James Uluba and Co v. Chief E.E Sillo and Co. (1972)

LawGlobal-Hub Lead Judgment Report

T. O. ELIAS, C.J.N. 

This is an appeal from the judgment of Obaseki, J., in the High Court, Warri, Mid-Western State, in which the plaintiffs for themselves and on behalf of Omadinor people claimed as per their Writ of Summons against the defendants for themselves and on behalf of Okenrenghigho people as follows:(1) Possessory title to all that piece or parcel of land known and described as “Okenrenghigho” in Warri Division in the plan filed and tendered by the plaintiffs in case No. W/29/1951: Chief E. E. Sillo & Ors. V. Adurumokumor & Ors.

(2) An order of Court that the defendants do pay to the plaintiffs an annual rent of 100 (One Hundred Pounds) or such amount as may be found due to the plaintiffs, for the occupation, use and enjoyment of the said piece or parcel of plaintiff’s land at Okenrenghigho.

(3) An order of injunction restraining the defendants and their agents and/or servants from demanding and collecting tents or dues from plaintiff’s tenants on the said land or other users of the said land.

The plaintiffs are Itsekiris and natives of Omadinor village in Ode-Itsekiri District of Delta Province. While the defendants are Ijaws residing at what the Itsekiris called Okenrenghigho (or Okenghigho) village but which the Ijaws called Okenrenkoko. Because of the importance of the averments, the relevant paragraphs of the plaintiff’s amended Statement of Claim are set out as follows:

3. Over five hundred years ago plaintiffs ancestor migrated from a place known as Ode in Yoruba area and founded Okenghigho. In course of time it was observed that the place was not big enough for their number which was systematically increasing, and it became necessary for other settlement like Aghigho, Akpata and finally Omadino to be made Okenghigho (or Okenrenghigbo) was then used as a camp or village for seasonal fishing.
4. After sometime one Princess lye of Itsekiri land whose mother was a descendant of plaintiff’s ancestor made a request from plaintiff’s people to allow her to use Okenrenghigbo as a temporary habitation for the several slaves she had, and this was allowed. She was then living in the Benin River area. As time went by, an Ijaw man by name Akpatah went to Chanomi, son of Princess lye to allow him and his people and families to settle on a portion of Okenrenghigho land, and this was also allowed after Shanomi had obtained the consent of plaintiff’s ancestors at Omadino village.
5. In recognition of the rights of Omadino people to Okenrenghigho where they lived and fished, Akpatah and his people paid homage and customary rents to Omadino people during the latter’s annual festivals. Later, the early Ijaw settlers were followed by other Ijaw people who came there to fish, and the practice of paying customary rent every year continued.
6. In the same way, some of the other settlements founded and owned by the Omadino community were occupied by other groups of Ijaw people who also paid their customary rents to plaintiffs.
7. After some time the Ijaws at Bakokodia demanded and received rents and other dues from the users of Bakokodia and Akpata land and creeks. When Omadino people asked for such monies to be refunded to them the Ijaw people refused, and continued to lay claim to the whole area of land.

8 . In pursuance of their claim, Omadino people instituted an action against the Ijaw people in 1951, claiming a declaration to title to the land, and the case, Suit No. W /29/51: Chief E. E. Sillo & Ors. V. Adurumokumor & Ors. ended in favour of the Omadino community. The said case, together with the plan used in it will be founded upon at the hearing of this action.

