed that members of their family lived and farmed on the land, and have been harvesting all the economic trees thereon from time immemorial. The story was told that the defendants were from a place called ‘Olori Umueze Nkume’ and that the defendants’ kindred were called Olori Umueze. Evidence was given that the defendants had no land within or around the land in dispute. It was alleged that the defendants’ ancestors approached the plaintiffs’ ancestors individually when, having run away from their village upon the murder of a person in Umuduru in Umueze, they returned to find that their land at Olori Umueze Nkume had been confiscated by the family of the man killed by the defendants’ ancestors. It was the plaintiffs’ case that portions of the land in dispute were granted on individual basis to the ancestors of the defendants by ancestors of the plaintiffs, also on individual basis. Each of the ancestors of the defendants brought palm wine and kola nuts when shown where to live within the land. It was the condition of the grant that each grantee should work for the grantor every ‘Orie market day’ and present a cock to his grantor whenever the grantee was shown where to farm and that each grantee must be of good conduct. Notwithstanding the grants, the grantors continued to harvest all the economic tress on the land where the defendants live. This dispute arose because the 2nd defendant chased away one Baby Nmezie and someone who had come to harvest palm fruits for her on the land, and proceeded to cut down palm trees and other economic trees of the land.

For their part, the defendants claimed that they and the plaintiffs had a common ancestor, one Nkume, and claimed title to the land through one Eze whom they described as one of the four sons of Nkume. They confirmed the story that someone was murdered in Umuodudu, but only to the extent that some members of their kindred committed the murder and had to run away to a place called Atta. They claimed that several members of their kindred did not run away, and that those who did were given back their land upon their return.

The record of the High Court and the judgment of the trial judge showed that after evidence had been taken in the matter and on the day fixed for judgment, the court, the parties and their counsel went to the land in dispute to see the northern boundary of the land in dispute. The purpose of the visit, as recorded in the Judge’s noted, was for the 1st plaintiff to show the area of land shown to the defendants to live and the area of land trespassed upon by the defendants. The trial Judge wrote that he derived much help from the visit to the land.

The basis of the decision of the trial Judge was, succinctly put in his judgment. In regard to the conflict in the evidence of the parties as to whether there was a grant to the defendants’ ancestors or not, he came to the conclusion as follows:

“Even though the defendants deny the issue of grant but they confirmed the story of Umuodudu killing some one from Umueze and ran to Atta where they stayed for some time before returning to Olori in Umueze. The defendants admit that where they live share a common boundary with the land of the plaintiffs. It is agreed on both sides that the defendants are from Olori D.W.1 admitted that their own Olori is of the same Olori where the plaintiffs alleged the ancestors of the defendants were living before they ran out. D.W.1 also admitted that there is a village separating the two Oloris called Umueke (sic). From the above, I am inclined to believe that the Olori near to the plaintiffs, i.e the defendants were shown where they now live in the plaintiffs’ land when they returned from Atta where they ran to after the murder incident. Otherwise, how could they leave their kith and kin at Olori, cross another village to come to live where they now live. I am more inclined to believe the plaintiffs that where the defendants now live is within their Umuokpo village.

“When the court visited locus, it was shown where the defendants ancestors were living before and this was not challenged by the defendants. Other members of Olori kindred still live there till today.”

Having come to that conclusion, it was inevitable that the learned Judge should dismiss the defendants’ cross-action.

In regard to non-suiting the plaintiffs, the learned trial Judge had this to say:

“If individuals of the plaintiffs’ ancestors granted their individual portions of land to individuals of the ancestors of the defendants at different times and on different terms, and the land in dispute is not communal land, I hold the view that each plaintiff should bring a separate action to claim from each defendant the land granted to the defendants’ ancestors individually to live”.

Besides, in regard to the claim for forfeiture, the learned trial Judge said:

“Again Exhibit’ A’ did not show the portions of the land in dispute granted individually to the ancestors of the defendants to make court make an order for forfeiture as the defendants are claiming the land in dispute as their own.”

