J.B. Ogbechie & Ors. V. Gabriel Onochie & Ors. (1988)

LawGlobal-Hub Lead Judgment Report

O. OBASEKI, J.S.C.

The proceedings leading to this appeal were first initiated in the High Court of Justice of Bendel State, Ogwashi-Uku Judicial Division at Ogwashi-Uku on the 23rd day of August, 1976. In that court, the appellants’ claim against the defendants stated in the writ of summons read:

“(1) Declaration of title to that piece and parcel of land known and called “Umuolu family land” situate and lying at “Umuolu Village, Ezi town within Ogwashi-Uku Judicial Division which said piece or parcel of land as to its area, position and boundaries will be shown on the survey plan to be filed by the plaintiffs in court. The annual rental value of the said land does not exceed N10.00;

(2) N2,000.00 (two thousand Naira) damages for trespass; the defendants being fully aware that the plaintiffs have been in undisturbed possession of the said land, he, his servants and/or agents have been committing acts of trespass on the said land;

(3) Injunction restraining the defendants by themselves their servants and/or agents from entering the said land or doing anything inconsistent with the plaintiffs’ right of possession thereon.”

Pleadings were on the order of the court filed and served and at the close of pleadings, the case was listed for hearing and determination of issues joined before Unurhoro, J. Of particular relevance to the claim of the plaintiffs were the facts pleaded in paragraphs 11 and 12 of the amended statement of claim. These paragraphs read:

“11. Ezi Uzo inherited the entire land of Ezi from his father Oraeze otherwise known as Ushi, the man who deforested the area. Ezi Uzo before his death apportioned his patrimony between his two sons, Jebeoma and Olloh, and the area now in dispute is part of Olloh’s share.

12. Olloh as his father before him, exercised maximum acts of ownership over his patrimony by farming, hunting and living thereon.

Three witnesses, 4th plaintiff, 2nd and the 1st plaintiffs’ witnesses testified at the instance of the plaintiffs. Six witnesses testified at the instance of the defence. After the addresses of counsel to the parties, the learned trial judge on the 18th day of April, 1983, delivered a reserved, well-considered judgment dismissing the plaintiffs’ claim in its entirety. The learned trial judge considered the evidence led meticulously and concluded lamentably in the following words.

“I have carefully and seriously considered the evidence tendered by both parties in this case with respect to their claim to acts of ownership or possession of the disputed land. I must say that I am greatly disappointed as this case was seriously starved of evidence by both parties in this regard.

It is settled law that pleadings are no evidence upon which a court of law could act, unless such fact is admitted by his adversary, but even where such is admitted in the pleadings, in claims of declaration, the plaintiff is still enjoined to prove his case as he succeeds on the strength of his own case and not on the weakness of the defendants….After a close study of the facts pleaded by both parties, Exhibits P1 and D1 together with the facts tendered before me, I am inclined to hold that the disputed land is predominantly farmland but it would appear that development may soon catch up with the said area to attract residential or industrial quarters

…

But lamentably, the plaintiffs led no evidence in support of all these things nor did they endeavour to lead evidence in support of the facts pleaded in paragraphs 12, 20, 21, 22, 23, 24 and 26 of the amended statement of claim reproduced above. I do not accept the proposition that the burial of the body of an unknown dead man found on the land confers title on those who buried the Corpse. This was not supported by any person from any of the other four villages in Ezi town. P.W.3 in his testimony stated that the incident of the unknown dead man occurred before 1918 but this was faulted by the facts pleaded by the plaintiffs in paragraphs 22 of the amended statement of claim, that it all happened in 1945. I do not believe them in this regard. In Exhibit P1 the plaintiffs did not show the site of the old settlement where Olo allegedly lived.

….

Again the surveyor who went to the land and did the survey and prepared Exhibit P1 was never called to testify to these things in order to prove same and lend weight to the averments contained in paragraph 21…….

I must say again, on the pains of emphasis that this case is greatly starved (sic) by evidence. This to my mind cannot seriously be held in favour of the plaintiffs as to acts of ownership as required by law as a result of their dual relationship with both parties……Again the grant and the agreement pleaded in paragraph 26 of the amended statement of claim which plaintiffs intended to found upon was never tendered

…..

