Kalu Obasi and Ors V Chief Okereke Oti and Ors (1966)
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ONYEAMA, J .S.C.
The plaintiffs claimed against the defendants declaration of title to an area of land drawn on a plan No.ESP/2136(LD) which was in evidence as Exhibit A, £100 damages for trespass on the land, possession of the land, and an injunction to restrain further trespass.
Their case was that the land in question which they call ‘NDURU’ had always belonged to their people of AmaekeUtutu village; they farm it; live on it, have their village juju on it and have a market on it. They claimed that they granted a portion of the land to members of a religious sect, ‘Jehovah’s Witnesses’, and that these members built a Hall on the land.
It was also their case that they had made a grant of a portion of the land in question to the defendants’ ancestors who had found their ancestral land “Ebom Ogo” too small for their increasing numbers; they alleged that the defendants are now settled on this portion which was clearly defined by boundary trees.
The plaintiffs pleaded a number of native court suits between them and the defendants’ people which they suggest establish their title to the land. The defendants for their part claimed that the land which they call ‘AZU OWUO’ belongs to them, and they showed this land on a plan No.JJ.4/64. They alleged that they farm the land, have their jujus on it, and have a water tank on it. They rely on the judgment of the Senior Resident of Calabar in a Suit No.452/28 which originated in the Ihe-Ututu Native Court which, according to them, “reversed and set aside the judgment of the Native Court and the District Officer and awarded title to the present defendants (the plaintiffs in the said Suit No. 452/28).”
Both parties are agreed that this Suit 452/28 related to the land in dispute and it will be appropriate at this point to deal with it. In that suit Nlenaya Kalu of Amanku sued Chief Elem Nchege of Ameke claiming a declaration of title to land called ‘AZI OWUORWUOR.’ It is admitted by both parties, although it was not so expressed, that the suit was between their respective communities.
The Native Court, by a majority, gave judgment on the 6th of August, 1928, as follows: “The land Ndoro or AZI OWUORWUOR for the Deft. Case dismissed.” This was confirmed on the 28th of September, 1928 by the Acting District Officer. On the 11th April, 1933, the Senior Resident of Calabar Province made the following order:
“By virtue of the powers conferred on me under Native Court Ordinance I hereby annul the judgment of the Ututu Native Court in Civil Case 452/1928:-
Nlenaya Kanu of Amanku
versus
Chief Elem Nchege of Ameke
as confirmed by Mr D. A. F. Shute, Acting District Officer, Aro, on 20th September, 1928.”
Regarding this order, counsel for the plaintiff submitted that the Resident acted without jurisdiction since, if he was exercising review powers under s.25 of the Native Courts Ordinance No. 44 of 1933 he had only six months within which to exercise them, but if he was exercising powers on appeal, then an appeal had to be brought within thirty days, and there was evidence that no appeal was lodged.
The learned trial judge accepted this submission and added that assuming there was no want of jurisdiction the failure of the Senior Resident to substitute his own decision or order for that which he was annulling left that order in full force so that the defendants could be met with a plea of estoppel. Relying on this view of the effect of Suit 452/28 and on his findings of fact he gave judgment for the plaintiffs.
It escaped the notice of counsel for the plaintiffs and the learned trial judge that the Native Courts Ordinance (Ordinance No. 44 of 1933), although enacted in 1933 and assented to on the 23rd November, 1933, was brought into force on the 1st of April, 1934. (See Gazette Notice No. 227 of the 22nd of March, 1934). It follows that the Senior Resident could not have exercised any powers under it on the 11th of April, 1933, and such powers as he could then exercise had to be derived from the Native Courts Ordinance (Cap. 5 in Volume I of the 1923 Laws of Nigeria) and the Native Courts (Amendment) Ordinance, 19241930. These enactments enabled the Senior Resident to make the order he made.
Mr Ayoola, for the respondents, submitted that the Senior Resident was obliged to make an order in substitution for the order annulled. This, he said, was the result of the wording of section 8(1)(a) and (2) of the Native Courts (Amendment) Ordinance which is:
“(a) Suspend, reduce, annul or otherwise modify any sentence (save and except a sentence of death) or decision of a native tribunal provided-.
(2) That a Resident in charge of a Province may on the application of any person concerned or of his own motion annul any order made by a member of Provincial Court, other than a Resident in charge of a Province, under this section as aforesaid and may substitute therefore an order made under his own hand.”
Mr Ayoola invited this Court to hold that the words “may substitute therefore an order made under his own hand” were mandatory. What the Resident did was to annul the order made by the acting District Officer and to substitute therefore an order made under his own hand annulling the judgment of the Ututu Native Court. Mr Ayoola’s submission is misconceived.
In our view the order made by the Resident was not outside his jurisdiction and it effectively wiped out the judgment of the Native Court and the Acting District Officer, but it did not award title to the then plaintiffs as the defendants pleaded.
The rest of the appeal was concerned with the learned trial judge’s findings of fact: in particular, it was submitted on behalf of the appellants that since they joined issue with the respondents in respect of part only of the area claimed, and themselves claimed no interest in the rest of the land the evidence and the judgment ought to have been confined to so much of the land as was disputed. It was submitted that the evidence about the occupation and use of the area of the Jehovah Witness Hall, the market, the main Aro road, and Ali Okpo land related to an area to which the dispute did not extend and was irrelevant.
We agree that a comparison of the plans put in evidence by both parties makes it clear that the defendants did not assert any interest on land west of the IYI NNE and ERURU streams and west of the junction of the farm path with the IYI NNE stream along the path to the main road from Umuahia to Arochuku,and that they conceded this western area to the plaintiffs; but having regard to the proximity of the area to the disputed land, evidence about its ownership and use was both relevant and valuable in determining title to the adjoining land.
There was abundant evidence to justify the judge’s decision that the area claimed by the plaintiffs belongs to them. It is unnecessary to review the evidence in detail, but there are certain points which are of special significance. (1) The defendants agree that the small piece of land on which their village is built-verged brown in the plan No.ESP/2136(LD), Exhibit A-is divided from the rest of the land now in issue by a line of boundary trees. No reason has been suggested why such a boundary should have been demarcated if the land on both sides of it had been the subject of the same grant. (2) According to the plans hardly any of the land in dispute is being actively cultivated. In his closing address for the appellants Chief Williams conceded that they had not established title as original owners of the land and submitted that a grant should be presumed. In our experience an outright grant of land to live on is not uncommon; an outright grant of land for cultivation is unusual but not unheard of, but an outright grant of land which is not required either for living on or for cultivation is so exceptional that it could only be proved by the clearest possible evidence and should never be presumed.
There was evidence, however, that the area verged brown in the plan No. ESP/2136(LD)-Exhibit A-was granted to the defendants absolutely by the plaintiffs’ ancestors. This evidence was given by the plaintiffs themselves; and we are of the opinion that the declaration of title made ought to have excluded this area.
Regarding damages for trespass it was submitted that since the case of the plaintiffs was that two members of the defendants’ community, namely, OKORIE OCHO and EKE OKEREKE, built houses outside the settlement granted to the defendants’ people, these two men only, and not the community, should be liable to trespass.
The answer to this is that these two men were by their acts asserting the title of the community and the community fully supported them, and, in effect, adopted their acts. It seems to us that this is a case in which the trespass can be said to be the trespass of the community.
This appeal fails, and subject to the declaration of title granted and the injunction ordered not extending to the area verged brown on the plan No. ESP/2136(LD) which was in evidence as Exhibit A, it is dismissed with costs assessed at 50 guineas to be paid by the appellants to the respondents.
Other Citation: (1966) LCN/1296(SC)
