Ireju Nwokidu And Ors V Mark Okanu (2010)

LAWGLOBAL HUB Lead Judgment Report

O.O. ADEKEYE, JSC,

This appeal is against the judgment of the Court of Appeal, Port Harcourt Division delivered on the 31st of October 2001. The judgment of the Court of Appeal upheld that of the High Court of Rivers State which dismissed the claim of the plaintiffs before the Court in its entirety. This appeal by the appellants before the court is designed to set aside the concurrent judgments of the court below and the trial court. The plaintiffs-appellants maintained the action in a representative capacity on behalf of themselves and the Umunwangwo family of Kreagani village in Ogba/Egbema District of Ahoada Local Government Area against the defendants/respondents who also defended the suit in a representative capacity for themselves and on behalf of the Alinso-Okanu family of Kreagani in Ogba/Egbema District. The claim of the plaintiffs-appellants as pleaded in paragraph 26 of the Further Amended Statement of Claim, page 31 of the Record of appeal reads as follows: – (1) A declaration that they are the persons entitled to the customary right of occupancy of all that piece or parcel of land known and called ‘Aliazulo’ lying situate and being at Kreigani in Ogba/Egbema District in Ahoada Local Government Area, Rivers State, which is verged Red on the plaintiffs survey plan. (2) N6, 000.00 (six thousand naira) general damages for various acts of trespass committed on the plaintiffs land about 1970 and since then. (3) A perpetual injunction restraining the defendants whether by themselves, their servants or agents or otherwise however from committing further acts or trespass on the said land. At the trial court, parties exchanged pleadings and each side called five witnesses in support of their case. Both parties admitted being natives of Kreigani, and that the land in dispute is within Kreigani Town. (The plaintiffs-appellants identified the land in dispute as ‘Aliazulo farm land’ lying, situate and being in Kreigani along orashi river. Aliazulo in Ogba language means ‘land behind the house’. The land is properly delineated and verged red on an amended survey plan No. 372 dated the 17th of November 1983, filed along with the Statement of Claim. The land is bounded as follows: – On the North by the land ofUmuchikere family of Omoku. On the South by the lands of the plaintiffs On the East by the land of the plaintiff and that of Umuodu family of Okposi, and the land ofUmunkaru family of Ornoku. On the West by Orashi river. PAGE 2 The plaintiffs-appellants claimed ownership of the land in dispute through their ancestor called Ngwor who during a hunting expedition came to a place where he saw a narrow fast running stream, and screamed ‘Kiri Ngene’. He acquired the area by settlement arid developed the stream into Orashi River. Other people joined the ancestors of the plaintiffs in the area. They not only settled at Kreigani, they also fanned across the river. The defendants/respondents referred to the area in dispute as Ncharata Land. The land and its boundaries are clearly verged yellow on the defendants plan filed in this suit. The plaintiffs live south of the defendants who are owners of Aliazulo land, Aliazulo land is distinct from and has nothing in common with Ncharata land. The defendants-respondents claimed ownership of the land in dispute from time immemorial through their ancestor Akpu who first settled on the land in the area as a virgin forest and called the place ‘Aligwu’. The entire land includes the land in dispute Ncharata land and Aliazulo the latter now home of the plaintiffs. The defendants claimed that they are distinct people and ancestors of the defendants gave land Aliazulo backyard to Ngwor the ancestor of the plaintiffs. Ngwor, his wives and descendants did menial jobs for him. Both plaintiffs and defendants claimed the entire Kreigani including the land in dispute, relying on traditional history and various acts of ownership and possession exercised by their ancestors down the line. The learned trial judge after a review and evaluation of the evidence of the parties in his considered judgment declined to grant the declaratory reliefs of the plaintiffs as the evidence in support was not strong and credible as required in the circumstance of the case. In his conclusion in the judgment at pages 103 to 141 of the Record) the learned judge held that: – ‘I have carefully gone through the case by the pleadings of the respective parties, their survey plans and the evidence given by their witnesses. The clear result of the evaluation of the evidence tendered on every aspect of this case is that, that of the defendants witnesses weigh more and is more credible and believable than those given by the plaintiffs witnesses. See Mogaji v. Odofin (1978) 4 SC 97 at page 93. So that the finding of this court is that, from the totality of the evidence given, the defendants are the owners of the entire land in dispute which is verged yellow on their survey plan No. OK/RSD/5/77 made on the 9th May 1977 and tendered in this case as Exhibit D 15. I have earlier in this judgment and after reviewing the plaintiffs case held that the plaintiffs have failed to prove that they are the owners of the land in dispute by any of the modes. That conclusion, coupled with my final finding that the defendants are the owners of the land in dispute show that the plaintiffs case in the suit have failed and accordingly I dismiss their claims in this suit against the defendants in their entirety.’