Again no member of the other villages in Ezi town was called upon to support the plaintiff for their alleged grants made to the said community. Turning to the defendants, it is equally lamentable that they called none of their people who they claimed have property in the land. No single farmer was called…. I am also not satisfied with the evidence tendered by the defendants with respect to their acts of ownership. In addition to this inadequacy, they conceded that the 4th plaintiff has built on the land although they stated that he did so with their consent and authority since he was related to them….I do not believe the defendants when they said it was they who made the grant to the 4th plaintiff. I believe and accept the plaintiff’s third witnesses’ evidence when he said that he saw the 4th plaintiff when he cleared the area of its virgin forest before he erected his building on the land…

In this case in hand, I find no strength in plaintiffs’ case…..For the reasons I had given above, the claim for declaration of title to the disputed land is refused.

Turning to the claim for damages for trespass, the plaintiffs had failed woefully to prove that they were in exclusive possession at the time of the alleged trespass. This claim will also fail. For the same reasons I had given, the claim for injunction must also fail.

On the totality of the evidence tendered before and for reasons I had stated above, this action fails and the entire plaintiffs’ claim is accordingly dismissed. For the avoidance of doubt, I do not award any title of the disputed land to the defendants as they merely resisted the plaintiffs’ claim.”

Being dissatisfied, the plaintiffs took the matter on appeal to the Court of Appeal. The appeal was against the whole decision. Only one ground, the omnibus ground i.e. that “the decision/order of the trial court is against the weight of evidence”. Before the hearing at the Court of Appeal, the plaintiffs/appellants with the leave of the Court filed three additional grounds. Without the particulars to ground 1, these three additional grounds are:

1. The learned trial judge erred in law in refusing to grant a declaration of title in favour of the plaintiffs in respect of the land in dispute.

Particulars

……………

…………..

2. The learned trial judge erred in dismissing the claims for damages for trespass and for injunction when-

(a) only the plaintiffs showed acts of exclusive possession which the learned trial judge accepted while considering the claim for declaration of title and the defendants did not adduce any evidence of acts of possession:

(b) no consideration was given in law and on the facts by the trial judge on the claims for both damages for trespass and for injunction before they were dismissed.

3. The learned trial judge erred in law in awarding the sum of N1,000.00 as costs.

Particulars

1. The award is excessive.
2. Having regard to the findings of fact based on the evidence at the trial, it is a wrongful exercise of the court’s discretion.”

The appeal came up for hearing before the Court of Appeal (Eboh, Akanbi and Agbaje, JJCA.) holden at Benin City and after hearing submissions of counsel, the court reserved its judgment and delivered it on the 5th day of March, 1985. In the judgment the Court of Appeal unanimously dismissed the appeal against the dismissal of the claim for declaration of title and an order of injunction but allowed the appeal against the dismissal of the claim for damages for trespass. But the Court of Appeal proceeded to strike out the claim for declaration and assessed damages for plaintiffs’ crops which were destroyed at N300.00. Each side was ordered to bear their costs so the court awarded no costs to either side. The lead judgment was read by Omo Eboh, JCA. In the concluding portion of the judgment, the learned Justice said:

“I accordingly uphold the decision of the High Court, Ogwashi Uku in respect of the plaintiffs’ claim for declaration of title which claim is hereby struck out, and I set aside and reverse the remaining part of the judgment of the same High Court delivered in this case at Ogwashi-Uku on 18th April, 1983. I also annul the order of dismissal of plaintiffs’ claims together with the order as to costs made in this case subject to the following. In the place of the above, the following judgment shall be substituted:

(a) That the appellants have failed to prove their claim for declaration of title to the land in dispute and the claim is struck out;

(b) That the appellants were and are entitled to compensatory damages for their crops which were destroyed by the respondents by means of bull-dozers for which they (the plaintiffs) are hereby awarded N300.00 against the respondents;

(c) That each side to the suit shall bear its costs in the court below;

(d) That the appellants are entitled to the costs of this Court assessed at N200.00 in favour of the appellants.”

Giving reasons for allowing the appeal against the dismissal of the claim for damages for trespass and injunction, the learned Justice said:

“Whilst, as I showed earlier on in this judgment, I do not feel disposed to interfere with the conclusions reached by the learned trial judge on his assessment of the evidence as it relates to his refusal to exercise his discretion in granting a declaratory judgment in favour of the plaintiffs, I am of the view that the learned trial judge did not give a proper and sufficient consideration to the claim for damages for destruction done to the crops of the plaintiffs. For the reason of avoiding re-litigation and because of the faces and circumstances of this case, I think this is a matter in which this court will exercise its power under section 16 of the Court of Appeal Act 1976 No. 43 as if it is re-hearing the case between both parties and to give a decision thereon ………….