9. After the judgment in suit No. W/29/51 had been entered in favour of the plaintiffs, Adurumokumor and the people of Bakokodia who were the defendants in the case continued to use the land without any regard for the interests of the plaintiffs or the judgments against them.
10. The Ijaws, i.e. the people of Bakokodia continued to place tenants on the land and also disturbed plaintiff’s tenants and other users of the land. They made it highly difficult for the plaintiffs to demand and collect rents and tributes from the people using the land and waters.
11. Whereupon the plaintiffs were obliged to bring another action against Adurumokumor in Warri High Court in 1961. The Writ of Summons in the case, Suit No. W/37/61: Chief E.E. Sillo & Anor. V. Adurumokumor together with the Supreme Court judgment (SC. 393/64) will be founded upon at the hearing of this case.
12. A few years ago it was observed that the defendants were not paying their usual customary rent, and were also collecting dues and rents from plaintiff’s tenants on the land.
13. The defendants have continued to occupy and use the said land. The village or area occupied by the defendants and which is the subject matter in dispute is shown on the plan No. W/GA88/62, drawn by a licenced Surveyor Mr. G. A.Obianwu and filed with this Statement of Claim. This was also the plan used in the case by the plaintiffs against Adurumokumor and others in Suit No.W/29/ 1951.
14. At the time plaintiffs occupied the land in dispute the defendants were unknown and plaintiffs ancestors exercised maximum rights of ownership and possession over the said land. The rights of ownership were enjoyed without any secrecy and hindrance and these rights were known and accepted by the defendants.
15. The defendants have not been paying any rents or dues to the plaintiffs for the use and occupation of the said land for some years and have also not ceased collecting rents from plaintiff’s tenants and other users of the land.

Pleadings were ordered and filed.

The defendants by their own amended Statement of Defence began with a general traverse, admitted that Omadino village is in the Itsekiri District of Delta Province, denied paragraph 3, 4, 5 and 6 of the amended Statement of Claim, averred that they were not in a position to admit or deny paragraph 7, 8, 9, 10 and 11 of the Statement of Claim as they were neither parties nor privies to, not were they even aware of, the disputes referred to therein, further denied paragraph 14 and averred that the plaintiffs as Yorubas were not entitled to their claim in paragraph 15 of the Statement of Claim against them. Their most important replies are however, contained in the following paragraphs of their Amended Statement of Defence;

5. In regard to the aforesaid paragraphs 3, 4, 5 and 6 the defendants further aver as follows:

(a)That the village now called Omadino was originally an Ijaw village. Its founder Oweizibri at a time now beyond human memory was an Ijaw who named the place Amaduno which in the Ijaw language meant a public fishing pond, in a town or village.

(b)After settling there for several years, certain Yoruba immigrants arrived Amaduno and asked permission of Oweizibri to settle near him. He granted their request and they settled. Later, as the population increased in the place, due largely to the influx of more Yorubas, the two settlements of Yorubas and Ijaws merged together but the Ijaw section of it till the present day is called Idumi-Ijaw.

(c) The aforementioned Oweizibri was a brother to one Akpata, defendants ancestor and founder of Okenrenkoko. When Akpata arrived at Okenrenkoko and camped there, no Itsekiri, Yoruba or persons of tribes other than Ijaw were in the area now in dispute. The time is now beyond human memory, long before Prince Ginuwa drifted in his box from a creek near Benin into the Ijaw area of the Niger Delta.

(d)The descendants of Akpata are the rightful owners of Okenrenkoko who lived in peace with Prince Ginuwa and his descendants.

8. The defendants also deny paragraph 12 of the Statement of Claim and further state in reply thereof that defendants have always collected rents from tenants on the land in dispute in their own rights as owners.
9. With regard to paragraph 13 of the Statement of Claim defendants assert that their ancestors were the original founders of Okenrenkoko and have ever lived there in their own rights as owners in possession. They have always exercised maximum rights of ownership and user over the land and creeks in dispute without the interference of plaintiffs whose ancestors are Yorubas. Defendants are not in a position to deny or admit that Plan No. W/GA88/62 was the one used in Plaintiff’s case against Adurumokumor and others in Suit No.W/29/1951.
10. Even if the plaintiffs had at any time the rights claimed in this action (which are denied by defendants) the defendants will contend that the said rights are no longer enforceable against them by reason of plaintiffs laches and acquiescence, lapse of time and defendants long possession of the said land and creeks in dispute.”

The first plaintiffs gave evidence and called eight witnesses, and the second defendant also gave evidence and called five witnesses. After hearing all the evidence adduced before him, the learned trial Judge found as a fact that the land in dispute is called Okenrenghigho (or Okenghigho) by the Itsekiris and Okenrenkoko by the Ijaws, and that the main issue raised in the pleadings and on the evidence is whether Akpata settled in Okerenghigho as founder or as customary tenant of Omadinor people. The learned trial Judge said:

”On the contrary the defendants claim Akpata as their common ancestor and leader and their title to the land is descended from him. Beyond Akpata their forebears claims no interest in, or right and title to Okenrenghigho.”