In an appeal to the Court of Appeal Port Harcourt, that Court was able to identify that there was no dispute that needed to be resolved in relation to the fact that the land in dispute is in Kreigani – as aligwu itself being within Kreigani. The entire case was fought on the question of who was the original owner of the disputed property.

The Court of Appeal also concluded in the leading judgment prepared by J.O. Ogebe, JCA (as he then was) that: – ‘I see no substance in any of the complaints of the appellants. They failed to prove their claim before the lower court and the lower court was justified in dismissing their claim. I see no basis whatsoever to interfere with the judgment of the trial judge which in my respectful view is solid. Accordingly, I dismiss the appeal and affirm the judgment of the trial court. I award costs of N5, 000.00 in favour of the Respondents.’ Being dissatisfied with this judgment, the appellants made a further appeal to this court. At the hearing of the appeal on 2/11/09 – the appellants adopted and relied on the appellants’ brief deemed filed on 26/3/03, and the appellant reply brief filed on 29/9/03. The appellants filed five grounds of appeal from which they distilled five issues for determination as follows: –

(1) ‘Whether the judgment of the Court of Appeal was consistent with the evidence tendered at the hearing of this case in the High Court.

(2) Whether the evidence tendered in the High Court by the parties did in any way show that the land respectively called by parties as Aliazulo in Kreigani on the one hand and Ncharata in Aligwu on the other hand were one and the same land.

(3) Whether the finding that the appellants were guilty of standing by was justified by the evidence tendered before the court and the plan of the land in dispute tendered by the plaintiff which clearly pointed to the piece of land over which Chief Ellah sued and the other piece of land on which Anumudu built as outside the land in dispute.

(4) Whether the Court of Appeal was in error when it failed to hold that the finding of the trial court to the effect that the finding of this court is that from the totality of the evidence given the defendants are the owners of the entire land in dispute which is edged yellow in their survey plan amounted to a declaration of title to or affirmation of ownership of the entire land on the defendants who did not counter claim for such declaration or at all.

(5) Whether reference by the appellants to the Lands Transfer Ordinance was intended as constituting proof of title by production of document only and whether the appellants unchallenged evidence that their predecessors were grantors noted in the Niger Lands Transfer Ordinance and the agreement of 4th January 1897 was not sufficient to tilt the scale in favour of the appellants.

The respondents adopted and relied on the respondents brief filed on 22/5/03. The respondents raised one sale issue for determination as follows- ‘Whether upon the preponderance of evidence and the law governing the role of an Appellate Court, the Court of Appeal was in error when it sustained the decision of the High Court dismissing the plaintiffs-appellants claim in its entirety.’ At this stage, the respondents learned counsel drew attention of the court to preliminary issues arising from this appeal as follows: –