It is important to note that for the plaintiffs to properly ground their claim for damages, what the law requires is proof of possession simpliciter together with proof that damage was done to their crops. So the trial judge misdirected himself in law by his approach that proof of “exclusive possession” was necessary before the plaintiff could succeed in that claim because trespass was a wrong against “possession” and not “exclusive possession of the type required to establish ownership of a parcel of land in dispute.

In my view, if the learned trial judge had given a proper and sufficient consideration to the facts of and the law on this case, he would not have dismissed plaintiffs’ claim for damages for destruction done by the defendants as he did…..I hold that the appeal succeeds on the issue of damages for trespass upon and destruction of the plaintiffs’ crops because I hold that the defendants at the material time did destroy plaintiffs’ crops by means of bulldozers and that plaintiffs are in law accordingly entitled to compensatory damages therefore.

On the issue of injunction, I must say that since the land in dispute is merely a large farmland since both parties and the others around them descend from a common ancestry and since the damage to crops arose from the construction of access road which will always be of immense benefit to the parties as well as all others, this is not a case in which the court should exercise its discretion to grant injunction. I add that although I have found for the plaintiffs on the issue of damages for trespass, I do not intend to make any finding or award in respect of the claim for injunction for the above reasons.

On this particular issue, I rely on the decision in Ibenwelu v. Lawal (1971) 1 All NLR.23.”

The learned trial judge had earlier commented on the submission of plaintiffs’ counsel that the land in dispute was proved to belong to plaintiffs as follows:

“It is not correct, as submitted by appellant’s counsel that the land in dispute was proved by preponderance of evidence to belong to the plaintiffs or that the defendants did not controvert the ownership of the land by plaintiffs because even if it were proved and held that the land in dispute was part of Umuolu land, that alone did not make the plaintiffs the sale owners of the land in dispute as it was proved by evidence of the 4th plaintiff that after the death of Olloh – the original owner – his land was divided among his three children named Oduah, Uwaifo and Akwu H whereas the plaintiffs were claiming as if they were the only sons of or the descendants of only one son who survived Olloh – which was not the case.”

Both parties were dissatisfied with the decision of the Court of Appeal and each party filed a notice of appeal.

The plaintiffs appealed against that part of the decision striking out the claim for declaration of title and refusing an injunction and awarding damages in lieu of injunction”.

They filed along with the notice of appeal 3 grounds of appeal. These 3 grounds (without the particulars) read:

1. The learned justices of the Court of Appeal erred in law in striking out the plaintiffs/appellants claim for declaration of title:

Particulars (omitted).

1. ………………..
2. ………………..
3. The learned Justices of the Court of Appeal erred in law and on the facts when they agreed with the learned trial judge that the plaintiffs whether on the ground of evidence of traditional history or by a sufficiently long time or of exclusive or adverse possession, had not adduced sufficient evidence to entitle them to the declaratory judgment they sought from the court over the land in dispute and they, the justices of the Court of Appeal then held that section 45 of the Evidence Act could not and should not be applied to this case.

Particulars

1. …………….
2. …………….
3. …………….
4. …………….
5. The learned Justices of the Court of Appeal erred in law in refusing to grant an order of injunction against the defendants/respondents.

The defendants also appealed and in their notice of appeal, the part of the decision complained of was stated as:

“The reversal of the judgment of the High Court by the Court of Appeal striking out plaintiffs’ claim for declaration of title awarding damages for trespass against the defendants and setting aside the award of costs in the defendants’ favour.”

Four grounds of appeal were filed with the notice of appeal. At the hearing, grounds 1, 2 and 3 were struck out for want of leave to appeal on those grounds which involved questions of mixed law and fact. The remaining ground, ground 4, is a ground of law and reads:

“The Court of Appeal erred in law in not following the proper approach in the award of costs as laid down in numerous decisions of the Supreme Court, namely, that the general rule is that the costs follow the event and that the court has unfettered discretion to award costs, which discretion must be judicially exercised.