The defendants’ appeal to the Court of Appeal turned on facts. Notwithstanding that Rowland, JCA, who delivered the leading judgment of that court, apparently out of abundance of caution having regard to the briefs of argument, dealt extensively with several points, citing copious authorities in the process, it is manifest that the material issues, decisive of the appeal before that court were whether the trial Judge had properly evaluated the evidence and whether on the evidence before him, he was right in his finding that the defendants’ ancestors were grantees from the plaintiffs’ ancestors. The conclusion arrived at by Rowland, JCA., and concurred in by Edozie and Onalaja, JJCA, was conclusive of the appeal when he said with reference to the passage from the judgment of the trial court, first quoted above, that:

“It seems to me that the above findings of fact by the trial court are based on the totality of the evidence placed before it (and an appellate court should not disturb it as it is not perverse or overreach) …”

Having come to that unequivocal conclusion, it was unnecessary for him to have invested so much effort into consideration of the deficiencies in the defendants’ case in regard to proof of their title by evidence of tradition. Encompassed and implied in the findings of the trial Judge that the defendants’ ancestors were individual grantees and tenants of the plaintiffs’ several ancestors, is a rejection of the defendants’ case based on evidence of tradition and even possession.

As earlier said, the Court of Appeal dismissed the defendants’ appeal. This is a further appeal from the decision. On their appeal to this court, the defendants, by their counsel, have canvassed, substantially, the same points as were canvassed in the Court of Appeal, no doubt encouraged by the amount of effort that court had put into considering their case on appeal. It was contended in the appellants’ brief of argument, filed by counsel on behalf of the defendants, that the plaintiffs did not prove a customary grant to the defendants; that the defendants having been shown to be in possession of the land for a long time should not have been deemed to rely on evidence of tradition in proof of their title as the trial court and the court below did; that the defendants should have been given the benefit of section 146 of the Evidence Act; and, finally, that the plaintiffs should not have been non-suited but that the order that should have been made was one striking out the plaintiffs’ case.

Responding, the plaintiffs by the respondents’ brief filed by counsel on their behalf, contended that the finding of grant made by the trial Judge and confirmed by the court below were concurrent findings of fact which this court should not interfere with, there being no exceptional circumstances to justify such interference. They also contended that there was nothing in the case to warrant an application of section 146 of the Evidence Act. It is fitting to observe that the respondents’ brief filed on behalf of the plaintiffs was of a rambling nature. Although six issues for determination were identified in their brief, arguments were presented under a single head without specifying what issues were being addressed. That form of brief writing is to be deprecated. It puts an unnecessary burden not only on the opponent but also on the court, to fathom what issue arguments presented relate to and whether such arguments have relevance to any of the issues arising on the appeal.

Although the defendants by the appellants’ brief of argument, had raised several issues, at the end of the day, in the course of oral argument, learned senior counsel for the defendants on this appeal, Chief Iketuonye, SAN, conceded that there was a grant by the plaintiffs to the defendants. What he appeared to be concerned with on this appeal was that the defendants’ possession should not be disturbed, although their cross-action had been dismissed on the ground that they are customary tenants, as found by the trial Judge and confined by the court below. He pressed the point that the proper order that should have been made in relation to the first case was one striking out the case and not one of non-suit.

It is not difficult to hold that learned counsel for the defendants, by the concession he made, albeit at a late hour in the appeal, had allowed mature judgment to prevail. The real issue on the appeals, both to the court below and to this court, is whether the inference which the trial Judge drew from established facts was right or not. The principle which the much cited case of Kojo II v. Bonsie (1957) 1 WLR 1223 is authority for, in the final analysis, is one of drawing inference from proved facts of the probability of truth of one of two or several competing traditional histories. Lord Denning in that case said at p. 1226-1227:

“Where there is a conflict of traditional history The best way to test the traditional history is by reference to the facts in recent years as established by evidence and by seeing which of two competing histories is the more proble.”

In order, successfully, to impugn a finding of a fact in issue which was made as a result of inference of fact from facts which a trial court has found established, it must be shown, either that the facts should not have been found established in the first place, or, that even if they have been so found the inference drawn does not reasonably follow. Inferences to be drawn from circumstantial evidence are rebuttable. However, where there is no evidence in rebuttal or such evidence as there is was not effective in rebuttal, the trial Judge’s finding should not be interfered with by an appellate court.

In this case, the finding of the trial Judge cannot be impugned on the ground that the facts from which he drew an inference of grant were not established. Those facts were vitually admitted and were common ground. In the copious submissions made in the court below and this court, it has not been suggested that the inference was unreasonable. In these circumstances, learned counsel for the defendants, in my opinion, took the best course by conceding that the finding made by the learned trial Judge was correct.

The finding that the defendants are customary tenants of the plaintiffs makes the question of possession of the land in dispute inconsequential. The law is clear that possession is an incident of customary tenancy. The cases are abundant that the customary tenant has a right of possession. In Suleman and Another v. Hannibal Johnson (1951) 13 WAC A 213 at p. 215 it was said that:

“It is clear that when the original owners have granted rights of occupation to another, the possession of the other is not adverse possession and the owner’s acquiescence therein is part and parcel of the grant and cannot affect the owner’s reversionary rights. It is only, therefore, when it comes to the owner’s knowledge that the tenant has alienated or is attempting to alienate the land that the question of acquiescence can arise. The owner is not in possession, and has indeed no right to possession, and is not concerned, therefore, with the acts of the tenant unless and until he becomes aware that those acts are inconsistent with and, therefore, a denial of the overlord’s rights”.