(1) The appellants issues for determination are prolix, in that Issues No.1 and 2 were distilled from Ground 1 of the Ground of Appeal which is the omnibus ground. It is not permissible in law to formulate more than one issue from one ground of Appeal. The court is to discountenance Issues No.1 and 2 formulated by the appellants and the argument in their support. Ground 2 of the appellants ground of appeal did not arise from the judgment of the Court of Appeal or of the High Court. There was no issue formulated by the appellants from Ground 2 of the Ground of Appeal. The ground is therefore deemed to be abandoned and must consequently be discountenanced. Issue No.2 was not formulated from any ground of appeal, and the appellant cannot rely on the omnibus ground of Appeal to sustain it. The court is urged to discountenance Issues Nos. 1 and 2 raised by the appellants. The respondents supported the submission with cases Ugo v. Obiekwe (1989) NWLR pt.99 pg. 566 at pg.580. Ogunbiyi v. Ishola (1996) 6 NWLR pt.452 pg.12 at pg.20. Din v. African Newspapers Ltd. (1990) 3 NWLR pt. 139 pg.392 at pg. 403. Akibu v. Oduntan (2000) 3 NWLR pt. 685 pg.446 at 462-463. Iyaji v, Eyigebe (1987) 3 NWVLR pt.61 pg.523 at pg.528. Calabar East Co-op v. Ikot (1999) 4 NWLR pt.638 pg.225 at pg.246. Ndiwe v. Okocha (1992) 7 NWLR pt.252 pg.129 at pg.139-140. In the reply brief filed by the appellants on 29/9/03, the respondents were alleged to have misconceived the import of the appellants argument that issues numbers 1, 2 and 5 were taken together and that issues numbers 1 and 2 relate to the omnibus ground expressing that the judgment of the Court of Appeal was against the weight of evidence, The Ground 2 complained against the failure of the Court of Appeal to make a finding on the status of Aligwu and Kreigani in respect of the disputed land. The’ appellant submitted that while the attack on the competence of ground 2 may relate to the merit of the appeal, it cannot constitute a preliminary point of law to give grounds for objection. Ground 2 has not been abandoned – it is subsisting and valid. Issue No.2 is from ground 2 of the ground of appeal. The issue of identity of the land in dispute was before the trial court.

The respondents formulated a single issue in respect of the appeal in the respondents brief thereafter which was argued along the line of the issues raised by the appellant regardless of the preliminary issues already considered. The appellants filed five grounds of appeal and distilled five issues for determination in the appeal itself. While arguing the appeal, the appellant decided to combine Issues one, two and five together and made submission on them jointly.

The appellant argued that issues Nos. 1 and 2 relate to the omnibus ground that the judgment of the Court of Appeal was against the weight of evidence. This submission obviously carries the impression that issues one and two are formulated from the omnibus ground. The appellant argued that the complaint is against the finding of the trial court in respect of a specific issue of the identity of the land in dispute. It is noteworthy that an omnibus ground of appeal is a general ground of fact complaining against the totality of the evidence adduced at the trial. It is not against a specific finding of fact or any document and it cannot be used to raise any issue of law or error of law. .For a complaint on a finding of fact on a specific issue, a substantive ground of appeal must be raised challenging that finding. It cannot be covered by an omnibus ground. Ajibona v. Kolawole (1996) 10 NWLR pg. 476 pg. 22.

The other four grounds of appeal against the judgment relates to the error in law and misdirection spotted in the findings of the lower court before arriving at its conclusion in the judgment. This to my mind could have been covered by the omnibus ground raised, by the appellant. The complaint made on the omnibus ground is that the judgment of the Court of Appeal is against the weight of evidence. The four grounds of appeal challenged the evidence before the court and findings of the lower court in view of the evidence. In effect when an appellant complains that a judgment is against the weight of evidence, all he means is that when the evidence adduced by him is balanced against that adduced by the Respondent the judgment given in favour of the respondent is against the weight which should have been given to the totality of the evidence. The five issues raised relate to the five grounds of appeal filed, particularly issue one fits into the omnibus ground – while ground 2 is not abandoned. Since none of the grounds offend against the provisions of Order 8 Rule 4 of the Supreme Court rules, the objection is over ruled. It is however my observation that the sole issue raised by the Respondent is all embracing as it covers all the five issues formulated by the appellant. I intend to be guided by the issues formulated by the appellants being specific in nature. The appellant argued Issues Nos. 1, 2 and 5 together. Issue One Whether the judgment of the Court of Appeal was consistent with the evidence tendered at the hearing of this case in the High Court. Issue Two Whether the evidence tendered in the High Court did in any way show that the land respectively called by the parties as Aliazulo in Kreigani on Aligwu on the other hand were one and the same land. Issue Five Whether reference by the appellants to the Lands Transfer Ordinance was intended as constituting proof of title by production of title document only and whether the appellants unchallenged evidence that their predecessors were the grantors noted in the Niger Lands Transfer Ordinance and the agreement of 4th January 1897 was not sufficient to tilt the scale in favour of the appellants.