Particulars

(a) The Court of Appeal held that the trial court did not fail to exercise its discretion judicially;

(b) The award of N1,000.00 was in respect of a land case which lasted from 23/2/26 until the action was dismissed on 31/3/78 and was, after an appeal, sent back for a retrial and finally decided on 18/4/83;

(c) Six witnesses were called for the defence including a surveyor and the cost of producing a survey plan was incurred by the defendants;

(d) The Plaintiffs’ counsel left the issue of costs to the discretion of the court.”

Subsequently, with the leave of this Court the defendants filed 6 additional grounds of appeal. The additional grounds without their particulars read:

1. The learned Justices of the Court of Appeal erred in law in reversing the decision of the learned trial judge who dismissed the plaintiffs’ claim for a declaration of title and making an order striking out the claim in that neither the trial court nor the Court of Appeal has any power to make an order striking out a suit in the circumstances of this case;

Particulars

(a) ………………….

(b) ………………….

(c) …………………

(d) …………………

2. Further and in the ALTERNATIVE, the learned Justices of the Court of Appeal erred in law in reversing the decision of the learned trial judge who dismissed the plaintiffs’ claim for declaration

of title and in substituting an order of non-suit.

Particulars of Error

(a) ……………….

(b) ……………….

(c) ………………

3. The learned Justices of the Court of Appeal erred in law in making an order striking out the plaintiffs’ claim for declaration of title to the land having dismissed the plaintiffs’ appeal in that regard.

Particulars

…………….

4. The learned Justices of the Court of Appeal erred in law by making an order striking out the claim for declaration of title which was an order of non-suit without giving the parties an opportunity to address the court in that regard before making the order.

Particulars

(a) …………….

(b) ……………

(c) …………..

5. The learned Justices of the Court of Appeal erred in law in allowing the appeal against the judgment of the trial Judge dismissing the claim of the plaintiffs for damages for trespass and in awarding so called compensatory damages for the plaintiffs’ crops alleged destroyed by the defendants in that there is

(a) no proof of the area of the land alleged trespassed on

(b) no proof of the alleged trespass

(c) no proof of possession by the plaintiffs of the area alleged trespassed upon adverse to the possession by the defendants as per pages 241 and 242 of the record

(d) no proof of the plaintiffs’ crops alleged damaged by the defendants.

6. The Court of Appeal erred in law in allowing the appeal against the award of N1,000.00 costs in favour of the defendants.

Particulars

(a) ………….

(b) ………….

(c) ………….

(d) ………….

In compliance with the provisions of the Supreme Court Rules, Order 6 Rule 5, the two parties, i.e. both the plaintiffs/appellants and defendants/respondents filed their briefs of arguments of the grounds of appeal filed. The appellants formulated three issues for determination which read as follows:

“1. Whether on the totality of the evidence before the court in this case the plaintiffs/appellants have failed to prove their claim to a declaration of title

2. Whether the learned Justices of the Court of Appeal were right when they held that section 45 of the Evidence Act Cap 62 1958 Laws of the Federation do not apply to this case having found that the plaintiffs/appellants are in possession of the land in dispute.
3. Whether on the concurrent findings of both the trial court and the Court of Appeal the plaintiffs/appellants have proved title to the land claimed. Consequently, the Court of Appeal should have granted them title.”

The defendants/respondents appear to have accepted the plaintiffs/appellants’ formulation of the issues for although there is a cross-appeal filed by them, they presented arguments in reply to the arguments and in support of the cross appeal without a formal formulation of issues. Broadly, the issues formulated by the plaintiffs/appellants bring out the complaints in all the grounds of appeal filed in this appeal.

Both at the oral hearing in court and in the appellants’ brief, learned counsel for the appellants on issue number 1 submitted that on the findings of both the trial court and the Court of Appeal the plaintiffs/appellants have proved title to the land claim. Learned counsel for the defendants/respondents in his submission held a contrary view. He pointed out that the learned trial judge rejected appellants’ evidence and preferred the traditional evidence of the defendants. Learned counsel for the plaintiffs/appellants cited and referred to the case of Idundun v. Okumagba (1976) 9-10 SC. 277 where the 5 modes of proving title were set out and submitted that the 3 modes relied upon by the plaintiffs/appellants are:

(1) Traditional evidence;

(2) Long possession and enjoyment of the land;

(3) Various acts of ownership and possession in respect of the land over a sufficient length of time, numerous and positive enough as to warrant the inference of ownership.