As each of the two surveyors that surveyed and prepared a plan of the land in dispute for plaintiffs and defendants respectively were not available, the plan prepared by one Obianwu for the plaintiffs was admitted by consent and marked Exhibit ”A” and the photocopy of the copy lodged with the Surveyor-General is Exhibit “A1” The plan prepared by one Chukwurah for the defendants was also admitted by consent as Exhibit B”and the photoprint of the copy lodged with the Surveyor-General as Exhibit ”E”. The learned trial Judge considered that the judgment in the case of Reece, J., E.E.Sillo & Anor. V. Adurumokumor W/29/1951, which was admitted as Exhibit ”C” although without the plan to which it was tied, sufficiently described the area in respect of which declaration was granted to the plaintiffs to make the declaration prayed for in this action almost unnecessary. In that case the declaration sought was in respect of a parcel of land situate at Omadinor bounded on the north by the land of Binikrukrus and Dagbaros, on the south by Escravas River, on the west by Nana River and on the east by the land of Obobo. Within this area described, one finds situated the land Okenghigho or Okenrenghigho. The learned trial Judge observed:

”On examination of the plans Exhibit ”A” and Exhibit ”B” it is clear that the land the subject matter of this claim called Okenrenghigho forms part of and falls within the area described in the claim in Suit No. W/291/951 and delineated in the plan to which the declaration was tied in that suit. ”

The learned trial Judge finally reached the following conclusion:

”The evidence of the plaintiffs and their witnesses as to the founding of Okenrenghigho before me in this case is more Okenrenkoko credible than the defendants evidence and leads me to the conclusion that Okerenghigho or Okenghigho was founded by the plaintiff’s ancestors and that the original ancestor of the defendants by name Akpata and his followers settled on the land with the permission of the plaintiff’s ancestors. And I find that he accepted his position as their customary tenant.This I so find.”

He, therefore, (a) granted, a declaration of possessory title of ownership, to the plaintiffs as claimed in the writ, (b) held that the plaintiffs were not entitled to payment for use and occupation of the land but only to payment of annual tribute or homage, in acknowledgement of title of possessory ownership and not for the use and occupation, and (c) granted to the defendants as prayed the writ.

Against this decision, the appellants have appealed to this court on the following grounds:

1. Judgment is against the weight of evidence.
2. The learned trial Judge misdirected himself in law at the facts in holding that- The admission of the defence that Akpata was the defendants common ancestor and that the defendants title to the land descended from him and the claim by the plaintiff that at the request of Governor Shanomi that they permitted Akpata to settle on the land Okerenghigho with his followers on payment of homage or tribute in the form of palm wine, fish and farm products weakens the defence. The plaintiffs however are entitled to rely on the admission by the defence that Akpata is their common ancestor.”

Particulars of Misdirection

(a) The fact that the plaintiffs choose to build their traditional evidence around the person of the defendants ancestor does not necessarily give greater weight to the plaintiffs traditional evidence as compared with the defendants.

(b) The plea of the defendants that Akpata was their ancestor is an averment of a positive fact on which they relied and is no admission of any averment of the plaintiffs.

3. The learned trial Judge erred in law and on the facts in failing to observe that the plaintiffs failed to prove the plan allegedly filed and tendered by them in case No. W/29/1951: Chief E. E.Sillo & Ors. V. Adurumokumor & Ors.
4. The learned trial Judge erred in law in holding as follows:

”I am satisfied that the village land Okenrenghigho which is the subject matter in dispute in this case falls within the area described in the claim in Suit No. W/29/1951. The area of land described before me by 1st Plaintiff’s witness and in Exhibits ”A”, ”A1” is the same as the area of land in respect of which the judgment Exhibit ”C” was entered for Plaintiff by this court then Supreme Court.”