The appellants relate the issues to the omnibus ground which said that the judgment of the Court of Appeal was against the weight of evidence, in that the pleadings and evidence of the parties did not establish the fact that Ncharata land in Aligwu claimed by the defendants-respondents as the land in dispute was the same land as Aliazulo land situate at Kreigani claimed by the plaintiffs-appellants. The appellant submitted that the question whether land at Ncharata in Aligwu or Aliazulo in Kreigani was a substantial point of disagreement between the parties.

The Court of Appeal and the trial court committed the single error of regarding the description of the parties as being the same as the description of the land in dispute. The Court of Appeal held that the question whether the land is in Kreigani or in Aligwu was never really in dispute in the court of trial. . The appellant disagreed that it was certainly in dispute in the trial court, it was a major issue which ought to have been decided which was unfortunately not decided. The respondents pleaded that their own land is distinct and has nothing in common with the land described by the appellants. The description of the land on the survey plans of the parties did not tally either. The appellants pleaded that it was their ancestors who leased the land- in the agreement shown in the Niger Lands Transfer Ordinance Cap 86 and Cap 149 of 1923 and 1948 respectively Schedules 3 and 4 of Cap 149. There was also the land the agreement of which was dated 4th of January 1897.

The case of the parties was that their respective ancestors leased land to the Royal Niger Company Chartered and Limited. The fourth schedule to the Ordinance dealing with the Niger Lands Transfer describes the land as ‘the piece of land at Kreigani known as the Niger Companys Station surrounded by red border line on the plan. The plaintiffs-appellants pleaded and gave evidence that the lessors named in the agreement of 4th January 1897 and referred to in the Niger Lands Transfer Ordinance were their ancestors. The defendants-respondents did not deny the existence of the agreement which was in respect of a land in Kreigani and not Aligwu. The appellants maintained that the respondents must have leased the land through their ancestors to the Royal Niger Company through false representation in 1897. The land document was signed by Okanu and Osia in a representative capacity as agent or trustee of the plaintiffs-,appellants family. The trial court and the lower court did not examine the capacity in which the documents were executed. Okanu and Osia who executed the documents were related to the appellants family on the female line. The appellants submitted that both parties relied on traditional history to claim title to the land.

Kofo v. Bonsie (1957) 1 WLR 1223 was cited to resolve the conflicts in the traditional evidence of the parties relying on events relating to the land in dispute capable of tilting the evidence on one side. The respondents admitted that Aliazulo farmland is no longer part of Aligwu land or Ncharata land and the Court of Appeal was wrong to have ignored such express concession which strengthen the plaintiffs case. The appellants further submitted that if the respondents had pleaded that they were from Kreigani, and the land in dispute was at Kreigani, such pleading would be deemed abandoned in view of the evidence of the respondents on oath. The respondents had admitted an essential part of the plaintiffs case. The appellants further submitted that the land document Exhibits PI – P3 executed by Okanu and Osia, the defendants-respondents ancestors at Kreigani were not done as their personal property but as communal representatives. Whereas the trial court and the lower court limited the exercise to them as individuals instead of as representatives of Kreigani.