The plaintiffs had led evidence to prove the traditional history; long possession and enjoyment and various acts of possession and ownership. The defendants also led evidence to prove their title by the three methods and the learned trial judge was faced with a conflict of evidence of traditional history of ownership and long numerous and varied acts of possession. He however preferred the traditional evidence adduced by the defendants and their witnesses.

Learned counsel then submitted that faced with such a conflict of evidence, the law is that reference should be made to recent or contemporaneous acts of possession and ownership and cited the following authorities in support. See Okafor v. Idigo (1984) 1 SCNLR.481; Karimu v. Fajube (1968) NMLR.151; Ikpan v. Edoho (1978) 6-7 SC.221; Agedegudu v. Ajenifuja (1963) 1 All NLR.109; Kojo v. Bonsie (1957) 1 WLR. 1223

Learned counsel submitted that that test in Kojo v. Bonsie (supra) is to ascertain the truth of evidence of ownership and contended that on applying this test, the learned trial Judge as well as the learned justices of the Court of appeal found that Ezi-Uzo was the original owner of the land and that before his death he shared his land to or among his five children and that the land granted to Olloh has now developed to Olloh Umuola village.

Learned counsel referred copiously to the findings of the learned trial judge and the justices of the Court of Appeal and contended that on the findings proved the title of appellants by traditional evidence. He relied on Okafor v. Idigo (supra); Okpaloka v. Umeh (1976) 9-10 SC.269, 297 Thomas v. Preston Holder (1946) 12 WACA 96; Nwakobi v. Nzikwu (1961) 1 All ER at 445; Arase v. Arase (1981) 5 SC 33.

He contended that the learned trial judge and the Court of Appeal having found that Ezi-Uzo granted land to Olloh and that Umuola village sprang from the land granted to Olloh, the Court of Appeal should have held that the land in dispute was part of Umuola village.

Learned counsel however observed that the issue as to whether the land in dispute formed part of the land shared to Olloh was left at large as neither the trial court nor the Court of Appeal decided it. Learned counsel for the appellants contended that there was an issue raised as defined in Ehirnare v. Emhonyon (1985) 1 NWLR. Part 2 page 177 at 183. Where parties joined issue, the duty of the court is to decide it. Odutola v. Aileru (1985) 1 NWLR Part 1 page 92; Akibu v. Opaleye (1974) 11 SC. 189 at 203; Anukitan v. Ekwo Ekwonyeaso (1978) 1 SC. 37 at 51.

Counsel contended that although in such cases where an issue is left undecided, a retrial may be ordered, in the instant appeal, this Court should not order a retrial as the circumstances of the case warrant the Supreme Court to decide it on the findings made by the courts below, i.e. Court of Appeal and the High Court. Egonu v. Egonu (1978) 11-12 SC.111; Solomon Mogaji (1982) 11 SC.1. Learned counsel also contended that the court should invoke and apply sections 45 and 145 of the Evidence Act Cap 62 1958 Laws of Nigeria.

On issue number 3, counsel contended that the Court of Appeal acted on wrong principles and cited Ibenwelu v. Lawa1 (1971) 1 All NLR.23 at 2627; Solomon v. Mogaji (1982) 11 SC.1; Ehimare v. Emhonyon (1985) 1 NWLR Part 2 page 177 at 187 and Fabunmi v. Agbe (1985) 1 NWLR part 2 page 299 in support.

Mr. Kehinde Sofola, SAN., learned counsel for the respondents in reply submitted that the learned trial judge after a careful and meticulous examination or review of the evidence before him came to the conclusion that the plaintiffs had failed to discharge the onus of proof laid on them by law to entitle them to a declaration of title, to land.

He observed that the findings made by the learned trial judge were not reversed but affirmed. He therefore submitted that the Court of Appeal was in error of law to have made an order striking out the claim without first setting aside the judgment of the learned trial judge. The error was no less grave if what the Court of Appeal meant to substitute was an order of non-suit, he contended. He then submitted that since the case has been given a full and complete hearing, an order of non-suit should be avoided as a non-suit preserves a right of action. He cited many authorities in support including:

Emeka Osondu & Anor. v. Ajama Nduka & Ors. (1978) 1 SC.9; Enang & Anor. v. Okano & Ors. (1962) 1 All NLR.530; Gbajor v. Ogunburegui (1961) All NLR. 853; Nigerian Fishing Co. & Ors. v. Western Nigeria Finance Corporation (1969) 1 NMLR. 164.