Particulars of Error

1. There was no admissible evidence of the area of land over which the Supreme Court gave judgment in favour of the Plaintiffs in Suit No. W/29/51 and no explanation was offered for the failure to produce the plan of the said land:
2. Accordingly, it was pure conjecture on the part of the learned trial Judge to have suggested that the land described in Exhibit ”A” and ” A1” was the same as that covered by Exhibit ”C”; And

What was described in Exhibits ”A” and ”A1” as ”land in dispute” could not reasonably have been what was in dispute in Exhibit ”C” and there is no admissible evidence that the land now in dispute was within what was disputed in Exhibit ”C”

5. The learned trial Judge erred in law and on the facts in failing to uphold the equitable defences of laches, acquiescence and or long possession.
6. The learned trial Judge misdirected himself in law and on the facts in holding as follows:

”The facts: main issue raised in the evidence is whether Akpata settled in Okenrenghigho as founder or as customary tenant of Omadino people.”

Particulars of Misdirection

(i) The main issue of the pleadings and evidence was whether the plaintiffs have discharged the onus on them to rebut the presumption of ownership in favour of the defendants who were admittedly in possession of the land; and

(ii) It being common ground between the parties that the defendant’s ancestor was the first to settle on the land, it was the duty of the court to ascertain whether the plaintiff has established by evidence that they or their ancestors made a grant of the land to the predecessors in title of the defendants.

7. The learned trial Judge erred in law and on the facts in preferring the traditional evidence of one side to that of the other without testing or making an attempt to test the rival traditional evidence by reference to recent facts established by evidence or admitted by both sides.
8. The learned trial Judge erred in law and on the facts in relying on the evidence of the Acting Secretary of the Itsekiri Communal Land Trustees and Exhibits ”D1” ”D15” when,

(a) The evidence was inconsistent with the averments in the Statement of Claim and with the evidence of the plaintiff’s principal witness 1, Chief E. E. Sillo.

(b) There was no plea suggesting that the Olu of Warri as Head or representative of the Itsekiri Communal Land Trustees had any right title or interest in the land in dispute or acted as agents for the plaintiffs in relation to this land, and accordingly, evidence on those matters should not have been admitted and in any case such evidence is obviously untrue and/or of no weight.

IN THE ALTERNATIVE

9 The plaintiffs claim ought to have been dismissed because,

(a) On their own evidence and on the pleadings they have no possessory title to the land claimed by them against the defendants.

(b) There is no evidence to support the claim for rent and in any event on the facts alleged the said claim is mis-conceived; the land over which injunction is claimed is not identified on the plans Exhibits ”A” and ”A1” in a manner capable of identification on the grounds; and

(c) As the claim for injunction is ancillary to the claim for possessory title it must also fail on the ground that the claim for possessory title cannot stand.

Chief Williams, learned counsel for the appellants, chose not to argue grounds 1 and 2 separately, but to refer to the issues of facts raised in them as appropriate when arguing the other grounds. He did not argue ground 5 which must, therefore, be deemed to have been abandoned. In arguing grounds 3 and 4 together, Chief Williams contended that the judgment (Suit No. W/29/51) was tendered, not the plan tied to it, as Exhibit “C” in the present case, but that the parties in that case were not the same as those in this appeal and the plan used in that case was tendered as Exhibit 1. He submitted that proof of an exhibit in a previous suit can be established only in accordance with Section 96(1) of the Evidence Act (Cap.62), and that the learned trial Judge in treating Exhibits “A” and “A1” as proof of what was in dispute in Exhibit “C” should have asked for a certified true copy which under Section 96(2)(c) is alone admissible as secondary evidence of a public document as is the judgment in question. He cited Obadina Family & Ors. v. Ambrose Family & Ors. SC. 169/68 delivered on 31/1/69 in support, and submitted that Exhibits “A” and “A1” should have been disregarded by the learned trial Judge, and that that would have left a serious gap in the plaintiffs’ case. Chief Williams then made the alternative submission that, even if the learned trial Judge were right in looking at the plans (Exhibits “A” and “A1”), what he would find would be the area marked red without a plan to identify it precisely. It is his view that no declaration of title could be made in respect of such an area, and cited Sowa v. Senabor 11 NLR 82, at p. 85; and Kwadzo v. Adiei 10 WACA 74.