The documents were in possession of the plaintiffs-appellants who tendered them as Exhibits P1 – P3. The documents were in custody of the appellants; any obligation created in favour of the respondents have been discharged. The respondents replied that the appellants had made an issue out of a non-issue in respect of the identity of the land in dispute. There was no dispute that both parties are from Kreagani town. The question of substantial point of disagreement between the parties as to whether the land in dispute was at Ncharata in Aligwu or Aliazulo in Kreigani – is not supported by pleadings or evidence. Aligwu was the original name for the town before the advent of the European visitors of the founder of Kreigani. The name Kreigani emerged from the adulteration of the word ‘Kirikiri’ which the founder used to describe the extent of his land to the European visitors. The learned trial judge from the pleadings of parties and the evidence led during the trial concluded that the parties were aware of the land in dispute. The appellants identify the land as Aliazulo farm land; the respondents refer to the land in dispute as Ncharata bush. It is a vast area verged red on the appellants survey plan Exhibit P8, and verged yellow on the respondents survey plan Exhibit D15. The respondents submitted that in the process of the evaluation of the evidence of both parties, and relying particularly on their survey plans Exhibits P8 – D15, the learned trial judge came to the conclusion that: –

(a) Although the parties referred to the land in dispute by different names, they were both in agreement as to the land.

(b) The land had common features in the survey plans, like the Orashi River and families of Okposi – Umuezelu/Umukeru and Umuodu have piece of land which form the eastern boundary with the land in dispute.

(c) The learned trial judge concluded that what the parties seriously disputed was the founderships and ownerships of the land in dispute.

(d) The court of appeal came to the conclusion that the identity of the land in dispute was never an issue before the lower court.

(e) The appellants did not draw attention to factors which render the concurrent findings of the two courts perverse.

(f) The fact that parties were in agreement as to the identity of the land in dispute was not challenged at the lower court. This court is urged to uphold the conclusion of the trial court and the lower court as to the identity of the land in dispute.

The respondents submitted that the learned trial judge evaluated the traditional evidence of the parties – particularly the evidence of witnesses and came to the conclusion that there was no cogent evidence as to the founding of the land in dispute by the appellants ancestor Ngwor, or that he was the original founder of the land in dispute. The respondents referred to the proof by documentary evidence by the appellants and the fact that there was an averment in paragraph 10 of their Amended Statement of Claim that an agreement dated 4th of January 1897 was signed between the Royal Niger Company Chartered and Limited and the plaintiffs ancestors no such agreement was tendered in evidence. In the Land Transfer Ordinance – the lands vested and the type of rights vested – were linked with specific survey plans with reference to the land at Kreigani in the 4th Schedule – the land referred to is the one surrounded by red border line on the plan. The rights vested by the lands ordinance, proves nothing as the access could be in respect of the area of land given to Akpu and not in respect of the area in dispute.

The 1907 ordinance did not make reference to any of the members of the family of the appellants. The learned trial judge rightly held that nothing in the ordinance constituted a proof of ownership of the land in dispute by the appellants. The respondents made reference to Exhibits P1, P2 and P3 deeds of leases made between is’15th January 1910 to 1946 and found that the lessors in the leases were members of the respondents family. The collection of rents by the respondents was challenged by the appellants in Omoku Native Court in 1929. The court found in favour of the defendants-respondents. The conclusion of the learned trial judge who was in the vantage position of seeing and hearing the witnesses was upheld by the court of appeal. This court is urged to discountenance the argument of the appellants and resolve issues one, two and five in favour of the respondents, issue three Whether the finding that the appellants were guilty of standing by was justified by the evidence tendered by the plaintiff which clearly pointed to the piece of land over which Chief Ellah sued and the other piece of land on which Anumudu built as being outside the land in dispute. The appellants referred to the evidence that Chief Ellah once trespassed on the land in dispute. The attempt made by the respondents to prevent the trespass landed them in court. Chief Ellah sued the respondents in court, and though the appellants knew about the case, they stood by and did nothing.

The respondents also pointed out that part of land was leased to Anumudu who put up a building on the land in dispute without any protest by the appellants. The appellants explained that the area covered was in the past granted to the respondents to live and farm by the appellants. The area was verged brown on the appellants plan tendered in court. The appellants could not be said to be guilty of standing by. There was no record of the suit instituted by Francis Ellah. Without knowing the facts of the case instituted by Francis Ellah, it would be wrong to condemn the appellants for standing by. The Court of Appeal was wrong to have come to such a conclusion and record the incidents as acts of recent ownership exercised by the respondents to the knowledge of the appellants and they did nothing.