It is only where the failure of the plaintiff to secure judgment is due to a technical hitch that a non-suit is a just judgment. Ajiofor v. Onyekwe & Ors. (1972) 1 All NLR. (part 2) 527 at 536. African Continental Bank Ltd. v. Festus Sunmola Yesufu (1980) 1 SC.49 at 85. Learned counsel further submitted that since at p.241 of the record, the Court of Appeal said of the learned trial judge;

“I am satisfied that he exercise his discretion judicially in refusing to make a declaratory order vesting ownership of the land in dispute in the plaintiffs.”

the Court of Appeal erred later on in making an order striking out the claim for declaration of title. The law is clear and certain that the plaintiff can only succeed on the strength of his own case and not on the weakness of the defence of the defendant. Kodilinye v. Odu (1935) 2 WACA 336. Finality in land action should be the aim of judgment in land actions and the power to order a non-suit need to be used with great care for a variety of reasons.

Dawodu v. Gomez (1947) 13 WACA. 151. Learned counsel for the respondents also submitted that the failure of the Court of Appeal to invite counsel to address it before making the order striking out the suit is a grievous error in law as the appellants did not seek that relief. He relied on Elemeny Ikoro v. Safrap (Nigeria) Ltd. (1977) 2 SC. 123 at 127 and Olayioye v. Oso (1969) 1 All NLR. 281 as authority for his submission.

On the issue of award of damages for trespass, destruction of crops, learned counsel submitted that there was no proof of the trespass and no proof of the crops destroyed. Neither, he contended, was there any proof of their value. In conclusion, he contended that sections 45 and 145 of the Evidence Act are inapplicable and cannot be invoked in aid of a grant of title or damages for trespass in favour of the plaintiffs/appellants.

He then referred to the dictum of Idigbe, JSC. in Veronica Graham & Ors v. Lawrence Ilona Esumai & Ors. SC/131/83 delivered on 30th November, 1984 and contended that the presumption of ownership by possession available to parties to a suit is rebuttable and in the instant appeal has been rebutted and no longer available to the respondents. He then cited Ededem Archibong v. Ntoe Asim Ita (1954) 14 WACA 520.

Although the Court of Appeal varied the orders made by the learned trial judge, the learned Justices of the Court of Appeal did not interfere with the findings of fact made by the learned trial judge. The basic error made by the Court of Appeal is a failure to realise that the case put up by the plaintiffs/appellants crumbled irredeemably when the traditional history on which they built their case was rejected by the trial judge.

Their case was not rebuilt by the mention and acceptance by the defendants of Olloh as one of the five children of Ezi-Uzo. The learned Justices of the Court of Appeal seem to have been moved by sympathy rather than by legal evidence in arriving at their decision to find the defendants/respondents liable in trespass to pay damages and awarding N300.00 damages for destroying the crops of the plaintiffs/appellants.

Sympathy borne out of extraneous consideration other than legal evidence of probative value has no place in decision making in adjudication process. There was no evidence of the nature and types of crops destroyed. There was no evidence of their value either.

Eboh, JCA. in his lead judgment expressed the opinion that to succeed in an action of trespass and injunction in land cases, only mere possession instead of exclusive possession is required. This statement, with the greatest respect to the learned Justice, is not an accurate statement of the law. If possession is not proved to be exclusive, no court can grant a plaintiff a claim for an order of injunction neither can the plaintiff complain of a wrongful entry into his parcel of land which is technically referred to as trespass.

When therefore it is said that the slightest possession can or is sufficient to support an action for trespass exclusive possession is implied. It is also the case with possession of chattels except where the parties own the chattels in common and one party deprives the other of his possession of the chattel by refusing him access.

In Amakor v. Obiefuna (1974) 1 NMLR.331 at 336, this Court the Supreme Court of Nigeria in its judgment delivered by Fatayi- Williams, JSC. (as he then was) declared:

“Generally speaking, as a claim for trespass is rooted in exclusive possession, all a plaintiff need to prove is that he has exclusive possession or he has a right to such possession of the land in dispute. But once a defendant claims to be the owner of the land in H dispute, title is put in issue and in order to succeed, the plaintiff must show a better title than that of the defendant.”