Under grounds 6 and 7, Chief Williams argued that, it being common ground that the defendants were in possession of the land Okenrenghigho claimed by the plaintiffs, both sides attempted to establish their claim by traditional evidence but that the learned trial Judge preferred that of the plaintiffs even though those in possession should be deemed to be owners and recent acts should be considered in deciding ownership; Kojo v. Bonsie (1957)1 WLR 1223 at p.1226, 1227; also Adenie v. Ovegbade (1964) 1NLR 26 in which Bonsie was adopted.

We note, however, that Adenie relates entirely to family land and two sections of the same family were in dispute as to portions of it, so that the cases cited are not in pan materia. Chief Williams next argued that Exhibit “C” cannot operate as an estoppel since the appellants were neither parties or privies to it. We think that the judgment Exhibit “C” is admissible and was rightly admitted by the learned trial Judge, to establish acts of possession on the part of the plaintiffs and not to sustain a plea of estoppel or res judicata: see Abadi v. Catholic Mission (1935) 2 WACA 380, at pp. 381 and 383.

As to the payments of rents, Chief Williams submitted under ground 8 that the plaintiffs had failed to prove that the defendants ever paid rent to them, and that there was no plea suggesting that the Olu of Warri as Head or representative of the Itsekiri Community or the Itsekiri Communal Land Trustees had any right, title or interest in the land in dispute or acted as agents for the plaintiffs in relation to this land; accordingly, evidence as to those matters should have been rejected by the court either as false or as of no weight. Chief Williams strongly contended that this evidence is inconsistent with the plaintiffs’ pleadings and is in fact not raised by the pleadings, and that the learned trial Judge should have ignored it. He cited Bada v. Chairman L.E.D.B SC. 501/65 delivered on June 3, 1967, and M.P.C. v. Thomson Organisation SC. 192/67 in support of the proposition that evidence as to a point not pleaded goes to no issue, that the Judge in the instant case should not have had regard to the rent receipts tendered in evidence, and that payment of rent to the Itsekiri Communal Land Trust is no evidence against the defendants ‘since the Olu of Warri is not a party to the present appeal.

In arguing ground 9, Chief Williams submitted that the injunction should not have been granted since the radical title is in the Olu. In any case, the expression “Possessory title” is a term of art in real property law, and, in his submission, it is apt to be confusing and misleading as a basis for a declaration by a court of law; according to Jowitt’s “Dictionary of English Law” Vol. 1 p. 1370 (1959 Edn.), “possessory title: denotes, inter alia “squatter’s title”. The Olu of Warri should have been joined with the Omadinor people to bring the action for a declaration of title simpliciter. As to the claim of an injunction, it is Chief Williams’s contenfton that it should not have been granted in the absence of a plan showing precisely the area in question.

In reply, Chief Awolowo made three submissions of a general nature. The first is that the land in dispute is identifiable and was indeed identified by the learned trial Judge. Even though the defendants filed three statements of defence, not once did they deny the plans; both parties are never in doubt as to be identity of the land in dispute, all they bandied about being the name by which the land is called by each side; the location is the same on both sets of plans, A and A1 and B and B1. And the boundaries of the land are as thus described in Reece, J’s judgment in Exhibit “C”:

“……………….. a parcel of land situate at Omadinor bounded on the north by lands of Binikrukrus and Dagboros on the south by Escravos river on the west by Nana river and on the east by land of Obode, the extent of which is said to be more fully described and delineated in a plan. The plan was put in evidence as Exhibit 1. There was also a claim for 300 pounds damages for the defendants’ interference with the fishing rights of the plaintiffs and preventing the plaintiffs from collecting rents from the tenants using the said land.”

