Lawrence Onyekaonwu And Ors V Ekwubiri And Ors (1966)

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BAIRAMIAN, J.S.C.

The plaintiffs have appealed from the judgment of Egbuna J. dismissing their claim for a declaration of title to a certain area of land, damages for trespass, and an injunction.

The plaintiffs applied for leave to sue as representing the people of Ebikoro Obinze and put in three affidavits in support of their application, which was granted; and in their Statement of Claim they averred that they sued as representing their village. In their Defence the defendants denied that the plaintiffs were representing the whole of Ebikoro village, and put the plaintiffs to proof of it. There is a good deal on that in the judgment, which concludes with the view that it had not been satisfactorily proved that the plaintiffs had authority to represent the whole kindred of Ebikoro. This view was objected to on appeal, but we need not discuss the soundness of it, for Mr Oputa, on the defendants’ behalf, conceded that upon the evidence the plaintiffs were authorised to sue by the Ebikoro village.

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There remains the point on the learned judge’s approach to the burden of proof.

The judgment refers to what Webber J., as a member of the Full Court, said in Ekpo v. Ita, 11 N.L.R. 68, and quotes what that learned judge said at more length in Kodilinye v. Odu, 2 WA.C.A. 336, at p.337, that-

“The onus lies on the plaintiff to satisfy the Court that he is entitled on the evidence brought by him to a declaration of title. The plaintiff in this case must rely on the strength of his own case and not on the weakness of the defendant’s case. If this onus is not discharged, the weakness of the defendant’s case will not help him and the proper judgment is for the defendant. Such a judgment decrees no title to the defendant, he not having sought the declaration. So if the whole evidence in the case be conflicting and somewhat confused, and there is little to choose between the rival traditional stories the plaintiff fails in the decree he seeks, and judgment must be entered for the defendant.”

Both those cases have been cited from time to time; they state the same principle, and it will be enough to say that it was followed in Nwokafor v. Udegbe. F.S.C. 440/1961 decided in the Federal Supreme Court on 19 February, 1963, and affirmed in the Privy Council on 14 July, 1964 in the appeal by Udegbe. The proposition is undoubtedly correct, that in a case of a claim to land the onus lies firmly upon the claimant. The question in a given case is whether that onus has been discharged.

The judgment under appeal goes on to say that the evidence on acts of ownership is so unsatisfactory that the court cannot grant the relief sought: the learned judge was not satisfied that the plaintiffs were exclusive owners or that the defendants were trespassers, and dismissed the claim. It will be enough to quote these two objections from the additional grounds of appeal, namely:

“1. The learned trial judge erred in law and on the facts in failing to determine the issue whether the plaintiffs were farming on the land in dispute in exercise of their right of ownership (as the plaintiffs alleged) or by the permission of the defendants (as the defendants alleged).

2. Since there was no finding in favour of the defendants’ allegation that it was they who permitted the plaintiffs to farm on the land in dispute, the learned trial judge erred in law and on the facts in giving judgment against the plaintiffs when there was no dispute that they were in possession of the land in dispute and farming the same.”

Again there is no need to go into details because Mr Oputa, very properly and rightly, conceded those objections. Briefly put, the plaintiffs’ case is that the land is their property and they had been farming on the land unchallenged from ancient times. Also briefly put, the defendants’ case is that the plaintiffs’ great grandmother Egbeocha was a lady of the defendants’ village, and because of that relationship the defendants allowed members of the plaintiffs’ family to farm on the land-which is part of the large tract belonging to the defendants-upon receipt of customary gifts-wine, yams, etc.-but after the farming season of 1952 the gifts were not brought; and that the land lay fallow until 1960, when the defendants themselves cultivated it in exercise of their right as owners.

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And that is precisely the cause of the action-the defendants’ coming in to farm the land in 1960.

There is a saying that possession is nine-tenths of the law; and a great grandmother means three generations. There is also section 145 of the Evidence Act, which provides that-

“When the question is whether any person is owner of anything of which he is shown to be in possession, the burden of proving that he is not the owner is on the; person who affirms that he is not the owner.”

Mr Oputa agreed that section 145 was against him, and conceded that the onus was on the defendants to prove that the plaintiffs were on the land with the defendants’ permission, but there was no finding in their favour that they were the owners and entitled to turn the plaintiffs out of the land.

Thus it is conceded that in this case the primary onus of proof on the plaintiffs has been discharged: they have proved sufficient acts of possession to throw the burden of proof on the defendants under section 145; they have established a prima facie case that they are the owners which the defendants must rebut if they are to avoid judgment for the plaintiffs. So much on the claim for a declaration of title.

There is also the claim for trespass. The rule is that the person in possession can maintain trespass against any one who cannot show a better title. The defendants had the duty to prove that they were entitled to go into possession; but there is no finding that they were.

The law was, with respect, misunderstood and misapplied. It is not a case in which we can undertake to make the findings of fact ourselves. Moreover, there was mention in the Defence of certain arbitration proceedings, but when the 3rd witness for the plaintiffs was asked to speak about it he was stopped upon objection made by defendants’ counsel that the plaintiffs had not mentioned the arbitration in their Statement of Claim, and that was a mistake. There must be a retrial, and in the circumstances of this case it must now be on the basis that the onus lies on the defendants and they are the party to begin; and the question whether the plaintiffs were rightly suing on behalf of Ebikoro village of Obinze as a whole is not to be re-agitated.

The appeal is allowed; the judgment of Egbuna J. dated 14 June, 1963 in the High Court of Eastern Nigeria (Owerri Judicial Division) Suit HOW/17/63 is set aside and the case is sent back for retrial before another judge with the defendants as having the onus to begin; the plaintiffs are allowed one hundred and twenty guineas as costs of appeal; and the costs in the court below shall abide the event.

Other Citation: (1966) LCN/1345(SC)