When therefore, Omo Eboh, JCA. said:

“It is important to note that for the plaintiffs to properly ground their claim for damages what the law requires is proof of possession simpliciter together with proof that damage was done to their crops. So the trial judge misdirected himself in law by his approach that proof of exclusive possession was necessary before the plaintiff could succeed on the claim because trespass is a wrong against possession and not “exclusive possession” of the type required to establish ownership of a parcel of land in dispute.”

he was clearly in error and misdirected himself in law.

On the issue of ownership by traditional evidence put forward by both parties, the learned trial judge said:

“I have carefully considered the traditional evidence tendered by both parties in this case and as I had endeavoured to state above, it seems to me that the plaintiffs know very little about their traditional history. They were not certain whether to institute this action for themselves and on behalf of Umuola (Olloh’s children) family or to root their title through Oduah. It is also clear from the sketchy and inconsistent evidence in this regard and even if it is believed, the plaintiffs’ action as constituted can be regarded as incompetent, without the Uwaifo and Akwu branches of Olloh family joining in this action.

The only inference I can safely and legitimately draw is that the plaintiffs are uncertain and or confused as to their root of title. It is even strange to observe that the plaintiffs did not plead and lead evidence with respect to their histories and names of their forebears to connect them to the founding father on whom they anchored their title. As I shall show later in this judgment, there is little or nothing of any fact, so established in recent years by the plaintiffs to be used as a test for relating the same to the histories already told to enable the court in determining whether their version of the traditional history is more probable. I am not impressed nor satisfied with the traditional evidence tendered by the plaintiffs, and on the balance

of probability, I find the traditional history of the plaintiffs most unreliable from the time of Ezi-Uzor. After a very sober and careful consideration of the evidence tendered, I accept the traditional evidence of the defendants as more probable excepting I do not agree that Ado gave Olloh land and I so hold….As I had earlier stated in this judgment, a plaintiff claiming a declaration of title to a land in dispute assumes the burden of satisfying the court either by conclusive traditional evidence or evidence of the exercise of maximum acts of ownership extending over a sufficient length of time, numerous and positive enough to ground the inference that he is the true and exclusive owner.

In this case in hand the plaintiffs’ traditional evidence is disjointed, flimsy, sketchy, unsatisfactory and inconclusive. I will now therefore proceed to examine the acts of ownership claimed to have been exercised in the land by both parties and to ascertain whether they are positive and numerous enough to warrant the expected inference.”

On examination, the learned trial judge lamented the failure of both parties to adduce evidence in proof of acts of ownership and possession pleaded. Of the plaintiff, the comments and findings of the learned trial judge read:

“Now taking a very hard and calm look at the pleadings and facts demonstrated before me in this court including the survey plans filed by the parties in support of their respective claims, (Exhibits P1 and D1), I must say that I am not satisfied with the evidence tendered by both parties in this regard….I am inclined to hold that the disputed land is predominantly a farmland but it would appear that development may soon catch up with the said area to attract residential or industrial quarters; as was expected both parties claimed to have exercised maximum acts of owner ship over the disputed land. In the survey plan Exhibit ‘P1′ filed by the plaintiffs, they inserted therein many farms belonging to their people including rubber plantations, the area they claimed to have granted to Ezi community for use as medical centre and another portion for the community commercial college, the juju shrines on the land and a host of other things. But lamentably, the plaintiffs led no evidence in support of all those things nor did they endeavour to lead any evidence in support of the facts pleaded in paragraphs 12, 20, 21, 22, 23, 24 and 26 of the amended statement of claim reproduced above…..