Similarly, in Sagay v. New Independence Rubber Ltd (1977) 5 SC 143, Sowemimo, JSC, said at p. 158:

“It is now settled law that once land is granted to a tenant in accordance with Native Law and Custom, whatever be the consideration, full rights of possession are conveyed to the grantee. The only right remaining in the grantor is that of reversion, should the grantee deny title or abandon or attempt to alienate.”

The result of the cases is that no inference favourable to the title which the defendants claim in the land by their cross-action can be drawn from the fact of possession, once the finding is made and upheld that they were customary tenants. It is also evident from the cases, some of which I have mentioned in this judgment, that unless the defendants commit acts of misconduct, whereby they would incur forfeiture of their respective tenancies, the defendants are entitled to remain in occupation of the land severally granted to their ancestors. The fear of learned counsel for the defendants that dismissal of the defendants’ cross-action may by itself, alone, lead to an eviction of the defendants from the land seems to me not well founded at all.

Enough, I believe, has been said to show that the defendants’ cross-action has been properly dismissed and that the Court of Appeal were right in so holding. I now turn to the order of non-suit made in respect of the first action brought by the plaintiffs. The ground for non-suiting the plaintiffs as stated by the trial Judge has been set out earlier in this judgment. In short, it is that since the grantors and grantees were acting severally and individually and not collectively and communally, the actions were not properly constituted in representative capacities for the communities, described as ‘kindred’. Counsel for the defendants argued that the plaintiffs’ action should have been struck out. The plaintiffs’ counsel argued that since the appeal was not from the decision in the first case the point could not be raised on this appeal and also that this court should substitute judgment for the plaintiffs for the non-suit ordered.

When an appeal is taken from the decision in consolidated suits and the notice of appeal has indicated that the appeal is against the whole decision, the appeal must be taken as having been from the decision as it affects the totality of the consolidated suits. Where, however, as in this case, the notice of appeal in the court below indicated that the part of the decision appealed from is that which related to one of the consolidated suits, the appellant cannot challenge any other part of the decision, without first amending his notice of appeal.

In this case, the defendants by their notice of appeal indicated that they were appealing to the court below from the ‘decision of the Lower Court in suit No. HOR/48/82 striking out the defendants’ cross-action.’ There was no appeal from that part of the decision non-suiting the plaintiffs. Although the court below considered the issue of the order that the trial court should have made in respect of the first action, it was evident that it would have done so without jurisdiction but for the provisions of Order 3 Rule 23( 1) and (2) of the Court of Appeal Rules, 1981 which empowers the Court of Appeal inter alia, to make such order as the case may require notwithstanding that the appellant may have asked that only part of the decision may be reversed.

Technicality aside, this court now has before it an order of non-suit made by the trial court and confirmed by the court below, which is clearly inappropriate in the circumstances. An order of non-suit implies that although, on that particular occasion, the plaintiff has failed to prove his case against the defendant, he should, in fairness, not be denied an opportunity of relitigating the same case. (See Melifonwu v. Adazie (1964) 1All NLR346;Olayioye v. Oso(1969) 1All NLR 281; Oduola & Ors v. Nabhan & Ors (1981) 5 SC 197. The order of non-suit is not appropriate in a case, such as the present one, where the plaintiffs have been found not to have a standing to bring the action. Notwithstanding that there had been no appeal to the court below from the decision non-suiting the plaintiffs, that court should have invoked its powers under the Rules referred to above and made the appropriate order which the trial Judge should have made. The court below, after considering the question, was, however, in error in confirming the order of non-suit made by the trial Judge. The appropriate order should be one striking out the plaintiffs’ action. I would set aside the order non-suiting the plaintiffs and substitute one striking out the first action. The plaintiffs who have not cross-appealed cannot raise the question, as counsel on their behalf had tried to do, whether or not the judgment in the first action should not have been given for the plaintiffs instead of the order of non-suit made.

For the reasons which I have given, subject to a variation of the order made by the High Court in the first suit by substituting an order striking out the suit for that non-suiting the plaintiffs, I would dismiss the defendants’ (appellants’) appeal in its entirety. I order N10,000 costs to the plaintiffs (respondents) being costs of the appeal.

SC.26/1995