The above cannot prevent the appellants from asserting that they are owners of the land in dispute. There was no evidence that the conduct of the appellants constituted a representation to the respondents which representation they relied on and acted on to their detriment and prejudice. The respondents submitted that in evaluation of the evidence before the court, the learned trial judge evoked the principle in Kofo v. Bonsie (1957) 1 WLR 1223 to review the more recent acts of possession over the land in dispute. The trial court found that the acts of possession were more consistent with the defendants claim to title over the land than the plaintiffs. The court of appeal affirmed this by reference to the encounter with Chief Ellah on the land and the portion granted to Chief Anumudu to build a store. These are instances of acts of recent ownership exercised by the respondents, to the knowledge of the appellants over the land in dispute to which the appellants did not react. The evidence of P. W.1 confirmed this. The appellants choose to cover the issue of acts of possession with the technical doctrine of standing by – a specie of estoppel by conduct. Issue No.4 This issue relates to the judgment of the High Court which concluded inter alia: – ‘So that the finding of this court is that from the totality of the evidence given, the defendants are the owners of the entire land in dispute which is verged yellow on their survey plan OK/RSD5/77 made on 9th May 1977 and tendered in this case as Exhibit D 15.’

The appellants contention is that by this finding, the High Court had wrongly declared title for the respondents. This was confirmed by the Court of Appeal. Such declaration that the defendants were the owners of the land in dispute was made without any claim or counterclaim by the defendants-respondents to that effect. The finding of the courts gave declaration of title to the respondents in circumstances which did not entitle them to such declaration of title of ownership. It is trite law that a court will not award to a party what he has not claimed. The appellants considered cases like Olosunde v. Oladele (1991) 4 NWLR pt. 188 pg. 713 Kodilinde v. Odu 2 WACA pg. 136 where it was held that ‘in a claim for declaration of title, the dismissal of the plaintiffs claim does not automatically mean that the land in dispute, without a counter claim belongs to the defendant.’ The appellants concluded that the Court of Appeal was in error when it failed to hold that the judgment of the learned trial judge to the extent that it awarded title to the defendants was given without jurisdiction which made the declaration null and void. In view of the submission made on the four issues canvassed, this court. is urged to uphold this appeal and enter judgment for the plaintiffs/appellants. The respondents replied that the entire case was fought on the question of ‘who was the original owner of the disputed property. The court had to decide between the appellants and the respondents who had a better right of title over the land in dispute. Each party based their case on traditional history and acts of ownership. The two courts came to the conclusion that from the totality of evidence given, the defendants are the owners of the entire land in dispute. The trial judge was under an obligation to make specific finding on the issue of ownership of the land in dispute. At the point where the learned trial judge reached the conclusion that the defendants were owners of the land in dispute it had arisen directly from the evaluation of the evidence and followed merely as a finding of fact. The trial court was duty bound based on the evidence before him to settle the issue of who is the actual owner of the land in dispute. The appellants have in the circumstance not put forward any satisfactory reason why this court should disturb the concurrent findings of the trial court and the court below. This court is urged to hold that this appeal is lacking in merit and it is accordingly dismissed. I have painstakingly considered the submission of parties on the issues formulated for determination in this appeal. It is worthy of emphasis that the major claim of the appellants before the trial court was for declaration that they are entitled to the Customary right of occupancy to the parcel of land at ‘Aliazulo’ at Kreigani in the Ogba/Egbema District of Ahoada Local Government Area of Rivers State. The pleadings, evidence on oath and documentary evidence disclosed as observed by both lower courts that it was based on traditional evidence between two consenting parties to determine who was the original owner of the disputed property – according to the appellants ‘Aliazulo’ and the respondents Ncharata bush.

I must at this stage and before considering the issues formulated for determination in this appeal, throw light into the tracts or attributes of a declaratory action – generally speaking the purpose of a declaratory action sought from court is essentially an equitable relief in which the plaintiffs prays the court in exercise of its discretionary jurisdiction to pronounce or declare an existing state of affairs in law in his favour as may be discernible from the averments in the statement of claim. ..

SC.125/2002