The plaintiffs in their bid to prove that they owned farms in the land called only Mgbo Ofili (p.w.1) who said that he had a farm and a building in the land but under cross-examination he admitted that he did not show the house to the surveyor. This was the only farm owner called to testify out of so many farmers shown on Exhibit P1. Again, the surveyor who went on the land did the survey and prepared Exhibit P1 was never called to testify to those things in order to prove same and lend weight to the averments contained in paragraph 21 as aforesaid. Again, the fourth plaintiff gave evidence of what their people have in the said land including his building and rubber plaintiffs. That he has a building on the disputed land is conceded by the defendants. The defendants also conceded that one Daniel Ofili a brother of P.W.1 also owns a house on the land. But the defendants however claimed that the plantations and the said Daniel Olili are their maternal relations, a fact which was never denied and that they built on the said land with their permission and authority. It must however be noted here that the 4th plaintiff vehemently denied that he built there with the consent of the defendants…….Again, Mr. Mgbo Ofili (P.W.1) admitted under cross-examination that 4th Plaintiff, his brother Daniel Ofili and himself are maternally of the defendants’ village. Indeed the 4th plaintiff admitted that his mother and the grandmother of P.W.1 and Daniel Ofili were natives of the defendants’ Ogbe-Obi village. To my

mind, the buildings of the 4th plaintiff and Daniel Ofili on the land together with the rubber plantations of the 4th plaintiff and the farm of Mgbo Ofili (P.W.1) if even they were on the land do not tilt the scale one way or the other, because they are also members of the defendants’ Ogbe-Obi village…..The plaintiffs did not call any other farm owner, or any rubber plantation owner who has no connection with Ogbe Obi village to testify in support of their said property on the land. I must say again, on the pains of emphasis, that this case is greatly starved by evidence. This to my mind, cannot seriously be held in favour of the plaintiffs as acts of ownership as required by law as a result of their dual relationship with both parties.”

These findings and comments of the learned trial judge were not disturbed by the Court of Appeal. In my view, they totally destroyed the plaintiffs’ case. The observation and findings of the learned trial judge that “in Exhibit P1 the plaintiffs did not show the site or spot of the old settlement where Olloh allegedly lived” is probably the final nail to the coffin of the case for the plaintiffs.

At no time did the plaintiffs/appellants claim for destruction of their economic crops. Neither did they prove any value of the crops. In paragraph 19 of their original statement of claim, they claimed N2,000.00(two thousand Naira) being general damages for trespass committed by the defendants and/or their agents into the said land. In paragraph 27 of their amended statement of claim which was their final statement of claim, they complained of breaking into the land in dispute without the permission of the plaintiffs and laying it waste doing wantom damages to plaintiffs’ economic trees on the land and claimed the payment of the sum of N2,000.00 being general damages for trespass. The economic trees were not named, enumerated and valued. It is improper to award damages for destruction of economic trees whose names, nature and economic values are not pleaded and proved.

In the absence of such evidence and the findings of the learned trial judge in the issue of declaration of title and acts of ownership, more particularly the total lack of proof, the Court of Appeal erred in striking out the claim for declaration of title and awarding damages for destruction of plaintiffs’ crops.

The Court of Appeal, with the greatest respect to it, had no grounds for interfering with the findings of the learned trial judge in the instant appeal. The principles on which a Court of Appeal acts when it is satisfied that there is need to interfere with the findings of the trial court are well settled and were fully discussed in the three recent cases of this Court. Chief Frank Ebba v. Chief Ogodo (1984) 1 SCNLR. 372 (1984) 4 Sc. 84 Okafor v. Idigo (1984) 1 SCNLR. 481 (1984) 6 SC. 1 and Victor Woluchem & Ors. v. Chief Suma Cudi & Ors. (1981) 5 SC. 319 at 326.

They were also discussed previously in a long line of cases including Akinloye v. Eyiyiola (1968) NMLR 92 at 95; Obisanya v. Nwoko (1974) 6 SC.69 at 80, Lawal v. Dawodu (1972) 1 All NLR. (Part 2) 270 at 286; Makarah v. Imonikhe (1974) 4 SC. 153 and Mogaji v. Odofin (1978) 4 SC.91. I will repeat here again what I said in Okafor v. Idigo (supra). It is that “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 the trial judge, after hearing the evidence of witnesses went on inspection of the locus in quo and saw with his own eyes the land and what were in it in the search for truth in the testimonies of witnesses”.

The appeal fails and is hereby dismissed. The cross-appeal succeeds and is allowed. The decision of the Court of Appeal is hereby set aside and the judgment of the High Court, Unurhoro, J. dismissing the plaintiffs’ claim in toto restored. The respondents are entitled to costs in this appeal fixed at N500.00 in this Court and N200.00 in the Court of Appeal.

---

SC.193/1985