Chief Awolowo’s second submission is that the learned trial Judge is right in preferring the plaintiffs’ evidence of traditional history of the land in dispute to that of the defendants. The plaintiffs made positive averments as to their own traditional history whereas the defendants were tary in admitting Akpata as their common ancestor. The first plaintiff did not agree that Akpata was a relation of Owezuibiri, but was definite that the land was granted to Akpata and his followers to settle in after their migration from Ijaw areas. Learned counsel for the respondents submitted in the third place that the plaintiffs had over the years exercised persistent and consistent acts of ownership over the land in dispute. The plaintiffs’ contention is that, of all the inhabitants of Okenrenghigho, it was only the Ijaws as customary tenants who stopped paying rents since 1929; moreover, these Ijaw tenants even went on to collect rents from other tenants. The first plaintiff explained in detail in the court below the various steps taken by them to assert their rights of ownership, including the previous land suits they successfully brought against those of their tenants who had attempted to deny their title to portions of their land.

Chief Awolowo pointed out that the area in Exhibit “C” is a larger one than the area now in dispute and embraces the latter in its totality. The boundaries of the land are the same as shown on the plan, Exhibit 1. He submitted that contrary to the argument by Chief Williams that no declaration to title should have been granted in the absence of a plan of the land in dispute, there is abundant authority for the view that a plan is not always a necessity, so long as the identity of the land can otherwise be ascertained to the satisfaction of the court. We think that there is merit in this submission. In Alhaji Etiko v. Aroyewun (1959) 4 FSC 129, at p. 130, we had occasion to observe as follows:

“There is, however, no dispute as to the identity of the land with which this case is concerned and E.O. Griffin from whom the plaintiff bought, gave evidence identifying the land which Griffin then sold under Exhibit “E” with the land in dispute. Thus, even if as alleged in ground 2, the trial Judge’s use of the plan attached to the Statement of Claim was wrong (as to which I am by no means satisfied), there was ample other evidence identifying the land claimed with what the respondent bought.

There being no difficulty about identifying the land in dispute it was open to the court below, to grant the declaration sought without basing the declaration on a plan. The order granting the plaintiff a declaration was, however, based on the plan attached to Exhibit “E” and not on Exhibit “A”, and I cannot see anything wrong with that in view of Griffin’s evidence.”

Again, in Garba v. Akacha (1966) NMLR. 62, at p. 64, we said:

“In Ebileetc.v. Onwugbonu (1) a Federal Supreme Court case decided on 21st June, 1963 the court said:

“I do not share the view that a plan is an absolute necessity in every land case……….In the present case………………it is abundantly clear from the record of proceedings in that court that the parties were agreed on the land in dispute, its features and its area.”

In the case before us we have no doubt that both parties and the trial court knew precisely what piece of land was in dispute. That is the criterion. We therefore find no merit in this ground of appeal.”

It now remains for us to consider the objection raised by the appellant to the grant by the lower court of a declaration of a “possessory title” to the plaintiffs in respect of the land in dispute.

It is worthy of note that the Writ of Summons speaks of “possessory title” and that the Statement of Claim avers that the plaintiffs’ ancestors exercised maximum rights of ownership and possession over the said land”. Also, counsel for the plaintiffs, in his final address before the trial court, expressed himself thus:

“The radical title is in the Olu of Warri. We claim possessory title. What claim amounts to is mesne profits. The defendants are there with our permission. The court can declare that they pay us something yearly. We want an injunction to restrain the defendants from collecting rents from the tenants and depriving us of our rights.”

In his ruling, the learned trial Judge used the expressions “acts of ownership and possession” exercised by the plaintiffs and “a declaration of possessory title” of ownership”. It thus seems clear that the use of the expression “possessory title in their Writ of Summons was employed by the plaintiffs either because they had already conceded the radical title to the Olu or because they were really pre-occupied with asserting their claim under customary law to receive the rent or profit therefrom.

We are of the view that neither the wording of the relief sought nor the learned trial Judge’s use of the expression “possessory title” is apt, and that the declaration should not have been granted in those terms. We think that all the learned trial Judge wanted to grant was a re-affirmation of the ownership and possession of the plaintiffs to the land which he found to have been granted in at least one previous judgment.

We will accordingly dismiss this appeal and affirm the judgment of Obaseki, J., in the High Court, Warri, in Suit No. W/30/1962 delivered on October 3, 1969, except that the declaration will be one for “possessory title”. We award costs assessed at N125 to the respondents in this appeal.

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Other Citation: (1973) LCN/1771(SC)